Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
Like everyone else, academics are susceptible to informational and reputational signals. Sometimes academics lack confidence in their methods and beliefs, and they pay a great deal of attention to the methods and beliefs of others. The academic study of law is particularly subject to cascade effects, as people follow signals that they participate in amplifying. Some of these effects run their course quickly, whereas others last a long time. Leaders can play a special role in starting and stopping cascades; external shocks play a special role in the academic study of law; sometimes like-minded people within academia move one another to extremes. This informal essay, the Foreword to the forthcoming annual book review issue of the Michigan Law Review, discusses these points in a tentative and impressionistic way, with brief comparisons to other fields.
-
Type:
Categories:
Sub-Categories:
Links:
Whitman v. American Trucking Association was one of the most eagerly awaited regulatory decisions in many years. But the Court's understated, steady, lawyerly opinion was a bit of an anticlimax, representing a return to normalcy and leaving many open questions. The Court was correct to say that the relevant provision of the Clean Air Act forbids consideration of cost; it was also correct to refuse to invoke the nondelegation doctrine. Importantly, the Court left in place a set of important lower court decisions, allowing agencies to consider costs unless Congress expressly concludes otherwise. The Court also raised some new questions about the constitutional status of the Occupational Safety and Health Act. Perhaps most important, the Court has not ruled out nonconstitutional challenges to the particulates and ozone standards, or to ambient air quality standards generally. In suggesting that some of those challenges should succeed, especially against the new ozone regulation, this essay urges that Justice Breyer's concurring opinion in the case may well be the most influential in the future, because it fits most comfortably with other trends in the law of risk regulation, signaling the emergence of a kind of "cost-benefit state."
-
Type:
Categories:
Sub-Categories:
See only what you want to see, hear only what you want to hear, read only what you want to read. In cyberspace, we already have the ability to filter out everything but what we wish to see, hear, and read. Tomorrow, our power to filter promises to increase exponentially. With the advent of the Daily Me, you see only the sports highlights that concern your teams, read about only the issues that interest you, encounter in the op-ed pages only the opinions with which you agree. In all of the applause for this remarkable ascendance of personalized information, Cass Sunstein asks the questions, Is it good for democracy? Is it healthy for the republic? What does this mean for freedom of speech? Republic.com exposes the drawbacks of egocentric Internet use, while showing us how to approach the Internet as responsible citizens, not just concerned consumers. Democracy, Sunstein maintains, depends on shared experiences and requires citizens to be exposed to topics and ideas that they would not have chosen in advance. Newspapers and broadcasters helped create a shared culture, but as their role diminishes and the customization of our communications universe increases, society is in danger of fragmenting, shared communities in danger of dissolving. In their place will arise only louder and ever more extreme echoes of our own voices, our own opinions. In evaluating the consequences of new communications technologies for democracy and free speech, Sunstein argues the question is not whether to regulate the Net (it's already regulated), but how; proves that freedom of speech is not an absolute; and underscores the enormous potential of the Internet to promote freedom as well as its potential to promote "cybercascades" of like-minded opinions that foster and enflame hate groups. The book ends by suggesting a range of potential reforms to correct current misconceptions and to improve deliberative democracy and the health of the American republic.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
Cost‐benefit analysis is often justified on conventional economic grounds, as a way of preventing inefficiency. But it is most plausibly justified on cognitive grounds—as a way of counteracting predictable problems in individual and social cognition. Poor judgments, by individuals and societies, can result from certain heuristics, from informational and reputational cascades, from thinking processes in which benefits are “on screen” but costs are not, from ignoring systemic effects of one‐shot interventions, from seeing cases in isolation, and from intense emotional reactions. Cost‐benefit analysis serves as a corrective to these cognitive problems. In addition, it is possible to arrive at an incompletely theorized agreement on cost benefit analysis—an agreement that does not depend on controversial arguments (for example, the view that willingness to pay should be the basis for all social outcomes) and that can attract support from a variety of reasonable views. There is discussion as well of the role of distributional weights and other equitable factors in cost‐benefit analysis. The conclusion is that the best argument for cost‐benefit analysis is rooted in cognitive psychology and behavioral economics.
-
Type:
Categories:
Sub-Categories:
Links:
From the legal point of view, there is nothing at all new or unfamiliar in the idea of "animal rights;" on the contrary, it is entirely clear that animals have legal rights. Indeed, the rise of legal rights for animals has been one of the most distinctive features of the last thirty years of federal statutory law. An investigation of the question of standing helps show that the real issues involve problems of enforcement and scope. Human beings often do and should have standing to protect animal rights; animals lack such standing, but only because Congress has failed to give them standing. Animal welfare statutes should be amended to grant a private cause of action, to human beings and animals alike, against those who violate them, so as to allow private claimants to supplement agency enforcement efforts. This modest step could do a great deal to prevent the unjustified suffering of animals.
