Faculty Bibliography

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

Sunstein argues that real understanding of how the findings of behavioral economics relate to law demands and investigates the connection between relevant findings and social influences. He describes the available heuristic and the probability neglect bias and the way it helps to explain individual thinking about risks. Cascades, group polarization, politics, interest groups, and the media, may exert influence in mediating the types of processes dealt with in psychology and behavioral economics.

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

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

Do animals have rights? Almost everyone believes in animal rights, at least in some minimal sense; the real question is what that phrase actually means. By exploring that question, it is possible to give a clear sense of the lay of the land - to show the range of possible positions, and to explore what issues, of theory or fact, separate reasonable people. On reflection, the spotlight should be placed squarely on the issue of suffering and well-being. This position requires rejection of some of the most radical claims by animal rights advocates, especially those that stress the "autonomy" of animals, or that object to any human control and use of animals. But this position has radical implications of its own. It strongly suggests, for example, that there should be extensive regulation of the use of animals in entertainment, in scientific experiments, and in agriculture. It also suggests that there is a strong argument, in principle, for bans on many current uses of animals.

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

Much of the time, human beings do what others do. This is perfectly sensible, because the actions and statements of other people convey valuable information about what should be done. In addition, most people want the good opinion of others, and this desire promotes conformity. But conformity can lead both groups and institutions in unfortunate and even catastrophic directions. The most serious problem is that by following others, people fail to disclose what they know and believe, thus depriving society of important information. Those who dissent, and who reject the pressures imposed by others, perform valuable social functions, often at their own expense, material or nonmaterial. These points are illustrated by reference to theoretical and empirical work on conformity, cascades, and group polarization. An understanding of the role of conformity and dissent casts new light on a variety of legal issues, including the expressive function of law; the institutions of the American constitution; the functions of free speech in wartime; the debate over the composition of the federal judiciary; and affirmative action in higher education.

New work on heuristics and biases has explored the role of emotions and affect; the idea of "dual processing"; the place of heuristics and biases outside of the laboratory; and the implications of heuristics and biases for policy and law. This review-essay focuses on certain aspects of "Heuristics and Biases: The Psychology of Intuitive Judgment", edited by Thomas Gilovich, Dale Griffin, and Daniel Kahneman. An understanding of heuristics and biases casts light on many issues in law, involving jury awards, risk regulation, and political economy in general. Some attention is given to the possibility of "moral heuristics" - rules of thumb, for purposes of morality, that generally work well but that also systematically misfire.

When strong emotions are triggered by a risk, people show a remarkable tendency to neglect a small probability that the risk will actually come to fruition. Experimental evidence, involving electric shocks and arsenic, supports this claim, as does real-world evidence, involving responses to abandoned hazardous waste dumps, the pesticide Alar, and anthrax. The resulting "probability neglect" has many implications for law and policy. It suggests the need for institutional constraints on policies based on ungrounded fears; it also shows how government might effectively draw attention to risks that warrant special concern. Probability neglect helps to explain the enactment of certain legislation, in which government, no less than ordinary people, suffers from that form of neglect. When people are neglecting the fact that the probability of harm is small, government should generally attempt to inform people, rather than cater to their excessive fear. But when information will not help, government should respond, at least if analysis suggest that the benefits outweigh the costs. The reason is that fear, even if it is excessive, is itself a significant problem, and can create additional significant problems.

Courts have recently developed a new principle of interpretation: Administrative agencies are not bound by the literal language of regulatory statutes, if they are attempting to ensure against absurd or patently unreasonable outcomes. This principle is an effort to allow agencies to overcome the occasionally pathological rigidity of regulatory statutes, at least when those statutes must be applied in circumstances that Congress could not possibly anticipate. The new principle deserves widespread approval. After all, courts have long refused to interpret statutes literally in cases of absurdity. While it is possible to question the extent to which courts should feel free to inquire into the absurdity of an application of a statutory text, agencies have strong advantages over courts, because they are in a better position to know whether literalism, or departures from literalism, will improve the regulatory system. These points are connected with a more general one: Theories of interpretation should focus less on abstractions about democracy and legitimacy, and more on institutional capacities and concrete consequences. An appreciation of this suggestion fits well with courts' emerging enthusiasm for allowing agencies to interpret statutes more flexibly than courts do.

Recent scientific innovations, and proposed legislation, have raised questions about the nature of the constitutional right to reproductive freedom, and in particular about whether there is a constitutional "right to clone." This essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny. At the same time, many of the arguments for banning both forms of cloning are based on ignorance, myths, and speculation. It is extremely important to distinguish between reproductive and nonreproductive cloning, and it is equally important to distinguish among the various rationales for banning each. Some of those rationales have some, but others, including some of the most influential, are exceedingly weak.

