Faculty Bibliography

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of thinking, whether we are speaking of religious practices, family arrangements, political associations, civi associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion; it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to defend it, but to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails--of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator's "fixed points," which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.

Algorithms are designed to learn user preferences by observing user behaviour. This causes algorithms to fail to reflect user preferences when psychological biases affect user decision making. For algorithms to enhance social welfare, algorithm design needs to be psychologically informed.

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. Responding to the constitutional crisis of 1876, the Electoral Count Act of 1887 ("ECA") attempted to offer more specific rules. The ECA was a major advance, but in important ways, it was exceedingly complicated and ambiguous, leaving important puzzles and gaps. The Electoral Count Reform Act of 2022 ("ECRA"), amending the ECA in response to the horrors of January 6, 2022, is a phenomenal achievement; on essentially all questions, it offers a great deal of clarity. The signal virtue of the ECRA is that it vindicates the rule of law by sharply cabining the discretion of both Congress and the states. For the first time in U.S. history, the ECRA requires the rule of law in presidential elections, by limiting the risk of on-the-spot, ex post maneuvering in either Congress or the states.

Sludge—excessive time consumed in performing a task—imposes a burden on society. Administrative burdens, reporting requirements, paperwork requirements, waiting time, in-person appearances, and much more operate as a kind of an essential between human beings and something that connects their life. Sludge imposes time-tax (opportunity cost), monetary cost, and psychological costs upon society. There should be a sludge audit to quantify the magnitude of such costs—knowledge of the sludge magnitude would provide the basis for the efforts aimed at sludge-reduction One of the many ways to reduce sludge would be to nudge people into doing something. Nudges, however, are a function of human behaviour, therefore, it is important to understand human behaviour regarding what motivates a person to do something or refrain from another. Human beings suffer from cognitive scarcity, and they have a limited processing capacity in their mind. If we are sick, elderly, or suffering from incapacity, the cognitive ability will be reduced further. We have spent a great deal of time debating economic scarcity over the last hundred years. Now, we need to spend a great deal of time in the next hundred years debating cognitive scarcity.

Should there be a right not to be manipulated? On Kantian grounds, manipulation, lies and paternalistic coercion are moral wrongs, and for similar reasons; they deprive people of agency, insult their dignity, and fail to respect personal autonomy. On welfarist grounds, manipulation, lies and paternalistic coercion share a different characteristic; they displace the choices of those whose lives are directly at stake, and who are likely to have epistemic advantages, with the choices of outsiders, who lack critical information. Kantians and welfarists should be prepared to endorse a (moral) right not to be manipulated, though on very different grounds. At the same time, the creation of a legal right not to be manipulated raises hard questions, in part because of definitional challenges. With welfarist considerations in mind, it is best to start by prohibiting the most egregious instances of manipulation, while emphasizing that they may not count as fraud or deception. The basic goal should be to build on the claim that in certain cases, manipulation is a form of theft; the law should forbid theft, whether it occurs through force, lies, or manipulation.

Bob Dylan celebrates “songs about roses growing out of people’s brains and lovers who are really geese and swans that turn into angels.” He thinks that “museums are vulgar,” because “they’re all against sex.” He proclaims,“Folk music is a bunch of fat people.” He notes, “Just because someone mentions the word ‘bomb,’ I’m not going to go ‘Aalee!’ and start clapping.” These remarks about lovers who are really geese, museums, folk music, and protest songs capture Dylan’s distaste for whatever is rote or routine, and help explain his refusal to identify with the social movements of the 1960s. The remarks also tell us something about the central themes of “Desolation Row” and “The Philosophy of Modern Song,” and also about why “Like A Rolling Stone” is not a finger-pointing song but a celebration of movement and rootlessness. Dylan’s work is dishabituating, and he cherishes the dishabituating power of music and art in general.

Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.

Applying a cost-benefit analysis to people’s problems may seem “bloodless,” but it can be a corrective to interest group lobbying, ideology, and bias.