-
Type:
Categories:
Sub-Categories:
Links:
How does jury deliberation affect the pre-deliberation judgments of individual jurors? In this paper we make progress on that question by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that with respect to dollars, deliberation produces a "severity shift," in which the jury's dollar verdict is systematically higher than that of the median of its jurors' predeliberation judgments. A "deliberation shift analysis" is introduced to measure the effect of deliberation. The severity shift is attributed to a "rhetorical asymmetry," in which arguments for higher awards are more persuasive than arguments for lower awards. When judgments are measured not in terms of dollars but on a rating scale of punishment severity, deliberation increased high ratings and decreased low ratings. We also find that deliberation does not alleviate the problem of erratic and unpredictable individual dollar awards, but in fact exacerbates it. Implications for punitive damage awards and deliberation generally are discussed.
-
Type:
Categories:
Sub-Categories:
Links:
Contrary to a common picture of relationships in a market economy, people often express communal and membership-seeking impulses via consumption choices, purchasing goods and services because other people are doing so as well. Shared identities are maintained and created in this way. Solidarity goods are goods whose value increases as the number of people enjoying them increases. Exclusivity goods are goods whose value decreases as the number of people enjoying them increases. Distinctions can be drawn among diverse value functions, capturing diverse relationships between the value of goods and the value of shared or unshared consumption. Though markets spontaneously produce solidarity goods, individuals sometimes have difficulty in producing such goods on their own, or in coordinating on choosing them. Here law has a potential role. There are implications for trend setting, clubs, partnerships, national events, social cascades, and compliance without enforcement.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
"This exciting volume marks the birth of a new field, one which attempts to study law with reference to an accurate understanding of human behavior. It reports new findings in cognitive psychology which show that people are frequently both unselfish and over-optimistic; that people have limited willpower and limited self-control; and that people are 'boundedly' rational, in the sense that they have limited information-processing powers, and frequently rely on mental short-cuts and rules of thumb. Understanding this behavior has large-scale implications for the analysis of law, in areas including environmental protection, taxation, constitutional law, voting behavior, punitive damages for civil rights violations, labor negotiations, and corporate finance. With a better knowledge of human behavior, it is possible to predict the actual effects of law, to see how law can promote society's goals, and to reassess the questions of what law should be doing." --Publisher
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
How is constitution-making possible, when people disagree on so many questions about what is good and what is right? The answer lies in the existence of incompletely theorized agreements–agreements on abstract formulations (freedom of speech, equality under the law) and on particular practices, amidst disagreement about the largest issues in social life. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters. Incompletely theorized agreements thus help illuminate an enduring constitutional puzzle: how members of diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good.
-
Type:
Categories:
Sub-Categories:
Links:
Reports of the death of the nondelegation doctrine have been greatly exaggerated. Rather than having been abandoned, the doctrine has merely been renamed and relocated. Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own. These canons forbid extraterritorial application of national law, intrusions on state sovereignty, decisions harmful to Native Americans, and absolutist approaches to health and safety. The nondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.
-
Type:
Categories:
Sub-Categories:
Constitutional limits on government's power to regulate the culture and the arts, newly salient in light of the controversy involving the Brooklyn Museum, are best understood by distinguishing among (a) content-neutral, (b) content-based, and (c) viewpoint-based restrictions, and also among (a) criminal and civil sanctions, (b) "penalties," and (c) mere failure to fund. The resulting three-by-three matrix provides an understanding of the vast bulk of current constitutional law. At the same time, several serious puzzles are created by current law: the distinction between viewpoint discrimination and content discrimination can be thin in the context of art; it is hard to know what counts as a "mere" failure to fund; and the law contains important uncertainties about selective funding. There is discussion as well of government subsidies of the market for culture and art.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
Two studies test whether people believe in optimal deterrence. The first provides people with personal injury cases that are identical except for variations in the probability of detection, and explores whether lower probability cases produce higher punitive damage awards, and whether higher probability cases produce lower awards. No such effect is observed. The second asks people whether they agree or disagree with administrative and judical policies that increase penalties when the probability of detection is low, and decrease penalties when the probability of detection is high. Substantial majorities reject these administrative and judical policies. Policy implications for the role of the jury in achieving deterrence are explored.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This article argues (1) against revival of the nondelegation doctrine, and (2) in favor of a kind of "democracy-forcing minimalism" for administrative law. As against a prominent recent trend in the DC Circuit, it claims that the nondelegation doctrine should be reserved only for the most egregious cases and that its appropriate use is in tools of statutory construction and certain "nondelegation canons." The Clean Air Act is constitutional because it sets floors and ceilings on agency action. But in issuing ambient air quality standards, the EPA should be required to compare the chosen standard with at least two alternatives, one more stringent and one less stringent; it should quantify the benefits of the three options, to the extent feasible; and it should explain why the chosen alternative is preferable in terms of the "residual risk." Reviewing courts should require the EPA to perform this task, usually by "remanding without invalidating" inadequately justified air quality regulations. There is discussion as well of possible amendments to the Clean Air Act.
