Taking Delight in Being Contrary, Worried About Being a Loner or Simply Indifferent: How do Judges Feel about Dissent?

Australian National University
Publication Type:
Journal Article
Federal Law Review, 2004, 32 (2), pp. 311 - 329
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In Cass Sunstein's new book, Why Societies Need Dissent, the reader is presented with an impassioned yet methodical rumination on the value to be gained through the airing of voices which challenge the mainstream. Sunstein's canvas is an ample one and while the book presents a compelling case overall for the legal protection of free speech, it is wholly inadequate to describe Why Societies Need Dissent as a book simply for lawyers.[1] Through repeated references to the lessons of history and by drawing significantly upon psychological research into group decision-making, Sunstein seeks to reach out to as broad an audience as possible. The book may irritate those who would prefer that the incessant voices of disquiet were silenced but will surely provide comfort to social activists and those feeling disenfranchised from the mainstream in their community's political and social life. As such, it is very much a book for our times. So far as this wider scope of the book is concerned, Sunstein succeeds admirably in sifting through and explaining rather a lot of humanities research to bolster what is, ultimately, a fairly straight-forward and commonsense proposition: 'unchecked by dissent, conformity can produce disturbing, harmful, and sometimes astonishing outcomes'.[2] Many of the examples which Sunstein uses in support of this contention would readily occur to the reader without prompting the American government's actions at the Bay of Pigs and subsequently in Vietnam, the defeat of the Axis powers in World War II and the financial collapse of corporations with complacent and pliant boards of governance, to name just a few.
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