Faculty Bibliography

Much of everyday morality consists of simple, highly intuitive rules that generally make sense but that fail in certain cases. In this essay I will identify a set of heuristics that now influence factual and moral judgments in the domain of risk, and to try to make plausible the claim that some widely held practices and beliefs are a product of those heuristics. Often moral heuristics represent generalizations from a range of problems for which they are indeed well-suited, and hence most of the time, such heuristics work well. The problem comes when the generalizations are wrenched out of context and treated as freestanding or universal principles, applicable to situations in which their justifications no longer operate. There is nothing obtuse, or monstrous, about refusing to apply a generalization in contexts in which its rationale is absent. In the moral and political domains, it is hard to come up with unambiguous cases where the error is both highly intuitive and on reflection uncontroversial – where people can ultimately be embarrassed about their own intuitions. Nonetheless, I hope to show that whatever one’s moral commitments, moral heuristics exist and indeed are omnipresent, adversely affecting our reactions to social risks.

What are the effects of deliberation about political issues by likeminded people? An experimental investigation involving two deliberative exercises, one among self-identified liberals and another among self-identified conservatives, showed that participants' views became more extreme after deliberation. Deliberation also increased consensus and significantly reduced diversity of opinion within the two groups. Even anonymous statements of personal opinion became more extreme and homogeneous after deliberation.

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

Why do people become extremists? What makes people become so dismissive of opposing views? Why is political and cultural polarization so pervasive in America? In Going to Extremes, renowned legal scholar and best-selling author Cass R. Sunstein offers startling insights into why and when people gravitate toward extremism. Sunstein marshals a wealth of evidence that shows that when like-minded people gather in groups, they tend to become more extreme in their views than they were before. Thus when liberals group get together to debate climate change, they end up more alarmed about climate change, while conservatives brought together to discuss same-sex unions become more set against same-sex unions. In courtrooms, radio stations, and chatrooms, enclaves of like-minded people are breeding ground for extreme movements. Indeed, Sunstein shows that a good way to create an extremist group, or a cult of any kind, is to separate members from the rest of society, either physically or psychologically. Sunstein's findings help to explain such diverse phenomena as political outrage on the Internet, unanticipated "blockbusters" in the film and music industry, the success of the disability rights movement, ethnic conflict in Iraq and former Yugoslavia, and Islamic terrorism. Providing a wealth of real-world examples--sometimes entertaining, sometimes alarming--Sunstein offers a fresh explanation of why partisanship has become so bitter and debate so rancorous in America and abroad.

The article focuses on the arguments and contribution of Publius in the ratification of the U.S. Constitution. It discusses the political thought of Publius, pseudonym of Alexander Hamilton, James Madison, and John Jay, which were published through Federalist Papers. It states that Publius provide guidance for constitutional democracies across the world, not least when peace and prosperity are threatened. It notes that the works of Publius were to reconceive republicanism

Many people believe that the problem of climate change would be best handled by an international agreement that includes a system of cap and trade. Such a system would impose a global cap on greenhouse gases emissions and allocate tradable emissions permits. This proposal raises a crucial but insufficiently explored question: How should such permits be allocated? It is tempting to suggest that in principle, allocation should be done on a per capita basis, with the idea that each person should begin with the same entitlement, regardless of place of birth. This idea, pressed by many analysts and by the developing world, can be defended on grounds of either welfare or fairness. But on both grounds, per capita allocations run into serious objections. If fairness is understood in terms of equally or proportionally sharing the burdens of a climate treaty, per capita allocations are not fair because they do not take into account all the effects of such a treaty. Any agreement to reduce greenhouse gas emissions will give more benefits to some nations than to others, and will impose more costs on some nations than on others; in these circumstances, per capita emissions rights give the appearance but not the reality of fairness. For those who seek redistribution to those who need help, on grounds of either welfare or fairness, per capita allocations of emissions rights are at best a mixed blessing. Some rich nations are highly populated, and some poor nations have small populations; there is essentially no relationship between size of population and per capita wealth. Per capita allocations would also create serious incentive problems, and they would face decisive objections from the standpoint of feasibility: Per capita rights would transfer hundreds of billions of dollars annually from the United States to China and India, and the United States is most unlikely to sign a treaty with that consequence. Comparisons are drawn between per capita allocations and other approaches, including those based on existing emissions rates and those with self-conscious redistributive aims. A general goal is to balance welfarist and fairness goals with feasibility constraints; per capita allocations do a poor job of achieving that balance, and an insistence on that approach might make the climate change problem intractable. These conclusions have general implications for thinking about normative goals and practical limitations in the context of international law.

