The Constitution of Reasons

Cass Sunstein\u27s book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court\u27s repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference than we do to presently held preferences and presently conceived interests in our public or collective decisionmaking; and for the view that at the heart of our constitutional traditions lies a commitment to deliberative democracy which, if sufficiently attended, could generate many more specific constitutional entailments, including but not limited to those put forth above. This book represents, and by so doing strengthens, these arguments and a good number of others as well. This book is well worth reading and rereading if for no other reason than to get a sense of the power of traditional legal arguments when put to often quite nontraditional political ends. What Sunstein has tried to do in this book is to weave his arguments on particular issues into a coherent whole, largely by identifying and then developing the common philosophical premises of the various positions he has taken over the last ten years. He then argues that the conception of the Constitution that emerges from a careful elaboration of those premises is both truer to our history and more just than the competing visions of the Constitution that both constitutional theorists and the Court have developed in the modem, post-New Deal era. Importantly, though, Sunstein does not simply present his interpretation of the Constitution as one possible interpretation among any number. Rather, his starting premises, he clearly believes, are correct and widely held to be so. If that assumption is right, and if we share with him a commitment to rational forms of argument, then the Constitution he envisions is not just his interpretation; instead, it is in an important sense our Constitution. It follows that the conclusions he reaches on substantive constitutional positions, including some he calls surprising, should command general assent. I think this larger, overarching project is not in the end successful, but I also think it is a tremendously worthy endeavor. It is a project full of promise and hope: the Constitution here envisioned is a just Constitution which could indeed service the ends of justice in contemporary life. Consequently, when the project fails, the failures are tremendously disappointing, and the reasons for those failures important. In this review, I will first describe the deep structure of Sunstein\u27s Constitution by outlining what I take to be the major premises elaborated in his book and then criticizing sequentially each of the premises I take to be the basic building blocks of Sunstein\u27s partial Constitution. All of Sunstein\u27s basic premises, I think, are more problematic than Sunstein believes them to be. By identifying the problems I hope to suggest that the flaws, although deep, are curable, and that whether or not that is the case, the constitutional goals Sunstein puts forward in this book are goals we should applaud

Review of "Nudge: Improving Decisions About Health, Wealth, and Happiness"

Review of the book "Nudge: Improving Decisions About Health, Wealth, and Happiness" by Richard H. Thaler and Cass R. Sunstein

Three Questions About the Economics of Relative Position: A Response to Frank and Sunstein

For the original paper by Frank and Sunstein, see 'Cost Benefit Analysis and Relative Position.' Cost-benefit analyses typically ignore the importance of relative position. That is, they do not take into account the possibility that people value particular goods, services, or other determinants of well-being through comparisons with others. Robert Frank and Cass Sunstein have recently concluded that taking into account positional issues implies that the benefits of health and safety regulations may be twice as large as the levels commonly found in cost-benefit analyses. However, the effects of positional externalities on the valuation of safety and health regulations, and hence the correct modifications to cost-benefit analyses, are theoretically ambiguous. Frank and Sunstein assume that people like others to become worse off and that the incomes of others are more important for comparison than their health and safety on the job. Because different assumptions can lead to opposite conclusions about the value of additional regulations, this response addresses whether the evidence supports Frank and Sunstein's assumptions. The nature of relative position can be described as answers to three questions. First, what is the relevant group to which people compare themselves? Second, which characteristics of the comparison group matter? Third, how strongly do these comparisons affect people? This paper evaluates Frank and Sunstein's evidence on all three questions. People inclined to favor the model of positional externalities espoused by Frank and Sunstein may find their evidence convincing, but there are appealing alternative explanations. There is also direct evidence that only a minority of people act in the way they assume. They estimate that people should be willing to spend $6,000 of a$10,000 raise to prevent their coworkers from getting the same raise. Though some people might pay to reduce the salaries of their coworkers, others would surely pay to raise them. That many people display altruistic behavior in many situations is completely ignored by Frank and Sunstein. Particularly because of the variation in preferences across individuals, the evidence is at present too limited to permit the precise characterization necessary to evaluate the effects of policy. Under some plausible models, the policies suggested by Frank and Sunstein make people worse off; in others, better off. Though it is premature to incorporate positional externalities in policy analysis, such issues undoubtedly will become a formal part of policy analysis as our understanding improves.

Toward a Jurisprudence of Cost-Benefit Analysis

In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein\u27s conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein\u27s defense of the role of cost-benefit analysis and his recommendations for implementing it. Part II considers how Sunstein envisions implementation of cost-benefit analysis, including the ways in which Sunstein seeks to expand the practice and the ways in which he ultimately would limit it. In Part III, I offer a broader vision of cost-benefit analysis, recognizing the limitations of both unconstrained agency decision-making and unconstrained judicial decision-making. I argue that the development of cost-benefit principles through common law processes best avoids these opposing dangers. Finally, also in Part III, I argue that judicial review of cost-benefit analyses should take into account agency reputation and political proclivities as developed over a number of such analyses, as well as the political orientation of the courts in cases reviewing agency action

The Democracy-Forcing Constitution

During my freshman year in college, I was told not to judge a book by its cover. The book in question - Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust Literature! Well, I cannot claim precisely the same reaction to Cass Sunstein\u27s One Case at a Time (my expectations were lower than the soldier\u27s). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your book. Rather, Sunstein very much wants the Supreme Court to play an active role in abortion, affirmative action, the right to die, and much more. But Sunstein\u27s brand of activism is minimalist. Rather than look to the judiciary to settle these issues once and for all, Sunstein sees the Court as a democracy forcing facilitator, encouraging elected government and the people to engage in constructive constitutional dialogues. As rallying cries go, Sunstein\u27s plea for judicial minimalism has broad appeal. After all, social conservatives still complain about judge-made rights and the left, smarting from several Rehnquist Court defeats, increasingly sees elected government as more apt to embrace their agenda than the judiciary. With both sides ready to jettison judicial activism, judicial minimalism seems an idea whose time has come

Of Gnarled Pegs and Round Holes: Sunstein\u27s Civic Republicanism and the American Constitution: A Review Essay of the Partial Constitution. by Cass R. Sunstein.

