Showing papers by "Cass R. Sunstein published in 2005"

Laws of Fear: Beyond the Precautionary Principle

Abstract: Acknowledgements Introduction Part I. Problems: 1. Precautions and paralysis 2. Behind the precautionary principle 3. Worst case scenarios 4. Fear as wildfire Part II. Solutions: 5. Reconstructing the precautionary principle - and managing fear 6. Costs and benefits 7. Democracy, rights, and distribution 8. Libertarian paternalism with Richard Thaler 9. Fear and liberty A concluding note: fear and folly Index.

Moral heuristics. Commentaries. Author's reply

Abstract: With respect to questions of fact, people use heuristics - mental shot-cuts, or rules of thumb, that generally work well, but that also lead to systematic errors. People use moral heuristics too - moral short-cuts, or rules of thumb, that lead to mistaken and even absurd moral judgments. These judgments are highly, relevant not only to morality, but to law and politics as well. Examples are given from a number of domains, including risk regulation, punishment, reproduction and sexuality, and the act/omission distinction. In all of these contexts, rapid, intuitive judgments make a great deal of sense, but sometimes produce moral mistakes that are replicated in law and policy. One implication is that moral assessments ought not to lie made by appealing to intuitions about exotic cases and problems; those intuitions are particularly unlikely to be reliable. Another implication is that some deeply held moral judgments are unsound if they are products of moral heuristics. The idea of error-prone heuristics is especially controversial in the moral domain, where agreement on the correct answer may be hard to elicit; but in many contexts, heuristics are at work and they do real damage. Moral framing effects, including those in the context of obligations to future generations, are also discussed.

Debiasing through Law

Abstract: In many settings, human beings are boundedly rational. A distinctive and insufficiently explored legal response to bounded rationality is to attempt to "debias through law," by steering people in more rational directions. In many important domains, existing legal analyses emphasize the alternative approach of insulating outcomes from the effects of boundedly rational behavior, often through blocking private choices. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in the very different approach of debiasing through law by reducing or even eliminating people's boundedly rational behavior. In important contexts, these efforts to debias through law can avoid the costs and inefficiencies associated with regulatory approaches that take bounded rationality as a given and respond by attempting to insulate outcomes from its effects. This paper offers a general account of how debiasing through law does or could work to address legal questions across a range of areas, from consumer safety law to corporate law to property law. Discussion is also devoted to the risks of government manipulation and overshooting that are sometimes raised when debiasing through law is employed.

Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs

Abstract: Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.

Animal Rights: Current Debates and New Directions

Abstract: Introduction: What Are Animal Rights? PART I: CURRENT DEBATES 1. Animal Rights, One Step At A Time 2. Animal Rights: Legal, Philosophical, and Pragmatic Perspectives 3. Ethics Beyond Species and Beyond Instincts: A Reply to Richard Posner 4. Eating Meat and Eating People 5. Taking Animal Interests Seriously 6. Animals As Objects, or Subjects, of Rights 7. Drawing Lines 8. All Animals Are Not Equal: The Interface Between Scientific Knowledge and Legislation for Animal Rights PART II: NEW DIRECTIONS 9. Foxes in the Hen House: Animals, Agribusiness, and the Law 10. A New Property Status for Animals: Equitable Self-Ownership 11. Can Animals Sue? 12. Of Mice and Men: A Feminist Fragment on Animal Rights 13. Animal Rights and the Values of Nonhuman Life 14. "Beyond Compassion and Humanity": Justice for Non-Human Animals

Are Poor People Worth Less Than Rich People? Disaggregating the Value of Statistical Lives

Abstract: Each government agency uses a uniform figure to measure the value of a statistical life. This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, the value of statistical lives should vary across risks. More controversially, the value of a statistical life should vary across individuals - even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Should government use a higher VSL for programs that disproportionately benefit the wealthy - and lower VSL for programs that disproportionately benefit the poor? A serious complication here is that sometimes the beneficiaries of regulation pay only a fraction or even none of its cost; when this is so, the appropriate VSL for poor people might be higher, on distributional grounds, than market evidence suggests. An understanding of this point has implications for foundational issues about government regulation, including valuation of persons in poor and wealthy nations.