In law and politics, some people are trimmers. They attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of "trimming heuristic" and thus conclude that the middle course is best; and preservers, who attempt to preserve what is deepest in and most essential to competing reasonable positions, which they are willing to scrutinize and evaluate. It is true that in some cases, trimming leads to bad results in both politics and law, including bad interpretations of the Constitution. It is also true that trimmers face difficult questions about how to ascertain the relevant extremes and that trimmers can be manipulated by those who are in a position to characterize or to shift those extremes. Nonetheless, trimming is an honorable approach to some difficult questions in both law and politics, and in many domains, it is more attractive than the alternatives. In constitutional law, there are illuminating conflicts among those who believe in trimming, minimalism, rights fundamentalism, and democratic primacy.

Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution--traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do. Sunstein demonstrates that in all three contexts a "many minds" argument is at work--put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today. This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.

When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon — group polarization — has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others in situations of (1) common sources of information; (2) highly unrepresentative group membership; (3) statements that are made to obtain approval; and (4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders — the folly of crowds. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal law are legitimately applied to such institutions. For example, members of religious organizations cannot commit torts, even if the commission of torts is said to be part of their religious practices. Many people seem to accept what might be called an Asymmetry Thesis, which holds that sex equality principles may not be applied to religious institutions, whereas ordinary civil and criminal law may indeed be applied to them. This essay argues that the Asymmetry Thesis cannot be defended, and that much of the time, sex equality principles are properly applied to religious institutions. Discussion is also devoted to the controversial idea that facially neutral laws may be applied to religious institutions even if they have a severe adverse effect on religious practices.

Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain distinctive is the frequent foundation of moral judgments in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System 1, is typically responsible for indignation; the more reflective system, System 2, may or may not provide an override. An understanding of indignation helps to explain many phenomena of interest to law and politics: the outrage heuristic, the severity shift, the puzzling centrality of harm, moral framing, and the act–omission distinction. The operation of System 1 also helps to explain moral dumbfounding, understood as intense moral opprobrium that people are unable to justify, and moral numbness, understood as moral indifference that people know on reflection to be unwarranted. Both moral dumbfounding and moral numbness play a significant role in law and politics. Because of the nature of indignation, it is extremely difficult for people to achieve coherence in their moral intuitions, and the absence of coherence appears to be replicated in several areas of law. Legal and political institutions usually aspire to be deliberative, to check intuitions that misfire, and to pay close attention to System 2; but even in deliberative institutions, System 1 can make some compelling demands. A general implication is that judges may not be aware of the actual causes of their moral judgments and of the legal conclusions that rely on them.

Why do false rumors spread? Why do otherwise sensible people believe them? Why are they sometimes impervious to correction? There are several answers. (a) Some false rumors gain traction because of their fit with prior convictions within particular groups and cultures. People are strongly motivated to accept certain beliefs, however groundless; they also have good reasons to accept some of those beliefs. Diverse groups will have diverse thresholds for accepting false rumors. It follows that particular rumors can have a tenacious hold on some groups and cultures while dying a rapid death in others; multiple equilibria are likely. (b) Informational cascades are often responsible for belief in false rumors. Such rumors typically spread as a result of such cascades; people believe them because they lack the information that would lead them to reject the signals given by the apparently shared beliefs of numerous others. The important point here is that with respect to many rumors, private signals are essentially nonexistent. (c) Reputational cascades help propagate false rumors. Sometimes people do not correct such rumors, and even endorse them, so as to curry favor or to avoid public opprobrium. Because of the role of early movers, multiple equilibria are (again) likely, as some groups come to believe rumors that other groups deem preposterous. (d) Group polarization accounts for the intensity with which people accept false rumors. Like-minded people, engaged in deliberation with one another, increase one another's confidence in rumors. Here too we see why false rumors are widely believed within some groups but widely rejected in others. As a result of group polarization, such rumors often become entrenched. (e) Biased assimilation can make false rumors exceedingly hard to correct. Because people with strong antecedent commitments process balanced information in a biased way, such information can strengthen people's commitment to false perceptions. That commitment can also be strengthened by corrections, which therefore turn out to be self-defeating. These points have significant implications for freedom of speech and the marketplace of ideas, especially in the age of the Internet; they demonstrate that the exchange of information may not produce convergence on truth and that damaging false reports will often be widely credited. A chilling effect on false rumors can be highly desirable; the goal should be to produce optimal chill, rather than no chill at all.

