Vol. 14 No. 1 (January 2004)

WHY SOCIETIES NEED DISSENT, by Cass Sunstein.  Cambridge: Harvard University Press, 2003.  246pp. Cloth $22.95.  ISBN: 0-674-01268-2.

Reviewed by David E. England, Department of Political Science, Arkansas State University.  Email: dee@astate.edu

When it comes to group decision-making, it is better that I go along to get along.  After all, conformity strengthens our social fabric and that means a better and more genial society.  Plus nobody will be pointing a finger at me as a troublemaker.  Those approaches seem to be built into human nature.

Professor Sunstein takes strong issue with that approach by giving empirical flesh to the classic free expression arguments of J.S. Mill, Jr.  Why do corporations with contentious Boards do better than those with harmonious relationships?  Why do investors' clubs with a strong social underpinning do less well in the market than less socially oriented groups?  The answer is the availability of dissent in the more contentious groups.

Drawing on a wealth of experimental studies on group dynamics and decision-making, Sunstein develops the argument that group decision-making is shaped by two easily understood traits.  First, a lot of times it makes very good sense to use what others think as an effort-saving heuristic in developing our own opinions.  Second, we are members of societies, both large and small, and we naturally desire their good opinion of ourselves.

Those two very human traits can, however, have disastrous effects on group decisions by stifling dissent.  Dissent unheard is information not considered by the group.  Decisions made on the basis of incomplete information have a higher probability of being incorrect.

As Sunstein points out, a paradox is involved.  Social benefactors are not necessarily those who adhere to the group line.  In fact, theirs is a selfish approach that may sacrifice providing relevant information for the sake of avoiding effort or maintaining others' good will.  The true social benefactor may be the one who breaks with the group, even in the face of the group's ill-will, and provides information that will benefit the group's decision.

Three phenomena derive from those two traits to make dissent less likely and, therefore, even more valuable to society.  First, those needs for a heuristic and good will can lead to conformity even when conformity may be opposed to society's interests.  A second phenomenon is termed a social cascade.  These can occur as people follow the lead of opinion-setters and then others follow the followers.  Think of how a clothing line becomes what every teenager must wear or how a restaurant can become the hot place to be seen.  Those following the leaders can fail to disclose relevant private information about the clothing line or the restaurant that would make either less appealing for society.  The third phenomenon is group polarization that occurs as the members come under the joint influence of their common group membership and beliefs.  Collective decisions made under those influences can become more extreme than the position of any individual member of the group.

Thus, the ability of groups to get the information they need to make good decisions is not merely a function of the law's regulation of government censorship.  Self-censorship can occur from group pressure and, thus, the ability of those groups to have the best information for decisions is predicated not only on the law but also on a culture of free expression that can provide a countervailing force to the human tendencies to reduce decisional effort and to conform.  However, Sunstein is also lauds the constitutional design of the American republic for its techniques-bicameralism, federalism, and the like-that foster expression of different viewpoints in governmental decision-making.

The argument is by no means a polemic in defense of untrammeled expression or the American way.  Conclusions are well-drawn from empirical studies, and the author is very careful not to extend the conclusions beyond what the evidence justifies.  Counter-examples and cautions abound, and Sunstein is very meticulous in noting that dissent is not always helpful, but can itself have negative effects on social well-being.

Once the social utility of dissent has been demonstrated and the group processes that might hinder it identified, Sunstein applies his findings to phenomena such as political correctness (nothing more than a social cascade occasioned by simultaneous informational and reputational concerns) and affirmative action in recruiting different varieties of students and faculty in universities-a practice beneficial to the truth and educational functions that universities serve.

However, his most complete discussion is directed toward the moderating influence brought to judicial panels by the dissenter.  Reviewing opinions of the various federal courts of appeal, Sunstein has identified two tendencies which he terms ideological amplification and dampening that affect the substance of the decision made by a panel.

Ideological amplification takes place when a panel is composed of judges with the same partisan identification and results in a more extreme position than any of the three would have taken individually or as a dyad joined with a third judge from the other party.  Group polarization is the provided explanation.

Ideological dampening occurs when the panel is divided.  On such a panel the single judge tends to vote more in line with the median position of the two from the other party.  The cause is identified as collegial concurrence, an effect both of the single judge's need for a heuristic, the need to maintain good relationships, and the likelihood that dissent would be ineffectual.  In short, on a mixed panel every one tends to a more moderate position than they might hold individually or which would result from a panel of three judges with the same partisan identification.

The net result is that diversity of views seems to matter to the substance of decisions reached by appeals court panels.  The author goes further and states that diversity of views can have the effect of raising the probability the decision is in conformity with the law.  In short, the single Republican or the single Democrat is a potential whistleblower, a moderating influence on the other two judges.

As a result of these findings, Sunstein believes that chief judges should take care to ensure that panels are diverse by basing selection on partisanship rather than chance.  Conceding that such a practice might politicize the judiciary, he offers the counter-argument based on his research that the judiciary is already politicized.  That is what ideological amplification and dampening were all about.  However, the author fails to take into account the parties' and public's perception of the judiciary.  How would one of the parties to a case (and that party's attentive public) react when a chief judge picks a panel whose ideological balance seems set against the party's interests?

Sunstein has produced a very readable and important work whose thesis, whether by serendipity or by design, has high relevance for the legal/political situation today.  The book might be seen as a paean for procedural due process and its function of making sure the decision-makers have gathered the information needed to make a good decision.

One difficulty facing us today is that we live in fear of terrorist acts and want the government to be empowered to act quickly and efficiently to ensure our safety.  Due process, the gathering of information for informed decision-making, is seen by many as a drag on government in that protection role.  Should the warrant process be suspended in favor of safety concerns?  Is incommunicado detention a reasonable way to ensure safety?  Should the names of those detained by the government be kept secret?  Sunstein's work bears directly on all of those questions.

There is another area of relevance for this work.  The dissenter plays a beneficial role in society by resisting the urge to conform and by making information that might otherwise go unheard available for a decision.  The assumption is that the dissenter has the alternative information to bring to the discussion.  Sunstein's work also has relevance for topics such as media ownership, equal time requirements (or their lack), and even campaign finance reform.

*********************************************************************
Copyright 2004 by the author, David E. England.