Cass Sunstein: evaluation

Transcript context

…Give us the right solution. So, I’d need to say a lot about the particulars of that to resolve it. But to resolve the transgender bathroom issue, we need to think, I think, first about questions — kind of mundane questions about jurisdiction and authority. And I’d like to avoid big questions about sexuality and what people are like unless you have to get there. And so, one question is what authority the states have; what authority does the federal government have? As a presumption, the states have authority over bathroom stuff. On the other hand, the federal government has some regulatory authority under the Civil Rights Act. And if you’re falling asleep a little bit because I’m not talking about transgender in the large, I’m sad you’re falling asleep but a little happy that hair isn’t on fire, because one way democracies work well is they put people’s hair on fire very rarely. They try to use issues of democratic process and who has the authority to do what as a way of allowing us to live together peaceably, notwithstanding our disagreements. There’s a good argument at least that the federal government has regulatory authority under the civil rights laws to figure out what counts as discrimination, sex discrimination in particular. Whether in the end this is a convincing argument, I’m kind of bracketing that, but that is a minimalist direction. It wouldn’t say anything super large about what sex equality means; it would say something more modest about who has authority. Let’s take you and Dick Posner as theorists of legal reasoning. He’s also not a big proponent of metaphysics, but you and he end up at different points — especially earlier Dick Posner, right? He’s actually moved closer to you. What’s the empirical variable that you and Posner disagree about that accounts for where you end up and where he ends up?…

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