Tyler Cowen: preference

Transcript context

…The Force is strong with this one. Cass is by far the most widely cited legal scholar of his generation. His older book, Nudge, and his new book on Star Wars are both best sellers, and he was head of OIRA [Office of Information and Regulatory Affairs] under President Obama from 2009 to 2013. Powerful, you have become. So tonight I’d like to start with a survey of Cass’s thought. We’re going to look at legal theory and then go to Nudge and then consider Star Wars, how it all ties together, and then we’re going to talk about everything. Let’s start with your legal theory. If I think of Richard Epstein, I think of classical liberalism, some mix of rights and utilitarian reasoning. If I think of Dick Posner, I think of pragmatism mixed with law and economics. If I think of Dworkin, it’s legal interpretivism. If it’s Cass Sunstein — your legal theory in a nutshell — how should I characterize you? Well, I think I’d use three words: incompletely theorized agreements. And I don’t think anyone’s ever marched under a banner with those three words on it, but in a way I think that is America’s banner. So the idea of incompletely theorized agreements is often we can figure out what our rights are and what to do without committing ourselves to a particular conception of the foundations of morality or without knowing exactly what we think about the foundations of morality. So you can have a free speech principle that says speech is protected unless there’s a clear and present danger, even if you are a welfarist and think that the idea of respect for persons is metaphysical gobbledygook. You can believe in the “clear and present danger” standard if you are a Kantian and think that people have a right to say what they wish and go their own path and think that welfarism is a form of barely human robot philosophy. You can be an Aristotelian and say the same thing. You might be just philosophically indifferent and think that, if you want to have a society which figures out what’s true in some way that is not highfalutin, the “clear and present danger” test is right. I could give a zillion examples. I won’t. But our freedom-of-speech principle reflects an incompletely theorized agreement.…

Stored transcript either side of the excerpt. The highlighted words are the published quote; the surrounding text is unedited source, never generated.