Vol. 1, No. 5 (July, 1991), PP. 72-75

AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE by Cass R. Sunstein. Cambridge, Mass.: Harvard University Press, 1990. 284 pp.

Reviewed by Dennis J. Coyle, Department of Politics, Catholic University of America.

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.

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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)

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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.

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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.