Many consumers suffer from present bias. To present-biased consumers, the long-term is a foreign country, and they are not sure that they will ever visit. If consumers suffer from present bias, there is room to rethink national policies in multiple domains. For example, regulatory mandates might turn out to be better than economic incentives. Fuel economy and energy efficiency mandates might produce billions of dollars in annual savings to present-biased consumers. The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of incentives that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities.

Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law. One reason is that as a matter of simple psychology, it is extremely difficult for any judge consistently to embrace it. Another reason is that Thayer’s defense of Thayerism was very thin; for the most part, he purported to be describing longstanding practice, rather than to be justifying it. But if we make certain judgments about the likely capacities and performance of judges, legislators, and others, Thayerism would make a great deal of sense. If we make contrary judgments, Thayerism would be preposterous. Selective Thayerism, of the sort defended by Bickel or Ely, might follow from yet another set of judgments. The broader lesson is that no approach to constitutional law can be adopted or rejected in the absence of an answer to the question whether it would make our constitutional order better rather than worse, which requires in turn a set of judgments about the likely behavior of various institutions. We might also understand Thayerism as a kind of arms control agreement: I will adopt a Thayerian approach if you will as well. More particularly, left-of-center judges might be willing to be Thayerian if and only if right-of-center judges are willing to be Thayerian as well. The problem, of course, is that unless a strong norm is in place, both sides will be tempted to defect. And that is, in fact, what we observe.

Why did the Beatles become a worldwide sensation? Why do some cultural products succeed, and others fail? On one view, the simplest and most general explanation is best, and it points to quality, appropriately measured: the Beatles succeeded because of the sheer quality of their music. On another view, timely enthusiasm or timely indifference can make the difference for all, including the Beatles, and informational cascades are often necessary for spectacular success. For those who emphasize informational cascades, success and failure are not inevitable; they depend on seemingly small or serendipitous factors. There is no question that the success of the Beatles, and the rise of Beatlemania, involved an informational cascade. We may doubt that in a counterfactual world there might have been Kinksmania or Holliesmania, but it would be reckless to rule out the possibility that some other band, obscure or unknown, might have taken the place of the Beatles.

In The Rhetoric of Reaction, published in 1991, Albert Hirschman identified three standard objections to reform proposals: perversity, futility and jeopardy. In Hirschman’s account, these objections define reactionary rhetoric. A proposal would be “perverse” if it would aggravate the very problem it is meant to solve; it would be “futile” if it would not even dent the problem; it would produce “jeopardy” if it would endanger some other goal or value (such as liberty or economic growth). The rhetoric of reaction comes from both left and right, though in Hirschman’s account, it is a special favorite of the right. In recent years, the perversity, futility and jeopardy theses have often been invoked to challenge reforms, including nudges. While the three theses are sometimes supported by the evidence, they are often evidence-free speculations, confirming Hirschman’s suggestion that the rhetoric of reaction has “a certain elementary sophistication and paradoxical quality that carry conviction for those who are in search of instant insights and utter certainties.”

In Bolling v. Sharpe, the Supreme Court struck down a federal statute segregating the schools in the District of Columbia. The Equal Protection Clause is inapplicable to the national government, and the Court relied on the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe has been followed by many cases that find an “equal protection component” to the Due Process Clause of the Fifth Amendment (“reverse incorporation”). These cases are impossible to defend on originalist grounds, and they are exceptionally challenging to defend on textualist grounds. They are best understood as an embodiment of “living constitutionalism” or some related approach (potentially including common good constitutionalism). Dobbs v. Jackson Women’s Health Center, overruling Roe v. Wade, adopts an interpretation of the Due Process Clause of the Fourteenth Amendment, rooted in a combination of text, originalism, and tradition, that generally sets itself against living constitutionalism or related approaches, and that is incompatible with the approach in Bolling and successor cases. Under the approach in Dobbs, discrimination on the basis of race and sex, or on any other ground, should be subject to rational basis review (at most) – and should frequently be upheld. If this is an unacceptable conclusion, it is a strong point for Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.

