LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLELAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE

Vol. 15 No.8 (August 2005), pp.635-640

LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE, by Cass R. Sunstein. New York: Cambridge University Press, 2005. 246pp. Hardback. £40.00/$65.00. ISBN: 0521848237. Paperback. £15.99/$23.00. ISBN: 0521615127.

Reviewed by Sanford Levinson, W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School; Professor, Department of Government, University of Texas. Email: SLevinson@law.utexas.edu .

LAWS OF FEAR is an expanded version of the John Robert Seeley Lectures that University of Chicago Law Professor Cass Sunstein delivered at Cambridge University in March 2004. The back jacket indicates that the Seeley Lectures are designed to offer a forum “for distinguished scholars of international reputation to address, in an accessible manner, themes of broad and topical interest in social and political studies.” Sunstein amply qualifies as such a scholar—he is the most frequently-cited law professor in the United States (and, therefore, probably the world)—and, perhaps more to the point, he triumphantly meets the goal of providing an “accessible” discussion of a topic that is truly of “broad and topical interest.”

Sunstein’s aim is not only to discuss, but also basically to eviscerate, the so-called “precautionary principle” (hereafter “PP”), an idea that is being applied to many different realms of public policy, though it seems to have some special force in many arguments concerning environmental policy. Sunstein offers no single canonical definition of the principle, but “the animating idea is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition” (p.4). Sometimes the PP will take the form of “shoot first and ask questions later,” as with the Bush Administration’s original justification for the Iraq war, which Sunstein mentions several times throughout the book. More often, perhaps, the PP is used to justify governmental inaction, as when environmentalists protest against certain policies on the grounds that they risk causing harm X, and that it is better to maintain the status quo than to take that risk. Similar arguments, of course, can be made with the introduction of certain, presumptively insufficiently tested, drugs into the medical community, the use of genetically modified food, and, indeed, an almost infinite number of examples. Most of Sunstein’s examples, and his central arguments, focus on what might be termed the “status quo bias” in the PP, rather than the kind of preventive action taken in Iraq, but both can be derived from the PP.

Chapter One is a brief history and analytic overview of the PP. As already noted, there is no canonical definition, not least because “[t]here are twenty or more definitions, and they are not compatible with one another” (p.18). There are “strong” and “weak” versions. “The most cautious and weak versions suggest, quite sensibly, that lack of decisive evidence of harm should not be a ground for refusing to regulate” (id.). [*636] As he suggests, it is hard to disagree with any such “principle,” particularly if one places the word “conclusive” before “ground” in the quoted sentence. Needless to say, there would be no need to write a book if all of the definitions were this “weak.” Stronger definitions abound, including one assertion that the PP “mandates that when there is a risk of significant health or environmental damage to others or to future generations, and when there is scientific uncertainty as to the nature of that damage or the likelihood of the risk, then decisions should be made so as to prevent such activities from being conducted unless and until scientific evidence shows that the damage will not occur” (p.19, quoting Testimony of Dr. Brent Blackwelder, President, Friends of the Earth, before the Senate Appropriations Committee, Subcommittee on Labor, Health and Human Services, Jan. 24, 2002). What is interesting about this version of the PP is that it seems to establish either an extraordinary tilt in favor of the status quo, if the perception of any significant risk precludes action until “scientific evidence shows that the damage will not occur”—think of the debate over genetically modified food, for example—or an equally significant tilt in favor of wide-ranging, possibly highly disruptive, action. I have already mentioned Iraq, but consider also what is perhaps Sunstein’s most frequent example, the debate over global warming, where fears of potential catastrophe are used to justify drastic action unless “scientific evidence shows that the damage will not occur.” The point is that a “strong” PP seems almost inevitably to result in extreme recommendations, whether of inaction (or endless study, which may be the same thing) or precipitous action.

As noted earlier, Sunstein comes not to praise the PP but in effect to bury it, and he begins by emphasizing its ultimate incoherence, precisely because it can lead, depending on how one phrases the problem, at once to paralyzing bias in favor of the status quo or endorsement of the most wide-ranging action, each in the name of taking “precautions” against risks. “The real problem is that the principle offers no guidance—not that it is wrong, but that [under some circumstances] it forbids all courses of action, including regulation. It bans the very steps that it requires” (p.26). All policies generate risks, and if one focuses only on worst case possibilities, as the PP often leads its proponents to do, then either nothing can be done (because, e.g., the introduction of antibiotics might generate new forms of viruses that will kill us all) or there are no limits (if Sadaam Hussein might get the atomic bomb, then we must move immediately to foreclose that risk), and so on. In any event, “the central problem” of the PP “is that precautions against some risk almost always create other risks” (p.53).

