Faculty Bibliography
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For over thirty years, Republican and Democratic presidents have required executive agencies to assess the costs and benefits of significant regulations, and to proceed only if the benefits justify the costs (to the extent permitted by law). The goals of the resulting processes have been to constrain unjustified regulation, to promote interagency coordination, and to allow a degree of centralized management of what can be a cumbersome bureaucratic apparatus. Unfortunately, state and local governments sometimes impose costly requirements, undisciplined by careful analysis of their likely consequences. New institutions at the state level, producing such analysis, could be highly beneficial, replacing processes sometimes driven by anecdotes, dogmas, emotions, and interest-group pressures with a form of Regulatory Moneyball.
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Some of the most interesting discussions of cost-benefit analysis focus on exceptionally difficult problems, including catastrophic scenarios, “fat tails,” extreme uncertainty, intergenerational equity, and discounting over long time horizons. As it operates in the actual world of government practice, however, cost-benefit analysis usually does not need to explore the hardest questions, and when it does so, it tends to enlist standardized methods and tools. It is useful to approach cost-benefit analysis not in the abstract but from the bottom up, that is, by anchoring the discussion in specific scenarios involving trade-offs and valuations. Thirty-six stylized scenarios are presented here, alongside an exploration of how they might be handled in practice. Open issues are also discussed.
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Review of Who's Bigger?: Where Historical Figures Really Rank, by Steven Skiena & Charles B. Ward (2013).
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Review of The Bet: Paul Ehrlich, Julian Simon, and Our Gamble Over Earth’s Future, by Paul Sabin (2013)).
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Cass R. Sunstein, How to Humble a Wingnut and Other Lessons from Behavioral Economics (Univ. Chi. Press 2013).
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"In How to Humble a Wingnut, leading constitutional scholar, behavioral economist, and former Administrator of the White House Office of Information and Regulatory Affairs Cass R. Sunstein examines the unconventional impetuses behind human decision-making. Why it is that people often choose to behave so strangely? Sunstein’s incisive commentaries point to recent empirical findings to demonstrate how and why people convince themselves they are right despite evidence to the contrary; fear dangers they are unlikely to encounter; and ignore real risks. Mining developments in recent behavioral studies for tips on everything from holiday shopping and political biases to staying healthy and clear thinking in general, Sunstein nudges his reader towards that rarest of grounds—understanding." --Publisher
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Review of Scarcity: Why Having Too Little Means So Much, by Sendhil Mullainathan & Eldar Shafir (2013).
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Review of Happy Money: The Science of Smarter Spending, by Elizabeth Dunn & Michael Norton (2013).
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A growing body of psychological and neuroscientific research links dual-process theories of cognition with moral reasoning (and implicitly to legal reasoning as well). The relevant research appears to show that at least some deontological judgments are connected with rapid, automatic, emotional processing, and that consequentialist judgments (including utilitarianism) are connected with slower, more deliberative thinking. These findings are consistent with the claim that deontological thinking is best understood as a moral heuristic – one that generally works well, but that also misfires. If this claim is right, it may have large implications for many debates in politics, morality, and law, including those involving the role of retribution, the free speech principle, religious liberty, the idea of fairness, and the legitimacy of cost-benefit analysis. Nonetheless, psychological and neuroscientific research cannot rule out the possibility that consequentialism is wrong and that deontology is right. It tells us about the psychology of moral and legal judgment, but it does no more. On the largest questions, it leaves moral and legal debates essentially as they were before.
