The Lure of Large Numbers
A review of two recent books examining when judicial deference is owed congressional majorities
A CONSTITUTION OF MANY MINDS. By Cass R. Sunstein. Princeton, N.J.: Princeton Univ. Press. 2009. Pp. ix, 225. $27.95.
LAW AND THE LIMITS OF REASON. By Adrian Vermeule. New York: Oxford Univ. Press. 2009. Pp. 1, 211. $55.00.
In this book review, Professor Ferejohn notes that recent works by Adrian Vermeule and Cass Sunstein both generally agree that judges do in practice frequently defer to “many minds” – to congressional majorities past or present, to executive branch policies, to judicial precedents, or to the public opinion – on important constitutional issues. Further, both works give reasons to believe that, in some circumstances, such deference is justified partly because the other branches are likely to make better-informed decisions than one or a few sitting judges could; however, the work’s authors differ greatly on how and when deference is owed to other branches or to the people. Professor Ferejohn’s concern is that both authors, to varying extents, focus too much on one kind of informational problem (aggregation) and too little on others (such as incentives to generate and transmit information).