After The Rights Revolution / Edition 1

After The Rights Revolution / Edition 1

by Cass R. Sunstein
     
 

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

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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.

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Product Details

ISBN-13:
9780674009097
Publisher:
Harvard University Press
Publication date:
01/01/1990
Edition description:
Reprint
Pages:
300
Sales rank:
1,380,765
Product dimensions:
0.63(w) x 6.14(h) x 9.21(d)

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

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