Chevron Step Zero

Abstract: The most famous case in administrative law, Chevron USA v Natural Resources Defense Council, Inc, has come to be seen as a counter-Marbury, or even a McCulloch v Maryland, for the administrative state But in the last period, new debates have broken out over Chevron Step Zero - the initial inquiry into whether Chevron applies at all These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question In the last decade, Justice Breyer's case-by-case view has enjoyed significant victories Two trilogies of cases - one explicitly directed to the Step Zero question, another implicitly so directed - suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law These problems can be reduced through two steps First, courts should adopt a broader understanding of Chevron's scope Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved

The Availability Heuristic, Intuitive Cost-Benefit Analysis, and Climate Change

Abstract: Because risks are on all sides of social situations, it is not possible to be "precautionary" in general. The availability heuristic ensures that some risks stand out as particularly salient, whatever their actual magnitude. Taken together with intuitive cost-benefit balancing, the availability heuristic helps to explain differences across groups, cultures, and even nations in the assessment of precautions to reduce the risks associated with climate change. There are complex links among availability, social processes for the spreading of information, and predispositions. If the United States is to take a stronger stand against climate change, it is likely to be a result of available incidents that seem to show that climate change produces serious and tangible harm.

Irreversible and Catastrophic

Abstract: As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an "option" to prevent the harm at a later date - the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios - the Catastrophic Harm Precautionary Principle. This principle is based on two foundations: an appreciation of people's failure to appreciate the expected value of truly catastrophic losses; and an understanding of the distinction between risk and uncertainty. The Irreversible Harm precautionary Principle must, however, be applied with a recognition that irreversible harms are sometimes on all sides of social problems, and that such harms may be caused by regulation itself. The Catastrophic Harm Precautionary Principle must be applied with an understanding that in some cases, eliminating the worst-case scenario causes far more serious problems than it solves. The normative arguments are illustrated throughout with reference to the problem of global warming; other applications include injunctions in environmental cases, genetic modification of food, protection of endangered species, and terrorism.

Administrative Law Goes to War

Abstract: Consider the following cases: (1) The President initiates military action against Iraq in 2003, contending that the best evidence suggests that Saddam Hussein "aided the terrorist attacks that occurred on September 11, 2001." (2) The President initiates military action against Iran in 2006, contending that the Central Intelligence Agency can show that Iran's government has "harbored" members of al Qaeda since 1999. (1) (3) The President initiates military action against North Korea, contending that the Central Intelligence Agency can show that North Korea's government has "assisted" al Qaeda financially since 2003. (4) The President authorizes the use of force to arrest and detain citizens of France, who are brought to the United States and imprisoned because they knowingly provided significant financial assistance to organizations that supported al Qaeda in 2000. (2) (5) The President detains an American citizen captured at an American airport, contending that the citizen "aided the terrorist attacks that occurred on September 11, 2001." He plans to detain the citizen indefinitely. (6) The President orders the killing of an American citizen at an American airport, contending that the citizen "aided the terrorist attacks that occurred on September 11, 2001." Is there a body of principles that can help to evaluate the legality of these actions under the 2001 Authorization for Use of Military Force (3) (AUMF)? I suggest that there is, and that it can be found in a single area: administrative law. Most obviously, presidential action under the 2001 AUMF, or any imaginable AUMF, should be subject to the principles that have emerged in the wake of the Supreme Court's extraordinarily influential decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (4) As we shall see, the logic of Chevron applies to the exercise of executive authority in the midst of war. (5) Professors Curtis Bradley and Jack Goldsmith make an important contribution to our understanding of presidential power during wartime. (6) But I believe that their analysis would be clearer, simpler, and more straightforward if they focused more systematically on administrative law principles. (7) A special advantage of this approach is that it imposes the right incentives on all those involved, including Congress. My general conclusion is that the President should have a great deal of discretion in interpreting ambiguities in the AUMF, subject to a constraint of reasonableness. The principal qualification is that if the President is infringing on constitutionally sensitive interests, the AUMF must be construed narrowly, whatever the President says. Under this framework, the President plainly has the authority to act in cases (1), (2), and (4) above. He lacks that authority in case (6). For reasons to be explored, cases (3) and (5) are extremely difficult. This framework, rooted in administrative law, is properly used both by reviewing courts (subject to any justiciability constraints (8)) and by members of the Executive Branch advising the President about the legality of proposed courses of action. Indeed, this framework furnishes the appropriate principles not only for understanding any authorization for the use of force, but also for evaluating all exercises of presidential power when Congress has authorized the President to protect the nation's security. (9) I. PRESIDENTIAL POWER IN CHEVRON'S SHADOW Chevron creates a two-step inquiry. The first question is whether Congress has directly decided the precise question at issue; the second is whether the agency's interpretation is reasonable. (10) Let us see how these ideas apply to the AUMF. The analysis is somewhat technical, but the conclusion is not: the President has broad authority to construe ambiguities as he sees fit. A. Chevron Step Zero (11) In the aftermath of Chevron, the Court has emphasized the need to ask a threshold question: do Chevron's deference principles apply at all? …