What does cost-benefit mean, or do, in actual practice? When agencies are engaging in cost-benefit balancing, what are the interactions among law, science, and economics? This Article attempts to answer that question by exploring, in some detail, the controversy over EPA’s proposed regulation of arsenic in drinking water. The largest finding is that science often can produce only “benefit ranges,” and wide ones at that. With reasonable assumptions based on the existing science data, the proposed arsenic regulation can be projected to save as few as 0 lives and as many as 112. With reasonable assumptions, the monetized benefits of the regulation can range from $0 to $560 million. In these circumstances, there is no obviously right decision for government agencies to make. These points have numerous implications for lawyers and courts, suggesting the ease of bringing legal challenges, on grounds specified here, and the importance of judicial deference in the face of scientific uncertainty. There are also policy implications. Agencies should be given the authority to issue more targeted, cost-effective regulations. They should also be required to accompany the cost-benefit analysis with an effort to identify the winners and losers, so as to see if poor people are mostly hurt or mostly helped.

When people make moral or legal judgments in isolation, they produce a pattern of outcomes that they would themselves reject, if only they could see that pattern as a whole. A major reason is that human thinking is category-bound. When people see a case in isolation, they spontaneously compare it to other cases that are mainly drawn from the same category of harms. When people are required to compare cases that involve different kinds of harms, judgments that appear sensible when the problems are considered separately often appear incoherent and arbitrary in the broader context. Another major source of incoherence is what we call the translation problem: The translation of moral judgments into the relevant metrics of dollars and years is not grounded in either principle or intuition, and produces large differences among people. The incoherence produced by category-bound thinking is illustrated by an experimental study of punitive damages and contingent valuation. We also show how category-bound thinking and the translation problem combine to produce anomalies in administrative penalties. The underlying phenomena have large implications for many topics in law, including jury behavior, the valuation of public goods, punitive damages, criminal sentencing, and civil fines. We consider institutional reforms that might overcome the problem of predictably incoherent judgments. Connections are also drawn to several issues in legal theory, including valuation of life, incommensurability, and the aspiration to global coherence in adjudication.

For over two decades, federal agencies have been required to analyze the benefits and costs of significant regulatory actions and to show that the benefits justify the costs. But the regulatory state continues to suffer from significant problems, including poor priority-setting, unintended adverse side-effects, and, on occasion, high costs for low benefits. In many cases, agencies do not offer an adequate account of either costs or benefits, and hence the commitment to cost-benefit balancing is not implemented in practice. A major current task is to ensure a deeper and wider commitment to cost-benefit analysis, properly understood. We explain how this task might be accomplished and offer a proposed executive order that would move regulation in better directions. In the course of the discussion, we explore a number of pertinent issues, including the actual record of the last two decades, the precautionary principle, the value of prompt letters the role of distributional factors, and the need to incorporate independent agencies within the system of cost-benefit balancing

Over the past two decades, the United States has seen a dramatic increase in the number and magnitude of punitive damages verdicts rendered by juries in civil trials. Probably the most extraordinary example is the July 2000 award of $144.8 billion in the Florida class action lawsuit brought against cigarette manufacturers. Or consider two recent verdicts against the auto manufacturer BMW in Alabama. In identical cases, argued in the same court before the same judge, one jury awarded $4 million in punitive damages, while the other awarded no punitive damages at all. In cases involving accidents, civil rights, and the environment, multimillion-dollar punitive awards have been a subject of intense controversy. But how do juries actually make decisions about punitive damages? To find out, the authors-experts in psychology, economics, and the law-present the results of controlled experiments with more than 600 mock juries involving the responses of more than 8,000 jury-eligible citizens. Although juries tended to agree in their moral judgments about the defendant's conduct, they rendered erratic and unpredictable dollar awards. The experiments also showed that instead of moderating juror verdicts, the process of jury deliberation produced a striking "severity shift" toward ever-higher awards. Jurors also tended to ignore instructions from the judges; were influenced by whatever amount the plaintiff happened to request; showed "hindsight bias," believing that what happened should have been foreseen; and penalized corporations that had based their decisions on careful cost-benefit analyses. While judges made many of the same errors, they performed better in some areas, suggesting that judges (or other specialists) may be better equipped than juries to decide punitive damages. Using a wealth of new experimental data, and offering a host of provocative findings, this book documents a wide range of systematic biases in jury behavior. It will be indispensable for anyone interested not only in punitive damages, but also jury behavior, psychology, and how people think about punishment.

There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. The default rule can create an endowment effect, making employees value certain rights more simply because they have been granted such rights in the first instance. Similarly, the default rule for savings plans, set by employers or law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead employee confusion or bargaining strategy.

Focuses on social dynamics as a factor in the occurrence of the September 11, 2001 terrorist attack in the U.S. Research on the relationship of individual and group judgments; Concept of polarization in terrorist organizations; Discussion on the Al Qaeda terrorist movement.

