Cass R. Sunstein
Forum
Financial Regulation and Cost-Benefit Analysis
I. what government doesn’t know Cost-benefit analysis is best understood as a way for agencies to ensure that their decisions are informed—that they are based on knowledge about likely consequences, rather than on dogmas, intuitions, hunches, or interest-group pressures.1 But when agen…
Feature
The Storrs Lectures: Behavioral Economics and Paternalism
122 Yale L.J. 1826 (2013).
A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the United Kingdom, have used …
Debate
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007)
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to appl…
Forum
A Debate Between Peter Strauss and Cass Sunstein
In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chev…
Essay
Beyond Marbury: The Executive's Power To Say What the Law Is
115 Yale L.J. 2580 (2006)
Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…
Review
Justice Breyer's Democratic Pragmatism
115 Yale L.J. 1719 (2006)
As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…
Essay
Probability Neglect: Emotions, Worst Cases, and Law
112 Yale L.J. 61 (2002)
In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…
Essay
Deliberative Trouble? Why Groups Go to Extremes
110 Yale L.J. 71 (2000)
In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…