Showing papers by "Cass R. Sunstein published in 2003"

Libertarian Paternalism Is Not an Oxymoron

Abstract: The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.

Terrorism and Probability Neglect

Abstract: When strong emotions are involved, people tend to focus on the badness of the outcome, rather than on the probability that the outcome will occur. The resulting “probability neglect” helps to explain excessive reactions to low-probability risks of catastrophe. Terrorists show a working knowledge of probability neglect, producing public fear that might greatly exceed the discounted harm. As a result of probability neglect, people often are far more concerned about the risks of terrorism than about statistically larger risks that they confront in ordinary life. In the context of terrorism and analogous risks, the legal system frequently responds to probability neglect, resulting in regulation that might be unjustified or even counterproductive. But public fear is itself a cost, and it is associated with many other costs, in the form of “ripple effects” produced by fear. As a normative matter, government should reduce even unjustified fear, if the benefits of the response can be shown to outweigh the costs.

Why Societies Need Dissent

Abstract: Introduction: Conformity and Dissent 1 Doing What Others Do 2 Obeying (and Disobeying) the Law 3 Traveling in Herds 4 What Will the Neighbors Think? 5 Free Speech 6 The Law of Group Polarization 7 The Framers' Greatest Contribution 8 Are Judges Conformists Too? 9 Affirmative Action in Higher Education Conclusion: Why Dissent? Notes Index

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

Abstract: For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

Libertarian Paternalism is Not an Oxymoron

Abstract: The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people's preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.

Beyond the precautionary principle

Abstract: The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing— forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle. Why is the precautionary principle widely seen to offer real guidance? The answer lies in identifiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called “system neglect,” which involves a failure to attend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the precautionary principle should be promoted through other, more effective methods. * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. I am grateful to valuable comments from Peter Dorman, Jack Knetsch, Saul Levmore, Eric Posner, Indra Spiecker, and Adrian Vermeule, and from participants in the Midwest Faculty Seminar. I am also grateful to Martha Nussbaum for helpful discussions.

Lives, Life-Years, and Willingness to Pay

Abstract: In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of "value of a statistical life" (VSL), currently assessed at about $6.1 million. Many analysts, however, have suggested that the government should rely instead on the "value of a statistical life year" (VSLY), in a way that would likely result in significantly lower benefits calculations for elderly people, and significantly higher benefits calculations for children. I urge that the government should indeed focus on life-years rather than lives. A program that saves young people produces more welfare than one that saves old people. The hard question involves not whether to undertake this shift, but how to monetize life-years, and here willingness to pay (WTP) is generally the place to begin. Nor does a focus on life-years run afoul of ethical limits on cost-benefit analysis. It is relevant in this connection that every old person was once young, and that if all goes well, young people will eventually be old. In fact, a focus on statistical lives is more plausibly a form of illicit discrimination than a focus on life-years, because the idea of statistical lives treats the years of older people as worth far more than the years of younger people. Discussion is also devoted to the uses and limits of the willingness to pay criterion in regulatory policy, with reference to the underlying welfare goal and to the nature of moral and distributional constraints on cost-benefit balancing.

What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage

Abstract: The Supreme Court's decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution.

The Cost-Benefit State: The Future of Regulatory Protection

Abstract: Over the past two decades, applying cost benefit analysis (CBA) to new regulations has become accepted practice. Many of the major issues being debated today concern how - not whether - agencies use CBA to carry out their mandates. This timely guide The Cost-Benefit State The Future of Regulatory Protection by Cass R. Sunstein examines new trends in CBA and how courts are responding in contested cases. The book analyzes the legality of actions taken by the EPA, OSHA, CPSC, and other agencies. Highly readable, the guide explores conflicting interests surrounding such complex issues as: * Setting a value on human life and health * The developing law of judicial review of CBA and Risk Assessment * Requiring agencies to take account of costs, to exempt trivial risks, and to consider the substitute risks introduced by regulation * Minimizing the influence of special interest groups * Protecting future generations' interests Updated in light of the September 11 attacks, the book focuses special attention on airport security, bioterrorism, recent regulatory actions of the Bush Administration, and other timely issues. A well-recognized authority on law and regulatory policy, Professor Sunstein uses concrete examples and offers common sense approaches to balancing conflicting interests. He points out the inherent danger of overreacting to low-risk threats and neglecting high-risk threats. Valuable tables are included throughout the text, such as a chart detailing the value of human life set by various federal agencies. The fact-filled appendix features information on costs and benefits for ozone and particulates, two of the most highly publicized air pollutants, and a primer for citizens and lawyers, showing dose-response curves involving the possible effects of cancer-causing substances. Also included are the OMB best practices guidelines, which have had a large influence in the federal government, and which are likely to have a larger effect in the future. Lawyers, economists, political scientists, and policy-makers, as well as members of the general public, will find Professor Sunstein's insights invaluable in following the ongoing debates over the best approach for reducing environmental, health, and safety risks, including the risks posed by terrorism. This important guide will be of particular value to administrative and government lawyers, as well as those in the environmental and health law fields.