Of Gnarled Pegs and Round Holes: Sunstein\u27s Civic Republicanism and the American Constitution: A Review essay of The Partial Constitution. By Cass R. Sunstein. Cambridge, MA: Harvard University Press. 1993. Pp. vi, 414. Reviewed by: Robert W. Bennett

Heuristics, Biases, and Philosophy

Commenting on Professor Cass Sunstein\u27s work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein\u27s papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, his work has made his mark on psychology, economics, and political science. But, surprisingly, one of his most subversive, and important, articles, Moral Heuristics, is directed primarily at philosophers. Sunstein\u27s Moral Heuristics approaches the gates of philosophical discourse like a Trojan Horse. The article\u27s title uses the well-known jargon of psychology. This is no surprise, as the piece is published in a psychological journal (albeit one known for sometimes engaging in philosophical inquiry). It thus seems that the piece will be another of his many valuable conversions of psychological research into legal concepts. Sunstein is well known for mining out nuggets of social and cognitive psychology that have been previously ignored by legal scholars and demonstrating that an understanding of these principles is actually critical for understanding some area of law. But Moral Heuristics is not such a piece. It brings some psychological research to bear on legal issues, but the piece is more ambitious than that. It provides a new way for both psychologists and legal scholars to think about the concept of heuristics. It then uses this new approach to challenge the basic epistemological assumptions of contemporary moral philosophy. The basic thesis of Moral Heuristics is that people rely on simple habits of the mind when thinking about moral issues. As in many areas of life, they do not adhere to principles of deductive logic. They resist relying on broad-based optimization strategies (such as cost-benefit analysis) as a means of addressing hard moral questions in favor of simple rules of thumb. For example, Sunstein argues that people avoid making decisions that they know will result in the death of another person. This is a good principle to follow, of course, but blind application of it can lead to paradox because some fatalities are more invisible than others. The principle can produce condemnation of those who account for less visible, indirect fatalities, as happens in cost-benefit analysis. Cost-benefit analysis makes indirect fatalities transparent, thereby making those who rely on it seem callous, even if they are trying to minimize the total fatality rate. But Sunstein\u27s admonition against using overly simple habits of mind to assess complex choices in modern society is not what is novel about this paper. Many of his papers engage in that kind of exposition. What sets this paper apart is how he uses the concept of heuristics. In this paper, Sunstein uses the idea of mental shortcuts in a highly contextual way. He seems, at times, to be inventing new heuristics. New to this paper are terms such as the \u27cold-heart heuristic\u27 and the \u27do not play God\u27 heuristic. And obviously the \u27Justice Antonin Scalia heuristic \u27 is not one psychologists would have heard before. Implicit in this move is that Sunstein must be arguing that the mental shortcuts that people are taking are highly specific. They are not global habits of mind that people use in all places to suit all purposes. Rather, people seize upon these heuristics to solve certain problems. That is a novel move and one that nicely embraces some of the criticisms levied against the concept of heuristics, both in psychology and in law, and shows them to be modifications, rather than criticisms. The second novel claim of the paper is its main target. In asserting that the psychological concept of heuristics speaks directly to the epistemology of moral philosophy, Sunstein attacks the foundations of contemporary moral philosophy. Sunstein argues that people reject deductive logic in their approach to statistical and probabilistic reasoning, preferring instead to rely on heuristics that are often inconsistent with logic. Consequently, creating a workable, internally coherent mathematics based on people\u27s intuitions about numbers would be a foolish undertaking. Sunstein argues that the same is true for moral philosophy. Intuitions about moral issues, he contends, are no more apt to be coherent than intuitions about probability theory. Therefore, founding a normative theory of moral philosophy upon intuition is just as misguided as founding mathematics on intuition. And yet, that is exactly what contemporary moral philosophers undertake. I flesh out these issues in this paper. First, I discuss how Sunstein\u27s approach to heuristics differs from what many psychologists adopt and how this new approach addresses some of the criticism levied at the heuristics and biases literature. Second, I review how this new approach undergirds Sunstein\u27s critique of moral philosophy

Libertarian Paternalism Is Not An Oxymoron

Cass R. Sunstein and Richard H. Thaler assert that while the idea of libertarian paternalism might seem to be an oxymoron, it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people's preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice. Sunstein and Thaler argue that it is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. This paper gives examplesfrom many areas, including savings behavior, labor law, and consumer protection.

Sludge and Ordeals

Is there an argument for behaviorally informed deregulation? In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” understood as friction, reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services. The problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. A serious deregulatory effort should be undertaken to reduce sludge through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. Fifth, it can help public officials to acquire valuable information, which they can use for important purposes. In most cases, however, these defenses of sludge turn out to be far more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often demonstrate the need for a neglected form of deregulation: sludge reduction. For both public and private institutions, “Sludge Audits” should become routine, and they should provide a foundation for behaviorally informed deregulation. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress