Like other accounts that rest on the "irrational weigher model" of risk perception, the position advanced by Cass Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005), ignores the impact of cultural worldviews. Based on studies of cultural cognition, this paper (published in the Harvard Law Review) presents an alternative "cultural evaluator" model that better explains disagreements over risk and that generates more defensible prescriptions for how to reconcile rational risk regulation with democratic deliberation.
What dynamics shape public risk perceptions? What significance should such perceptions have in the formation of risk regulation? In Laws of Fear: Beyond the Precautionary Principle (2005), Cass Sunstein catalogs a variety of cognitive and social mechanisms that he argues inflate public estimations of various societal risks. To counter the impact of irrational public fears, he advocates delegation of authority to politically insulated experts using economic cost-benefit analysis. Missing from Sunstein's impressive account, however, is any attention to the impact of cultural cognition, the tendency of individuals to adopt risk perceptions that reflect and reinforce their cultural worldviews. Relying on existing and original empirical research, we use this dynamic to develop an alternative “cultural evaluator" model, which better explains individual variation in risk perception, differences of opinions among experts, and the intensity of political conflict over risk than does Sunstein's “irrational weigher" model. Cultural cognition also complicates Sunstein's policy prescriptions. Because the public fears that Sunstein describes as “irrational" express cultural values, expert cost-benefit analysis does not merely insulate the law from “factual error," as Sunstein argues; rather, it systematically detaches law from popular understandings of the ideal society. Indeed, the best defense of Sunstein's program might be just that: by eliding the role that risk regulation plays in endorsing contested cultural visions, expert cost-benefit analysis protects the law from a divisive and deeply illiberal form of expressive politics. The difficult task for those who understand the phenomenon of cultural cognition and who favor democratic modes of policymaking is to devise procedures that assure that popularly responsive risk regulation is both rational and respectful of diverse cultural worldviews.