Why Does the American Constitution Lack Social and Economic Guarantees

Abstract: Why does the American Constitution lack certain social and economic guarantees, which appear in most contemporary constitutions? This essay explores four possible answers: chronological, cultural, institutional, and realist. The chronological explanation emphasizes the fact that in the late eighteenth century, social and economic rights simply were not on the viewscreen for constitution-makers. The point is correct, but as a complete account, the chronological explanation fails for the simple reason that constitutional meaning changes over time. The institutional explanation emphasizes that Americans typically see constitutional rights not as mere goals or aspirations, but as pragmatic instruments for judicial enforcement. The difficulty with the institutional explanation is that social and economic rights can, in fact, be enforced judicially. The cultural explanation sees the absence of social and economic rights as part of the general failure of socialist movements in the United States ("American exceptionalism"). The problem with this explanation is that social and economic rights can in fact coexist with a market economy. The realist explanation places a spotlight on the underappreciated fact that the United States Supreme Court came very close, in the 1960s and 1970s, to recognizing social and economic rights under the Constitution. The Court's refusal to recognize such rights was largely a result of the presidential election of 1968 and in particular of four critical appointments by President Nixon. This is an important source of "American exceptionalism" in the domain of social and economic rights. Here as elsewhere, there is a possibility of multiple equilibria, and with a small difference or two, the United States might well have had an equilibrium that included social and economic rights.

Interpretation and Institutions

Abstract: To evaluate theories of interpretation, it is necessary to focus on institutional considerations—to ask how actual judges would use any proposed approach, and to investigate the possibility that an otherwise appealing approach will have unfortunate dynamic effects on private and public institutions. Notwithstanding this point, blindness to institutional considerations is pervasive. It can be found in the work of early commentators on interpretation, including that of Jeremy Bentham; in the influential work of H.L.A. Hart, Ronald Dworkin, and Henry Hart and Albert Sacks; and in much contemporary writing. This blindness to institutional considerations creates serious problems for the underlying theories. The problems are illustrated with discussions of many disputed issues, including the virtues and vices of formalism; the current debate over whether administrative agencies should have greater interpretive freedom than courts; and the roles of text, philosophy, translation, and tradition in constitutional law. In many cases, an understanding of institutional capacities and dynamic effects should enable diverse people, with different views about ideal legal interpretation, to agree on what actual legal interpretation should entail. “The courts are the capitals of law’s empire, and judges are its princes . . . .”

Beyond the Precautionary Principle

Abstract: The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing - forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle. Why is the precautionary principle widely seen to offer real guidance? The answer lies in identifiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called "system neglect," which involves a failure to attend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the precautionary principle should be promoted through other, more effective methods.

