Policy Studies Journal. Vol 19. No l.FalU990. 298-204

What's Wrong with Rights?

Alan Stone

CassR Sunstem, After the Rights Revolution Cambridge, Mass.: Harvard Uni-versity Press. 1990.

In December 1955 the Federal Communic£Uions Commission (FCC)upheld a telephone company tanff prohibiting the attachment of customssupplied premises equipment to the telephone network because the device inquesuon reduced intelligibility. Similar tariff provisions had withstood challengesbefore most state public utility commissions for more than fifty years. Then inNovember 1956 the Court of Appeals, Distnct of Columbia Circuit responded tothe respondenv's appeal by crating a new right, "the telephone subscriber's rightreasonably to use his telephone in ways which are privately beneficial withoutbeing publicly detrimental" (Hush-A-Phone Corp. v. AT&T, 1956). The Distnctof Columbia Court of Appeals—descnbed by its cntics as the third branch of thelegislature—created the "nght" out of whole cloth, lgnonng the reasons that everystate utility commission had upheld the tanff provision, tgnonng the FCC'sreasoning and employing the word "right" in a manner sharply at vanance withthe traditional conception of nghts embraced withm the Lockean and consututionalideas of life, liberty and property.

In the larger scheme of thmgs the Hush-A-Phone case, descnbed above,was not very important. Nevertheless, it is an early and symptomauc example ofwhat many observers have come to descnbe as "judicial acuvism," which Iargeiyconsists of creaung new "rights." TTie older conception of nghts is one thatimposes restraint on state action and ngorously follows from the Lockean socialcontract. The newer concepuon of nghts, typified by ^t Hush-A-Phone decision,in contrast, calls for state intervention to guarantee acollecuon of novel nghts B utwhereas the older nghts ngorously follow from the few axioms of the sociaicontract, the newer ones, based on the public law declared by legislatures andcourts, have no parallel rigorous coherence (see, most notably, Rabkin, 1989)More often than not they are based upon sancumomous proclamauons of fairness,jusuce,equality,enutlements, andsoon SenatorTedKennedy'spredisposiuons,not John Locke's ngor, are what inform the new "nghts " Pnsoners, for example,have new "nghts" to enlarged cell space. The state's failure to comply leads to therelease of dangerous people into society The new language of nghts allows courtsto disregard the consequences To many cnucs, ambiguity and irresponsibilitycharactenze the rights revoluuon.

Cass Sunstein's After the Rights Revolution is the best attempt that I haveencountered to theoreUcally formulate a standard for the new "nghts " Because itIS so elegantly argued and so well wntten, it deserves considerable attenuon. Yet,

Reviews/Essays Stone

as we will see, it ulumately does not persuade those who were not alreadypersuaded. The heart of Sunstem*s argument is that the New Deal marked adramauc change m the concq)Uons and goals of govemment regulauon inAmenca. Post-New Deal regulauon rect^nized new rights Notwithstandingsome egregious errors m aj^hcaUon that Sunstem concedes, he insists that theoverall thrust of that regulauon is appropnate because of the improvementsconf^Tcd on segm^ts of the public.

Sunstein begins by clearly staung the boat 's three goals They are* (a)to provide a history of government regulmion and its performance in America, (b)to defend regulauon against the att^ks of recent cnUcs, and (c) to provideregulators and courts with a set of canons that can simultaneously promote desu-edpohcies and improve the operauons of regulatory programs. His histoncalpresentauon is sketchy, at best, taking up approximately twenty pages and citingvutually none of the extraordinary volume of literature that has been generated mthe last thirty years One would never know from Sunstein, for example, thathistOTians have engaged m a raging debate about the underlying reasons for thecreauon of the ICC (Interstate Commerce Commission). Nevertheless, Sunsteinuses the cursory history to set up the topics of paramount importance to him Whydid the New Deal see a proliferauon of regulatory statutes'^ Why did the LyndonJohnson Administrauon usher in an era of sociai regulation that continued throughthe Richard Nixon Administration'^

Sunstem conceives the regulatory escalauon in both periods as from acommon cause that links the first and second goals of his book During the NewDeal influenual reformers began to quesuon not only economic pracuces andpolicies of pnor eras but pohucal structures and pracuces as well States wereviewed as weak and ineffectual. Congress was conceived as an lneffecuve forumin which to onginate pohcies, and the common law was no longer considered tobe an effecUve system of either dispute resoluuon or policymaking The New Dealreformers drew two important lessons from their conclusions The first was. ofcourse, a belief in a strengthened presidency as the focus of pubhc pohcy makingThe second was the creauon of a new set of "nghts" that would jusufy New Dealpohcies and would someUmes sufqilant and, at other umes, subsutute for thenatural nghts enshnned m the common law The inexorable results were (a) auansfer of power from the states to the federal govemment, (b) the enormousgrowth in the size ofthe federal bureaucracy, (c) the shrinking of judicial controlsover many govemment programs, notably in the economic arena, and (d) theaccreuon of power and real pohcymaking in the hands of the president and thebureaucracy.

