Cass R. Sunstein

Robert Walmsley University Professor

Biography

Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Mr. Sunstein has testified before congressional committees on many subjects, and he has been involved in constitution-making and law reform activities in a number of nations.

Mr. Sunstein is author of many articles and books, including Republic.com (2001), Risk and Reason (2002), Why Societies Need Dissent (2003), The Second Bill of Rights (2004), Laws of Fear: Beyond the Precautionary Principle (2005), Worst-Case Scenarios (2001), Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013) and most recently Why Nudge? (2014) and Conspiracy Theories and Other Dangerous Ideas (2014). He is now working on group decisionmaking and various projects on the idea of liberty

Areas of Interest

Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, Behavioral Insights All Over the World? Public Attitudes Toward Nudging in a Multi-Country Study (Feb. 21, 2017).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations with markedly lower approval ratings for nudges. We offer some speculations about the relationship between approval rates and trust.
Cass R. Sunstein, Beyond Cheneyism and Snowdensim, 83 U. Chi. L. Rev. 271 (2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Economics
,
Legal Theory & Philosophy
,
National Security Law
Type: Article
Abstract
In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.
Cass R. Sunstein, Listen, Economists!, 63 N.Y. Rev. of Books 53 (2016)(reviewing Guido Calabresi, Future of Law and Economics: Essays in Reform and Recollection (2016)).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Economics
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Cass R. Sunstein, People Prefer System 2 Nudges (Kind Of), 66 Duke L.J. 121 (2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring choice-preserving approaches, or “nudges,” informed by behavioral science and with the purpose of promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that in important contexts, majorities do indeed prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then large numbers of them will move in its direction. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings, and an accompanying normative analysis, offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.
Lucia A. Reisch & Cass R. Sunstein, Do Europeans Like Nudges?, 11 Judgment & Decision Making 310 (2016).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
European Law
Type: Article
Cass R. Sunstein, Conspiracy Theories and Other Dangerous Ideas (Simon & Schuster 2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
,
Administrative Law & Agencies
Type: Book
Cass R. Sunstein, Nonsectarian Welfare Statements, 10 Reg. & Governance 126 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
Type: Article
Abstract
How can we measure whether national institutions in general, and regulatory institutions in particular, are dysfunctional? A central question is whether they are helping a nation’s citizens to live good lives. A full answer to that question would require a great deal of philosophical work, but it should be possible to achieve an incompletely theorized agreement on a kind of nonsectarian welfarism, emphasizing the importance of five variables: subjective well-being, longevity, health, educational attainment, and per capita income. In principle, it would be valuable to identify the effects of new initiatives (including regulations) on all of these variables. In practice, it is not feasible to do so; assessments of subjective well-being present particular challenges. In their ideal form, Regulatory Impact Statements should be seen as Nonsectarian Welfare Statements, seeking to identify the consequences of regulatory initiatives for various components of welfare. So understood, they provide reasonable measures of regulatory success or failure, and hence a plausible test of dysfunction. There is a pressing need for improved evaluations, including both randomized controlled trials and ex post assessments.
Cass R. Sunstein, Foreword: In Praise of Law Books and Law Reviews (and Jargon-Filled Academic Writing), 114 Mich. L. Rev. 833 (2016).
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Article
Abstract
Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”
Eric Posner & Cass R. Sunstein, Institutional Flip-Flops, 94 Texas L. Rev. 485 (2016).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.
Cass R. Sunstein, Parking the Big Money, 63 N.Y. Rev. Books 37 (Jan. 14, 2016)(reviewing Gabriel Zucman, The Hidden Wealth of Nations: The Scourge of Tax Havens (2015) & Harold Crooks, The Price We Pay (2014)).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - International
Type: Article
Simon Hedlin & Cass R. Sunstein, Does Active Choosing Promote Green Energy Use? Experimental Evidence, 43 Ecology L.Q. 107 (2016)
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
Many officials have been considering whether it is possible or desirable to use choice architecture to increase use of environmentally friendly (“green”) products and activities. The right approach could produce significant environmental benefits, including large reductions in greenhouse gas emissions and better air quality. This Article presents new data from an online experiment (N=1,245) in which participants were asked questions about hypothetical green energy programs. The central finding is that active choosing had larger effects than green energy defaults (automatic enrollment in green energy), apparently because of the interaction between people’s feelings of guilt and their feelings of reactance. This finding is driven principally by the fact that when green energy costs more, there is a significant increase in opt-outs from green defaults, whereas with active choosing, green energy retains considerable appeal even when it costs more. More specifically, we report four principal findings. First, forcing participants to make an active choice between a green energy provider and a standard energy provider led to higher enrollment in the green program than did either green energy defaults or standard energy defaults. Second, active choosing caused participants to feel more guilty about not enrolling in the green energy program than did either green energy defaults or standard energy defaults; the level of guilt was positively related to the probability of enrolling. Third, respondents were less likely to approve of the green energy default than of the standard energy default, but only when green energy cost extra, which suggests reactance towards green defaults when enrollment means additional private costs. Fourth, respondents appeared to have inferred that green energy automatically would come at a higher cost and/or be of worse quality than less environmentally friendly energy. These findings raise important questions both for future research and for policymaking. If they reflect real-world behavior, they suggest the potentially large effects of active choosing — perhaps larger, in some cases, than those of green energy defaults.