-
Type:
Categories:
Sub-Categories:
Links:
People are often reluctant to make decisions by calculating the costs and benefits of alternative courses of action in particular cases. Knowing, in addition, that they may err, people and institutions often resort to second order strategies for reducing the burdens of, and risk of error in, first order decisions. They make a second order decision when they choose one from among such possible strategies. They adopt rules or presumptions; they create standards; they delegate authority to others; they take small steps; they pick rather than choose. Some of these strategies impose high costs before decision but low costs at the time of ultimate decision; others impose low costs both before and at the time of ultimate decision; still others impose low costs before decision while exporting to others the high costs at the time of decision. We assess these second-order strategies and provide grounds for choosing among them in both legal and nonlegal contexts, by exploring the extent to which they minimize the overall costs of decision and costs of error. We also attempt to cast light on political, legal, and ethical issues raised by second-order decisions.
-
Type:
Categories:
Sub-Categories:
Links:
How does jury deliberation affect the pre-deliberation judgments of individual jurors? Do deliberating juries reduce or eliminate the erratic and unpredictable punitive damage awards that have been observed with individual jurors? In this paper we make progress on these two questions, in part by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that juries did not produce less erratic and more predictable awards than individuals, but actually made the problem worse, by making large awards much larger and small awards smaller still, even for the same case. Thus, a key effect of deliberation is often to polarize individual judgments, a pattern that has been found in many other group decision making contexts. This finding of polarization--the first of its kind in the particular context of punitive damage awards--has important implications for jury awards involving both punitive and compensatory damages, and raises questions about the common belief that groups, and in particular juries, generally make better decisions than individuals.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This paper urges that one of the great, quasi-theological debates in legal theory depends on answers to empirical questions. The debate is whether courts should be "formalistic," that is, whether they should interpret statutory terms in accordance with their literal meaning, or whether they should be permitted to reject literal meaning by reference to "purposes," or canons of constructions, or considerations of policy. Any good answer turns on what approach will minimize decision costs and error costs, and that depends on empirical judgments about the likely performance of courts and legislatures. There is discussion as well of information-eliciting and market-mimicking default rules in the interpretation of contracts and statutes.
-
Type:
Categories:
Sub-Categories:
Links:
An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception of increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs - activists who manipulate the content of public discourse - strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they bring harm, which suggests a need for safeguards. Focusing on the role of mass pressures in the regulation of risks associated with production, consumption, and the environment, Professor Timur Kuran and Cass R. Sunstein analyze availability cascades and suggest reforms to alleviate their potential hazards. Their proposals include new governmental structures designed to give civil servants better insulation against mass demands for regulatory change and an easily accessible scientific database to reduce people's dependence on popular (mis)perceptions.
-
Type:
Categories:
Sub-Categories:
Abortion, affirmative action, the “right to die,” pornography and free speech, homosexuality and sex discrimination: as eagerly as the Supreme Court’s rulings on these hot issues are awaited and as intently as they’re studied, they never seem to settle anything once and for all. But something is settled in the process—in the incremental approach—as Cass Sunstein shows us in this instructive book. One of America’s preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how—and why—the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the “right to die,” and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress’s efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship—and the public expression of contempt for anyone—while leaving a degree of flexibility to the political process. One Case at a Time also lays out, and celebrates, the remarkable constellation of rights—involving both liberty and equality—that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.
-
Type:
Categories:
Sub-Categories:
Links:
Political Scientists testify before the House Committee on the Judiciary during the Hearing on Impeachment Inquiry Pursuant to H. Res. 581.
-
Type:
Categories:
Sub-Categories:
Links:
This Article discusses informational regulation and informational standing. It outlines the rise of informational regulation as an alternative to government command-and-control and offers a discussion of why and when information might be a good regulatory tool. It also shows how the grant of legal rights to information raises a host of novel standing issues, testing the notions of injury in fact, redressability, generalized grievances, and "arguably within the zone" of statutorily protected interests. Based on a detailed analysis of Federal Election Commission v. Akins, and lower court cases, it develops guidelines for standing in informational cases, recognizing that Congress can grant informational standing when it chooses, but that the redressability and "zone" limitations call for denials of standing in some contexts.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
The communications revolution has thrown into question the value of public interest obligations for television broadcasters. But the distinctive nature of this unusual market--with "winner- take-all" features, with viewers as a commodity, with pervasive externalities from private choices, and with market effects on preferences as well as the other way around--justifies a continuing role for government regulation in the public interest. At the same time, regulation best takes the form, not of anachronistic command-and-control regulation, but of (1) disclosure requirements, (2) economic incentives ("pay or play"), and (3) voluntary self-regulation through a privately administered code. Some discussion is devoted to free speech and antitrust issues, and to the different possible shapes of liability and property rules in this context, treating certain programming as a public "good" akin to pollution as a public bad.
