Review Essay: Suns'tein, Statutes, and the Common Law - Reconctt,ng Markets, the Communal Impulse, and the Mammoth State

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives1 and from the constitutional perspectives of separation of powers.2 His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling contemporary structures. A particular contribution of Sunstein's has been to insist on bringing forward the Madisonian visions, on their accommodation, not their abandonment. This contribution entails rather vigorous disagreement with the economics-driven theorists of public choice, on the right, and those of deconstructionism, on the left. Sunstein wants to build a conceptual framework for contemporary government that embraces the Madisonian ideal of government structured to serve genuinely public ends in face of the risk of faction; that vision entails both reaching agreement on appropriate distinctions between public and private ends, and finding effective contemporary expression of such ideas as "checks and balances." The "rights revolution" that presents the challenge with which Sunstein is concerned begins with the changes conventionally grounded in the New Deal and culminates in the rights explosion of