Administrative Law Goes to War

Abstract: What are the President's war-making powers? This essay, a brief reply to an article by Curtis Bradley and Jack Goldsmith, contends that the answer lies in administrative law, at least in the first instance. The President's authority often depends on what Congress has said, and under established principles, the President has a great deal of power to interpret ambiguities in congressional enactments - in war no less than in peace. The principal qualifications involve interpretive principles, also found in administrative law, that call for a narrow construction of presidential authority to invade constitutionally sensitive interests. The relevant arguments are illustrated throughout with reference to the 2001 authorization for the use of military force in response to the attacks of September 11; the authorization may or may not include the power to make war on Iraq and Afghanistan, to use force against those suspected of giving financial aid to terrorist organizations, and to detain American citizens.

Cost-benefit analysis and the environment

Abstract: In the United States, cost-benefit analysis (CBA) is in the ascendancy. For over twenty years, American presidents have required agencies to perform CBA for major regulations; indeed, they have told agencies to regulate only if the benefits of regulation justify its costs. Congress has also shown considerable interest in CBA, most prominently in the Safe Drinking Water Act, which asks agencies to produce quantitative assessments of both costs and benefits. For their part, federal courts have adopted a series of principles that promote CBA, saying that if Congress has not been clear, agencies may consider costs, take account of the substitute risks introduced by regulation, and exempt trivial risks from governmental control. In its enthusiasm for cost-benefit analysis, the United States provides a sharp contrast to Europe, which has shown intense interest in a quite different organizing principle for environmental protection: the Precautionary Principle. According to the Precautionary Principle, regulation is required even in the face of scientific uncertainty—even if it is not yet clear that environmental risks are serious. A central point of the Precautionary Principle is to recognize the limitations of existing knowledge and to protect against harm that cannot yet be established as such. Cost-benefit analysis and the Precautionary Principle can lead in

Beyond Marbury: The Executive's Power to Say What the Law is

Abstract: Under Marbury v. Madison, it is emphatically the province and duty of the judicial department to say what the law is. But as a matter of actual practice, statements about what the law is are often made by the executive department, not the judiciary. In the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron v. Natural Resources Defense Council, the most-cited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. But the theory that underlies Chevron remains poorly understood, and in the last two decades, significant efforts have been made to limit the executive's interpretive authority. In general, these efforts should be resisted. The principal qualification involves certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.

