Fear of Democracy: A Cultural Evaluation of Sunstein on Risk
Dan M. Kahan
Yale University - Law School; Harvard University - Edmond J. Safra Center for Ethics
Decision Research; University of Oregon - Department of Psychology
George Washington University - Law School; Cultural Cognition Project
Pennsylvania State University
Harvard Law Review, Vol. 119, 2006
Yale Law School, Public Law Working Paper No. 100
Yale Law & Economics Research Paper No. 317
What dynamics shape public risk perceptions? What significance should such perceptions have in the formation of risk regulation? In Laws of Fear: Beyond the Precautionary Principle (2005), Cass Sunstein catalogs a variety of cognitive and social mechanisms that he argues inflate public estimations of various societal risks. To counter the impact of irrational public fears, he advocates delegation of authority to politically insulated experts using economic cost-benefit analysis. Missing from Sunstein's impressive account, however, is any attention to the impact of cultural cognition, the tendency of individuals to form risk perceptions that reflect and reinforce their cultural worldviews. Relying on existing and original empirical research, we use this dynamic to develop an alternative cultural evaluator model, which better explains individual variation in risk perception, differences of opinions among experts, and the intensity of political conflict over risk than does Sunstein's irrational weigher model. Cultural cognition also complicates Sunstein's policy prescriptions. Because the public fears that Sunstein describes as irrational express cultural values, expert cost-benefit analysis does not merely insulate the law from factual error, as Sunstein argues; rather, it systematically detaches law from popular understandings of the ideal society. Indeed, the best defense of Sunstein's program might be just that: by eliding the role that risk regulation plays in endorsing contested cultural visions, expert cost-benefit analysis protects the law from a divisive and deeply illiberal form of expressive politics. The difficult task for those who understand the phenomenon of cultural cognition and who favor democratic modes of policymaking is to devise procedures that assure that popularly responsive risk regulation is both rational and respectful of diverse cultural worldviews.
Number of Pages in PDF File: 52Accepted Paper Series
Date posted: September 12, 2005
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