Showing papers by "Cass R. Sunstein published in 2006"

Infotopia: How Many Minds Produce Knowledge

Abstract: The rise of the "information society" offers not only considerable peril but also great promise Beset from all sides by a never-ending barrage of media, how can we ensure that the most accurate information emerges and is heeded? Cass R. Sunstein here develops a deeply optimistic understanding of the human potential to pool information, combat groupthink, and to use that knowledge to improve our lives. New ways, many Internet-based, to share and aggregate information-including wikis, open-source software, and prediction markets-are helping companies, schools, governments, and individuals not only to acquire, but also to create, ever-growing bodies of accurate knowledge without succumbing to the dangers of a hive-mind mentality. In a world where opinion and anecdote increasingly compete on equal footing with hard evidence, the on-line effort of many minds coming together could provide the best path to infotopia.

Are Judges Political?: An Empirical Analysis of the Federal Judiciary

Abstract: Over the past two decades, the United States has seen an intense debate about the composition of the federal judiciary. Are judges "activists"? Should they stop "legislating from the bench"? Are they abusing their authority? Or are they protecting fundamental rights, in a way that is indispensable in a free society? Are Judges Political? cuts through the noise by looking at what judges actually do. Drawing on a unique data set consisting of thousands of judicial votes, Cass Sunstein and his colleagues analyze the influence of ideology on judicial voting, principally in the courts of appeal. They focus on two questions: Do judges appointed by Republican Presidents vote differently from Democratic appointees in ideologically contested cases? And do judges vote differently depending on the ideological leanings of the other judges hearing the same case? After examining votes on a broad range of issues--including abortion, affirmative action, and capital punishment--the authors do more than just confirm that Democratic and Republican appointees often vote in different ways. They inject precision into an all-too-often impressionistic debate by quantifying this effect and analyzing the conditions under which it holds. This approach sometimes generates surprising results: under certain conditions, for example, Democrat-appointed judges turn out to have more conservative voting patterns than Republican appointees. As a general rule, ideology should not and does not affect legal judgments. Frequently, the law is clear and judges simply implement it, whatever their political commitments. But what happens when the law is unclear? Are Judges Political? addresses this vital question.

The Law of Implicit Bias

Abstract: Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

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 domains, existing legal analyses emphasize the alternative approach of insulating outcomes from the effects of boundedly rational behavior, which itself is taken as a given. In fact, however, many legal strategies are efforts to engage in the different approach of debiasing through law by reducing or even eliminating people’s boundedly rational behavior. 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.

Montreal versus Kyoto: A Tale of Two Protocols

Abstract: Over the last thirty years, climate change and depletion of the ozone layer have been widely believed to be the world's largest environmental problems. The two problems have many similarities. Both involve global risks created by diverse nations, and both seem to be best handled through international agreements. In addition, both raise serious issues of intergenerational and international equity. Future generations stand to lose a great deal, whereas the costs of restrictions would be borne in the first instance by the current generation; and while wealthy nations are largely responsible for the current situation, poorer nations are anticipated to be quite vulnerable in the future. But an extraordinarily successful agreement, the Montreal Protocol, has served largely to eliminate the production and use of ozone-depleting chemicals, while the Kyoto Protocol has spurred only modest steps toward stabilizing greenhouse gas emissions. What accounts for the dramatic difference between the two protocols? Part of the explanation lies in the radically different self-interested judgments of the United States; part of the explanation lies in the very different payoff structures of the two agreements. Influenced by the outcome of a purely domestic cost-benefit analysis involving reductions in ozone-depleting chemicals, the United States enthusiastically supported the Montreal Protocol. Influenced by the very different outcome of cost-benefit analyses for reductions in greenhouse gas emissions, the United States aggressively opposed the Kyoto Protocol. An examination of the two protocols suggests that neither agreement fit the simple structure of a prisoner's dilemma, in which a nation gain from an enforceable agreement, gains even more if it is the only nation not to comply while all others do, and lose most if it, and everyone else, pursue their own national self-interest. For the United States, at least, compliance with the Montreal Protocol would have been justified even if no other country had complied; for the United States, and for several other countries, compliance with the Kyoto Protocol would not have been justified even if all other parties had complied. An understanding of the judgments that surround the two protocols indicates that even though moral considerations require the United States to spend a great deal to protect citizens in other nations, and even though such considerations can influence behavior, the nation is unlikely to act in response solely to those considerations. A general implication is that any international agreement to control greenhouse gases is unlikely to be effective unless the United States believes that it has more to gain than to lose. An illuminating wrinkle, also suggestive of the role of domestic self-interest, is that some European nations, above all the United Kingdom, initially contended that ozone depletion was a greatly exaggerated problem while later calling for strong controls on greenhouse gases.

