Faculty Bibliography
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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.
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This essay offers a qualified defense of "decisional minimalism" -- the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome. It distinguishes between "shallowness" and "narrowness" and explains the values served by each. It applies the analysis of minimalism not only to Dred Scott, Brown v. Bd., and Roe v. Wade, but also to the central cases of the past term (above all Romer v. Evans, which it defends as salutary minimalism) and future disputes over the right to die, same-sex marriage, and affirmative action.
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A distinctive and pervasive problem arises when government regulation designed to diminish one health risk actually increases other health risks. For example, bans on the use of asbestos may lead companies to use other, more dangerous substitutes. This essay explores health-health tradeoffs, including those that arise because regulatory expenditures increase poverty and unemployment and in that way increase poor health. The essay proposes institutional changes designed to ensure aggregate risk reduction rather than mere risk redistribution. It includes some general remarks about individual and collective rationality in the context of health risks.
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In Legal Reasoning and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seem impenetrable, mysterious, baroque. Legal Reasoning and Political Conflict helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.
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In this Article I explore the expressive function of law - the function of law in "making statements" as opposed to controlling behavior directly. I do so by focusing on the particular issue of how legal "statements" might be designed to change social norms. I catalogue a range of possible (and in my view legitimate) efforts to alter norms through legal expressions about appropriate evaluative attitudes. I also argue that the expressive function of law makes most sense in connection with efforts to change norms and that if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble. Empirical questions loom throughout, and I do offer empirical claims; but my goal is normative as well as descriptive or positive. This Article is divided into seven parts. Part I offers some definitional notes. Part II discusses the use of legal "statements" as a means of correcting social norms that all or most people disapprove. Part III deals with risk-taking behavior. Part IV explores the use of law to fortify norms involving the appropriate use of money. Part V discusses issues of equality. Part VI qualifies the basic argument. It discusses the relationship between the expressive function of law and the issue of consequences; it also explores constraints on the use of law to express judgments about appropriate values.
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This essay challenges some widely held understandings about rationality and choice, and uses that challenge to develop some conclusions about the appropriate domain of law. In particular, it suggests that many well-known anomalies in individual behavior are best explained by reference to social norms and to the fact that people feel shame when they violate those norms. Hence, there is no simple contrast between "rationality" and social norms. Individual rationality is a function of social norms. It follows that social states are often more fragile than might be supposed, because they depend on social norms to which people may not have much allegiance. Norm entrepreneurs -- people interested in changing social norms -- can exploit this fact; if successful, they produce what norm bandwagons and norm cascades. Collective action might be necessary to solve some unusual collective action problems posed by existing norms. And for many purposes, it would be best to dispense with the idea of "preferences," despite the pervasiveness of that idea in positive social science and in arguments about the appropriate domains of law.
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In this article, Cass Sunstein explores the 104th Congress' attempts at regulatory reform. Professor Sunstein believes that the election of this Congress, with its distinctive approach to government, signals the dawning of a "constitutional moment" in which the role of government at all levels will be reexamined. Without full public support for sweeping changes in government, this moment has not yet materialized. When and if it does, regulatory reform will be one of its aspects. Indeed the nation has already begun to examine regulation to determine if the benefits justify the costs. Unfortunately, the 104th Congress has, thus far, failed adequately to address this burgeoning cost-benefit state. Sunstein claims that Congress' failure reflects its inability to redesign the massive federal regulatory scheme. He suggests that the executive branch should oversee regulatory reform, with Congress relegated to providing broad policy direction. Sunstein also suggests that Congress adopt an Administrative Substance Act, building upon the recent learning about the performance of regulation and modeled after the Administrative Procedure Act. Sunstein further calls for the enactment of a "substantive supermandate" requiring a general background rule of cost-benefit balancing for all federal regulation; but he contends that any description of costs and benefits should reflect the full range of diverse values expressed by the public at large.
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How is law possible in a heterogeneous society, composed of people who sharply disagree about basic values? Such disagreements involve the most important issues of social life: the distribution of wealth, the role of race and gender, the nature of free speech and private property. Much of the answer to this puzzle lies in an appreciation of how people who disagree on fundamental issues can achieve incompletely theorized agreements on particular cases. Lecture I sets out the basic idea of incompletely theorized agreements and argues that such agreements have many virtues. It offers analogical thinking as a case in point - this is the way that ordinary lawyers and indeed ordinary people often try to solve legal and ethical problems. For a system of law, analogical thinking, as a basis for incompletely theorized agreements, can be desirable because it is so much less sectarian, hubristic, and demanding than deep theories about (for example) equality, or liberty, or economic efficiency. Society is sometimes too sharply divided or confused about such theories to permit them to be foundations for judge-made law, which requires agreements among people who have little time and limited capacities, who must find a way to live together, who believe that values are plural and diverse, and who should show respect to one another’s most defining commitments. Hence incompletely theorized agreements play a large role in interpretation of both statutes and the Constitution itself; many of our basic rights are a product of such agreements. Lecture II opposes rules to rulelessness. Its principal goal is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of lawmaking at the point of application, as an important part of that ideal. It defends a form of casuistry and describes the potentially democratic foundations of the casuistical enterprise in law. The lecture begins by describing the distinctive advantages of rules and law via rules, especially as a means for providing a consensus on what the law is from people who disagree on so much else. It also discusses two attacks on decisions according to rule: the view that controversial political and moral claims always play a role in the interpretation of rules, and thus that rules are not what they appear to be; and the view that rules are obtuse, because they are too crude to cover diverse human affairs, and because people should not decide cases without closely inspecting the details of disputes. Giving special attention to the death penalty and broadcasting regulation, it offers two ways out of the dilemmas posed by rules and rulelessness: (a) a presumption in favor of privately adaptable rules, that is, rules that allocate entitlements without specifying outcomes, in an effort to promote goals associated with free markets; and (b) highly contextualized assessments of the virtues and pathologies of both options, in an effort to promote democratic goals of responsiveness and open participation. The lectures end with the suggestion that incompletely theorized agreements on particular outcomes play a large role not only in law, but also in many other sectors of social life, prominently including democratic discussion.
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Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex equality. Sunstein proposes what he coins an ‘anticaste principle’ which forbids law from turning a morally irrelevant characteristic such as sex into a systematic source of social disadvantage. Focusing on the situation in which women's sexual and reproductive capacities are turned into objects for the use and control of others, Sunstein critiques American sex discrimination law, makes proposals for national and international legal change, and comments on the limitations of market mechanisms in ending discrimination.
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Robert Crandall writes as if the regulatory state is a simple failure. In fact, however, from the economic point of view there have been many successes, in the form of regulations whose benefits exceed their costs. Moreover, economic criteria are inadequate for evaluating regulatory performance, since even well‐aggregated private willingness to pay provides a poor basis for assessing government regulation. It is now necessary to move beyond sterile debates about whether regulation is desirable; nonregulation is not an option, since laissez faire is itself a regulatory system. Democratic, economic, and constitutional criteria hold out the promise of much better regulatory tools, in the form of flexible incentives rather than rigid commands.
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Cass R. Sunstein, Economic Incentives, Environmental Law, and Democracy, 21 Ecology L.Q. 455 (1994).
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