Chapter Two, “Behind the Precautionary Principle,” begins Sunstein’s fascinating overview of materials from cognitive psychology and behavioral economics regarding the perception of risks. He addresses such phenomena as

1) “the availability heuristic,” which leads us to overestimate considerably the probability of certain risks precisely because they cognitively become “available” to us. A current example is the almost undoubtedly exaggerated risk [*637] of being injured in a terrorist incident, even if one lives in New York, Madrid, London, or any other world capital;

2) “probability neglect,” which leads to a focus on “worst cases”;

3) “loss aversion,” which simply means that people tend to be more concerned about losses from the status quo than potential gains in the future;

4) “a belief in the benevolence of nature, making man-made decisions and processes seem especially suspect” as against relying on an uninterfered-with nature to be kind to us human beings; and, finally

5) “system neglect, understood as an inability to see that risks are part of systems, and that interventions into those systems can create risks of their own” (p.35).

Chapter Three is an especially vigorous (and often vivid) critique of the extent to which public policy mavens, especially when trying to whip up public support (and donations) for their favorite causes, rely on “worst-case scenarios.” Not only does such reliance manifest some of the cognitive biases treated in Chapter Two, but it also reflects the way in which emotions, particularly fear, can overcome what we like to think of as our rational faculties. This chapter should particularly interest students of political rhetoric (including, for lawyers, the particular rhetoric found in legal briefs and judicial opinions). “Emotional reactions to risk, and probability neglect,” account for what he calls “alarmist bias” (p.82), examples of which should readily occur to any reader of any political persuasion.

This chapter introduces a central sub-text of the book, which is the degree to which societies should rely, relatively speaking, on “expert” or “democratic” decisionmaking by “ordinary people” (p.86). Thus Chapter Four, “Fear as Wildfire,” details the ways that what might be termed “cultures of fear” develop in society. Here he discusses informational “cascades” (pp.94ff), “group polarizations” (pp.98ff), and the way that “media, interest groups and politicians” (p.102) use their own skills to play on popular “predispositions” (p.104) and create perceptions that may be almost wildly different from what more sober experts would suggest. Although Sunstein resists the suggestion that he is endorsing “the virtues of rule by a technocratic elite” (p.106), there is little doubt that the book is tilted in favor of the relatively unemotional, statistically-sophisticated expert against the more “ordinary” citizen who is more susceptible to all of the decisionmaking pathologies that he tellingly identifies.

This book fits within Sunstein’s long-demonstrated commitment to furthering the conditions suitable to a more “deliberative democracy.” Although, as a democrat, Sunstein does indeed believe that it is ultimately up to the people in general to resolve value conflicts within the social order, he clearly wants to encourage a greater willingness to look to experts for the factual information relevant to making the sophisticated factual judgments that are necessary to any cogent process of public policy formation.

The first four chapters constitute the critical analysis of the PP. Part II of the book is titled “Solutions.” Chapter Five, “Reconstructing the Precautionary [*638] Principle—and Managing Fear,” emphasizes the importance of identifying the “full universe of relevant risks” (p.122), although, of course, this notion is in tension with his earlier argument that everyone is subject to the biases revealed by cognitive psychology. It is also fair, I believe, to note that if one is at all attracted to chaos theory and “butterfly effects,” then it becomes a combination of utopian and bizarre to suggest that we can ever hope truly to be aware of every risk attached to any particular proposal. One is almost always—the “almost” is really an academic fudge—making important decisions under conditions of uncertainty, as Sunstein well recognizes.

Chapter Six, “Costs and Benefits,” offers a fascinating overview of how one assesses the social costs (and gains) of policies. Although some readers may already be familiar with discussions of creating a “uniform value for a statistical life (VSL)” (p.132), I learned an immense amount from this chapter, and I suspect that I will not be alone among its readers. This chapter, together with the next one, “Democracy, Rights, and Distribution,” would make an especially wonderful assignment to a seminar of sophisticated undergraduate and graduate students inasmuch as it argues that VSL analyses must be context specific and not assume that all lives in all cultures and contexts are to be given the same economic value. Sunstein does not mean to suggest that “people in poor countries are ‘worth less’ than people elsewhere,” but he does strongly argue that “VSL properly varies across nations” and that, inevitably, “citizens of poor nations have a lower VSL than citizens of wealthy ones” (p.165).

Given that Sunstein is widely recognized as a political liberal, it is especially interesting that he is highly critical of those who would necessarily impose public policies that make sense in rich societies on poor ones. Thus he discusses throughout the book the implications of focusing on “willingness to pay” as a mode of analyzing public policy in discrete instances. For example, most people reading this review would be willing to pay far more to insure against a certain risk—say a guaranteed 2% diminution in the probability of dying a painful death from cancer—than would someone living in, say, Haiti, Bolivia, or Chad, for whom even $100, let alone $1000, might well be an immense amount. To impose such a cost on persons in these latter countries, perhaps through international protocols, would have the practical effect, of course, of making it far harder for them to spend the same amount, say, on malaria pills or other medicines, to stay within the area of health concerns, though obviously health itself competes with other realms. Like many economics-oriented liberals, Sunstein believes that succor to the poor is probably accomplished best by direct redistributions of income rather than “enlightened” public policies that may in fact work to the detriment of those ostensibly to be benefited by them.