District of Columbia v. Heller is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court. Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning. It would be possible, in this light, to see Heller as a modern incarnation of Marbury v. Madison, at least as that case is understood by some contemporary scholars, and to a considerable extent as Chief Justice John Marshall wrote it. In Marbury, the Court also spoke on behalf of what it took to be the text, structure, and original meaning of the Constitution. On one view, Heller represents the full flowering of the approach that Chief Justice Marshall imperfectly inaugurated – one that has been abandoned at crucial periods in American history. To its defenders, Heller speaks honestly and neutrally on behalf of the original meaning, and it should be appreciated and applauded for that reason. But there is a radically different reading of Heller. The constitutional text is ambiguous, and many historians believe that the Second Amendment does not, in fact, create a right to use guns for nonmilitary purposes. In their view, the Court’s reading is untrue to the relevant materials. If they are right, then it is tempting to understand Heller not as Marbury but as a modern incarnation of Lochner v. New York, in which the Court overrode democratic judgments in favor of a dubious understanding of the Constitution. On this view, it is no accident that the five-Justice majority in Heller consisted of the most conservative members of the Court (who were all Republican appointees). Perhaps Heller is, in the relevant sense, a twenty-first-century version of Lochner-style substantive due process, and perhaps it marks the beginning of a long series of confrontations between the Supreme Court and the political branches. On a third view, this characterization badly misses the mark. Heller is more properly characterized as a rerun of the minimalist ruling in Griswold v. Connecticut. In Griswold, the Court struck down a Connecticut law banning the use of contraceptives by married couples, under circumstances in which the Connecticut law was plainly inconsistent with a national consensus. The Court worked hard to support its decision by reference to the standard legal materials, but the national consensus probably provides the best explanation of what the Court did. Perhaps Heller is closely analogous. The Court spoke confidently in terms of the original meaning, but perhaps its ruling is impossible to understand without attending to contemporary values, and in particular to the fact that the provisions that the Court invalidated were national outliers. In this Comment, the author contends that the third view is largely correct, and that Heller will, in the fullness of time, be seen as embracing a kind of Second Amendment minimalism. Notwithstanding the Court’s preoccupation with constitutional text and history, Heller cannot be adequately understood as an effort to channel the document’s original public meaning. The Court may have been wrong on that issue, and even if it was right, a further question remains: why was the robust individual right to possess guns recognized in 2008, rather than 1958, 1968, 1978, 1988, or 1998? And notwithstanding the possible inclinations of the Court’s most conservative members, Heller is not best seen as a descendent of Lochner. In spite of its radically different methodology, Heller is far closer to Griswold than it is to Marbury or to Lochner. No less than Griswold, Heller is a narrow ruling with strong minimalist features. And if this view is correct, then the development of the gun right, as it is specified over time, will have close parallels to the development of the privacy right. As the law emerges through case-by-case judgments, the scope of the right will have as much to do with contemporary understandings as with historical ones. This point has general implications for constitutional change in the United States, even when the Court contends, in good faith, that it is merely channeling the original meaning or other established sources of constitutional meaning.

The article reviews the book "Leaderless Jihad: Terror Networks in the Twenty-first Century," by Marc Sageman.

Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.

It is generally agreed that the world would be better off with an international agreement to control greenhouse gas emissions. But it is not entirely clear that the leading emitters—the United States and China—would be better off with the agreement that would be in the world’s interest. The first problem is that as the largest emitters, the United States and China would probably have to bear a disproportionate cost of any significant emissions reduction effort. The second problem is that on prominent projections, the United States and China are unlikely to be the most serious losers from climate change. According to some analyses, the two nations are thus anticipated to bear disproportionately high costs from emissions controls and to gain disproportionately little from such controls. There are two ways to eliminate the resulting obstacle to an international agreement. The first is through altering the perceived cost-benefit analysis for both countries. The second is through an understanding that both nations, and the United States in particular, are under a moral obligation not to inflict serious harm on the highly vulnerable citizens of Africa, India, and elsewhere. Existing proposals for unilateral action on the part of the United States seem to stem from an unruly mixture of confusion, hope, and a sense of moral obligation.

Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change are poor. This argument from distributive justice is complemented by an argument from corrective justice: The existing "stock" of greenhouse gas emissions owes a great deal to the past actions of the United States, and many people think that the United States should do a great deal to reduce a problem for which it is largely responsible. But there are serious difficulties with both of these arguments. Redistribution from the United States to poor people in poor nations might well be desirable, but if so, expenditures on greenhouse gas reductions are a crude means of producing that redistribution: It would be much better to give cash payments directly to people who are now poor. The argument from corrective justice runs into the standard problems that arise when collectivities, such as nations, are treated as moral agents: Many people who have not acted wrongfully end up being forced to provide a remedy to many people who have not been victimized. The conclusion is that while a suitably designed climate change agreement is in the interest of the world, a widely held view is wrong: Arguments from distributive and corrective justice fail to provide strong justifications for imposing special obligations for greenhouse gas reductions on the United States. These arguments have general implications for thinking about both distributive justice and corrective justice arguments in the context of international law and international agreements.

In many cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the due process clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive. Even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial assumptions about the likely goodness of traditions and the institutional incapacities of judges.

Recent empirical work demonstrates that people's self-reported happiness is remarkably resilient to many large changes in life conditions; apparently significant adverse events often inflict little or no hedonic damage. One reason for this surprising result is people's power of adaptation. An additional and perhaps more fundamental reason involves attention: Most of the time, people go about their lives without attending to, or focusing on, adverse conditions, and hence those conditions inflict little hedonic harm. If people make hedonic forecasting errors about their own lives, they are highly likely to make such errors when assessing hedonic losses experienced by other people. These findings have important implications for the legal system, especially in the context of awards for pain, suffering, and hedonic losses. A special problem is that if people adapt to adverse changes because they cease to focus on them, the context of litigation will produce a serious distortion, because the attention of juries and judges is specifically focused on adverse changes. But there are two qualifications. First, some losses inflict significant hedonic damage, because people cannot help focusing on them; chronic pain, anxiety, and depression are the most obvious examples. Second, people may suffer capability loss without suffering hedonic loss, and the legal system should award compensation for capability damages. These claims have broader implications for questions of law and policy, including appropriate priority-setting for governments concerned with the welfare of their citizens. For example, increases in Gross Domestic Product are not correlated with increases in self-reported happiness, in a way that raises serious questions about the focus on GDP; but perhaps GDP growth is connected with social gains that are not captured by self-reported happiness. There are also fundamental questions about the relationships among hedonic consequences, meaning, and the ingredients of a good life. The simplest conclusion is that pervasive existence of hedonic forecasting errors raises the possibility that both economic and regulatory policies are misdirected.

The ability of groups of people to make predictions is a potent research tool that should be freed of unnecessary government restrictions.

The concept of "irreversibility" plays a large role in the theory and practice of environmental protection. Indeed, the concept is explicit in some statements of the Precautionary Principle. But the idea of irreversibility remains poorly defined. Because time is linear, any loss is, in a sense, irreversible. On one approach, drawn from environmental economics, irreversibility might be understood as a reference to the value associated with taking precautionary steps that maintain flexibility for an uncertain future ("option value"). On another approach, drawn from environmental ethics, irreversibility might be understood to refer to the qualitatively distinctive nature of certain environmental harms - a point that raises a claim about incommensurability. The two conceptions fit different problems. For example, the idea of option value best fits the problem of climate change; the idea of qualitatively distinctive harms best fits the problem of extinction of endangered species. These ideas can be applied to a wide assortment of environmental problems.

Many groups make their decisions through some process of deliberation, usually with the belief that deliberation will improve judgments and predictions. But deliberating groups often fail, in the sense that they make judgments that are false or that fail to take advantage of the information that their members have. There are four such failures. (1) Sometimes the predeliberation errors of group members are amplified, not merely propagated, as a result of deliberation. (2) Groups may fall victim to cascade effects, as the judgments of initial speakers or actors are followed by their successors, who do not disclose what they know. Nondisclosure, on the part of those successors, may be a product of either informational or reputational cascades. (3) As a result of group polarization, groups often end up in a more extreme position in line with their predeliberation tendencies. Sometimes group polarization leads in desirable directions, but there is no assurance to this effect. (4) In deliberating groups, shared information often dominates or crowds out unshared information, ensuring that groups do not learn what their members know. All four errors can be explained by reference to informational signals, reputational pressure, or both. A disturbing result is that many deliberating groups do not improve on, and sometimes do worse than, the predeliberation judgments of their average or median member.