Debiasing through Law

Abstract: In many settings, human beings are boundedly rational. A distinctive and insufficiently explored legal response to bounded rationality is to attempt to "debias through law," by steering people in more rational directions. In many important domains, existing legal analyses emphasize the alternative approach of insulating outcomes from the effects of boundedly rational behavior, often through blocking private choices. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in the very different approach of debiasing through law by reducing or even eliminating people's boundedly rational behavior. In important contexts, these efforts to debias through law can avoid the costs and inefficiencies associated with regulatory approaches that take bounded rationality as a given and respond by attempting to insulate outcomes from its effects. This paper offers a general account of how debiasing through law does or could work to address legal questions across a range of areas, from consumer safety law to corporate law to property law. Discussion is also devoted to the risks of government manipulation and overshooting that are sometimes raised when debiasing through law is employed.

On Discounting Regulatory Benefits: Risk, Money, and Ingergenerational Equity

Abstract: There is an elaborate debate over the practice of “discounting” regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that, as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. Both sides neglect a simple point: Once government has converted regulatory benefits into monetary equivalents, what is being discounted is merely money, not regulatory benefits as such. No one seeks to discount health and life—only the money that might be used to reduce threats to these goods. To be sure, cost-benefit analysis with discounting can produce serious problems of intergenerational equity; but those problems, involving the obligations of the present to the future, require an independent analysis. Failing to discount will often hurt, rather than help, future generations. Solutions to the problem of intergenerational equity should not be conflated with the question whether to discount. Suppose that a proposed regulation will not produce benefits for some period of years; suppose too that an agency is asked to engage in some form of cost-benefit analysis before it proceeds with the regulation. Costs will be discounted, on the theory that a dollar today is worth more than a dollar in twenty years. But what should the agency do about future benefits, such as improved health or averted deaths? Should these too be "discounted," or should a death in 2025 be treated the same as a death today? In terms of ultimate outcomes, the choice matters a great deal. If an agency chooses not to discount, the benefits calculation will shift dramatically from what it would be if the agency chose a discount rate of, for example, 10%. If a human life is valued at $8 million, and no discount rate is applied, a life saved 100 years from now is * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. ** University of Chicago Law School, J.D. expected 2006. Thanks to Blake Roberts for excellent research assistance; to Matthew Adler, Robert Hahn, Bernard Harcourt, John Morrall, Eric Posner, Richard Posner, and David Weisbach for valuable comments; and to participants in an exceedingly helpful work-inprogress lunch at the University of Chicago Law School.

Boundedly Rational Borrowing: A Consumer's Guide

Abstract: Excessive borrowing, no less than insufficient savings, might be a product of bounded rationality. Identifiable psychological mechanisms are likely to contribute to excessive borrowing; these include myopia, procrastination, optimism bias, "miswanting," and what might be called cumulative cost neglect. Suppose that excessive borrowing is a significant problem for some or many; if so, how might the law respond? The first option involves weak paternalism, through debiasing and other strategies that leave people free to choose as they wish. Another option is strong paternalism, which forecloses choice. Because of private heterogeneity and the risk of government error, regulators should have a firm presumption against strong paternalism, and hence the initial line of defense against excessive borrowing consists of information campaigns, debiasing, and default rules. On imaginable empirical findings, however, there may be a plausible argument for strong paternalism in the form of restrictions on various practices, perhaps including "teaser rates" and late fees. The two larger themes, applicable in many contexts, involve the importance of an ex post perspective on the consequences of consumer choices and the virtues and limits of weak forms of paternalism, including debiasing and libertarian paternalism.

