Epistemic Communities in American Public Law

21 Pages Posted: 11 Jan 2024 Last revised: 13 Jan 2024

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: January 6, 2024


What do judges know, or think they know? What do judges not know, and not know that they do not know? When and why do judges sort themselves into competing “tribes”? The answer is that like everyone else, judges are part of epistemic communities, and sometimes they develop or display epistemic overconfidence. Consider some illustrations. In the last two decades, there has been an extraordinary outpouring of careful historical work on two of the most fundamental questions in constitutional law: (1) whether Congress may delegate open-ended discretionary power to the executive branch (or others) and (2) whether Congress may restrict the president’s power to remove high-level officials in the executive branch. The best reading of the new evidence is that there was no robust nondelegation doctrine at the founding period, if there was a nondelegation doctrine at all. Though the issue is closer, the best reading of the new evidence is that during the founding period, the Constitution was understood to authorize Congress to restrict the president’s power of removal, even over principal officers (with important qualifications). What is remarkable is that in both contexts, no originalist on the Court has been convinced by the relevant evidence, or even seriously grappled with it. There are three plausible explanations for the apparent impotence of historical evidence in this context (and others); all of them point to the crucial importance of epistemic communities in constitutional law. The first points to a simple lack of awareness of the relevant evidence. The second is Bayesian and spotlights rational updating. The third points to motivated reasoning. All three accounts offer lessons for lawyers and others seeking to marshal historical evidence to disrupt engrained judicial beliefs. They also show that disparate epistemic communities exist in constitutional law, often at the same time, and often across time periods – and that epistemic overconfidence is a serious problem in American public law.

Keywords: originalism, separation of powers, delegation, unitary executive, epistemic communities, Bayesianism, motivated reasoning

JEL Classification: D1, D85, D11, P36

Suggested Citation

Sunstein, Cass R., Epistemic Communities in American Public Law (January 6, 2024). Available at SSRN: https://ssrn.com/abstract=4686422 or http://dx.doi.org/10.2139/ssrn.4686422

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
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