Cass Sunstein

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and the author of more than a dozen books, including After the Rights Revolution, Designing Democracy and most recently, The Cost-Benefit State.

Recent Articles

Is Violent Speech a Right?

Advocacy of illegal violence to kill people is not necessarily constitutionally protected speech.

T his spring, talk-show host G. Gordon Liddy, speaking on the radio to millions of people, explained how to shoot agents of the Bureau of Alcohol, Tobacco, and Firearms: "Head shots, head shots... Kill the sons of bitches." Later he said, "Shoot twice to the belly and if that does not work, shoot to the groin area." On March 23 the full text of the Terrorist's Handbook was posted on the Internet, including instructions on how to make a bomb (the same bomb, as it happens, that was used in Oklahoma City). By the time of the Oklahoma bombing on April 19, three more people had posted bomb-making instructions, which could also be found on the Internet in the Anarchist's Cookbook . On the National Rifle Association's Internet "Bullet 'N' Board," someone calling himself "Warmaster" explained how to make bombs using baby-food jars. Warmaster wrote, "These simple, powerful bombs are not very well known, even though all the materials can be easily obtained by anyone (including minors)." After...

The Return of States' Rights

W hat are the powers of the national government? When is the nation allowed to act? When must the states act instead? These are not trivial issues. The answers will determine the ultimate fate of measures safeguarding the environment, protecting consumers, upholding civil rights, preventing violence against women, protecting endangered species, and defining criminal conduct in general and banning hate crimes in particular. The appropriate exercise of national power sharply divides Republicans from Democrats. Even more important, it sharply divides members of the Supreme Court , making federalism by far the most lively of all issues in current constitutional law. George W. Bush says that his favorite justices are Antonin Scalia and Clarence Thomas, and that he would like to appoint justices who agree with them; Scalia and Thomas have been arguing for a narrower view of national power than has been taken by the Supreme Court in the past 60 years. If Governor Bush is elected president,...

Unchecked and Unbalanced

Kenneth Starr's behavior as independent counsel follows a pattern set in other investigations: the problem lies in the incentives and unchecked power of the office.

T he institutional design of the Independent Counsel is designed to heighten, not to check, all of the institutional hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Thus wrote Supreme Court Justice Antonin Scalia nearly a decade ago, echoing the warning of three attorneys general, two of them staunch Republicans. In his dissenting vote to hold the Independent Counsel Act unconstitutional, Scalia objected that the supposedly independent counsel is a novel and dangerous means of law enforcement: a prosecutor who is effectively accountable to no one and entirely focused on a single person. Kenneth Starr was appointed to investigate possible illegality in connection with the Whitewater affair in Arkansas. Nearly four years and $30 million later, Starr authorized and obtained tape recordings of private conversations with Monica Lewinsky, the...

Constitutional Politics and the Conservative Court

A leading scholar in constitutional law examines the future path of the Supreme Court. The Court's right turn is nothing to celebrate, but liberals should welcome the return of issues to the political arena.

Ever since 1969, when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice, observers have been anticipating the emergence of a conservative Supreme Court and the end of an era of expanding civil rights and civil liberties. For years, the predictions turned out to be premature. It was the Burger Court, after all, that in the 1970s recognized a constitutional right to reproductive freedom and first concluded that discrimination on the basis of sex would receive careful constitutional scrutiny. But now there can be no mistaking the reality: the Supreme Court has finally taken a sharply conservative turn. In the last few years the Court has opened the way toward greater government controls on reproductive choice and authorized the states to forbid homosexual relations. It has invalidated affirmative action plans and, at almost every turn, interpreted civil rights laws unfavorably to blacks and women. For liberals and others concerned about these decisions, a...

Ideas, Yes; Assaults, No

The First Amendment protects the exchange of ideas, not verbal assaults.

Universities committed to the value of learning must be committed, above all, to the free exchange of ideas. But it does not follow that they are obliged to accept any and all forms of speech. Under a system of free expression, universities -- and, indeed, the government -- can legitimately distinguish between verbal assaults and speech that forms part of the exchange of ideas. Those who deny this distinction will, I think, have trouble making sense of their own deepest beliefs about the kinds of speech that enjoy full protection of the First Amendment and those that do not. In opposing restrictions on speech, First Amendment absolutists cite the exact Ianguage of the First Amendment: "Congress shall make no law abridging the freedom of speech." But the bare words will not help us to decide what amounts to an "abridgement" and what falls within the category of "freedom of speech." The history of the amendment shows that the text was not thought to protect all speech under all...