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Ross McSweeney
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Professor Masur- Thanks for this interesting post. It seems like retrospective analysis of cost-benefit analyses makes a lot of sense, but I wonder what (if any) impact you think this might have on judicial review of agency regulations. For instance, from State Farm we know that the Court will conduct a rather searching review of an agency's factual basis for regulation. If we could imagine State Farm being relitigated after President Obama's Executive Order, could the agency enter its "success" in past cost-benefit analyses as at least somewhat persuasive evidence that the Court should defer to its decision in this instance? On one hand, this would seem reasonable, since the Court would be reassured that the agency is properly exercising its relevant expertise advantage. On the other hand, this seems like it could combine with Chevron to allow an agency to evade reviews of both fact and law, so long as it is "successful," whatever that means. Thanks again.
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Thank you for your thoughtful comment. It would indeed be interesting to think more about meta-discourse, or public discourse on the nature of public discourse. Obviously, the recent tragedy in Arizona has led to a good deal of national introspection, but even in this moment of reflection, we still see many of the usual tools of public discourse deployed in the familiar way. That is, while ideological opponents routinely use first-order discourse to score political points, we now see a second-order discourse about whether the very use of discourse in this way by "the other side" is somehow violating the rules of discourse. But of course, this debate is itself framed in the context of political superiority. One might conclude that this casts some doubt on Professor Nussbaum's project—that we can't seem to even think of discourse in and of itself in a politically/ideologically neutral way suggests that it is naive to hope to use discourse towards some political/ideological end. Or, to put it another way, that in order to properly cultivate a virtuous public discourse, we must first resolve the political questions inhibiting true discourse. But then the snake is eating its tail, since it's through the "right" kind of public discourse that Professor Nussbaum suggests we can resolve the political questions. I don't know what Professor Nussbaum would say herself (though I encourage you to read the book this WIP was excerpted from when it is finished). I can think of a few responses for my part, however. First, I think it's instructive that many of the thinkers Professor Nussbaum discusses—including and especially Tagore—focused a great deal of thought on early-age education. Perhaps in doing so they are suggesting that those individuals already participating in the wrong kind of public discourse that takes place today are beyond "saving". The state must intervene earlier if there is any hope of affecting real change. Second, and in partial response to your question about the marginalization of the arts, I feel Professor Nussbaum's project emphasizes a pre-rational, emotional response that, as in her explication of Whitman and Tagore, operates on a deeper level than what we are accustomed to from our current modes of public discourse. My guess is that Professor Nussbaum's critique of the withering of public art means that public discourse runs an increased risk of mutating into animus. I have not watched enough (any?) Grey's Anatomy, so I can't comment specifically on this point. However, I've heard (and made) a similar criticism of, for instance, the directorial work of Cameron Crowe. The emotional climaxes of many if not all of his movies are achieved through the conspicuous use of music. Think of John Cusack holding the boombox aloft in "Say Anything," or the tour-bus singalong in "Almost Famous." Sometimes this irks me—it feels cheap and unearned for the characters to rely so heavily on some other artform to communicate what they, as participants in an artform, should be communicating themselves. Perhaps I've been too harsh, though, and what Crowe is really doing is the heroic work of demonstrating for the viewer the proper cultivation of public emotion. I will have to reconsider my position.
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Oct 29, 2010