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Many people have wondered why the US government conducts cost-benefit analysis with close reference to the value of a statistical life (VSL). It is helpful to answer that question by reference to the “Easy Cases,” in which those who benefit from regulatory protection must pay for it. In such cases, WTP is usually the right foundation for VSL, because beneficiaries are hardly helped by being forced to pay for regulatory protection that they believe not to be in their interests. In the Easy Cases, arguments from both welfare and autonomy support the use of WTP and VSL (with potentially important qualifications involving imperfect information and behavioral market failures). The analysis is less straightforward in harder cases, in which beneficiaries do not pay for all of the cost of what they receive (and may pay little of that cost). In such cases, arguments from welfare and autonomy might not lead in any clear direction. In the harder cases, regulation might be justified on welfare grounds even if the cost-benefit analysis (based on VSL) suggests that it is not. In principle, a direct inquiry into welfare (the master concept) would be preferable to use of cost-benefit analysis. In the harder cases, distributional considerations might also count in favor of proceeding (as prioritarianism suggests). But at the current time, direct inquiries into welfare consequences and into distributional effects are challenging in practice, and hence regulators should generally rely on cost-benefit analysis, making welfarist adjustments, or adjustments based on distributional considerations, only in compelling cases.
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Review of Worldly Philosopher: The Odyssey of Albert O. Hirschman, by Jeremy Adelman (2013).
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Impersonal default rules, chosen by private or public institutions, establish settings and starting points for countless goods and activities -- cell phones, rental car agreements, computers, savings plans, health insurance, websites, privacy, and much more. Some of these rules do a great deal of good, but others might be poorly chosen, perhaps because the choice architects who select them are insufficiently informed, perhaps because they are self-interested, perhaps because one size does not fit all. The existence of heterogeneity argues against impersonal default rules. The obvious alternative to impersonal default rules, of particular interest when individual situations are diverse, is active choosing, by which people are asked or required to make decisions on their own. The choice between impersonal default rules and active choosing depends largely on the costs of decisions and the costs of errors. If active choosing were required in all contexts, people would quickly be overwhelmed; default rules save a great deal of time, making it possible to make other choices and in that sense promoting autonomy. Especially in complex and unfamiliar areas, impersonal default rules have significant advantages. But where people prefer to choose, and where learning is both feasible and important, active choosing may be best, especially if people’s situations are relevantly dissimilar. At the same time, it is increasingly possible for private and public institutions to produce highly personalized default rules, which reduce the problems with one-size-fits-all defaults. In principle, personalized default rules could be designed for every individual in the relevant population. Collection of the information that would allow accurate personalization might be burdensome and expensive, and might also raise serious questions about privacy. But at least when choice architects can be trusted, personalized default rules offer most (not all) of the advantages of active choosing without the disadvantages.
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Under existing Executive Orders, agencies are generally required to quantify both benefits and costs, and (to the extent permitted by law) to show that the former justify the latter. But when agencies lack relevant information, they cannot quantify certain benefits. If this is so, how should agencies decide whether and how to proceed? As a matter of actual practice, agencies often engage in “breakeven analysis,” by which they explore how high the nonquantifiable benefits would have to be in order for the benefits to justify the costs. Breakeven analysis is most useful when the agency is able to identity lower or upper bounds, either through point estimates or through an assessment of expected value. If lower and upper bounds are not readily available, agencies might be able to make progress by exploring comparison cases in which relevant values have already been assigned (such as for a statistical life). When agencies cannot identify lower or upper bounds, and when helpful comparisons are unavailable, breakeven analysis may not be a great deal more than a hunch or a conclusion, or perhaps (when agencies choose to proceed) a way of announcing a decision in favor of precaution. Even if so, breakeven analysis does have the virtues of helping to identify what information is missing, of specifying the conditions under which benefits would justify costs (“conditional justification”), and of explaining why some cases are especially hard. An understanding of breakeven analysis in regulatory policy has implications for how to approach nonquantifiable variables in many domains of public policy and ordinary life.
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Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author’s experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. Perhaps above all, OIRA operates as an information aggregator. One of OIRA’s chief functions is to collect widely dispersed information – information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus closely on them (as do others within the executive branch, particularly the National Economic Council and the Council of Economic Advisers), especially for economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA’s day-to-day work is devoted to helping agencies work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.