Similarly, Sunstein offers some reservations about the Kyoto Protocols, which in significant ways reflect the PP. “International action should indeed be taken on global warming, but aggressive technology-forcing, by the United States alone, is not simple to justify. It would be far better to start with cautious agreements that would build toward more aggressive reductions as [*639] technologies advance” (p.173). For some of us, such arguments have greater impact coming from Sunstein than if they were in books written by some of his Chicago colleagues who could more easily be predicted to valorize the free market and disdain ambitious governmental programs.

Chapter 8, co-authored with Richard Thaler, is on “Libertarian Paternalism,” in which the authors suggest that it does not violate libertarian, pro-choice, principles to structure certain decision-making processes in ways that will predictably lead the decisionmakers to choose outcomes that the (presumably expert) designers believe are in fact in the best interests of the decisionmakers. The chapter has extremely interesting consequences for designing pension systems, in which one will get different results depending on the default rules—e.g., X% of one’s salary will be automatically deferred unless one opts out as against a requirement that one actually “choose” to have the X% deferred. If one believes that it would be good both for society and individuals to have a higher savings rate, then they see no problem in adopting the first default rule. Their discussion includes an amusing, but insightful, discussion (pp.178ff) of the principles of cafeteria design, in which the order of presenting food choices influences the decisions of the consumers. If one wishes to encourage the eating of salads and the relative under-consumption of desserts, it is a wonderful idea to put salads at the beginning of the line. They note that it is next to impossible to design a cafeteria along what might be viewed as a maximalist libertarianism that would present all food choices at the same time, as it were, to the person going through the line. The order of food must be consciously chosen by the cafeteria director, with predictable consequences for the subsequent choices of the customers. The same is true for many other areas of public policy.

A final chapter, “Fear and Liberty,” looks especially at some contemporary debates about how much civil liberty must be sacrificed in order to meet various threats identified with the “global war on terror.” He offers three central principles, especially for courts reviewing national security legislation. “The first and most important is that restrictions on civil liberties should not be permitted unless they have unambiguous legislative authorization.” Second, “in order to protect against unjustified responses to fear,” which, of course, may be the result not only of the “availability heuristic” but also of demagogic politics, “courts should be relatively more skeptical of intrusions on liberty that are not general,” which by definition means that they “burden [only] identifiable groups,” who are, of course, likely to be unpopular minorities. Finally, “constitutional principles should reflect second-order balancing, producing rules and presumptions, rather than ad hoc balancing” (p.211, emphasis in original).

Sunstein draws on some of his previously published material, but this version is an outstanding introduction that should find ready use in the classroom even if we are already familiar, for example, with the important (indeed, Nobel Prize-winning) work of Amos Tversky, Daniel Kahneman, and Paul Slovic (1982), probably the most frequently cited single source. Perhaps I should note that I scarcely consider [*640] myself an expert on many of the matters about which Sunstein writes, especially cognitive psychology and behavioral economics, both of which play significant roles in his argument, so perhaps my enthusiasm for the book should be discounted to some degree. What I can say with complete confidence, though, is that I learned an immense amount, and I have no doubt that other non-expert readers will be equally glad to have read it (and to assign it to their students). I would relish the opportunity to teach a seminar that would include LAWS OF FEAR together with Richard Posner’s recent CATASTROPHE: RISK AND RESPONSE (2004), and, particularly with regard to Sunstein’s final chapter, Frederick Schauer’s PROFILES, PROBABILITIES, AND STEREOTYPES (2003). All of them are joined in a common project of hoping to inject greater degrees of evidence-based rationality into discussions that all too often descend into hysterical fear-mongering. Occasionally the sky may be falling—Sunstein has some interesting comments about responding to truly “catastrophic” possibilities of the kind raised by Posner—but most often it is not. In any event, it would be a victory for sound policy-making if more discussants in the public debates approached the issues with more of a Sunsteinian sensibility.

REFERENCES:

Kahneman, Daniel, Paul Slovic, and Amos Tversky (eds). 1982. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES. London: Cambridge University Press.

Posner, Richard A. 2004. CATASTROPHE: RISK AND RESPONSE. New York; Oxford University Press.

Schauer, Frederick. 2003. PROFILES, PROBABILITIES, AND STEREOTYPES. Cambridge, Mass.: Belknap Press of Harvard University Press.

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