A New Progressivism

Abstract: Based on an address for a conference on Law and Transformation in South Africa, this paper explores problems with two twentieth-century approaches to government: the way of markets and the way of planning. It urges that the New Progressivism simultaneously offers (1) a distinctive conception of government's appropriate means, an outgrowth of the late-twentieth-century critique of economic planning, and (2) a distinctive understanding of government's appropriate ends, an outgrowth of evident failures with market arrangements and largely a product of the mid-twentieth-century critique of laissez faire. It emphasizes the need to replace bans and commands with appropriate incentives, and to attend to social norms and social meanings in leading human behavior in welfare-promoting directions. The ultimate goal is to promote some of the goals associated with America's New Deal and Europe's social democracy, but without using the crude, inflexible, and often counterproductive methods associated with those approaches. Some attention is devoted to the effects of globalization, the AIDS crisis, crime prevention, and the role of economic growth.

Justice Breyer's Democratic Pragmatism

Abstract: There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. "Active Liberty," by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis on consequences. Breyer's argument is convincing insofar as it challenges "originalist" approach on pragmatic grounds. It is more vulnerable insofar it downplays the inevitable role of judicial discretion in the characterization of purposes and the evaluation of consequences. Those who emphasize consequences, and active liberty, might well end up embracing textualism, or even broad judicial deference to legislative majorities. Moreover, it is not simple to deduce, from the general idea of "active liberty," concrete conclusions on the issues that concern Breyer, such as affirmative action, campaign finance reform, privacy rights, and commercial advertising. Many competing approaches to these issues, and to interpretation as a whole, can also march proudly under the pragmatic banner.

Is capital punishment morally required? acts, omissions, and life-life tradeoffs

Abstract: Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment potential error, irreversibility, arbitrariness, and racial skew do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat tl statistical lives" with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

The Precautionary Principle as a Basis for Decision Making

Abstract: Over the coming decades, the increasingly popular precautionary principle is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war.We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America

Abstract: Praised as a must-have primer during the Roberts and Alito hearings, Radicals in Robes offers a rigorous yet accessible analysis of what's at stake in the judiciary choices made during these warring days of the Warren/Rehnquist legacy. Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what conservatives really intend.