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President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action. Our purpose in this paper is not to investigate, except in passing, issues of law and policy. We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular? The most tempting, and common, explanation for the different reactions is that there is a significant difference in law - that President Roosevelt's Order stands on much firmer legal ground than President Bush's order. We show that this and related explanations are weak. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive authority and military authority. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift. After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.

The phenomenon of group polarization means that the members of a deliberating group predictably move toward a more extreme point in the direction of their pre-deliberation views. This phenomenon raises serious questions about the potential dangers of deliberation, even in some democratic settings.

What should be done about airplane safety and terrorism, global warming, polluted water, nuclear power, and genetically engineered food? Decision-makers often respond to temporary fears, and the result is a situation of hysteria and neglect--and unnecessary illness and death. Risk and Reason explains the sources of these problems and explores what can be done about them. It shows how individual thinking and social interactions lead us in foolish directions. Offering sound proposals for social reform, it explains how a more sensible system of risk regulation, embodied in the idea of a "cost-benefit state," could save many thousands of lives and many billions of dollars too--and protect the environment in the process.

This book discusses the current topic of Federal Government regulations increasingly assessed by asking whether the benefits of the regulation justifies the cost of the regulation.

Review of The Perception of Risk, by Paul Slovic (2000).

Can computers, or artificial intelligence, reason by analogy? This essay urges that they cannot, because they are unable to engage in the crucial task of identifying the normative principle that links or separates cases. Current claims, about the ability of artificial intelligence to reason analogically, rest on an inadequate picture of what legal reasoning actually is. For the most part, artificial intelligence now operates as a kind of advanced version of LEXIS, offering research assistance rather than analogical reasoning. But this is a claim about current technology, not about inevitable limitations of artificial intelligence; things might change in the future.

The legal system should rely much more than it now does on statistical evidence. It should be cautious about the judgments of experts, who make predictable cognitive errors. Like everyone else, experts have a tendency to blunder about risk, a point that has been shown to hold for doctors, whose predictions significantly err in the direction of optimism. We present new evidence that individual doctors' judgments about the ordinary standard of care are incorrect and excessively optimistic. We also show how this evidence bears on legal determinations of negligence, by doctors and others.

Though George W. Bush took office in January, the nation is still recovering from the prolonged and complex process by which he was elected. The Florida electoral controversy and the subsequent decisions by both the Florida courts and the U.S. Supreme Court left citizens and scholars alike divided over the role of the judiciary in the electoral arena. Now, after a few months of reflection, leading constitutional scholarsCass R. Sunstein, Richard A. Epstein, Pamela S. Karlan, Richard A. Posner, and John Yoo, among others—weigh in on the Supreme Court's actions, which remain sensible, legally legitimate, and pragmatically defensible to some and an egregious abuse of power to others. Representing the full spectrum of views and arguments, The Vote offers the most timely and considered guide to the ultimate consequences and significance of the Supreme Court's decision. The contributors to this volume were highly visible in the national media while the controversy raged, and here they present fully fleshed-out arguments for the positions they promoted on the airwaves. Readers will find in The Vote equally impassioned defenses for and indictments of the Court's actions, and they will come to understand the practical and theoretical implications of the Court's ruling in the realms of both law and politics. No doubt a spate of books will appear on the 2000 presidential election, but none will claim as distinguished a roster of contributors better qualified to place these recent events in their appropriate historical, legal, and political contexts. Leading constitutional scholars render their verdicts on the 2000 presidential election controversy

"In modern nations, political disagreement is the source of both the gravest danger and the greatest security," writes Cass Sunstein. All democracies face intense political conflict. But is this conflict necessarily something to fear? In this provocative book, one of our leading political and legal theorists reveals how a nation's divisions of conviction and belief can be used to safeguard democracy. Confronting one explosive political issue after another, from presidential impeachment to the limits of religious liberty, from discrimination against women and gays to the role of the judiciary, Sunstein constructs a powerful new perspective from which to show how democracies negotiate their most divisive real-world problems. He focuses on a series of concrete concerns that go to the heart of the relationship between the idea of democracy and the idea of constitutionalism. Illustrating his discussion with examples from constitutional debates and court-cases in South Africa, Eastern Europe, Israel, America, and elsewhere, Sunstein takes readers through a number of highly charged questions: When should government be permitted to control discriminatory behavior by or within religious organizations? Does it make sense to govern on the basis of popular referenda? Can the right to have an abortion be defended? Can we defend Internet regulation? Should the law step in if children are being schooled in discriminatory preferences and beliefs? Should a constitution protect rights to food, shelter, and health care? Disputes over questions such as these can be fierce enough to pose a grave threat. But in a paradox whose elaboration forms the core of Sunstein's book, it is a nation's apparently threatening diversity of opinion that can ensure its integrity. Extending his important recent work on the way deliberation within like-minded groups can produce extremism, Sunstein breaks new ground in identifying the mechanisms behind political conflict in democratic nations. At the same time, he develops a profound understanding of a constitutional democracy's system of checks and balances. Sunstein shows how a good constitution, fostering a "republic of reasons," enables people of opposing ethical and religious commitments to reach agreement where agreement is necessary, while making it unnecessary to reach agreement when agreement is impossible.

Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.

Inequalities often persist because both the advantaged and the disadvantaged stand to lose from change. Despite the probability of loss, moral indignation can lead the disadvantaged to seek to alter the status quo, by encouraging them to sacrifice their material self-interest for the sake of equality. Experimental research shows that moral indignation, understood as a willingness to suffer in order to punish unfair treatment by others, is widespread. It also indicates that a propensity to apparently self-defeating moral indignation can turn out to promote people’s material self-interest, if and because others will anticipate their actions. But potential rebels face collective action problems. Some of these can be reduced through the acts of “indignation entrepreneurs,” giving appropriate signals, organizing discussions by like-minded people, and engaging in acts of self-sacrifice. Law is relevant as well. By legitimating moral indignation and dissipating pluralistic ignorance, law can intensify and spread that indignation, thus increasing its expression. Alternatively, law can delegitimate moral indignation, or at least raise the cost of its expression, thus stabilizing a status quo of inequality. But the effects of law are unpredictable, in part because it will have moral authority for some but not for others; here too heterogeneity is an issue both for indignation entrepreneurs and their opponents. Examples are given from a range of areas, including labor-management relations, sexual harassment, civil rights, and domestic violence.

In an important but thus far unnoticed development, federal courts have created a new series of "default principles" for statutory interpretation, authorizing regulatory agencies, when statutes are unclear, (a) to exempt trivial risks from regulation and thus to develop a kind of common law of "acceptable risks," (b) to take account of substitute risks created by regulation, and thus to engage in "health-health" tradeoffs, (c) to consider whether compliance with regulation is feasible, (d) to take costs into account, and (e) to engage in cost-benefit balancing, and thus to develop a kind of common law of cost-benefit analysis. These cost-benefit default principles are both legitimate and salutary, because they give rationality and sense the benefit of the doubt. At the same time, they leave many open questions. They do not say whether agencies are required, and not merely permitted, to go in the direction they indicate; they do not indicate when agencies might reasonably reject the principles; and they do not say what, specifically, will be counted as an "acceptable" risk or a sensible form of cost-benefit analysis. Addressing the open questions, this essay urges that the principles should ordinarily be taken as mandatory, not merely permissive; that agencies may reject them in certain identifiable circumstances; and that steps should be taken toward quantitative analysis of the effects of regulation, designed to discipline the relevant inquiries. An understanding of these points should promote understanding of emerging "second generation" debates, involving not whether to adopt a presumption in favor of cost-benefit balancing, but when the presumption is rebutted, and what, in particular, cost-benefit analysis should be taken to entail.

One of the characteristics of a free society should be a strong presumption in favor of full patient control over personal information. The presumption is rebutted when disclosure to others is necessary (1) for good patient care, as in the case of consultations and medical teams; (2) to compile information that will produce scientific or medical progress; (3) to protect third parties from serious risks of harm; and (4) to prevent harm to patients themselves. In all of these cases, identifying information should be removed unless it is necessary. Principles of this sort should be implemented via physician norms, in fact publicly acknowledged physician norms, and (only) if necessary, by more formal regulations, private and public.

The most fundamental issues in labor and employment law involve the choice among three alternatives: waivable employers' rights, waivable employees' rights, and nonwaivable employees' rights. By combining standard contract analysis with a perspective informed by behavioral economics, it is possible to obtain a much better understanding of the underlying issues. Contrary to the conventional view: workers are especially averse to losses, and not so much concerned with obtaining gains; workers often do not know about legal rules, including key rules denying them rights; workers may well suffer from excessive optimism; workers care a great deal about fairness, and are willing to punish employers who have treated them unfairly, even at workers' own expense; many workers greatly discount the future; and workers often care about relative economic position, not absolute economic position. These points suggest the advantages, in many cases, of relying on waivable employees' rights, an approach designed to inform workers without providing the rigidity and inefficiency associated with nonwaivable terms. At the same time, these points suggest, though more ambiguously, the hazards of allowing workers to waive their rights in accordance with standard contract principles. Procedural constraints (e.g., cooling off periods) and substantive constraints (e.g., "floors") on waiver may be appropriate. Norm change and preference change are also discussed. Applications include job security; parental leave; vacation time; health care; unionization; occupational safety and health; discrimination on the basis of age, race, and sex; waivers by unions; and workers' compensation. The basic conclusion is that waivable employees' rights are a promising and insufficiently explored option in many areas of labor and employment law.