Many commentators have focused on the enlarged presidency since theNew Deal Sunstein's unique contnbuDon is the attempt to develop a new theoryof nghts that he claims (H-tginated in the New Deal and has informed policy-making since. He thus attempts to provide an intellectual link between New Deal

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regulauon and social programs and those that occurred many years later. Aftersketching the new set of nghts (which I will examine later), Sunstein devotesconsiderable attenuon to a critique of public choice theory, seeking to show thathis theory of nghts better sausfies such goals as attaining diverse preferences thanlaissez faire. For example, govemment regulauon of broadcasung and subsidizingpublic broadcasung will better assure a wi(te range of diq)arate programming thanthe free market will Sunstein cauuons that simply focusing on attaining the newnghts through regulauon and other govemmental techniques will not necessarilyassure that the desired results are achieved. Statutes can be poorly designed, theycan be subverted in the unplementauon process, the market may be misunderstood,administrators might be provided with poor mcenuves, and so on. Much of Afterthe Rights Revolution wams that recognizing nghts is only the begmning of thetask In specifying such {ffoblems, Sunstein does not break new ground, indeed,he covers problems that are familiar to students of public administrauon andpolicy Fmally, in Ch^ters 5 and 6, Sunstein proposes a set of rules to aid courtsand administrators m the process of statutory construcuon. These proposed mles,like much that precede from them, largely depend on accepung his conception ofnghts, stemming from his concepuon of the New Deal.

Sunstein's pnncipal post is at the University of Chicago Law School, thehome of the law and economics school which emphasizes market based solutionsfor most pubhc problems The preface makes clear that Sunscein engaged his lawand economics colleagues in discourse, but that he profoundly disagrees withthem. Early on, Sunstein explains the principal source of disagreement. The NewDeal, he argues, proclaimed major new govemmental undertakings that could notbe achieved under the older system of free markets and pnvate ordering. By the1980s, the trend insututed in the New Deal became enshrined as nghts andenutlements In a concise summary, Sunstein asserts

Between ihe New Deal and the 1980s the Umted States witnessed a nghtsrevolution — the creation by Congress of legal enutlements to freedomsfrom risks in the workplace and m consumer products, from poverty, fromlong hours and low wages, from fraud and deception, from donunation byemployers, from one-sided or purely commerciai broadcastmg, and fromdirty air, dirty water, and toxic substances Building on the original Bill ofRights and inspired by the civil rights movement. Congress createdregulatory programs as a means of fumishmg govenunoit protectionagainst the muluple hazards of mdustnahzed society Indeed it has reno-vated the original constitutional framework and the system of govemmentunder which the nauon operated for most of its history (pp 12-13)

Yet delineaung the laundry list of desirable goals does not get us very farEveryone favors peace, motherhood, and clean air Sunstein's rights are basedloosely on President Franklin D Roosevelt's January 1944 State of the Unionmessage. porUons of which he repnnts following the table of contents. In that

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speech Roosevelt delineated what he conceived as a new economic bill of nghtsBut even at the ume, as James MacGregor Bums, Roosevelt's adonng biographer,explains, "This appeal fell with a dull thud mto the half-empty chambers of theUnited States Congress" (Bums. 1970, p. 426). The speech was not a coherenttheory of nghts but a collecuon of plmiUides. Oie can envision other leadersmaking similar speeches m 1944 to boost the morale of the troops and those on thehome front. But unlike Madison's nghts. founded on fear of what govemmentpower can do. Roosevelt's were an mvitation for every group to wrap itself in themantle of *'nghts" in order to advance its mtercsts employmg govemment'sresources. Consider but one of Roosevelt's nghts: "the nght of every fanner toraise and sell his products at a retum which will give him wid his family a decentliving " This, of course, is nothmg but a jriea for pnce supports and the labynnthof other special interest agncultural programs. Moreover, taken literally, theprotecuon of "every fanner" is a plea to iM"otect the inefficient and marginal as wellas those who can flounsh without govemment-imposed pnce fixing If farmers areenutled to such benefits, why are not buggy whip manufacturers as well? Theanswer is, of course, that farmws were—and still are—an extraordinanly effec-uve interest group