-
Type:
Categories:
Sub-Categories:
All legally enforceable rights cost money. This is a practical, common sense notion but one ignored by almost everyone. To "fight for your rights," or anyone else's, is not just to debate principles but to haggle over budgets. Most conservatives imagine that rights our exercised to property, speech, and religion "free" of government "interference". Yet such rights would not exist if the government could not collect taxes to codify, protect and enforce them. Meanwhile, most liberals prefer to avoid the harsh reality that spending resources on some rights means not spending them on other, perhaps more valuable, rights. The insights that rights are expensive is a reminder that freedom is not violated by a government that taxes and spends. Rather, freedom requires such government and requires a citizenry vigilant about how money is allocated. This work seeks to change the terms of the USA's critical and contentious political debates.
-
Type:
Categories:
Sub-Categories:
Links:
Human beings are selectively fatalistic. Some risks appear as "background noise," whereas other, quantitatively identical risks cause enormous concern. This essay explores the reasons for selective fatalism and possible legal responses. Sometimes selective fatalism is a product of distributional issues, as people focus on risks that face particular groups; sometimes selective fatalism is a product of heuristics and biases. Selective fatalism might be overcome by an emphasis, as a regulatory starting point, on how many "decently livable life years" might be saved by regulation.
-
Type:
Categories:
Sub-Categories:
Links:
Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people's choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.
-
Type:
Categories:
Sub-Categories:
Links:
Although legal scholars have disagreed about whether juries should be allowed to award punitive damages and about how judges should instruct them, the debate has included little discussion of jurors' cognitive capabilities. In this Article, Professors Sunstein, Kahneman, and Schkade respond to this gap by offering an experimental study. The study seeks to separate the tasks that a jury is suited to perform from those that a jury can accomplish only with great inconsistency. In personal injury cases, the study shows, jurors' normative judgments about outrageousness and appropriate punishment are relatively uniform, at least when measured on a bounded numerical scale (0 to 6). Indeed, these normative judgments are uniform across race, age, education, wealth, and gender When subjects map their judgments onto an unbounded dollar scale, however outcomes become erratic and unpredictable. Drawing on these results, the authors question the current legal approaches to the regulation of punitive damages. They then analyze various reform proposals designed to overcome erratic awards, including damage caps, compensatory judgement "multipliers," and conversion formulas that translate either jury judgments on bounded numerical scabs or jury arrangement of comparison cases into punitive damage awards. Finally the authors discuss the implications of the study for many other issues of law: including contingent valuation and compensatory damages in such areas as pain and suffering, libel, sexual harassment, and intentional infliction of emotional distress.
-
Type:
Categories:
Sub-Categories:
Links:
Does the Food and Drug Administration (FDA) have the authority to regulate tobacco and tobacco products? This essay argues that the FDA does have this authority, because of the legitimate role of regulatory agencies in adapting statutory text to new circumstances and values. Without much fanfare, agencies have become modern America's common law courts, and properly so. This general claim is connected to the more particular one: Under the best reading of the FDA, tobacco may or may not be a drug; but under the best reading of that Act, the FDA has the legal authority to treat tobacco as a drug if it chooses to do so. In the process the essay discusses a number of, interpretive questions: the uses and limits of literalism; the power of an agency to change its mind, when Congress and others have been explicitly informed of the previous interpretation; the relevance of recent tobacco legislation; the role of paternalism in regulatory law; the nature of statutory default rules, operating as "information-eliciting" rules or as "intention-eliciting rules"; and the use of "dynamic" statutory interpretation by administrative agencies rather than courts.
-
Type:
Categories:
Sub-Categories:
Links:
How does jury deliberation affect the pre-deliberation judgments of individual jurors? Do deliberating juries reduce or eliminate the erratic and unpredictable punitive damage awards that have been observed with individual jurors? In this paper we make progress on these two questions, in part by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that juries did not produce less erratic and more predictable awards than individuals, but actually made the problem worse, by making large awards much larger and small awards smaller still, even for the same case. Thus, a key effect of deliberation is often to polarize individual judgments, a pattern that has been found in many other group decision making contexts. This finding of polarization--the first of its kind in the particular context of punitive damage awards--has important implications for jury awards involving both punitive and compensatory damages, and raises questions about the common belief that groups, and in particular juries, generally make better decisions than individuals.