Showing papers by "Cass R. Sunstein published in 1999"

The Law of Group Polarization

Abstract: In a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments. For example, people who are opposed to the minimum wage are likely, after talking to each other, to be still more opposed; people who tend to support gun control are likely, after discussion, to support gun control with considerable enthusiasm; people who believe that global warming is a serious problem are likely, after discussion, to insist on severe measures to prevent global warming. This general phenomenon -- group polarization -- has many implications for economic, political, and legal institutions. It helps to explain extremism, "radicalization," cultural shifts, and the behavior of political parties and religious organizations; it is closely connected to current concerns about the consequences of the Internet; it also helps account for feuds, ethnic antagonism, and tribalism. Group polarization bears on the conduct of government institutions, including juries, legislatures, courts, and regulatory commissions. There are interesting relationships between group polarization and social cascades, both informational and reputational. Normative implications are discussed, with special attention to political and legal institutions.

Availability Cascades and Risk Regulation

Abstract: An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception of increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs - activists who manipulate the content of public discourse - strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they bring harm, which suggests a need for safeguards. Focusing on the role of mass pressures in the regulation of risks associated with production, consumption, and the environment, Professor Timur Kuran and Cass R. Sunstein analyze availability cascades and suggest reforms to alleviate their potential hazards. Their proposals include new governmental structures designed to give civil servants better insulation against mass demands for regulatory change and an easily accessible scientific database to reduce people's dependence on popular (mis)perceptions.

Second‐order decisions

Abstract: Analyse des strategies des decisions de second-ordre qui consistent a simplifier les problemes et les obligations cognitives relevant des decisions de premier ordre, et qui interviennent soit avant soit pendant le processus de la decision ultime. Distinguant trois degres dans les decisions de second-ordre (high-low, low-low, low-high), et examinant les pratiques tant individuelles qu'institutionnelles, l'A. etudie la methode de delegation a l'oeuvre dans les cours de droit commun concernant la reconnaissance de la responsabilite (informationnelle ou morale), la defense de l'egalite et de la justice (au sein de la famille comme dans les services administratifs)

Private Broadcasters and the Public Interest: Notes Toward a 'Third Way'

Abstract: The communications revolution has thrown into question the value of public interest obligations for television broadcasters. But the distinctive nature of this unusual market--with "winner- take-all" features, with viewers as a commodity, with pervasive externalities from private choices, and with market effects on preferences as well as the other way around--justifies a continuing role for government regulation in the public interest. At the same time, regulation best takes the form, not of anachronistic command-and-control regulation, but of (1) disclosure requirements, (2) economic incentives ("pay or play"), and (3) voluntary self-regulation through a privately administered code. Some discussion is devoted to free speech and antitrust issues, and to the different possible shapes of liability and property rules in this context, treating certain programming as a public "good" akin to pollution as a public bad.

Must Formalism Be Defended Empirically

Abstract: This paper urges that one of the great, quasi-theological debates in legal theory depends on answers to empirical questions. The debate is whether courts should be "formalistic," that is, whether they should interpret statutory terms in accordance with their literal meaning, or whether they should be permitted to reject literal meaning by reference to "purposes," or canons of constructions, or considerations of policy. Any good answer turns on what approach will minimize decision costs and error costs, and that depends on empirical judgments about the likely performance of courts and legislatures. There is discussion as well of information-eliciting and market-mimicking default rules in the interpretation of contracts and statutes.

One Case at a Time: Judicial Minimalism on the Supreme Court

Abstract: Part 1 Argument: leaving things undecided democracy-promoting minimalism decisions and mistakes minimalism's substance. Part 2 Applications: no right to die? affirmative action casuistry sex and sexual orientation the first amendment and new technologies. Part 3 Antagonists: width? Justice Scalia's democratic formalism depth? from theory to practice conclusion - minimalism and democracy.

Standing for Animals

Abstract: From the legal point of view, there is nothing at all new or unfamiliar in the idea of "animal rights;" on the contrary, it is entirely clear that animals have legal rights. Indeed, the rise of legal rights for animals has been one of the most distinctive features of the last thirty years of federal statutory law. An investigation of the question of standing helps show that the real issues involve problems of enforcement and scope. Human beings often do and should have standing to protect animal rights; animals lack such standing, but only because Congress has failed to give them standing. Animal welfare statutes should be amended to grant a private cause of action, to human beings and animals alike, against those who violate them, so as to allow private claimants to supplement agency enforcement efforts. This modest step could do a great deal to prevent the unjustified suffering of animals.

Are Juries Less Erratic than Individuals? Deliberation, Polarization, and Punitive Damages

Abstract: How does jury deliberation affect the pre-deliberation judgments of individual jurors? Do deliberating juries reduce or eliminate the erratic and unpredictable punitive damage awards that have been observed with individual jurors? In this paper we make progress on these two questions, in part by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that juries did not produce less erratic and more predictable awards than individuals, but actually made the problem worse, by making large awards much larger and small awards smaller still, even for the same case. Thus, a key effect of deliberation is often to polarize individual judgments, a pattern that has been found in many other group decision making contexts. This finding of polarization--the first of its kind in the particular context of punitive damage awards--has important implications for jury awards involving both punitive and compensatory damages, and raises questions about the common belief that groups, and in particular juries, generally make better decisions than individuals.