Dollars and Death

Abstract: Administrative regulations and tort law both impose controls on activities that cause mortality risks, but they do so in puzzlingly different ways. Under a relatively new and still-controversial procedure, administrative regulations rely on a fixed value of a statistical life representing the hedonic loss from death. Under much older law, tort law in most states excludes hedonic loss from the calculation of damages, and instead focuses on loss of income, which regulatory policy ignores. Regulatory policy also disregards losses to dependents; tort law usually allows dependents to recover for loss of support. Regulatory policy generally treats the loss of the life of a child as equivalent to the loss of the life of an adult; tort law usually treats the loss of the life of a child as less valuable. Regulatory policy implicitly values foreigners as equal to Americans; tort law does not. We argue that both areas of law make serious mistakes in valuing life and that each should learn from the other. Regulatory policy properly focuses on hedonic loss from death, and tort law should adopt this approach. But regulatory policy should imitate tort law’s individualized approach to valuing the loss from death, including its inclusion of losses to dependents. If these changes were made, tort awards would be more uniform and predictable, and regulations would be less uniform and more stringent. In addition, average tort damages for wrongful death would be at least twice as high as they are today. With respect to dollar judgments for mortality risks, a pervasive issue is how to combine accuracy with administrability and predictability; both bodies of law could do far better on this score. How should the legal system assign dollar values to human lives? Consider a highly publicized example. On September 22, 2001, Congress enacted legislation to compensate the survivors of the attacks of eleven days earlier. Under the final regulations, survivors were permitted to claim amounts for both economic and non-economic losses. The economic losses were to be measured by calculating each victim’s expected lost wages from 5, 2004 * Kirkland and Ellis Professor of Law, University of Chicago Law School. ** Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago, Law School and Department of Political Science. Thanks to Matthew Adler, Ward Farnsworth, Robert Hahn, Saul Levmore, Richard Posner, Adrian Vermeule, and W. Kip Viscusi for comments, and to Nikkie Eitmann, Josh Kluewer, Wayne Hsiung, Gavin Martinson, and Andres Sawicki for research assistance. Posner thanks the Russell Baker Scholars Fund for financial support. 1 Air Transportation Safety and System Stabilization Act, § 405(c)1-2, 49 U.S.C § 40401 (2001). 2 See http://www.usdoj.gov/victimcompensation/. For discussion, see Symposium, 53 DePaul L Rev 205 (2003). September 11, 2001 through the anticipated date of retirement, subject to several timate of household consumption or victim. Noneconomic losses were set at $250,000 per victim plus 100,000 per surviving spouse and ild. In all, 2,878 families, about 97 percent of those eligible, received compensation rom the fund, with amo a high of $7.1 million; e average award totaled about $2.1 million per family. Hence there was significant varia presu comm awar varia simu of ru are s bring ust generally accom 7 and to ndertake that analysis, agencies must turn human lives into monetary equivalents. For ple, the Environm a set of fact-specific awards adjustments, including a reduction by an es expenditure by the $ for each surviving ch f unts ranging from a low of $250,000 to th bility among awards. But the variability came amidst a serious effort to produce mptive floors and caps, with a “baseline” for single decedents of $300,000 and a itment to allow awards exceeding $3,000,000 only in unusual circumstances. These ds have been attacked on multiple grounds, including excessive and insufficient bility. The September 11 awards reflect a strong influence from tort law, which they ltaneously modify. But in American law, tort doctrines provide only one of two sets les for monetizing death. The other comes from administrative regulations, and there triking contrasts between the two bodies of law. One of our main goals here is to the two in contact with one another. Countless regulations now attempt to reduce statistical risks. Cost-benefit analysis pany these regulations, at least if their costs are high, m u exam ental Protection Agency values each life at a uniform number, most recently $6 million. Through tort law, courts provide 3 28 C.F.R. § 104.44 (2004). 4 See David W. Chen, After Weighing Value of Lives, 9/11 Fund Completes Its Task, The New York Times, June 16, 2004, at A1. 5 66 Fed Reg 66,274-75. 6 See Alina Tugend, Lives in the Balance, The National Journal Government Executive, September 2003, at 50; David W. Chen, Man Behind Sept. 11 Fund Describes Effort as a Success, With Reservations, The ee 68 Fed. Reg. 41434, 41488 (July 11, 2003); in its ggested a ). New York Times, January 1, 2004, at B3. 7 See Stephen Breyer et al., Administrative Law and Regulatory Policy 120-35 (5 ed. 2002). 8 A general overview can be found in Office of Management and Budget, Regulatory Analysis, Circular A4 (September 17, 2003), available at http://www.whitehouse.gov/omb/inforeg/regpol.html#rr 9 See 66 Fed. Reg. at 7012. In its July 2003 regulation governing food labeling of trans fatty acids, the Food and Drug Administration used a VSL of $6.5 million, s March 13, 2003 proposed rule on dietary ingredients and dietary supplements, the same agency su VSL of $5 million, see 68 Fed. Reg. 12158, 12229 (using this value to calculate the “value of a statistical life day”

Cognitive Psychology of Moral Intuitions

Abstract: Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain so distinctive is its foundations in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System I, is typically responsible for indignation; the more reflective system, System II, may or may not provide an override. Moral dumbfounding and moral numbness are often a product of moral intuitions that people are unable to justify. An understanding of indignation helps to explain the operation of many phenomena of interest to law and politics: the outrage heuristic, the centrality of harm, the role of reference states, moral framing, and the act-omission distinction. Because of the operation of indignation, it is extremely difficult for people to achieve coherence in their moral intuitions. Legal and political institutions usually aspire to be deliberative, and to pay close attention to System II; but even in deliberative institutions, System I can make some compelling demands.

