Cass R. Sunstein
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 this evidence to inform regulatory initiatives and choice architecture. Both...
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 apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product...
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 Resources Defense Council, the most cited case in modern public law....
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" to regulatory tools; he urged that an understanding of the particular problem that justified regulation...
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 behavior are to be expected. The general phenomenon helps to explain...
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 extreme point in the direction indicated by the median of predeliberation judgments. This is...