In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare. At the same time, antitrust law’s contribution to reducing inequality is subject to substantial diminishing returns.

If we are committed to freedom of speech, must we tolerate lies? This essay provides a framework for thinking about this and other questions regarding falsehoods. The framework focuses on four sets of issues: (1) the speaker’s state of mind, and the (2) magnitude, (3) likelihood, and (4) timing of harm. From this way of thinking about the problem, we can see that current constitutional law fails to strike the right balance. Public officials and public figures should be able to do far more than they are now permitted to do to respond to defamation, as should ordinary citizens subjected to damaging falsehoods. The government should be able to restrict and punish certain kinds of lies and falsehoods that pose serious threats to public health and safety. To protect the democratic process, the government should be able to regulate other kinds of even nondefamatory falsehoods. The essay draws attention to the sheer diversity of tools available to the government. The government need not censor or punish; it might, for example, require disclosure, labels, or warnings, or some form of choice architecture that reduces the likelihood that falsehoods will spread.

Why people do or do not change their beliefs has been a long-standing puzzle. Sometimes people hold onto false beliefs despite ample contradictory evidence; sometimes they change their beliefs without sufficient reason. Here, we propose that the utility of a belief is derived from the potential outcomes associated with holding it. Outcomes can be internal (e.g., positive/negative feelings) or external (e.g., material gain/loss), and only some are dependent on belief accuracy. Belief change can then be understood as an economic transaction in which the multidimensional utility of the old belief is compared against that of the new belief. Change will occur when potential outcomes alter across attributes, for example because of changing environments or when certain outcomes are made more or less salient.

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”

“Informational cascades” can be key in turning the tide against animal cruelty.

In moral and political philosophy, some people emphasize the importance of searching for “reflective equilibrium,” in which (broadly speaking) general principles align with convictions about particular cases, and vice-versa. There is a close analogue in constitutional law; the search for reflective equilibrium plays a central role. Some theories of constitutional interpretation seem to call for results that are inconsistent with “fixed points” in constitutional law (where “fixed points” are understood as particular holdings, such as Brown v. Board of Education, to which people have exceedingly strong commitments). The risk to fixed points strongly counts against such theories. The reason is that among the reasonable candidates, any theory of interpretation must be defended on the ground that it would make our constitutional order better rather than worse. It follows that if a theory would lead to rejection to fixed points, it has a clear strike against it. Many participants in debates about constitutional theory implicitly agree on this point, and they had better; there is no way to choose a theory of constitutional interpretation that refuses to seek reflective equilibrium, which means that consideration of fixed points is essential.

The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government.

There can be a serious tension between the commitment to cost-benefit analysis and a realistic appreciation of the limits of official knowledge. Without significant efforts to reduce those limits, that analysis might be inadequately informed. Whenever regulators face significant informational deficits, or what is sometimes called “the knowledge problem,” it is important to explore tools that take advantage of what the private sector knows; market-friendly approaches, such as economic incentives, have important advantages on that count. An advanced regulatory system should also try to reduce the knowledge problem through three routes: (1) creative use of notice-and-comment rulemaking; (2) retrospective analysis of regulations and their costs and benefits; and (3) advance testing, as a way of informing ex ante analysis. For the future, the most promising approach is (3).

The draft opinion of Justice Samuel Alito, Jr. in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver. With Burkean and Thayerian arguments at work, the Alito draft offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Alito draft is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, a major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditionalist or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditionalist or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law.

