The Secret Ambition of Cass Sunstein

A few years ago I wrote an article entitled The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413 (1999). The basic argument was that deterrence and related consequentialist arguments in criminal law -- as normatively question-begging and empirically speculative as they tend to be -- might nevertheless perform a useful function in dissipating political conflict. The default idiom of justification that “deterrence talk” replaces in debates about gun control, the death penalty, hate crimes, etc. is a highly assaultive expressive one that pits the proponents of competing cultural styles against one another. Deterrence arguments elide the social meanings that the law expresses and thus sometimes help to deflect divisive cultural conflict away from criminal law. I even went so far as to suggest that some famous exponents of deterrence, such as Justice Oliver Wendell Holmes and Judge Richard Posner, are “secretly” motivated to use deterrence arguments for purposes of liberal conflict avoidance.

I’ve since become convinced that consequentialist forms of reasoning (particularly law and economics) perform this same stealthy conflict-avoidance function in many other domains of law. One of these is risk regulation. Indeed, if there’s a knock-down defense to be made of Cass Sunstein's recent book on risk regulation, The Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press 2005), I think this might be it.

Sunstein’s account reflects what I -- along with Paul Slovic, Don Braman, and John Gastil, in a forthcoming review to be published in the Harvard Law Review -- call the “irrational weigher model” of risk perception. It’s a response to another position, the “rational weigher model,” which asserts that people, in aggregate and over time, process information about risk (workplace risks, consumer risks, environmental risks, etc.) in a manner that maximizes their expected utility. The irrational-weigher model, in contrast, asserts that ordinary folk systematically misprocess information about risk because of bounded rationality and other cognitive deficiencies. Sunstein, for example, synthesizes a vast social psychology and behavioral economics literature dealing which the distorting influence of dynamics such as the “availability heuristic,” “probability neglect,” “group polarization,” and the like. To counteract these pathologies, Sunstein, along with other irrational-weigher theorists such as Stephen Breyer, proposes the delegation of regulatory authority to politically insulated experts using cost-benefit analysis.

Sunstein's book is genuinely outstanding and a must read for anyone who is interested in the vital issue of risk regulation. But I do have one minor -- well, okay, major -- quibble with it.

The problem with the irrational weigher model is that it ignores the contribution that cultural values make to risk perception. A considerable body of empirical evidence (including some that we have collected) confirms that individuals adopt attitudes toward risk that reflect and reinforce their preferred visions of society, a phenomenon we call “cultural cognition.” As a result, individuals in fact behave neither like rational nor irrational weighers, but rather like cultural evaluators of risk: that is, they adopt the stance toward risk that best expresses their values.

This alternative “cultural evaluator model” of risk perception definitely furnishes grounds for objecting to Sunstein's program. Much of what he identifies as the product of bounded rationality on the part of the public in fact reflects the influence of cultural values on the public's attitude toward various risks -- from global warming to transmission of infectious diseases to gun accidents. As a result, Sunstein’s case for expert cost-benefit analysis loses much of its force: perhaps scientific experts (who, by the way, also tend to disagree with one another in ways that reflect competing cultural values!) know more than members of the public about the actuarial magnitude of various risks. But they have no special competence to say what vision of society -- egalitarian or hierarchical, communitarian or individualistic -- the law should express. Shouldn’t that be a matter of the sort of democratic deliberation that Sunstein, Breyer and other irrational-weigher theorists oppose?

Maybe or maybe not. The cultural evaluator model shows that political disputes about risk, as data-centered and technical as they tend to be, are really best understood as conflicts over culturally partisan visions of the best society. Hierarchists clamor for regulation of drug use and promiscuous sex, not so much because they fear the public health consequences of such behavior but because they know that such regulation would underscore the deviant status of homosexuals and drug users. Egalitarians and solidarists demand stricter regulation of guns, not so much because they are convinced it will make society safer but because they find the individualist and hierarchist meanings of guns abhorrent (see the evidence I presented on this in an earlier blog). In a liberal society, at least, the state is supposed to eschew the endorsement of any culturally partisan orthodoxy. Perfect democratic responsiveness to public risk perceptions might be inappropriate not so much because those perceptions are irrational but because, at least sometimes, those sensibilities are unjust.

It’s in dealing with this dilemma that Sunstein’s “irrational weigher model” might have something important to recommend it. As descriptively incomplete as it might be, that theory’s disregard of the role of cultural values in pubic risk perceptions has the advantage of obscuring the function that risk regulation plays in adjudicating between the claims of antagonistic cultural worldviews. A legal regime of risk regulation that insists in speaking in the culturally sterile idiom of economic cost-benefit analysis might help to minimize the significance of risk regulation as an endorsement of culturally partisan visions and thus deflect illiberal and divisive cultural competition away from this area of law.

Is this a compelling defense of Sunstein’s position? The answer likely depends on whether one believes that there’s simply no way to make democratic deliberation over risk simultaneously culture-conscious and pluralistic. I’m not quite ready to accept that bleak conclusion, but I admit to being very uncertain and ambivalent.

For now, though, I’m just curious to know whether quieting illiberal cultural political conflict is really Sunstein’s “secret ambition” in so adamantly espousing the irrational-weigher model of risk perception. I plan to ask him straight out the next time I see him. If he emphatically denies it, won’t that prove I’m right?