After the Rights Revolution: Reconceiving the Regulatory State
By Cass R. Sunstein
Summary written by T.A. O'Lonergan, Conflict Research Consortium
Citation: After the Rights Revolution: Reconceiving the Regulatory State, Cass R. Sunstein, (Cambridge: Harvard University Press, 1990), 273 pp.
After the Rights Revolution: Reconceiving the Regulatory State is an examination of the regulatory state which has arisen as a result of the increase in statutory rights which were not explicitly addressed in the original Constitution or Bill of Rights of the United States. Specifically addressed are rights to: clean air and water, safe consumer products and workplaces, and civil rights, among others.
After the Rights Revolution: Reconceiving the Regulatory State will be of interest to those who seek an understanding of the changes caused by the increase in statutory rights to the regulatory nature of the modern government. Following a most useful introduction which addresses: regulation and interpretation and the anachronistic legal culture, Sunstein examines the need and justifications for regulation. She presents an historical overview and a discussion of public and private ordering. The second chapter examines the functions of regulatory statutes. The author addresses: market failures, public interested redistribution, and the problem of categorization. After considering: collective desires and aspirations, and diverse experiences and preference formation, Sunstein examines: irreversibility, future generations and nature.
The third chapter examine two sorts of failure, that in the original statute and that arising during implementation. The author discusses the linking of statutory function to statutory failure. The next chapter addresses the role of the courts in interpreting statutes and establishing norms. Sunstein examines flawed approaches to statutory interpretation and some interpretive principles and offers an alternative model. The last chapter save one is devoted to interpretive principles for the regulatory state wherein the author examines: the principles which must govern interpretation, how these principles are assigned a priority, how they are made compatible with one another, and methods for handling divisions in the interpretive community. Finally, Sunstein asserts that the adoption of the principles she proposes would result in a "... far greater degree of uniformity and coherence ...", a state of affairs which she terms 'post-canonical'.
The final chapter is an examination of the statutory construction which began with the New Deal. In the conclusion, Sunstein asserts that "... the transformation of the original constitutional commitments ..." to a regulatory state devoted to the protection of statutory rights has led inevitably to "... the rise of a massive bureaucratic apparatus and a dramatically strengthened presidency". This upsetting of the original tripartite government has created problems which require attention and, ultimately, reform. The text is followed by three appendices, the first of which is an outline of existing and defunct interpretive principles as well as those proposed by Sunstein. The second appendix offers selected regulations in terms of cost per life saved. The final appendix offers statistics on the growth of administrative government. The first of these appendices is particularly useful.
After the Rights Revolution: Reconceiving the Regulatory State is a systematic examination of the change in government that the increase in statutory rights has precipitated. It provides empirical observation, proposals for future improvement and justification of those improvements.