Why do adolescents take risks? What is the appropriate response to adolescent risk-taking? This Commentary for a special issue of Developmental Review, discussing a set of papers in that issue, explores these questions with attention to changes in the adolescent brain, to dual-processing theory, to social influences, and to fuzzy-trace theory. It contends that adolescent risk-taking is often driven by the social meaning of risk and caution, and that social meaning operates as a tax on or a subsidy to behavior. Changes in social meaning present a serious collective action problem, but also a valuable opportunity for both law and policy.

The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for integrity. Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.

The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a "hard look" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are "arbitrary." This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

In this article the author discusses the political and judicial positions adopted by Barack Obama, the Democratic Party candidate for the 2008 presidential nomination. He states that while Obama is widely perceived to be a visionary with a radical agenda, he is, according to the author, a consensus builder who believes in political stability and approaches the formation of public policy with caution.

Professor Sunstein proposes that the foundations of Emens’ approach can be linked with the notion that “morally irrelevant differences have been turned, without sufficient justification, into a systematic source of social disadvantage” and, thus, may be seen as a reflection of an anticaste principle that underlies American law. Thus, Emens’ focus on third-party benefits should be seen “not as a diversion from the fundamental goals of the ADA, but as an effort to reconceive and deepen them.”

What should be done about climate change? The debate is notoriously complex, involving a mix of difficult and uncertain science, the potential restructuring of the energy, agricultural, and forestry sectors across the globe, as well as issues of national sovereignty, distributive justice, corrective justice, and development. Specialists intensely disagree about the central issues-the types of policies that are best, the level of resources to be devoted to the problem, and which nations should pay. Many of these disagreements are beginning to play a role in domestic law, and they may well arise in the context of judicial interpretation of many environmental statutes.

Do moral heuristics operate in the moral domain? If so, do they lead to moral errors? This brief essay offers an affirmative answer to both questions. In so doing, it responds to an essay by Gerd Gigerenzer on the nature of heuristics, moral and otherwise. While focused on morality, the discussion bears on the general debate between those who emphasize cognitive errors, sometimes produced by heuristics, and those who emphasize the frequent success of heuristics in producing sensible judgments in the real world. General claims are that it is contentious to see moral problems as ones of arithmetic, and that arguments about moral heuristics will often do well to steer clear of contentious arguments about what morality requires.

This article investigates considerations of distributive and corrective justice in the context of climate change policy. The authors accept that there is good reason for greenhouse gas emissions restrictions, but those reasons do not include concerns about distributive and corrective justice. It is unclear that those restrictions are the best way to help the most disadvantaged people in the world, and climate change does not fit the standard conception of tort.

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of "panic" that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent - low, but not so low as to suggest that federal courts have applied a broad rule of deference to government action. Second, the division between Republican and Democratic appointees is comparable to what is found in other areas of the law; contrary to reasonable expectations, there is no significant "compression" of ideological divisions in this domain. Third, and perhaps most strikingly, no panel effects are apparent here. Unlike in the vast majority of other areas, Republican and Democratic appointees do not appear to vote differently if they are sitting with Republican or Democratic appointees. Finally, judicial behavior cannot be shown to have changed over time. The invalidation rate is not higher in recent years than it was in the years immediately following the 9/11 attacks. Explanations are ventured for these various findings, with particular reference to the absence of discernible panel effects.

The rise of the blogosphere raises important questions about the elicitation and aggregation of information, and about democracy itself. Do blogs allow people to check information and correct errors? Can we understand the blogosphere as operating as a kind of marketplace for information along Hayekian terms? Or is it a vast public meeting of the kind that Jurgen Habermas describes? In this article, I argue that the blogosphere cannot be understood as a Hayekian means for gathering dispersed knowledge because it lacks any equivalent of the price system. I also argue that forces of polarization characterize the blogosphere as they do other social interactions, making it an unlikely venue for Habermasian deliberation, and perhaps leading to the creation of information cocoons. I conclude by briefly canvassing partial responses to the problem of polarization.