On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity

Abstract: There is an elaborate debate over the practice of discounting regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. The doubts have been countered with the suggestion that a failure to discount would lead to unreasonable or paradoxical results. Both sides frequently neglect a simple point: Once government has converted regulatory benefits into monetary equivalents, what is being discounted is merely money, not regulatory benefits as such. No one seeks to discount health and life - only the money that might be used to reduce threats to these goods. It is nonetheless true that cost-benefit analysis with discounting can create serious problems of intergenerational equity; those problems, involving the obligations of the present to the future, require an independent analysis. A morally adequate response to the underlying problems, not involving the question of whether to discount, is to ensure that future generations receive compensation for any risks that are imposed on them by their predecessors.

The Precautionary Principle as a Basis for Decision Making

Abstract: Over the coming decades, the increasingly popular "precautionary principle" is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war. We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

Fast, Frugal, and (Sometimes) Wrong

Abstract: Do moral heuristics operate in the moral domain? If so, do they lead to moral errors? This brief essay offers an affirmative answer to both questions. In so doing, it responds to an essay by Gerd Gigerenzer on the nature of heuristics, moral and otherwise. While focused on morality, the discussion bears on the general debate between those who emphasize cognitive errors, sometimes produced by heuristics, and those who emphasize the frequent success of heuristics in producing sensible judgments in the real world. General claims are that it is contentious to see moral problems as ones of arithmetic, and that arguments about moral heuristics will often do well to steer clear of contentious arguments about what morality requires.

The Right to Marry

Abstract: The Supreme Court has said that there is a constitutional “right to marry”; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right to marry falls within the “fundamental” rights branch of equal protection doctrine, and is not properly understood in terms of substantive due process; it also follows that the state could abolish the official institution of marriage tomorrow. With respect to scope, the essay identifies a minimal understanding, to the effect that the right to marry is enjoyed by any couple consisting of one adult man and one adult woman. The minimal understanding can claim a plausible defense in a tradition-based understanding of fundamental rights; and on institutional grounds, a tradition-based understanding has a great deal of appeal. Its problem is that it has a degree of arbitrariness. This is a formidable problem, but for reasons of prudence, federal courts should not adopt a broader understanding that would, for * Karl N. Llewellyn Distinguished Service of Jurisprudence, Law School and Department of Political Science, University of Chicago. This is a substantially revised text of the Uri & Caroline Bauer Memorial Lecture, delivered at Cardozo Law School on September 8, 2004; readers are asked to make allowances for a text originally intended for oral delivery. I am most grateful to the students and faculty of law school community for their kindness and multiple suggestions during my visit. Thanks too to Martha Nussbaum and participants in a law and philosophy seminar in 2003-2004 that explored aspects of this topic; to Elizabeth Emens and Carolyn Frantz for helpful comments; and to Rob Park for excellent research assistance. example, require same-sex marriages to be recognized. The essay concludes with some remarks on the possible abolition of the official institution of marriage. It explains that there are plausible grounds for objecting to that institution and that there is a real question whether the current system would be chosen if a society were starting from scratch. It emphasizes that marriage is emphatically an government-run licensing system, embodying a set of governmental mandates and conditions. An understanding of this point should inform constitutional discussion, which ought not to proceed by identifying religious and official marriage, or by pretending that the official institution is in some sense natural and foreordained. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. . . . Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. Loving v. Virginia Modern marriage has lost its meaning—consequently one abolishes it. Friedrich Nietzsche Why should the state privilege some adult dyads but not others? Why should the state privilege only dyads? Why not triads? In other words, what business does the state have in deciding which adult personal relationships are deserving of legal protection and benefits and which are not? Patricia Cain 1 381 US 479 (1965). 2 Frederich Nietzsche, Twilight of the Idols, in The Portable Nietzsche 544 (Walter Kaufmann trans. & ed., 1954) 3 Patricia A. Cain, Imagine There's No Marriage, 16 Quinnipiac L. Rev. 27 (1996)