After the Rights Revolution: Reconceiving the Regulatory State / Edition 1

by Cass R. Sunstein

Overview

In the twentieth century, American society has experienced a “rights revolution”: a commitment by the national government to promote a healthful environment, safe products, freedom from discrimination, and other rights unknown to the founding generation. This development has profoundly affected constitutional democracy by skewing the original understanding of checks and balances, federalism, and individual rights. Cass Sunstein tells us how it is possible to interpret and reform this regulatory state regime in a way that will enhance freedom and welfare while remaining faithful to constitutional commitments.

Sunstein vigorously defends government regulation against Reaganite/Thatcherite attacks based on free-market economics and pre–New Deal principles of private right. Focusing on the important interests in clean air and water, a safe workplace, access to the air waves, and protection against discrimination, he shows that regulatory initiatives have proved far superior to an approach that relies solely on private enterprise. Sunstein grants that some regulatory regimes have failed and calls for reforms that would amount to an American perestroika: a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets.

Sunstein also proposes a theory of interpretation that courts and administrative agencies could use to secure constitutional goals and to improve the operation of regulatory programs. From this theory he seeks to develop a set of principles that would synthesize the modern regulatory state with the basic premises of the American constitutional system. Teachers of law, policymakers and political scientists, economists and historians, and a general audience interested in rights, regulation, and government will find this book an essential addition to their libraries.

Product Details

ISBN-13:	9780674009097
Publisher:	Harvard University Press
Publication date:	10/15/1993
Edition description:	Reprint
Pages:	296
Product dimensions:	6.12(w) x 9.25(h) x 0.80(d)

About the Author

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard and the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. He is the author of hundreds of articles and dozens of books, including Impeachment: A Citizen’s Guide, Nudge (with Richard Thaler), Law and Leviathan (with Adrian Vermeule), How to Interpret the Constitution, On Freedom, and Can It Happen Here? Authoritarianism in America. He is a recipient of the Holberg Prize, sometimes described as the equivalent of the Nobel Prize for the humanities and social sciences.

Table of Contents

Introduction

Regulation and Interpretation

The Anachronistic Legal Culture

1. Why Regulation?

A Historical Overview

Public and Private Ordering

2. The Functions of Regulatory Statutes

Market Failures

Public-Interested Redistribution

Collective Desires and Aspirations

Diverse Experiences and Preference Formation

Social Subordination Endogenous Preferences

Irreversibility, Future Generations, Animals, and Nature

Interest-Group Transfers and "Rent-Seeking"

The Problem of Categorization

3. How Regulation Fails

Failures in the Original Statute

Implementation Failure

Linking Statutory Function to Statutory Failure

Paradoxes of the Regulatory State—and Reform

4. Courts, Interpretation, and Norms

Flawed Approaches to Statutory Interpretation

Interpretive Principles

An Alternative Method

5. Interpretive Principles for the Regulatory State

The Principles

Priority and Harmonization

Fissures in the Interpretive Community

The Postcanonical Legal Universe

6. Applications, the New Deal, and Statutory Construction

Particulars

The New Deal and Statutory Construction

Conclusion

The Constitution of the Regulatory State—and Its Reform

Interpreting the Regulatory State

Appendix A. Interpretive Principles

Appendix B. Selected Regulations in Terms of Cost Per Life Saved

Appendix C. The Growth of Administrative Government

Notes

Index

What People are Saying About This

Steven Kelman

Professor Sunstein makes use of an impressive range of materials and applies to them some considerable wisdom and good judgment. After the Rights Revolution is an important statement for the 1990s.
— Steven Kelman, Professor of Public Policy, Kennedy School of Government, Harvard University

American Library Association

In this provocative and lively book, Sunstein argues that the Reagan adminstration's vigorous attack on government regulation was misplaced, contending that government regulation is superior to the behavior of private markets...Sunstein thus offers a spirited defense of the 'rights revolution' embodied in the new social and economic regulation--from clean air and water to antidiscrimination rules--that have swept government since the New Deal, and especially since the 1960s...The result is a careful, prescriptive study positioned among theorists' visions of justice, laywers' concepts of due process, and politicians' imperatives for effective policy.

