William H. Simon

Justice and Accountability: Activist Judging in the Light of Democratic Constitutionalism and Democratic Experimentalism

This article examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

The Republic of Choosing: A Behaviorist Goes to Washington

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.

The Fantasy of the Phrase “Injury to Competition”

Competition is universally regarded as indispensable in the public interest. The competitive system is so much a part of our democratic, free enterprise, form of government that no one has ever even whispered less than devotion to the theory of competition. The prices of commodities throughout the civilized world are determined either by price fixing conspiracies, by government regulation, or by active competition among competing sellers. Price fixing conspiracies are all against the public interest, are opposed by the overwhelming majority of the American people, and are the prime target of the Sherman Act. The planned absence of competition requires the government to regulate the rates of public utilities. Only by prices determined through vigorous competition can government regulation of business be avoided, for if the law denies the people the benefits of active competition, the public can be protected against unreasonable prices only by government regulation. Regulation of prices is not effective without, and may be expected to be followed by, regulation of production. That is the end of the free enterprise system.