How does group behavior drive extremism and challenge democratic values? The answer lies in social dynamics–the ways people influence one another. Conventional wisdom suggests that open discussion within groups will lead to compromise and moderation, yet just the opposite often occurs. In the course of exchanging opinions, like-minded people frequently develop more extreme versions of their original views on such issues as climate change, labor policy, same-sex relationships, and affirmative action. Groups ranging from citizens’ forums to judicial panels tend to squelch diversity and polarize opinion. With the Internet facilitating the formation of like-minded groups, this phenomenon may help account for the intensity and division of contemporary social and political debate. Indeed, the dangers of homogeneity and polarization within groups highlight a fundamental tension between the consequences of free speech and assembly, and the value of intellectual diversity to a civil society. In Why Groups Go to Extremes, Cass R. Sunstein argues that the key to preventing the spread of extremist views is not to suppress deliberation among the like-minded; such groups productively challenge conventional thinking and majority opinion. Instead, policymakers should develop institutions to ensure that like-minded groups encounter a diversity of opinions within civil society. The goal, Sunstein contends, must be to create opportunities for civil deliberation that expose like-minded group members to opposing views, while exposing society at large to the views of such groups.

There is an elaborate debate over the practice of "discounting" regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that, as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. Both sides frequently neglect a simple point: if regulators are interested in how people currently value risks that will not come to fruition for a significant time, they can use people's current willingness to pay to reduce those risks. And if the question involves people's willingness to pay in the future, what is being discounted is merely money, not regulatory benefits as such. No one seeks to discount health and life as such-only the money that might be used to reduce threats to these goods. If willingness to pay to reduce risk is the appropriate metric for allocating regulatory resources, discounting merely adjusts that metric to make expenditures comparable through time. To be sure, cost-benefit analysis with discounting can produce serious problems of intergenerational equity; but those problems, involving the obligations of the present to the future, require an independent analysis. Failing to discount will often hurt, rather than help, future generations, and solutions to the problem of intergenerational equity should not be conflated with the question of whether to discount.

Nuclear bombs in suitcases, anthrax bacilli in ventilators, tsunamis and meteors, avian flu, scorchingly hot temperatures: nightmares that were once the plot of Hollywood movies are now frighteningly real possibilities. How can we steer a path between willful inaction and reckless overreaction? Cass Sunstein explores these and other worst-case scenarios and how we might best prevent them in this vivid, illuminating, and highly original analysis. Singling out the problems of terrorism and climate change, Sunstein explores our susceptibility to two opposite and unhelpful reactions: panic and utter neglect. He shows how private individuals and public officials might best respond to low-probability risks of disaster—emphasizing the need to know what we will lose from precautions as well as from inaction. Finally, he offers an understanding of the uses and limits of cost-benefit analysis, especially when current generations are imposing risks on future generations. Throughout, Sunstein uses climate change as a defining case, because it dramatically illustrates the underlying principles. But he also discusses terrorism, depletion of the ozone layer, genetic modification of food, hurricanes, and worst-case scenarios faced in our ordinary lives. Sunstein concludes that if we can avoid the twin dangers of over-reaction and apathy, we will be able to ameliorate if not avoid future catastrophes, retaining our sanity as well as scarce resources that can be devoted to more constructive ends.

Deliberating groups, including juries, typically end up in a more extreme position in line with their predeliberation tendencies. A jury whose members are inclined, before deliberation, to find a defendant not guilty will likely render a verdict of not guilty; a jury whose members want to award punitive damages will likely produce an award higher than that of the median juror. The phenomenon of group polarization, found in many domains, stems from a combination of information pooling and peer pressure. The events portrayed in the film 12 Angry Men seem to defy the logic of group polarization, but the film nonetheless shows an acute psychological sense.

At first glance, it is puzzling to suggest that courts should care whether the public would be outraged by their decisions; judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong. Those who adopt a method on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for attention to outrage is greatly weakened if people suffer from a systematic bias or if the public view is a product of an informational, moral, or legal cascade. There is also a strong argument for banning consideration of the effects of public outrage on rule-consequentialist grounds. Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. These points have general implications for those who favor popular constitutionalism, or judicial restraint, on democratic grounds. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage

To establish causation, a tort plaintiff must show that it is "more probable than not" that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.

What happens to democracy and free speech if people use the Internet to listen and speak only to the like-minded? What is the benefit of the Internet's unlimited choices if citizens narrowly filter the information they receive? Cass Sunstein first asked these questions in 2001's Republic.com. Now, in Republic.com 2.0, Sunstein thoroughly rethinks the critical relationship between democracy and the Internet in a world where partisan Weblogs have emerged as a significant political force. Republic.com 2.0 highlights new research on how people are using the Internet, especially the blogosphere. Sunstein warns against "information cocoons" and "echo chambers," wherein people avoid the news and opinions that they don't want to hear. He also demonstrates the need to regulate the innumerable choices made possible by technology. His proposed remedies and reforms emphasize what consumers and producers can do to help avoid the perils, and realize the promise, of the Internet.