A couple of years ago, Cass Sunstein joined the ongoing debates about the death penalty and deterrence. In his piece Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs, posted on SSRN in March 2005, he used the scholar's conceit: putting out a claim of possible truth with the goal of building out an argument assuming arguendo that that the claim was indeed true. In this case, his claim was that there is a "large and growing body of evidence" that capital punishment deters (and he described this evidence as "powerful" and "impressive") and he argued that if this evidence "is even roughly correct", a refusal to execute will results in the death of many innocents. After admitting that "there is always residual uncertainty in social science and legal policy", he concluded that "if those finding are ultimately shown to be right, capital punishment has a strong claim to being...morally obligatory."
Sunstein carefully crafted his piece so that he never stated that he accepted the veracity of these studies, but the very act of creating this article - an act which generated a torrent of debate in legal scholarly circles - had the effect of accrediting this data. How much? Enough that Justice Scalia cited this piece extensively in his Baze v. Rees concurring opinion upholding lethal injection .
Sunstein must be uncomfortable with his new role as proof provider of the efficacy of death because today, in the Washington Post, he issued a punch line undermining the whole motivation of his original article. "In short", he wrote, "the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty."
Admittedly, Sunstein's act of assuming the veracity of these studies generated serious scholarly work criticizing (and some would say undermining) these finding on deterrence. But as is clear from the very fact of Scalia's citation, Sunstein's choice to provisionally accredit the research had the effect of providing it a valuable endorsement. Most of us could only dream of our research wielding such power. No matter how much I yap about the racially disparate impact of Megan's Laws, it doesn't seem like anyone is paying much attention. But much as it may seem like we're yelling into a vacuum, sometimes we're not. Articles can have consequences. It's better to figure that out early on than to discover it later. Maybe Cass Sunstein wanted to star in Scalia's defense of capital punishment but, based on my reading of today's WaPo, I'm thinking not.