Second-Order Perfectionism

Abstract: In constitutional law, first-order perfectionism represents an effort to cast the Constitution's ideals in the best constructive light. Ronald Dworkin's conception of law as "integrity" can be seen as a form of first-order perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another form of second-order perfectionism. Whether first-order perfectionism is best, and what kind of second-order perfectionism might be chosen instead, cannot be decided without an appreciation of the characteristics of relevant institutions. Under certain institutional assumptions, originalism is preferable; under other assumptions, first-order perfectionism, Thayerism, or minimalism may be the right approach. Freestanding normative assessments are also inescapable. For example, originalism cannot be evaluated without some kind of assessment of the results that it would produce. These claims have implications for first-order perfectionism of the sort defended by Dworkin and more recently by James Fleming.

Animal Rights without Controversy

Abstract: Many consumers would be willing to pay something to reduce the suffering of animals used as food. The problem is that existing markets do not disclose the relevant treatment of animals, even though that treatment would trouble many consumers. Steps should be taken to promote disclosure, so as to fortify market processes and to promote democratic discussion of the treatment of animals. In the context of animal welfare, a serious problem is that people's practices ensure outcomes that defy their existing moral commitments. A disclosure regime could improve animal welfare without making it necessary to resolve the most deeply contested questions in this domain.

The Law of Other States

Abstract: The question whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even on the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread practice, accepted by a number of independent actors, is highly likely to be right. It follows that if a large majority of states make a certain decision, there is good reason to believe that the decision is correct. For the Jury Theorem to apply, however, three conditions must be met: states must be making judgments based on private information; states must be relevantly similar; and states must be making decisions independently, rather than mimicking one another. An understanding of these conditions offers qualified support for the domestic practice of referring to the laws of other states, while also raising some questions about the Supreme Court's reference to the laws of other nations. It is possible, however, to set out the ingredients of an approach that high courts might follow, at least if we make certain assumptions about the legitimate sources of interpretation. Existing practice, at the domestic and international levels, suggests that many courts are now following an implicit Condorcetian logic.

Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron

Abstract: In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

On the Divergent American Reactions to Terrorism and Climate Change

Abstract: Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq war is now in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to deliver significant benefits in the near future at acceptable cost. By contrast, they believe that aggressive steps to reduce the risk of climate change will not greatly benefit American citizens in the near future - and they are not willing to pay a great deal to reduce that risk. This intuitive form of cost-benefit analysis is much influenced by behavioral factors, including the availability heuristic, probability neglect, outrage, and myopia. All of these contribute, after 9/11, to a willingness to support significant steps to respond to terrorism and to relative indifference to climate change. It follows that Americans are likely to support such steps in response to climate change only if one of two conditions is met: the costs of those steps can be shown to be acceptably low or new information, perhaps including a salient incident, indicates that Americans have much to gain from risk reduction in the relatively near future.

What Happened on Deliberation Day

Abstract: What are the effects of deliberation about political issues? This essay reports the results of a kind of Deliberation Day, involving sixty-three citizens in Colorado. Groups from Boulder, a predominantly liberal city, met and discussed global warming, affirmative action, and civil unions for same-sex couples; groups from Colorado Springs, a predominately conservative city, met to discuss the same issues. The major effect of deliberation was to make group members more extreme than they were when they started to talk. Liberals became more liberal on all three issues; conservatives became more conservative. As a result, the division between the citizens of Boulder and the citizens of Colorado Springs were significantly increased as a result of intragroup deliberation. Deliberation also increased consensus, and dampened diversity, within the groups. Implications are explored for the uses and structure of deliberation in general.

