Cass Sunstein is an American legal scholar known for his extensive work on constitutional law, administrative law, and political philosophy. He has authored over 30 books and hundreds of articles on various topics. Some of his most well-known books include The Partial Constitution (1994), which critiques theories of constitutional interpretation; Nudge (2008), which explores libertarian paternalism; and Radicals in Robes (2005), which argues against extreme right-wing courts. Throughout his career, Sunstein has advocated for deliberative democracy and sought to reconcile individual rights with collective self-governance.

1. 法理學經典導讀
桑斯汀·《偏頗的憲法》
Cass R. Sunstein, THE PARTIAL CONSTITUTION
黃丞儀
中央研究院法律學研究所
副研究員

2. The Partial Constitution (1993)

3. • Feminism and Political Theory (1990)
• The Bill of Rights and the Modern State (1992)
• After the Rights Revolution:
Reconceiving the Regulatory State (1993)
• The Partial Constitution (1994)
• Democracy and the Problem of Free Speech
(1995)
• Legal Reasoning and Political Conflict (1996)
• Free Markets and Social Justice (1997)

4. • Clones and clones:
Facts and Fantasies About Human Cloning (1999)
• The Cost of Rights:
Why Liberty Depends on Taxes (2000)
• Behavioral Law and Economics(2000)
• The Vote:
Bush, Gore, and the Supreme Court (2001)
• Designing Democracy:
What Constitutions Do (2001)
• One Case at a Time:
Judicial Minimalism on the Supreme Court (2001)

5. • Republic.com 2.0. (2002)
• Punitive Damages:
How Juries Decide (2002)
• The Cost-Benefit State:
The Future of Regulatory Protection (2003)
• Why Societies Need Dissent (2003)
• Risk and Reason:
Safety, Law, and the Environment (2004)
• Animal Rights:
Current Debates and New Directions (2004)

6. • Laws of Fear:
Beyond the Precautionary Principle (2005)
• Radicals in Robes:
Why Extreme Right-Wing Courts Are Wrong for America(2005)
• The Second Bill of Rights:
FDR's Unfinished Revolution--And Why We Need It More Than Ever
(2006)
• Infotopia:
How Many Minds Produce Knowledge(2006)
• Are Judges Political?:
An Empirical Analysis of the Federal Judiciary(2006)
• Worst-Case Scenarios(2007)

7. • Nudge:
Improving Decisions About Health, Wealth, and Happiness
(2008)
• Going to Extremes:
How Like Minds Unite and Divide(2009)
• On Rumors:
How Falsehoods Spread, Why We Believe Them, and What
Can Be Done(2009)
• Law and happiness (2010)
• A Constitution of Many Minds: Why the Founding
Document Doesn't Mean What It Meant Before (2011)
• Simpler:
The Future of Government (2013)

8. • Valuing Life:
Humanizing the Regulatory State (2014)
• Conspiracy Theories and Other Dangerous Ideas
(2014)
• Wiser:
Getting Beyond Groupthink to Make Groups Smarter (2014)
• Why Nudge?:
The Politics of Libertarian Paternalism (2015)
• Choosing Not to Choose:
Understanding the Value of Choice (2015)

9. Neutrality and Objectivity
• Status Quo Neutrality = Embodiment of a certain
economic theory (a perspective of substantive
justice)
• Interpretive Neutrality = Legal Formalism
• Both reject open-ended judgment of values
• Both obscure its dependence on substantive
commitments, escaping responsibility

10. Formalism
• Originalism:
(1) Robert Bork, THE TEMPTING OF AMERICA
“The political content of that choice is not made by
the judge, it was made long ago by those who
designed and enacted the Constitution.”
• neutral vs. political
• Neutrality as legitimacy (original meaning)
 External justification is inevitable

11. Originalism
• Frank Easterbrook
“Judicial review is justified only because the people
specifically authorized it.”
• Bork, “all revisionist theories require judges to
make a major moral decision; legitimate judges,
by contrast, are simply agent of the people.”
 People cannot all agree to a single moral system.

12. Theories of Constitutional
Interpretation
• Semantic Principles vs. Substantive Principles
• Sunstein: “The language of the Constitution
does not say whether the original
understandings control its meaning.”
• “There is no pre-interpretative brute fact of
that matter, to be uncovered without resort to
controversial substantive ideas.”

13. • “The central characteristic of substantive
principles is that their selection must be
justified in moral and political terms.”

14. Democracy-reinforcement Theory
• John Hart Ely, Procedural Democracy and
Judicial Review
• Sunstein: still lacking of substantive
conception

15. Lawrence Tribe and Michael Dorf
• Structural Interpretation
• Still text-based; interpretation with discretion
• The Meaning of Constitution, e.g. freedom of
speech prevails?

16. Legal Authoritarianism
• Resorting to fixed answer, without reasoning
• Ultimate justification is force or bargaining.
• Bork’s originalism
• Authoritarianism may be very democratic:
majoritarian authoritarianism (they are majority
so they prevail)
• To them, constitutional prohibition on naked
preferences seems unacceptably undemocratic.

17. Democratic Authoritarianism
• Holmes, “the ultimate rationale of sovereignty
is force.”
• Hugo Black, constitutional text was usually
self-interpreting
• Authoritarian: (1) judicial restraint
(2) linguistic anchors

18. Critiques on Hart’s Positivism
• Disregarding the need for interpretive
principles without which to give meaning to a
legal text external to the text
• Meaning is a function of interpretative
principle and that it is necessary to have good
principles rather than bad ones.

19. Critiques on Dworkin
• The existing law is not a brute fact, but always and
inevitably a product of interpretative principles.
• Dworkin’s description of “the best it can be” seems to
repeat the positivist’ mistake of seeing law as
something to be found.
• For lawyers, it is something quite different, that is a
more internal, though value-laden, inquiry into what
position now within the legal culture can be supported
by good argument.

20. Deliberative Democarcy
• Primacy of Electoral Outcome
• Importance of Political Deliberation
• Information Flow
• Self-interest of well-organized private groups

21. Three Commitments to Political
Deliberation
• Citizenship: Civic participation in a well-
functioning democracy requires security and
independence of the citizens
• Agreement as a Regulative Ideal: “They believe
that there are frequently correct answers to
political controversy. Answers are understood to
be correct through the only possible criterion,
that is, agreement among equal citizens.”

22. • Political Equality: bans disparities in the
political influence held by different social
groups
• Freedom of speech
• Access to good education

23. • Three principles
(1) Freedom from desperate conditions
(2) Opposition to caste systems
(3) Rough equality of opportunity
John Dewey, “ the need to develop a conception of
liberty dedicated to establishing the social
preconditions for political deliberation.”
 Political prgamtism

24. Democratic Pragmatism
• Democracy itself tends to inculcate valuable
characteristics in human beings.
• Liberal institutions to influence “people’s
deepest aspirations” and “can have decisive
long-term social effects and importantly shape
the character and aims of the members of
society, the kinds of persons that they are and
want to be.”

25. After the Rights Revolution:
Reconceiving the Regulatory State
(1993)

26. Free Markets
and
Social Justice
(1999)

27. Legal Reasoning
and
Political Conflict
(1998)

28. Behavioral Law and Economics (2000)

29. Risk and Reason:
Safety, Law, and the Environment (2004)

30. Laws of Fear:
Beyond the Precautionary Principle (2005)

31. Nudge:
Improving Decisions About Health, Wealth, and Happiness
(2008) (2009)

32. Radicals in Robes:
Why Extreme Right-Wing Courts
Are Wrong for America
(2005)

33. Valuing Life:
Humanizing the Regulatory State
(2014)