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A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the United Kingdom, have used this evidence to inform regulatory initiatives and choice architecture. Both the resulting actions and the relevant findings have raised the possibility that an understanding of human errors opens greater space for paternalism (and thus raises doubts about John Stuart Mill’s famous “harm principle”). Such errors can be thought of as behavioral market failures, and they are an important supplement to the standard account of market failures. Actions taken to correct behavioral market failures can sometimes be justified, even if the resulting actions are paternalistic. While hard forms of paternalism cannot be ruled out of bounds, a general principle of behaviorally informed regulation—its first and only law—is that the appropriate responses to behavioral market failures usually consist of nudges, generally in the form of disclosure, warnings, and default rules. Some people invoke autonomy as an objection to paternalism, but the strongest objections are welfarist in character. Official action may fail to respect heterogeneity, may diminish learning and self-help, may be subject to pressures from self-interested private groups (the problem of “behavioral public choice”), and may reflect the same errors that ordinary people make. Where paternalism is optional, the objections, though plausible, are unhelpfully abstract; they depend on empirical assumptions that may not hold in identifiable contexts. There are many opportunities for improving human welfare through improved choice architecture.
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Many studies find that presentation of balanced information, offering competing positions, can promote polarization and thus increase preexisting social divisions. We offer two explanations for this apparently puzzling phenomenon. The first involves what we call asymmetric Bayesianism: the same information can have diametrically opposite effects if those who receive it have opposing antecedent convictions. Recipients whose beliefs are buttressed by the message, or a relevant part, rationally believe that it is true, while recipients whose beliefs are at odds with that message, or a relevant part, rationally believe that the message is false (and may reflect desperation). The second explanation is that the same information can activate radically different memories and associated convictions, thus producing polarized responses to that information, or what we call a memory boomerang. An understanding of these explanations reveals when balanced news will produce unbalanced views. The explanations also account for the potential influence of "surprising validators." Because such validators are credible to the relevant audience, they can reduce the likelihood of asymmetric Bayesianism, thus promoting agreement.
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Review of Against Autonomy: Justifying Coercive Paternalism, by Sarah Conly (2012).
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According to Article II, Section 2, Clause 3 of the U.S. Constitution (sometimes referred to as the “Recess Appointments Clause”), “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” This past January, the D.C. Circuit held in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), that the President’s recess appointment power extends only to recesses between sessions of the Senate — not within a single session — and only to positions that become vacant during such intersession recesses.
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Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminimalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.
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Many people have argued for cost-benefit analysis on economic grounds. In their view, a primary goal of regulation is to promote economic efficiency, and cost-benefit analysis is admirably well suited to that goal. Arguments of this kind have been met with sharp criticism from those who reject the efficiency criterion or who believe that in practice, cost-benefit analysis is likely to produce a kind of regulatory paralysis (“paralysis by analysis”) or to represent a bow in the direction of well-organized private groups.
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Simpler government arrived four years ago. It helped put money in your pocket. It saved hours of your time. It improved your children’s diet, lengthened your life span, and benefited businesses large and small. It did so by issuing fewer regulations, by insisting on smarter regulations, and by eliminating or improving old regulations. Cass R. Sunstein, as administrator of the most powerful White House office you’ve never heard of, oversaw it and explains how it works, why government will never be the same again (thank goodness), and what must happen in the future. Cutting-edge research in behavioral economics has influenced business and politics. Long at the forefront of that research, Sunstein, for three years President Obama’s “regulatory czar” heading the White House Office of Information and Regulatory Affairs, oversaw a far-reaching restructuring of America’s regulatory state. In this highly anticipated book, Sunstein pulls back the curtain to show what was done, why Americans are better off as a result, and what the future has in store. The evidence is all around you, and more is coming soon. Simplified mortgages and student loan applications. Scorecards for colleges and universities. Improved labeling of food and energy-efficient appliances and cars. Calories printed on chain restaurant menus. Healthier food in public schools. Backed by historic executive orders ensuring transparency and accountability, simpler government can be found in new initiatives that save money and time, improve health, and lengthen lives. Simpler: The Future of Government will transform what you think government can and should accomplish.
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Decision makers do not make choices in a vacuum. They make them in an environment where many features, noticed and unnoticed, can influence their decisions. The person who creates that environment is, in our terminology, a choice architect. In this paper we analyze some of the tools that are available to choice architects. Our goal is to show how choice architecture can be used to help nudge people to make better choices (as judged by themselves) without forcing certain outcomes upon anyone, a philosophy we call libertarian paternalism. The tools we highlight are: defaults, expecting error, understanding mappings, giving feedback, structuring complex choices, and creating incentives.