Bruce A. Ackerman

Sunstein calls on courts, and the rest of us, to redeem the promise of the New Deal and Great Society. A splendid statement of the role that law can play in building a more progressive America.
— Bruce A. Ackerman, Sterling Professor of Law and Political Science, Yale Law School

Theodore J. Lowi

Sunstein should be required reading on everybody's list of public affairs books. It's already on mine, for my undergraduate as well as graduate students. The analysis is rigorous, the message is clear. The book provides the defense of regulation we have needed during the laissez faire era. Yet it gives little comfort to knee-jerk regulators. In other words, it makes a great target for folks of every persuasion.
— Theodore J. Lowi, John L. Senior Professor of American Institutions, Cornell University

Richard B. Stewart

After the Rights Revolution is a powerful and provocative rethinking of regulatory jurisprudence. Cass Sunstein provides an illuminating review of how and why regulation succeeds and fails. He then offers new canons of construction that judges should use to interpret regulatory statutes in the public interest. This stimulating book is essential reading for public law and regulatory government.
— Richard B. Stewart, Assistant Attorney General, Department of Justice

Editorial Reviews

Sunstein should be required reading on everybody’s list of public affairs books. It’s already on mine, for my undergraduate as well as graduate students. The analysis is rigorous, the message is clear. The book provides the defense of regulation we have needed during the laissez-faire era. Yet it gives little comfort to knee-jerk regulators. In other words, it makes a great target for folks of every persuasion.

Theodore J. Lowi

Cass Sunstein sets out not to bury regulation, but to save it—to save it from both its friends and its enemies. He seeks to make the regulatory state more legitimate and effective by creating a set of norms for judicial review of regulatory statutes and administrative actions, norms that emphasize efficiency and consistency and—most of all—democratic deliberation and equality.

Law and Politics Book Review - Dennis J. Coyle

Cass Sunstein’s After the Rights Revolution is the best attempt I have encountered to theoretically formulate a standard for the new ‘rights.’ Because it is so elegantly argued and so well written, it deserves considerable attention.

Policy Studies Journal - Alan Stone

Sunstein calls on courts, and the rest of us, to redeem the promise of the New Deal and Great Society. A splendid statement of the role that law can play in building a more progressive America.

Bruce A. Ackerman

Over the past decade Cass Sunstein has emerged as one of the country’s most prolific and provocative legal scholars. After the Rights Revolution is a rich discussion of how the courts have handled—and should handle—the plethora of regulatory statutes enacted since 1932. It deserves to be read widely by students of politics.

R. Shep Melnick

The analysis of statutory interpretation is the book’s finest achievement. Sunstein launches a brilliant and devastating critique of interpretive theories which hold that interpretation should be a function solely of statutory text or legislative intent, and which reject any role for background norms or controversial public policy views.

California Law Review - Richard B. Stewart

Professor Sunstein makes use of an impressive range of materials and applies to them some considerable wisdom and good judgment. After the Rights Revolution is an important statement for the 1990s.

Steven Kelman

If the size and ambition of our government are not mistakes—and Sunstein makes that case well—then we need to address its works in ways that both enhance its opportunities for success, and promise restraints on its power. After the Rights Revolution is an important effort in that direction.

Michigan Law Review - Peter L. Strauss

We all need help finding our way around the American administrative state. An important guidebook has now arrived. The publication of Cass Sunstein’s After the Rights Revolution is a significant event for those interested in administrative law and regulation, as well as for those concerned with the theory of legal interpretation.

Yale Law Journal - Ronald F. Wright

This century has seen a ‘rights’ revolution, says [Sunstein]: In addition to their traditional freedoms, Americans now have a right to clean air and safe consumer products, for example. Moreover, he argues, these rights, indispensable in a modern industrial democracy, are better protected by government regulation than by private enterprise. Thinking of the deregulation-inspired Savings & Loan debacle, the reader may agree. Despite the many failures and even tyranny of government regulatory schemes, constitutional government and regulatory legislation are compatible, says Sunstein, who offers recommendations for improving the constitutional underpinnings of regulatory schemes and minimizing the dangers of bureaucratic government. This book gives regulatory law a legitimacy it seldom receives in American legal theory and political science.