Ambiguity charactenzes not only FDR's list of nghts, but Sunstein's aswell What exactly is"dominauon by employers"'^ Perhaps Sunstein's expenencesare different, but in mine, which include being an assembly lme worker and auniversity professor, I have been told what to do and, often, how to do itObviously, there are limits, but the wcffd "dominauon," while colorful, providesno guidance m treaung issues of wwker interests versus employer interests, justas Roosevelt's nnging phrases provide no way to deal with the conflicunginterests of farmers and consumers. Describing hours as "long," wages as "low,"water as "duty," and so on provides ambiguity and not a theory such asMontesquieu's separauon of powers or Madts<»i and Hamilton's applicauon of itto preserve individual hbo'ty.

The New Deal certainly saw. as Sunstein argues, a vast outpounng ofgovemmental power. But as Blhs Hawley and otho^ have shown, the New Dealembraced nuuiy the<mes and msa\y c(HifiicUng mterests For example. theRobinson-Patman Act, a sop to drug and food wholesaler and small stores confronted withchain stJOK ccmpeuuon and more efficient buying pracuces, was a product of theNew Deal; indeed. Sunstein charactenzes that statute as "producing little or nopubhc benefit" (p. 98). The New Deal also spawned Fair Trade, which facilitatedproducer price fixing of consumer goods, the cartelizauon of the financiai sectoras well as depositor mterest rate controls, the Agncultural Marketing AgreementAct that fixed the pnces paid to milk and fmit producers, the Motor Camer Actof 1935 that helped to cartetize the trucking industry and, most notonously, theNaU(Hial Industriai Recovery Act which almost succeeded in imposing a corpo-raustsystemontheUnitedStates(See,notabIy,Hawley, 1966, and Hughs, 1979)

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The point of this summary of New Deal legislauon is not so much toquarrel with Sunstein's view of the New Deal, but to suggest that by exammmgpolicymaking as a whole dunng that penod and after, a different picture emergesthan Roosevelt's rhetonc would have us beiieve. The New Deal promoted theemergence of a brdter s tate in which mterest groups routinely go to the govemmentux)ugh Again, the point is not necessarily to quanel about specific policies, butrather to suggest that without a the(»y of limitauon. every group will wrap itselfm the mantle of "nghts," claiming that its pnvate nghts are in the pubhc interestregardless of the costs imposed on the public. This is the legacy of the post-NewDeal's explosion of regulauxy statutes that Sunstein observes. This, and notRoosevelt's speech, explains why contemporary Congresses can enact (or prevent)legislauon providing benefits for both local cable monopolies and the handi-c^)ped. The spreading use ofthe ambiguous concepuon of ̂ 'rights''—the rights ofthe homeless, pnsoners' rights, animal nghts. and on and on similarly explainsmuch of the explosion m the volume of non-commercial hugauon.

Sunstem also inadequately elaborates the older system of nghts basedupon freedom of contact and relauvely unresuained pnvate markets, which heterms "the minimal state." First, as R.H. Coase and others have argued, the oldersystem insofar as it is based on convenuonal microeconomic theory can addressmany of the problems that conc^n Sunstein. For example, one can take intoaccount the costs imposed upon persons external to transacuons— the essence ofso-called polluUon problems. Many law snd economics advocates have providedmarket-based soluuons that are arguably supenOT to the regulatory soluuonsSunstem takes for granted(see Coase, 1960, pp. l-44;and Dales, 1968, pp. 93-97)For example, as we saw, Sunstem suggests that broadcast regulauon is needed toassure diversity of programming (p. 61). But then why is the free market able toprovide an enormous divwsity of such other cultural goods and services ascompact discs, books, and penodicals? The consumer of magazines has a choiceranging from Monthly Review on the left to Nationai Review on the nght. As R HCoase has argued, if broadcast spectra had been iniually aucuoned off as propeny,the same diversity would have anscti as in these oth^ goods, and governmentwould not have engaged m such entapnses as content control and subsidy of"pubhc broadcasung''(Coase, 1959, pp. 1-40). Perhaps regulauon could providebetter answers than the market-contract soluuon, but it is msufficient to ignore thearguments that suggest the superionty of market solutions to solve the issuesraised. It ts inadequate analysis to simply assume that the market cannot supportsuch goals (p. 42)

