Means and Ends in Politics and Law: An Essay in Honor of Cass R. Sunstein

Abstract:     
In both constitutional law and public policy, Cass Sunstein's work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of "incompletely theorized agreements" as a model for how judges ought to decide cases. In public policy analysis, Sunstein's work has reflected a similar commitment to maximizing consensus and reducing conflict. While Sunstein's conception of minimalist adjudication has been thoroughly explored, less attention has been paid to the underlying political vision that structures his view of the proper role of the state and the desirable forms of public policymaking.

In this tribute, I explore and challenge the structure of Sunstein's political vision. Two ways of seeing this vision exist. The first is the way in which Sunstein presents it: as a profound new alternative capable of transforming current politics and transcending political polarization and conflict. Sunstein himself calls his vision "a real Third Way," a post-partisan conception that provides a synthesis of Franklin Delano Roosevelt's New Deal liberalism and Ronald Reagan's new conservatism. The second way is almost diametrically the opposite. Perhaps this conception actually reveals how chastened and minimalist political aspirations are limited to being in our era.

Based in behavioral law and economics, the centerpieces of Sunstein's political vision are default rules and information disclosure. This is a vision focused on changing the means by which government acts. This focus, however, then raises the question: how much can or should politics focus primarily on the means of government action, rather than what ends government ought to pursue? Or, to the put the question in terms of Sunstein's own stated ambitions, can it really be the case that the major political critique of the New Deal that was effectively launched in the Reagan years was simply a critique about the means of public policy, as opposed to the proper role of the state and the ends for which government ought to act? Should we see Democrats and Republicans, liberals and conservatives, as so divisively polarized today merely because they disagree about what means government ought to use in pursuing policy objectives - objectives that, we are presumably to believe, all sides actually share? If this vision actually is the "real Third Way" in contemporary politics, it is worth asking what that tells us about the possibilities for democracy today.

Keywords: Government, Public Policy, Regulation, Default Rules, Behavioral Economics

JEL Classifications: K00

Accepted Paper Series