When policymakers focus on costs and benefits, they often find that hard questions become easy – as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge. In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. We suggest that in difficult cases in which important information is absent, it is useful for policymakers to consider a concept from poker: “freerolls.” A freeroll exists when choosers can lose nothing from selecting an option but stand to gain something (whose magnitude may itself be unknown). In some cases, people display “freeroll neglect.” In terms of social justice, John Rawls’ defense of the difference principle is grounded in the idea that behind the veil of ignorance, choosers have a freeroll. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll. Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. “Binds” are the mirror image of freerolls; they involve options from which people are guaranteed to lose something (of uncertain magnitude). Some regulatory options are binds, and there are faux binds as well.

In the United States, are administrative agencies illegitimate? A threat to democracy? A threat to liberty? A threat to human welfare? Many people think so, and in important ways, they are surely correct. But an understanding of the actual operation of the administrative state in the United States, seen from the inside, makes it exceedingly difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large and abstract objections from the standpoint of democracy, liberty, and welfare. Indeed, it makes those objections seem coarse and insufficiently uninformed. What is needed is less in the way of arguments from adjectives and nouns, and more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

The red tape we all must deal with is more than an inconvenience. It wastes time, money, and energy and ultimately robs us of our freedom.

In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.”

As intuitive statisticians, human beings suffer from identifiable biases, cognitive and otherwise. Human beings can also be “noisy,” in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and noise produce errors. Algorithms eliminate noise, and that is important; to the extent that they do so, they prevent unequal treatment and reduce errors. In addition, algorithms do not use mental short-cuts; they rely on statistical predictors, which means that they can counteract or even eliminate cognitive biases. At the same time, the use of algorithms, by administrative agencies, raises many legitimate questions and doubts. Among other things, they can encode or perpetuate discrimination, perhaps because their inputs are based on discrimination, perhaps because what they are asked to predict is infected by discrimination. But if the goal is to eliminate discrimination, properly constructed algorithms nonetheless have a great deal of promise for administrative agencies.

Evolutionary explanations for behavioral findings are often both fascinating and plausible. But even so, they do not establish that people are acting rationally, that they are not making mistakes, or that their decisions are promoting their welfare. For example, present bias, optimistic overconfidence, and use of the availability heuristic can produce terrible mistakes and serious welfare losses, and this is so even if they have evolutionary foundations. There might well be evolutionary explanations for certain kinds of in-group favoritism, and also for certain male attitudes and actions toward women, and also for human mistreatment of and cruelty toward nonhuman animals. But those explanations would not justify anything at all. It is not clear that in Darwinia (a nation in which departures from perfect rationality have an evolutionary explanation), policymakers should behave very differently from Durkheimian policymakers (a nation in which departures from perfect rationality have a cultural explanation).

The ninth edition of this classic casebook Administrative Law and Regulatory Policy: Problems, Text, and Cases is streamlined and updated while retaining the previous editions’ rigor, comprehensiveness, and contextual approach.

With respect to climate change, the principal focus of both research and public policy has been on mitigation – on reducing greenhouse gas emissions so as to reduce anticipated adverse effects. But it is increasingly clear that adaptation must also be a high priority. Climate-related risks – including flooding, extreme heat, wildfires, droughts, and hurricanes – are quite serious and are likely to grow over time. Creative and not-so-creative measures to nudge, incentivize, and mandate adaptation may well have benefits far in excess of costs – and may, in fact, deliver higher net benefits than some efforts at mitigation. Because significant climate change is now occurring, and will almost certainly create increasing risks over time, adaptation is essential. It must be carefully assessed with attention to (a) its aggregate effects on social welfare and (b) its distributional impacts. Cost-benefit analysis can much help with (a), but it can run into serious concerns, not only because of (b), but also because of epistemic gaps and because of its failure, in some cases, adequately to capture welfare effects.

Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2) The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number. The moral cosmopolitan and reciprocity arguments stand on much stronger grounds, though they both run into plausible objections.