Equally senous, Sunstein, while acknowledging that govemment wasintervenuonist before the New Deal, fails to delmeate the theory of govemmentintervenuon that charactenzed the antecedentpenod.Instead.most of hisdiscussionof the pre-New Deal penod implicitly assumes the straw man of Iaissez faire Buta reading of HeibCTt Spencer— the archhbertanan—should disabuse one of such

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nouons. For Spencer complained bitterly about the exU-aordinary amount of stateintervenuon in mid-nineteenth century England (Spencer. 1981. pp 17, 24)Spencer would have complained equally bitterly about the efforts of local stateand the federal govemment m the United States These enacunents met a varietyof consumer, labor, and other needs (see the summary in Stone, 1991. chap. 1)But unlike Sunstein's open-ended and vague concepuon of modem nghts andenutlements, there was a rehiuvely well specified theory of govemment inter-venuon, best delineated in Book V of John Stuart Mill's Principles of PoliticalEconomy. Mill began with a rebuttable presumpuon in favor of laissez faire forseveral reasons On the grounds of human freedom he cauuoned against stateintervenuon Second, state intervenuon creates a feeling of dependence in placeof self-reliance; Mill went so far as to suggest that state intervenuon erodesphysical and mental abiliues Third, human dignity requires protecuon of thepnvate sphere Fourth, when a large number of duues are imposed upon govem-ment, they are either not done or done very poorly Govemment, in short, tendsto do things worse than individuals and cooperating groups directly interested inthe matters (Mill. 1929, pp. 942-948)

For these reasons Mill argued that the burden of making out a strong caseshould be on those recommending govemment interference, not on those whoresist This recipe is the very opposite perspecuve of those who advocate the newnghts and entitlements. Mill states, "Laissez-faire. in shon, should be the generalpracuce: every dcpartuit from it, unless required by some great good, is a certainevil" (Mill, 1929, pp. 942-948). Framing the issue m this nineteenth centuryliberal way compels one to next elaborate the list of excepuons to the general ruleIt compels one to explain why laissez faire or some market arrangement will notachieve such desirable goals as adequate housing, environmental unprovement,and so on Such a formulauon vutually compels one operaung within such aframework to compare as best as one can the costs and benefits of alternauvearrangements starung with a rebuttable presumpuon in favor of the free marketAnd this formulation, unlike that proposed by Spencer and modem day hbertanans,does not simply assume that economic efficiency achieved through the freemai^et is the only value worth achieving.

The difference between the New Deal and post-New Deal intervenuonIS not one of ulumate values It is one between a well considered, clearlyaruculated theory that saw the dangers of excessive govemment intervenuon and.therefore, cauUoned restraint, on the one hand, and one that permits pnvate groupscarte blanche to indulge their interests. Sunstein, therefore, has not adequatelyreconceived the regulatory state—his pnncipal undertaking Because of thesefundamental difficulues, his first-rate effon devoted to explaining regulatoryineffecUveness, Uie problems of mterpreung regulatory statutes, and the role ofinterpretauve norms is left suspended in midair

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References

Bums.JM {\910). RoostvtU Thesotdurofjreedom New York Hircoun, Brace, JohanovichCoase, R H (1959. October) The Federal Conunuiucatioiii Commission Journal of Law and

Economics, 2, 1-40Coase, RH (1960,Octc4>cr) 'Die problem of sociai cost Journal of Law and Economics, 3,1-44Dales, J H (1968) Pollution, property and prices Toronto University of Toronto PressHswley, EW (1966) The New Eteal and the problem of monopoly Pnncetrai, NJ Pnnceton

University pressHughes, J (1979) Roots of legulttion The New Deal In G N Walton (Ed ), Rtgulatory change tn

an atmosphere of crisis (diap 3) New Ycnic Academic PressHosh-A-Phone Coip v AT&T. 238 F 2d 266,269. (D C Cir 1956)MlU, J S (1929) Prmcipfes ofpohneal ccofiomy London Longman, GieenRabkin.JA (1989) Judicial compulsions How public law distorts public policy New York Basic

BooksSpencer, H (1981) The man versus the state Indianapolis, Indiana Liberty PressStone,A (1991.fonhcommg) Pubttcservicehberaltsm Pnnceton,N3'PnncetonUmversiiypTess

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