California Lawyer - Rex Bossert

After the Rights Revolution is a thoughtful and compelling analysis of the United States welfare state and the role of courts in modern government. Sunstein argues that it is the deliberate process of government and its potential for political actors to engage in emphatic dialogue with other participants which gives democracy its emancipatory potential.

Sydney Law Review - Patrick Keyzer

In this provocative and lively book, Sunstein argues that the Reagan adminstration’s vigorous attack on government regulation was misplaced, contending that government regulation is superior to the behavior of private markets… Sunstein thus offers a spirited defense of the ‘rights revolution’ embodied in the new social and economic regulation—from clean air and water to antidiscrimination rules—that have swept government since the New Deal, and especially since the 1960s… The result is a careful, prescriptive study positioned among theorists’ visions of justice, laywers’ concepts of due process, and politicians’ imperatives for effective policy.

American Library Association

In this provocative and lively book, Sunstein argues that the Reagan adminstration’s vigorous attack on government regulation was misplaced, contending that government regulation is superior to the behavior of private markets… Sunstein thus offers a spirited defense of the ‘rights revolution’ embodied in the new social and economic regulation—from clean air and water to antidiscrimination rules—that have swept government since the New Deal, and especially since the 1960s… The result is a careful, prescriptive study positioned among theorists’ visions of justice, laywers’ concepts of due process, and politicians’ imperatives for effective policy.

American Library Association

Over the past decade Cass Sunstein has emerged as one of the country's most prolific and provocative legal scholars. After the Rights Revolution is a rich discussion of how the courts have handled--and should handle--the plethora of regulatory statutes enacted since 1932. It deserves to be read widely by students of politics.

Political Science Quarterly - R. Shep Melnick

This century has seen a 'rights' revolution, says [Sunstein]: In addition to their traditional freedoms, Americans now have a right to clean air and safe consumer products, for example. Moreover, he argues, these rights, indispensable in a modern industrial democracy, are better protected by government regulation than by private enterprise. Thinking of the deregulation-inspired Savings & Loan debacle, the reader may agree. Despite the many failures and even tyranny of government regulatory schemes, constitutional government and regulatory legislation are compatible, says Sunstein, who offers recommendations for improving the constitutional underpinnings of regulatory schemes and minimizing the dangers of bureaucratic government. This book gives regulatory law a legitimacy it seldom receives in American legal theory and political science.
— Rex Bossert

California Lawyer

Cass Sunstein's After the Rights Revolution is the best attempt I have encountered to theoretically formulate a standard for the new 'rights.' Because it is so elegantly argued and so well written, it deserves considerable attention.
— Alan Stone

Policy Studies Journal

Cass Sunstein sets out not to bury regulation, but to save it—to save it from both its friends and its enemies. He seeks to make the regulatory state more legitimate and effective by creating a set of norms for judicial review of regulatory statutes and administrative actions, norms that emphasize efficiency and consistency and—most of all—democratic deliberation and equality.
— Dennis J. Coyle

Law and Politics Book Review

If the size and ambition of our government are not mistakes—and Sunstein makes that case well—then we need to address its works in ways that both enhance its opportunities for success, and promise restraints on its power. After the Rights Revolution is an important effort in that direction.
— Peter L. Strauss

Michigan Law Review

After the Rights Revolution is a thoughtful and compelling analysis of the United States welfare state and the role of courts in modern government. Sunstein argues that it is the deliberate process of government and its potential for political actors to engage in emphatic dialogue with other participants which gives democracy its emancipatory potential.
— Patrick Keyzer

Sydney Law Review

The analysis of statutory interpretation is the book's finest achievement. Sunstein launches a brilliant and devastating critique of interpretive theories which hold that interpretation should be a function solely of statutory text or legislative intent, and which reject any role for background norms or controversial public policy views.
— Richard B. Stewart

California Law Review

We all need help finding our way around the American administrative state. An important guidebook has now arrived. The publication of Cass Sunstein's After the Rights Revolution is a significant event for those interested in administrative law and regulation, as well as for those concerned with the theory of legal interpretation.
— Ronald F. Wright