Since 1970, the law of standing has been dominated by the "injury in fact" requirement. That requirement was first announced in an opinion by Justice William O. Douglas, who clearly sought both to expand the category of people entitled to challenge government action and to simplify the standing inquiry in significant ways. Justice Douglas made no effort to root that requirement in the text or history of the Constitution, or indeed in any of the Court's precedents. As far as constitutional law is concerned, the injury-in-fact test was made up out of whole cloth. It appears to have come from a 1955 law review article by Kenneth Culp Davis. Davis himself purported to interpret the Administrative Procedure Act (APA), not the Constitution. His interpretation of the APA was an egregious blunder. Over the course of the last half-century, the injury-in-fact test has been transformed from a bold effort to expand the category of persons entitled to bring suit into an equally bold effort to achieve the opposite goal, by understanding judicially cognizable injuries largely by reference to the common law (and the Constitution), and by severely restricting Congress' power to create new rights and to allow people to sue to protect those rights. The transformation is lawless. It is disconnected from standard sources of constitutional law. There is an irony here, and it is in the foreground, not in the background. The administrative state arose out of grave dissatisfaction with private law principles. In diverse ways, it was founded on a recognition that various interests beyond those protected by the common law (including those of consumers, investors, workers, environmentalists, and victims of discrimination) deserve some kind of legal protection. To be sure, the interests of the objects of regulation, armed with private-law rights, continued to matter, and would be a legitimate basis for a lawsuit. But in multiple domains, Congress explicitly decided that the beneficiaries of regulatory protection also ought to have access to court to protect their statutory rights. And even when Congress did not make that explicit decision, the relevant provision of the APA could easily be read to authorize such access, at least in certain circumstances. The irony is that the Court is now building the public law of standing directly on the private-law foundations that Congress rejected, as a matter of principle, in creating modern statutory programs and new statutory rights. As we shall see, we are witnessing a form of " Lochnering." My central goal in this Article is to offer a compressed sketch of the rise and the evolution of the idea of "injury in fact" in federal standing law. It is a truly astonishing tale. The brief sketch could, of course, be a lengthy narrative; my hope is that the main lines of the tale, and its astonishing nature, will emerge more clearly if presented in a compressed fashion. I also hope that an understanding of the novelty of the injury-in-fact requirement, and its peculiar origins, might help to cast in bold relief the even newer effort to build standing principles on traditional private rights, and to expose the oddity of the associated idea that Congress lacks the authority to create rights that lack clear analogues in the common law.

In evaluating behaviorally informed interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Four specific questions are relevant: (1) What are the aggregate effects on social welfare? For purposes of evaluation, it is tempting to focus on increases in participation rates or on cost-effectiveness. The welfare question is much more important, though it raises serious normative, conceptual, and empirical challenges. (2) Who is likely to be helped and who is likely to be hurt? This is a plea for a distributional analysis of the effects of behaviorally informed interventions. (3) What are the expected effects on the least well-off? It is important to ask whether the relevant interventions help or hurt those who have the least, defined in terms of welfare, a point that is connected with “prioritarianism.” (4) Do the benefits to those who are helped exceed the costs to those who are hurt? If the gainers gain more than the losers lose, we have a strong point in favor of the intervention. But the point might not be decisive if, for example, the gainers are well-off to begin with, and the losers are not. The four questions are meant as an objection to efforts to evaluate behaviorally informed interventions in terms of (for example) effects on participation rates; as a plea for analysis of the distributive effects of such interventions; and as a plea for specification and investigation of their welfare effects.

We live in a period in which liberalism is under considerable pressure.Can poems be liberal? Baudelaire’s Enivrez-Vous captures something essential about the most appealing forms of liberalism, and about its underlying spirit (captured, in different ways, by John Stuart Mill, Walt Whitman, and Bob Dylan as well): its insistence on freedom of choice, on the diversity of tastes and preferences, and on human agency. The poem is liberal in its exuberance – its pleasure in its own edginess, its defiance, its sheer rebelliousness, its sense of mischief, its implicit laughter, its love of life and what it has to offer. It is the opposite of dutiful. It is far more exuberant than Mill’s On Liberty, but it is exuberant in the same way.

Although there has been a proliferation of research and policy work into how nudges shape people's behaviour, most studies stop far short of consumer welfare analysis. In the current work, we critically reflect on recent efforts to provide insights into the consumer welfare impact of nudges using willingness to pay and subjective well-being reports and explore an unobtrusive approach that can speak to the immediate emotional impacts of a nudge: automatic facial expression coding. In an exploratory lab study, we use facial expression coding to assess the short-run emotional impact of being presented with calorie information about a popcorn snack in the context of a stylised ‘Cinema experience’. The results of the study indicate that calorie information has heterogeneous impacts on people's likelihood of choosing the snack and on the emotions they experience during the moment of choice which varies based on their level of health-consciousness. The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the immediate emotional impacts of nudges and calling for further research into this promising technique.

Nudges are tools to achieve behavioural change. To evaluate nudges, it is essential to consider not only their overall welfare effects but also their distributional effects. Some nudges will not help, and might hurt, identifiable groups. More targeted, personalized nudging may be needed to maximize social welfare and promote distributive justice.

Cultivation theory assumes that frequent exposure to certain media can lead people to perceive the real world through the lens of their preferred media. This led to the research question of whether fans of science fiction who are accustomed to seeing problem solving based on science and technology are prone to accept science- and technology-based interventions to curb the spread of the COVID-19 pandemic. An exploratory survey and a preregistered experiment (N = 1,983) found that participants who liked science fiction were more likely to trust science and to accept protective measures against COVID-19. This effect was especially visible for a Corona mobile-phone app but also extended to other behaviors. The effect was stronger for those whose genre preference was activated just before the behavioral intentions were assessed. Harnessing these preferences could improve health communication and may be useful in solving health crises, such as pandemics or the climate crisis.

In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.

In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts. But contractarianism in political philosophy stands (or falls) on altogether different grounds from enthusiasm for contractual ordering in economics and law. When participants in voluntary agreements lack information or suffer from behavioral biases (including adaptive preferences), there is reason to help them, potentially through mandates and bans. In philosophy, the idea of contractarianism can help lead to instructive thought experiments about what justice requires, as with John Rawls’ use of the veil of ignorance and the original position; it should not be taken as a basis for theories of legitimacy that rest on actual agreements among actual groups, in which some people have more information and power than others, and in which malice and self-interest may lead to distortions.

In “You Bet Your Life,” Paul A. Offit looks at advances that have prolonged life, from chemotherapy to the Covid vaccine, and the difficult, even deadly, paths to arrive at them.

To mitigate climate change, food systems must reduce their greenhouse gas emissions. For consumers, this means switching to more plant-based diets and wasting less food. A behaviorally informed policy employing nudges—educative and architectural—can be a cornerstone. Plant-based defaults promise large reduction effects while maintaining freedom of choice.

With respect to the views of dead thinkers, answers to many particular questions are often interpretive in Ronald Dworkin’s sense: such answers must attempt (1) to fit the materials to be interpreted and (2) to justify them, that is, to put them in the best constructive light. What looks like (1), or what purports to be (1), is often (2). That is, when a follower of Kant urges that “Kant would say x,” or that “Kantianism entails y,” the goal is to make the best constructive sense of Kant and Kantianism, not merely to follow something that Kant actually said. An approach to behavioral economics cannot claim to be Hayekian if it is rooted in enthusiasm for the abilities of planners to set prices and quantities, or if it sees the price system as a jumble of mistakes and errors. But within a not-so-narrow range, a variety of freedom-preserving approaches, alert to the epistemic limits of planners, can fairly claim to be Hayekian. Hayekian behavioral economics, I suggest, is an approach that (1) recognizes the importance and pervasiveness of individual errors, (2) emphasizes the epistemic limits of planners, (3) builds on individual choices rather than planner preferences, and (4) gives authority to choices made under epistemically favorable conditions, in which informational deficits and behavioral biases are least likely to be at work. The key step, of course, is (4). If it is properly elaborated, the resulting approach deserves respect, even if some of us, including the present author, would not entirely embrace it. In defending that proposition, the present essay responds to some critical remarks by Robert Sugden, including his resort to “explainawaytions” (Matthew Rabin’s term) for behavioral findings.