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When risks threaten, cognitive mechanisms bias people toward action or inaction. Fearsome risks are highly available. The availability bias tells us that this leads people to overestimate their frequency. Therefore, they also overreact to curtail the likelihood or consequences of such risks. More generally, fear can paralyze efforts to think clearly about risks. We draw on a range of environmental risks to show the following: (1) Fear leads us to neglect probability of occurrence; (2) As fearsome environmental risks are usually imposed by others (as externalities), indignation stirs excess reaction; (3) We often misperceive or miscalculate such risks. Two experiments demonstrate probability neglect when fearsome risks arise: (a) willingness-to-pay to eliminate the cancer risk from arsenic in water (described in vivid terms) did not vary despite a 10-fold variation in risk; (b) the willingness-to-accept price for a painful but non dangerous electric shock did not vary between a 1 and 100% chance. Possible explanations relate to the role of the amygdala in impairing cognitive brain function. Government and the law, both made by mortals and both responding to public pressures, similarly neglect probabilities for fearsome risks. Examples relating to shark attacks, Love Canal, alar and terrorism are discussed.
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In recent years, social scientists have been incorporating empirical findings about human behavior into economic models. These findings offer important insights for thinking about regulation and its likely consequences. They also offer some suggestions about the appropriate design of effective, low-cost, choice-preserving approaches to regulatory problems, including disclosure requirements, default rules, and simplification. A general lesson is that small, inexpensive policy initiatives can have large and highly beneficial effects. In the United States, a large number of recent practices and reforms reflect an appreciation of this lesson. They also reflect an understanding of the need to ensure that regulations have strong empirical foundations, both through careful analysis of costs and benefits in advance and through retrospective review of what works and what does not.
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Symposium on Regulatory Reform in the EU and the US.
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The concept of ‘irreversibility’ plays a large role in many domains, including public health, medical practice and environmental protection. Indeed, the concept is explicit in some statements of the precautionary principle. But the idea of irreversibility remains poorly defined. Because of the flow of time, any loss is, in a sense, irreversible. On one approach, 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, irreversibility might be understood to refer to the qualitatively distinctive and even unique nature of certain losses—a point that raises a claim about incommensurability. The two conceptions fit different problems. These ideas can be applied to a wide assortment of environmental and public health questions, including overuse of antibiotics, genetic modification of food, avian flu and climate change.
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"Since the earliest days of philosophy, thinkers have debated the meaning of the term happiness and the nature of the good life. But it is only in recent years that the study of happiness—or “hedonics”—has developed into a formal field of inquiry, cutting across a broad range of disciplines and offering insights into a variety of crucial questions of law and public policy. Law and Happiness brings together the best and most influential thinkers in the field to explore the question of what makes up happiness—and what factors can be demonstrated to increase or decrease it. Martha Nussbaum offers an account of the way that hedonics can productively be applied to psychology, Cass R. Sunstein considers the unexpected relationship between happiness and health problems, Matthew Adler and Eric A. Posner view hedonics through the lens of cost-benefit analysis, David A. Weisbach considers the relationship between happiness and taxation, and Mark A. Cohen examines the role crime—and fear of crime—can play in people’s assessment of their happiness, and much more. The result is a kaleidoscopic overview of this increasingly prominent field, offering surprising new perspectives and incisive analyses that will have profound implications on public policy." --Publisher
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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Edward L. Glaeser & Cass R. Sunstein, Extremism and Social Learning, 1 J. Legal Analysis 263 (2009).
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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.
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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.
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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.
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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.
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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.
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Cass R. Sunstein, Misery and Company, New Republic, Oct. 22, 2008, at 39 (reviewing Marc Sageman, Leaderless Jihad: Terror Networks in the Twenty-first Century (2008)).
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The article reviews the book "Leaderless Jihad: Terror Networks in the Twenty-first Century," by Marc Sageman.