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.
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 Stateand 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 Stateand 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
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