In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy” – a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of the agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.” For climate change in particular, the “social cost of carbon,” or more broadly the “social cost of greenhouse gases,” is sometimes described as “the most important number you’ve never heard of.” A key reason is that within the executive branch, the stringency of regulation of greenhouse gases emissions often depends on that number. Another reason is that the social cost of carbon can and should play a role in determining the content of other kinds of initiatives, such as a carbon tax. In the United States, the relevant numbers were challenged in court under the administrations of Barack Obama (where they were upheld) and Donald Trump (where they were struck down). The litigation raises fundamental questions about the role of science, economics, and politics in judicial review of agency action, and about the relationship between courts and the administrative state. With respect to the social cost of carbon: (1) A decision to use the global number, as opposed to the domestic number, would be straightforward to defend against an arbitrariness challenge; a decision to use the domestic number, as opposed to the global number, would be difficult to defend against an arbitrariness challenge. (2) A decision to use a low discount rate, such as two percent, would be straightforward to defend against an arbitrariness challenge; a decision to use a high discount rate, such as seven percent, would be exceedingly difficult to defend against an arbitrariness challenge. (3) A wide range of decisions – involving, for example, climate sensitivity and the damage function -- raise difficult questions in science and economics; they should be straightforward to defend against an arbitrariness challenge, but only if they follow from a reasoned justification. (4) Approaches that take account of equity – including “prioritarianism” – should be defensible against an arbitrariness challenge, as should be a refusal to adopt such approaches, but here again, a reasoned justification is required. (5) A decision to “back out” a social cost of carbon, from some specific target, would be challenging to defend against an arbitrariness challenge. A general lesson, with broader implications, is that judicial review of the social cost of carbon should (and likely will) involve a procedural hard look, not a substantive hard look. A procedural hard look is important to defend against failures of both deliberation and democracy; a substantive hard look would strain judicial capacities.

How we became so burdened by red tape and unnecessary paperwork, and why we must do better. We’ve all had to fight our way through administrative sludge–filling out complicated online forms, mailing in paperwork, standing in line at the motor vehicle registry. This kind of red tape is a nuisance, but, as Cass Sunstein shows in Sludge, it can also also impair health, reduce growth, entrench poverty, and exacerbate inequality. Confronted by sludge, people just give up–and lose a promised outcome: a visa, a job, a permit, an educational opportunity, necessary medical help. In this lively and entertaining look at the terribleness of sludge, Sunstein explains what we can do to reduce it. Because of sludge, Sunstein, explains, too many people don’t receive benefits to which they are entitled. Sludge even prevents many people from exercising their constitutional rights–when, for example, barriers to voting in an election are too high. (A Sludge Reduction Act would be a Voting Rights Act.) Sunstein takes readers on a tour of the not-so-wonderful world of sludge, describes justifications for certain kinds of sludge, and proposes "Sludge Audits" as a way to measure the effects of sludge. On balance, Sunstein argues, sludge infringes on human dignity, making people feel that their time and even their lives don’t matter. We must do better.

What information would people like to have? What information would they prefer to avoid? How does the provision of information bear on welfare? Representative surveys in eleven nations find that substantial percentages of people do not want to receive information even when it bears on health, sustainability, and consumer welfare. People’s willingness to pay for information, contingent on their wanting it, is mostly higher than people’s willingness to pay not to receive information, contingent on their not wanting it. We develop a model and estimate the welfare effects. We find substantial benefits and costs, with the former outweighing the latter.