The Rights of Animals

Abstract: There are nearly sixty million domestic dogs in the United States, owned by over thirty-six million households. Over half of these households give Christmas presents to their dogs. Millions of them celebrate their dog's birthday. If a family's dog were somehow forced to live a short and painful life, the family would undoubtedly feel some combination of rage and grief. What can be said about dog owners can also be said about cat owners, who are more numerous still. But through their daily behavior, people who love those pets, and greatly care about their welfare, help ensure short and painful lives for millions, even billions of animals that cannot easily be distinguished from dogs and cats. Should people change their behavior? Should the law promote animal welfare? Should animals have legal rights? To answer these questions, we need to step back a bit. Many people think that the very idea of animal rights is implausible. Suggesting that animals are neither rational nor self-aware, Immanuel Kant thought of animals as "man's instruments," deserving protection only to help human beings in their relation to one another: "[H]e who is cruel to animals becomes hard also in his dealings with men."'1 Jeremy Bentham took a different approach, suggesting that mistreatment of animals was akin to slavery and racial discrimination:

What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage

Abstract: The Supreme Court’s decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution. * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. I am grateful to Mary Anne Case, Carolyn Frantz, Richard A. Posner, Geoffrey Stone, and Adrian Vermeule for valuable comments; special thanks to Case, Frantz, and Vermeule for discussions. I am also grateful to Sarah A. Sulkowski for superb research assistance. In 1900, Mr. Dooley famously said that “[n]o matter whether th’ constitution follows th’ flag or not, th’ supreme court follows th ‘ilection returns.” The Court doesn’t really do that. But members of the Supreme Court live in society, and they are inevitably influenced by what society appears to think. My principal suggestion here is that the Court’s remarkable decision in Lawrence v. Texas is best seen as a successor to Griswold v. Connecticut: judicial invalidation of a law that had become hopelessly out of touch with existing social convictions. So understood, Lawrence, like Griswold, reflects an American variation on the old English idea of desuetude. Put too simply, the basic idea is that when constitutionally important interests are at stake, due process principles requiring fair notice, and banning arbitrary action, are violated when criminal prosecution is brought on the basis of moral judgments lacking public support, as exemplified by exceedingly rare enforcement activity. In Griswold, it will be recalled, the Court invalidated a Connecticut law forbidding married people to use contraceptives—a law that was ludicrously inconsistent with public convictions in Connecticut and throughout the nation. Griswold was decided in the midst of a substantial national rethinking of issues of sex and morality. Whatever the outcome of that rethinking, it was clear, by 1965, that reasonable people would no longer support bans on the use of contraceptives within marriage. In this respect, Griswold was quite similar to Reed v. Reed. There the Court struck down an Idaho statute giving a preference to men over women in the administration of estates of decedents who had died intestate—a law that was unquestionably a holdover from views about sex roles that were widely regarded as obsolete. Reed was decided in the midst of a substantial rethinking of gender roles; whatever the outcome of that rethinking, it was clear, by 1971, that a flat presumption in favor of men over women in employment would no longer be acceptable in principle. Lawrence belongs in the same family. In the area of Peter Dunne, The Supreme Court’s Decisions, in Mr. Dooley’s Opinions 26 (1900). 2 Robert Dahl made this argument nearly a half-century ago, before much of the work of the Warren Court. Notwithstanding the passage of decades, his argument stands up well. See Robert Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 Journal of Public Law 279 (1957). 3 123 S. Ct. 2472 (2003). 4 381 U.S. 479 (1965). 5 404 U.S. 71 (1971). 6 I specify this brief statement below. 7 381 U.S. 479 (1965). 8 404 U.S. 71 (1971). 9 The Court has shown special sensitivity to changing public convictions in the death penalty context. Furman v. Georgia, 408 US 238 (1972), invalidated certain capital sentences, in a complex set of opinions that seemed to presage the end of capital punishment in the United States. At least in retrospect, Furman is best seen as a kind of “remand” to state legislatures, asking for a new assessment of whether capital punishment was consistent with contemporary values. The result of the “remand” was a new affirmation of public support for capital punishment, to which the Court subsequently deferred, see Gregg v. Georgia, 428 US 153 (1976). In Coker v. Georgia, 433 U.S. 584 (1977), and Enmund v. Florida, 458 U.S. 782, 789-793 (1982), the Court relied heavily on contemporary practices in striking down death sentences for rape and for a defendant who did not take or intend to take life.More recently, the Court ruled that the Constitution forbids application to capital punishment to the mentally retarded, see Atkins v. Virginia, 536 US 304 (2002); in so ruling, the Court relied heavily on what it saw as changing social values. In a theme echoed in Lawrence, the Court wrote, A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was

Libertarian paternalism is not an oxymoron

Abstract: The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people's preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.