Cognition and Cost-Benefit Analysis

Abstract: Cost-benefit analysis is often justified on conventional economic grounds, as a way of preventing inefficiency. But it is most plausibly justified on cognitive grounds -- as a way of counteracting predictable problems in individual and social cognition. Poor judgments, by individuals and societies, can result from certain heuristics; from informational and reputational "cascades"; from thinking processes in which benefits are "on screen" but costs are not; from ignoring systemic effects of one-shot interventions; from seeing cases in isolation; and from intense emotional reactions. Cost-benefit analysis serves as a corrective to these cognitive problems. In addition, it is possible to arrive at an "incompletely theorized agreement" on cost-benefit analysis -- an agreement that does not depend on controversial arguments (e.g., the view that "willingness to pay" should be the basis for all social outcomes) and that can attract support from a variety of reasonable views. There is discussion as well of the role of "distributional weights" and other equitable factors in cost-benefit analysis. The conclusion is that the best argument for cost-benefit analysis is rooted in cognitive psychology and behavioral economics.

Do People Want Optimal Deterrence

Abstract: This paper tests the question whether people favor optimal deterrence policies. More particularly, it asks whether people are willing to increase penalties when the probability of detection is low, or to decrease penalties when the probability of detection is high. Two experiments are reported, suggesting that people do not spontaneously think in terms of optimal deterrence, and that people would have objections to policies based on the goal of optimal deterrence. Institutional implications are briefly discussed.

Second-Order Decisions

Abstract: People are often reluctant to make decisions by calculating the costs and benefits of alternative courses of action in particular cases. Knowing, in addition, that they may err, people and institutions often resort to second order strategies for reducing the burdens of, and risk of error in, first order decisions. They make a second order decision when they choose one from among such possible strategies. They adopt rules or presumptions; they create standards; they delegate authority to others; they take small steps; they pick rather than choose. Some of these strategies impose high costs before decision but low costs at the time of ultimate decision; others impose low costs both before and at the time of ultimate decision; still others impose low costs before decision while exporting to others the high costs at the time of decision. We assess these second-order strategies and provide grounds for choosing among them in both legal and nonlegal contexts, by exploring the extent to which they minimize the overall costs of decision and costs of error. We also attempt to cast light on political, legal, and ethical issues raised by second-order decisions.

Is the Clean Air Act Unconstitutional

Abstract: When the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternate approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives - that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it. If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations. The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.

Must Formalism Be Defended Empirically

Abstract: In the Nazi period, German judges rejected formalism.' They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task "only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized."' Thus, for example, the German Supreme Court concluded that a law forbidding "sexual intercourse" between Gernans and Jews is

Is the Clean Air Act Unconstitutional

Abstract: When the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternate approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives - that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it. If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations. The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.

Professors and Politics

Abstract: In the last few years, a number of law professors have been involved in some highly public issues, not least through the circulation of letters with multiple signatories, expressing a view on some issue of national importance. It is not clear that there is anything like a trend in this direction; certainly teachers of law have participated in what some would consider "partisan politics" for many decades. But Neal Devins is right to raise questions about the legitimacy and conse2 quences of political involvement by academics. It is also interesting to consider the relationship between such involvement and academic freedom; if law professors are not concerned with the pursuit of truth, the case for academic freedom is certainly weakened. The Clinton impeachment provides the immediate motivation for Devins's discussion. I offer a few remarks here on academic involvement in the impeachment debate, with a few references to my own experience, 3 and

Free Markets and Social Justice

Abstract: The newest work from one of the most pre-eminent voices writing in the legal/political arena today, this important book presents a new conception of the relationship between free markets and social justice. The work begins with foundations--the appropriate role of existing "preferences," the importance of social norms, the question whether human goods are commensurable, and issues of distributional equity. Continuing with rights, the work shows that markets have only a partial but instrumental role in the protection of rights. The book concludes with a discussion on regulation, developing approaches that would promote both economic and democratic goals, especially in the context of risks to life and health. Free Markets and Social Justice develops seven basic themes during its discussion: the myth of laissez-faire; preference formation and social norms; the contextual character of choice; the importance of fair distribution; the diversity of human goods; how law can shape preferences; and the puzzles of human rationality. As the latest word from an internationally-renowned writer, this work will raise a number of important questions about economic analysis of law in its conventional form.

The First Amendment

Abstract: analysis of the importance of the governmental interest is insufficient, regardless of whether the court applies a standard of "compelling interest" or simply "substantial or important" interest. It is always possible to inflate by abstraction the interest on either side of a statute the burning of a draft card becomes the interest in the national defense or the societal interest in freedom of speech. The Court should engage in the more particularized inquiry of whether the application of the rule to this religious or expressive activity is necessary to further the social interest. The importance of the government interest can best be evaluated in that incremental inquiry. In the "as applied" challenge, the question is not "why did you pass the law?" but "why is it being applied to this expression or religious exercise?" Since the government may have the power to exempt 171. Turner, 114 S. Ct. 2445 at 2469 (1994).