Faculty Bibliography
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Political Scientists testify before the House Committee on the Judiciary during the Hearing on Impeachment Inquiry Pursuant to H. Res. 581.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Ranging from psychoanalyst Adam Phillips's case study of a child whose confusion of "cloning" and "clothing" expresses our mixed desire and terror of sameness, to Cass Sunstein's projections of utterly plausible Supreme Court decisions both for and against human cloning; from William Miller's analysis of the queasiness and nervous laughter the subject elicits in many of us to Richard Epstein's libertarian argument against a research ban; from Andrea Dworkin's denunciation of another masculine effort to control reproduction to Martha Nussbaum's witty and elegiac fantasy of the cloning of a lost lover - this collection limns our beliefs and concerns about what it means to be human.
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Evidence is presented to show that people are willing to pay a premium to avoid bad deaths—deaths that are especially dreaded, uncontrollable, involuntarily incurred, and inequitably distributed. Public judgments of this kind help explain the demand for regulation. But some of these judgments do not justify current policies, because they stem from selective attention and confusion. Few causes of death are entirely uncontrollable or faced wholly involuntarily; the issue is not whether they can be controlled but at what cost. But three kinds of bad deaths deserve special attention: those imposing high externalities, those preceded by unusual pain and suffering, and those producing distributional inequity.
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The newest work from one of the most preeminent voices writing in the legal/political arena today, this important book presents a new conception of the relationship between free markets and social justice. The work begins with foundations--the appropriate role of existing "preferences," the importance of social norms, the question whether human goods are commensurable, and issues of distributional equity. Continuing with rights, the work shows that markets have only a partial but instrumental role in the protection of rights. The book concludes with a discussion on regulation, developing approaches that would promote both economic and democratic goals, especially in the context of risks to life and health. Free Markets and Social Justice develops seven basic themes during its discussion: the myth of laissez-faire; preference formation and social norms; the contextual character of choice; the importance of fair distribution; the diversity of human goods; how law can shape preferences; and the puzzles of human rationality. As the latest word from an internationally-renowned writer, this work will raise a number of important questions about economic analysis of law in its conventional form.
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This review-essay, dealing with Justice Scalia's new book, A Matter of Interpretation, argues that Scalia's approach to interpretation has large gaps: administrative law and the administrative state. Scalia's essay attempts to exorcise the spirit of common law courts in favor of an approach to interpretation that might be described as democratic formalism. But in the modern era, most of interpretation, de jure perhaps and certainly de facto, is carried out not by courts but by administrative agencies. In a post-Chevron era, agencies in fact perform, and might well be authorized to perform, the updating and particularizing role historically performed by common law courts. Textualism, as Justice Scalia understands it, has some advantages as compared to statutory inter pretation by judges that allows changes in meaning over time; but it has hardly any advantages as compared to common law made by technically expert and democratically accountable agencies. The essay discusses how the American legal system might be reconceived if administrative agencies are seen as our common law courts.
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This essay argues against a right to physician-assisted suicide. It urges that the state has sufficient interests -- in protecting against abuse and diminished patient autonomy -- to justify intruding on any "fundamental right." It suggests that the previous substantive due process cases should be read as involving problems of equal protection or procedural due process.
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In recent years many people have suggested that rights come from traditions. More particularly, many people interested in American constitutional law have said that constitutional rights should be developed with close reference to American traditions. In this essay, I mean to challenge these claims. I argue that the enterprise of defining rights, including constitutional rights, should not be founded on an inquiry into tradition. Traditions should be assessed, not replicated. I also try to unpack some of the complexities in the idea that rights should be based on traditions. The topic is highly relevant to the debate over “communitarianism.” Many communitarians appear to be traditionalists, at least implicitly; they are concerned to defend social practices against abstract, acontextual claims about what is to be done, or about “rights.” It is important to ask why and when communitarians believe that a community's practices deserve insulation from rights–based claims. Often the best or most interesting answer has a Burkean dimension. It involves the extent to which a community—perhaps a local community resisting national efforts, perhaps a nation resisting international goals—owes its practices to long traditions that, precisely because of their longevity, might seem to make special sense. Ideas of this sort might be thought to have special strength when we think about rights in general or about constitutional rights in particular.