Yale Law Journal

Over the past decade Cass Sunstein has emerged as one of the country's most prolific and provocative legal scholars. After the Rights Revolution is a rich discussion of how the courts have handled—and should handle—the plethora of regulatory statutes enacted since 1932. It deserves to be read widely by students of politics.
— R. Shep Melnick

Political Science Quarterly

On macro trends. Traces the collapse of the prewar Japanese state to its beginning. Defending government regulation against Reaganite/Thatcherite attacks based on free-market economics and principles of private right, Sunstein (jurisprudence, U. of Chicago) nonetheless grants that some regulatory regimes have failed and proposes a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

Cass Sunstein sets out not to bury regulation, but to save it -- to save it from both its friends and its enemies. He seeks to make the regulatory state more legitimate and effective by creating a set of norms for judicial review of regulatory stat- utes and administrative actions, norms that emphasize efficiency and consistency and -- most of all -- democratic deliberation and equality. While Sunstein dismisses attacks on the regulatory state based on common law or constitutional liberties as having "over- stayed their welcome," he neither dismisses constitutional concerns entirely nor embraces regulation unquestioningly. While he accepts the New Deal "reformation" as an article of faith, he is willing to entertain some heresies about the modern regulatory state. And although he is skeptical of common norms of interpre- tation, such as legislative intent and textual meaning, Sunstein also criticizes deconstructionists and critical theorists who see norms as arbitrary assertions of power. He seeks to unite the virtue of republicanism with the freedom of liberalism -- and even with the efficiency of the market -- through an eclectic and conflicting series of interpretive norms whose derivation, ranking and application seem clearer to Sunstein than to this reviewer. By the "rights revolution," Sunstein does not mean constitu- tional rights to be free from government coercion; he makes virtually no mention of how regulation might impede individual rights of expression, privacy or property, for instance. He simply ducks those issues, as when he writes: "The Court's unwillingness to provide more protection to rights of contract and property may or may not be justified." (168) True, but hardly illuminating. Yet Sunstein roots his vision of the regulatory regime in principles of welfare and autonomy. Detached from the constitu- tional structure of individual liberties, autonomy depends not on freedom from governmental coercion, but rather on entitlements to governmental support. "By the 'rights revolution,'" writes Sunstein, "I mean the creation, by Congress and the President, of a set of legal rights departing in significant ways from those recognized at the time of the framing of the American Constitu- tion. The catalogue is a long one," including freedom from occupational and environmental risks, freedom from poverty, from discrimination and from "one-sided or purely commercial broad- casting." (13) For Sunstein, these entitlements are the "rights" worth salvaging. Page 73 follows Sunstein sets a demanding standard for autonomy, requiring that personal decisions be "reached with a full and vivid aware- ness of available opportunities, with all relevant information, or, most generally, without illegitimate constraints on the process of preference formation. When these conditions are not met, decisions might be described as unfree or nonautonomous." (40) Because knowledge is never perfect and choices are always made in a cultural context that influences perceptions of needs and desires, Sunstein's pure autonomy cannot be attained. Failure thus ensured, autonomy becomes a rationale for governmen- tal control. In the modern regulatory state, Sunstein writes, the "satisfaction of private preferences ... is an utterly im- plausible conception of liberty or autonomy." (40) Many individ- ual preferences need not be protected by legislatures, nor valued by judges when interpreting regulatory statutes. For example: a decision of a woman to adopt a traditional gender role because of the social stigma of refusing to do so; a decision not to purchase cars equipped with seat belts or to wear motorcycle helmets because of the social pressures imposed by one's peer group; a lack of interest in environmental diversity resulting from personal experiences that are limited to industrialized urban areas. (40) The preferences of "people who are indifferent to high- quality broadcasting because they have experienced only banal situation comedies and dehumanizing, violence-ridden police dramas" also may be disregarded. (41) In these cases and others, it is the role of the legislatures, the agencies and the courts to discover what personal aspirations should be, and to create an environment that will encourage correct choices and limit incor- rect ones. Thus, for example, "government regulation of the environment or broadcasting ... may in the end generate new preferences, providing increased satisfaction and consequently producing considerable welfare gains." (44) Sunstein