The Law of Implicit Bias

Abstract: Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of “debiasing through law.” Forthcoming, California Law Review (implicit bias symposium issue) ∗ Professor of Law, Harvard Law School. ** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. For helpful discussions and suggestions on implicit bias and antidiscrimination law, we thank Ian Ayres, Richard Banks, Elizabeth Bartholet, Bert Huang, Alison Morantz, Eric Posner, Frederick Schauer, Reva Siegel, Peter Siegelman, Matthew Stephenson, Adrian Vermeule, and participants at workshops at Boston University School of Law, Columbia Law School, Fordham Law School, Harvard Law School, Stanford Law School, and Yale Law School. Martin Kurzweil provided outstanding research assistance.

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

Chevronizing Foreign Relations Law

Abstract: A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, ambiguous statutes are usually interpreted to conform to international law, and statutes are usually not understood to apply outside of the nation's territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in various settings, the cost of American deference to foreign interests is less than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes so as to apply extraterritorially, or so as to conflict with international law, it should be permitted to do so. The analysis of the interpretive power of the executive follows by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to such interpretation; sometimes it operates as a valuable analogy.

Misfearing: A Reply

Abstract: Human beings are prone to "misfearing": Sometimes they are fearful in the absence of significant danger, and sometimes they neglect serious risks. Misfearing is a product of bounded rationality, and it produces serious problems for individuals and governments. This essay is a reply to a review of Laws of Fear by Dan M. Kahan, Paul Slovic, Donald Braman, and John Gastil, who contend that "cultural cognition," rather than bounded rationality, explains people's fears. The problem with their argument is that cultural cognition is a product of bounded rationality, not an alternative to it. In particular, cultural differences are largely a product of two mechanisms. The first involves social influences, by which people's judgments are influenced by the actual or apparent views of others. The second involves "normative bias," by which people's factual judgments are influenced by their moral and political commitments. Once cultural cognition is thus understood, it can be seen that democratic governments need not respond to people's fears, regardless of their foundations. Democracies respond to people's values, but not their errors.

“Preferences, Paternalism, and Liberty”

Abstract: Our goal in this chapter is to draw on empirical work about preference formation and welfare to propose a distinctive form of paternalism, libertarian in spirit, one that should be acceptable to those who are firmly committed to freedom of choice on grounds of either autonomy or welfare. Indeed, we urge that a kind of ‘libertarian paternalism’ provides a basis for both understanding and rethinking many social practices, including those that deal with worker welfare, consumer protection, and the family.

Of Snakes and Butterflies: A Reply

Abstract: This brief essay, a reply to a forthcoming essay "Radicals in Robes" by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when predictability calls for it; and the Supreme Court was right to refuse minimalism in the late 1930s. While minimalism is generally the proper approach to "frontiers" issue in constitutional law, its own pragmatic foundations suggest that constitutional law should not be insistently or dogmatically minimalist.

Deliberating Groups versus Prediction Markets (or Hayek's Challenge to Habermas)

Abstract: For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Boundedly Rational Borrowing

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.

Misfearing: A Reply

Abstract: For several decades, social scientists have investigated bounded rationality and its relationship to human behavior.' In processing information, people use identifiable heuristics, which can produce severe and systematic errors.2 When people use the availability heuristic, for example, they answer questions of probability by asking whether examples readily come to mind.3 In assessing the risk of crime or certain methods of travel, people are affected by their ability to recall instances in which the risk materialized. In addition, human beings do not follow expected utility theory.4 Most importantly, they dislike losses more than they like corresponding gains, and in that sense they show loss aversion.5 As a result of various forms of bounded rationality, human beings are prone to what might be called "misfearing"6: they fear things that are not dangerous, and they do not fear things that impose serious risks. An understanding of bounded rationality has obvious implications for law and policy. Much of the time, private fears are translated into public action.' No one doubts that democratic nations should respond to the public will, but there is reason for real concern if small problems

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 three foundations: an emphasis on people’s occasional failure to appreciate the expected value of truly catastrophic losses; a recognition that political actors may engage in unjustifiable delay when the costs of precautions would be incurred immediately and when the benefits would not be enjoyed until the distant future; and an understanding of the distinction between risk and uncertainty. 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. Many losses are irreversible. Once a species is gone, it is gone forever. Transgenic crops can impose irreversible costs as a result of increasing pest resistance. Because some greenhouse gases stay in the atmosphere for centuries, the problem of global warming may be irreversible, at least for all practical purposes. Global warming could be catastrophic as well, potentially endangering many millions of people. * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago, Law School and Department of Political Science. I am extremely grateful to Robert Goodin, Robert Hahn, Eric Posner, Richard Posner, Adrian Vermeule, and David Weisbach, and participants in a workshop at Columbia Law School for valuable comments; special thanks to Vermeule and Weisbach for many helpful discussions. 1 See Justus Wesseler, Resistance Economics of Transgenic Crops under Uncertainty: A Real Options Approach, in Battling Resistance to Antibiotics and Pesticides 214 (Rmanan Lazminarayan ed. 2003); to the same general effect, see Benoit Morel et al., Pesticide Resistance to Bt Corn: Real Option and Rational Option Approaches to Decisionmaking, in id. at 184. 2 See Richard Posner, Catastrophe: Risk and Response 43-58 (2004).

Chevron Step Zero

Abstract: The most famous case in administrative law, Chevron U.S.A. 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. Over twenty years after its birth, the Supreme Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, Inc.1 shows no sign of losing its influence. On the contrary, the decision has become foundational, even a quasi-constitutional text—the undisputed starting point for any assessment of the allocation of authority between federal courts and administrative agencies. Ironically, Justice Stevens, the author of Chevron, had no broad ambitions for the decision; the Court did not mean to do anything dramatic.2 But shortly after it appeared, Chevron was quickly taken to establish a new * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. I am grateful to Douglas Lichtman, Richard Posner, Adrian Vermeule, and participants in the work-in-progress lunch at the University of Chicago Law School for valuable comments on a previous draft. Blake Roberts provided valuable research assistance. 1 467 U.S. 837 (1984). As a sign of Chevron’s influence, consider the fact that the decision was cited 2,414 times in its first decade (between 1984 and January 1, 1994), 2,584 times in its next six years (between January 1, 1994 and January 1, 2000), and 2,235 times in its next five years (between January 1, 2000 and January 28, 2005). LEXIS search, March, 2005. 2 See Robert Percival, Environmental Law in the Supreme Court: Highlights from the Marshall Papers, 23 ENVTL. L. REP. 10606, 10613 (1993). In fact it is possible, and fascinating, to trace a series of opinions in which Justice Stevens expressed reservations about the broad reading of Chevron, and attempted to domesticate the decision. See, e.g., Young v. Community Nutrition Institute, 476 U.S. 974, 985 (1986) (Stevens, J., dissenting); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Babbitt v. Sweet Home Chapter of approach to judicial review of agency interpretations of law,3 going so far as to establish a kind of counter-Marbury for the administrative state. It seemed to declare that in the face of ambiguity, it is emphatically the province and duty of the administrative department to say what the law is.4 Chevron also appeared to have imperialistic aspirations, cutting across countless areas of substantive law and the full range of procedures by which agencies might interpret statutory law. Some of those ambitions have been realized, for Chevron has had a fundamental impact on areas as disparate as taxation,5 labor law,6 environmental protection,7 immigration,8 foods and drugs,9 and highway safety.10 In all of these areas, and many more, Chevron has signaled a substantial increase in agency discretion to make policy through statutory interpretation. For this reason, Chevron might well be seen not only as a kind of counter-Marbury, but even more fundamentally as the administrative state’s very own McCulloch v. Maryland,11 permitting agencies to do as they wish so long as there is a reasonable connection between agency choices and congressional instructions. This grant of permission seemed to depend on a distinctive account of legal interpretation, one that sees resolution of statutory ambiguity as involving judgments of principle and policy, and insists that the executive, not the courts, should be making those judgments.12 Communities for a Great Oregon, 515 U.S. 687 (1995). See also Christensen v. Harris County, 529 U.S. 576, 595 n.2 (2000) (Stevens, J., dissenting) (endorsing “fully” Justice Breyer’s narrow reading of Chevron). 3 See, e.g., Kenneth Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. REG. 283 (1986); Richard Pierce, Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301 (1988). On the real-world consequences of Chevron, see Peter Schuck and E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 42 DUKE L.J. 984 (1989). Schuck and Elliott find a significant effect from Chevron, an increase in affirmance rates from 71% in the pre-Chevron year of 1984 to 81% in the post-Chevron year of 1985. Over more extended periods, studies are hard to conduct, because prospective litigants will adjust their mix of cases to the rules governing judicial review of agency action; when challenges are hard to sustain under doctrines of deference, fewer challenges will be brought. On the other hand, agencies and their lawyers may adjust their own practices to deference doctrines as well, and hence take legal risks that they would not assume if courts were less likely to defer. Relevant findings, exploring the importance of whether a panel is composed of Republican or Democratic appointees to the application of Chevron, can be found in Frank Cross and Emerson Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (finding that allRepublican panels are particularly willing to strike down agency action at the behest of an industry challenge, notwithstanding Chevron). 4 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the laws is.”). 5 Atlantic Mutual Ins. Co. v. Commissioner, 523 U.S. 382 (1998); Tate & Lyle v. Commissioner, 87 F.3d 99 (3d Cir. 1996). 6 See NLRB v. United Food Workers Union, 484 U.S. 112 (1987); Cavert Acquisition Co. v. NLRB, 83 F.3d 598 (3d Cir 1996). 7 See Chemical Manufacturers Association v. NRDC, 470 U.S. 116 (1985). 8 See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 9 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). 10 Geier v. American Honda Motor Co., 529 U.S. 861 (2000). 11 17 U.S. 316 (1819). 12 See infra notes 40-44.

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, judgments 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 mostcited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive, with its comparative expertise and accountability, 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.

Deterring Murder: A Reply

Abstract: We are most grateful to John Donohue, Justin Wolfers, and Carol Steiker for their valuable and illuminating responses to our article.1 Donohue and Wolfers explore empirical questions,2 on which we have little to say. Steiker investigates the moral issues,3 and here our Reply must be more extensive. Donohue and Wolfers believe that, with respect to the death penalty, "existing evidence for deterrence is surprisingly fragile."4 They attack the peerreviewed empirical work of a number of social scientists, including Hashem Dezhbakhsh, Paul Rubin, Joanna Shepherd, H. Naci Mocan, R. Kaj Gittings, and Paul Zimmerman.5 They highlight theoretical claims by Lawrence Katz, Steven Levitt, and Ellen Shustorovich, who emphasize the infrequency of capital punishment and who thus doubt the claim of deterrence.6 (Interestingly, Katz, Levitt, and Shusterovich do find that prison deaths have massive effects in deterring murders and other crimes.7) Most importantly, their own work,

Problems with Minimalism

Abstract: Much of Justice Sandra Day O'Connor's work on the Supreme Court embodies a commitment to judicial minimalism, understood as a preference for narrow rulings, closely attuned to particular facts. This preference reflects a belief that at least in adjudication, standards ought to be preferred to rules. In many contexts, however, that belief is hard to justify, simply because it imposes severe decision-making burdens on others and may well create more, rather than fewer, errors. For this reason, a general preference for minimalism is no more defensible than a general preference for rules. The choice between narrow and wide rulings cannot itself be made by rules or even presumptions; it requires a case-by-case inquiry. The argument is illustrated throughout with reference to the problem of affirmative action, where Justice O'Connor's preference for particularity resulted in the imposition of a constitutional mandate on admissions offices that is not simple to defend in principle. In some contexts, however, narrow rulings are indeed preferable, in large part because they give flexibility to politically accountable officials. Justice O'Connor's minimalism is best understood as reflecting a belief that in difficult cases, at the frontiers of constitutional law, judges do best to avoid firm rules that they might come to regret.

Two Conceptions of Procedural Fairness

Abstract: Dans cet article, l'A se penche sur le traitement de l'equite aux Etats-Unis. L'A analyse deux conceptions et procedures, l'une passant par le droit et la politique publique, l'autre passant par l'individualite et le traitement prive des situations

Acuerdos carentes de una teoría completa en Derecho Constitucional

Abstract: En muchos paises, los ciudadanos deben enfrentar conflictos y desacuerdos sobre los asuntos mas fundamentales. La existencia de valores diversos parece atentar contra la posibilidad real de un orden constitucional.