Review Essay: Sunstein, Statutes, and the Common Law–Reconciling Markets, the Communal Impulse, and the Mammoth State
The following pages principally address Professor Sunstein’s basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein’s case for some regulation – the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein’s decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes – changes in common law as well as statute law, in markets as well as legal response – brought about by the emergence of a complex, national economy.
Sunstein’s analysis substantially depends on the proposition that public purposes can reliably be distinguished from rent-seeking purposes, and yet he seeks to avoid having to choose between two possible justifications for giving legislative actions generative force: that they may reflect genuinely collective action entitled to respect in a democratic order; or that they may, in particular cases, reflect the public good. Part III suggests ways in which the elision of these two bases for respect may prove problematic. Part IV takes up two problems not directly confronted in Sunstein’s analysis, the enormous growth of contemporary government and the difficulties we face in theorizing about human behavior in ways that account for both our collective and our individualistic instincts, and seeks to illustrate these problems by recasting the questions of statutory interpretation in the context of historical development. Finally, Part V suggests that Sunstein has not been sufficiently attentive to problems generated by his describing as “rights” those claims for governmental action lacking the characteristic Holmes once identified as central to the availability of due process protections – that the claimants would be “exceptionally affected, in each case upon individual grounds.” The powerful can go to court as easily as to political institutions, and turning collective interests into “rights” suggests the creation of potentials for blocking governmental action that require careful consideration.