does see abuses in regulation, mainly that it may be a cover for "naked interest-group transfers" or may impose great social costs for marginal social benefits. Yet while the public-choice and law-and-economics schools have made thorough critiques of regulation, Sunstein finds their concerns most relevant only to a small class of regulation that he considers to be economic, and even then he sees expansive judicial interpreta- tion, not invalidation, as the answer. He does not consider problems of efficiency or faction to be critical to the regula- tions that are most dear to him, such as measures to combat discrimination or to control broadcasting. In the fifth chapter, Sunstein gets to the heart of his mission of articulating a set of interpretative norms -- 26 in all -- that courts should use when reviewing regulatory statutes and administrative actions. He admits that the guiding princi- ples are numerous and varied, but writes that they are united by general goals: "to promote deliberation in government, to furnish surrogates for it when it is absent, to limit factionalism and self-interested representation, and to help bring about political equality." (171) Page 74 follows After the promotion of democratic deliberation (and the related principles of ensuring political accountability and limiting interest-group transfers), Sunstein gives highest priority to the protection of disadvantaged groups. He derives both of these principles from the Constitution, while saying little of the constitutional protection of individual liberties and limits on government. He acknowledges the constitutional importance of federalism, but writes that "the principle in favor of state autonomy occupies a lower place than the principle in favor of protection of disadvantaged groups. This is a natural inference from the fourteenth amendment and from various cases." (187) But one might think that the Tenth Amendment and the enumeration of federal powers in Article I might make the power of the states the "natural inference." As so often in this book, Sunstein asserts very debatable premises. Readers familiar with Sunstein's work on interest groups and republicanism will not be surprised that his political ideal is deliberative government. James Madison is a constitutional founder for all seasons, and in Sunstein's hands he becomes not the ardent defender of property rights, nor even the architect of limited governmental powers, but rather the advocate of govern- ment in the public interest -- government that rises above the selfishness of faction to vigorously assert its power on behalf of the welfare of all. Often, the legislative actions of an ostensibly democratic government are found wanting when Sunstein applies his highest criterion, "deliberative democracy." For example, in the BOB JONES case, in which the Supreme Court ruled that the Internal Revenue Service must deny tax deductions to schools that dis- criminate by race: It could not plausibly be suggested that the enacting Congress thought that discriminatory schools violated public policy. The BOB JONES decision is best under- stood as an effort to ensure that the IRS takes account of the widespread social antagonism toward racial discrimination, as part of the general thrust of con- temporary public policy. Some cases limiting agency authority to impose significant costs for uncertain or speculative benefits can be best understood in similar terms. Decisions of this sort are justified as part of the integration of statutory systems into a coherent whole that could plausibly be understood as the outcome of deliberative processes. (174) The key here is that correct outcomes "could plausibly be understood" as products of deliberation. Actual deliberation is not required, and indeed may fail to meet the standards of "democratic deliberation," which evidently takes place mostly in the minds of judges and law professors, rather than on the floor of the legislature. As in New Deal jurisprudence, outcomes turn on the imagination of justices, in this case applying a sort of "conceivable deliberative process" test. But whereas the CAROLENE PRODUCTS test produced judicial restraint, here the role of the courts is to correct for the distorted preferences and imperfect processes of the democratic branches. Page 75 follows: Sunstein makes a good case that legal standing requirements should be loose in the modern regulatory state, to provide a check on the extraordinary power of administrative agencies, and that statutory interpretation should be sympathetic (this need not exempt them from constitutional scrutiny, however). But the logic of his substantive conclusions is more elusive. In an eclectic chapter on applications, he urges that OSHA and the Food and Drug Administration be required to be more reasonable, supports the WEBER decision upholding voluntary affirmative action, criticizes WARDS COVE, and generally supports strong environmental protection and the interests of the retarded and labor. These are the preferences of a liberal egalitarian influ- enced by his economic-minded peers at the University of Chicago. How the conclusions follow from his principles, how his princi- ples are derived and ranked, and how they promote welfare and autonomy are not so clear.

Dennis J. Coyle