Cass R. Sunstein, The Council of Psychological Advisers, in 67 Ann. Rev. Psychol. 713 (Susan T. Fiske, Daniel L. Schacter, Shelley E. Taylor, eds., 2016).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
Findings in behavioral science, including psychology, have influenced policies and reforms in many nations. Choice architecture can affect outcomes even if material incentives are not involved. In some contexts, default rules, simplification, and social norms have had even larger effects than significant economic incentives. Psychological research is helping to inform initiatives in savings, finance, highway safety, consumer protection, energy, climate change, obesity, education, poverty, development, crime, corruption, health, and the environment. No nation has yet created a council of psychological advisers, but the role of behavioral research in policy domains is likely to grow in the coming years, especially in light of the mounting interest in promoting ease and simplification (“navigability”); in increasing effectiveness, economic growth, and competitiveness; and in providing low-cost, choice-preserving approaches.
Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.
Cass R. Sunstein, Autonomy by Default, 16 Am. J. Bioethics 1536 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Cass R. Sunstein, She was Houdini’s Greatest Challenge (reviewing David Jaher, The Witch of Lime Street: Seance, Seduction, and Houdini in the Spirit World (2015)), 62 N.Y. Rev. Books 54 (Dec. 17, 2015).
Categories:
Health Care
,
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Psychology & Psychiatry
,
Science & Technology
Type: Article
Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 39 (2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
In recent years, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.
Cass R. Sunstein, On Interesting Policymakers, 10 Persp. Psychol. Sci. 764 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Cass R. Sunstein, Why Free Markets Make Fools of Us (reviewing Phishing for Phools: The Economics of Manipulation and Deception, George A. Akerlof & Robert J. Shiller, eds.(2015)), 62 N.Y. Rev. Books 40 (Oct. 22, 2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
Type: Article
Cass R. Sunstein & Reid Hastie, Garbage In, Garbage Out? Some Micro Sources of Macro Errors, 11 J. Inst. Econ. 561 (2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Many institutions, large or small, make their decisions through some process of deliberation. Nonetheless, deliberating institutions often fail, in the sense that they make judgments that are false or that fail to take advantage of the information that their members have. Micro mistakes can lead to macro blunders or even catastrophes. There are four such failures; all of them have implication for large-scale institutions as well as small ones. (1) Sometimes the predeliberation errors of an institution’s members are amplified, not merely propagated, as a result of deliberation. (2) Institutions fall victim to cascade effects, as the initial speakers or actors are followed by their successors, who do not disclose what they know. Nondisclosure, on the part of those successors, may be a product of either informational or reputational cascades. (3) As a result of group polarization, deliberating institutions sometimes end up in a more extreme position in line with their predeliberation tendencies. Sometimes group polarization leads in desirable directions, but there is no assurance to this effect. (4) In deliberating institutions, shared information often dominates or crowds out unshared information, ensuring that institutions do not learn what their members know. Informational signals and reputational pressure help to explain all four errors. The results can be harmful to numerous institutions, including large ones, and to societies as a whole. Markets are able to correct some of these problems, but cascade effects occur there as well.
Hunt Allcott & Cass R. Sunstein, Counterpoint to Six Potential Arguments Against “Regulating Internalities”, 34 J. Pol’y Analysis & Mgmt. 712 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Hunt Allcott & Cass R. Sunstein, Regulating Internalities, 34 J. Pol’y Analysis & Mgmt. 698 (2015).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
This paper offers a framework for regulating internalities. Using a simple economic model, we provide four principles for designing and evaluating behaviorally-motivated policy. We then outline rules for determining which contexts reliably reflect true preferences and discuss empirical strategies for measuring internalities. As a case study, we focus on energy efficiency policy, including Corporate Average Fuel Economy (CAFE) standards and appliance and lighting energy efficiency standards.
Cass R. Sunstein, Nudging Smokers, 392 New Eng. J. Med. 2150 (2015).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Article
Oren Bar-Gill & Cass R. Sunstein, Regulation as Delegation, 7 J. Legal Analysis 1 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
In diverse areas—from retirement savings, to fuel economy, to prescription drugs, to consumer credit, to food and beverage consumption—government makes personal decisions for us or helps us make what it sees as better decisions. In other words, government serves as our agent. Understood in light of Principal-Agent Theory and Behavioral Principal-Agent Theory, a great deal of modern regulation can be helpfully evaluated as a hypothetical delegation. Shifting from personal decisions to public goods problems, we introduce the idea of reverse delegation, with the government as principal and the individuals as agents.
Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 Cornell L. Rev. 769 (2015).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Abstract
In 2013, the Supreme Court showed an unusually high rate of unanimous decisions – the highest, in fact, since 1940. This increase in unanimity, long favored by Chief Justice John Roberts, places a spotlight on an insufficiently appreciated fact: In 1941, the Supreme Court experienced a radical transformation. Almost immediately, it changed from a court that had operated by consensus, with very few separate opinions, into something closer to nine separate law offices, with a large number of dissenting opinions and concurrences, and with a significant rate of 5-4 divisions. Remarkably, the patterns established in the early 1800s continued until 1941, and the patterns established in the early 1940s have persisted to the present day. The transformation of 1941 appears to be attributable, in significant part, to the leadership style of Chief Justice Harlan Fiske Stone, who had no aversion to separate opinions and split decisions, and who was a frequent dissenter himself. The transformation offers general lessons not only about consensus and dissent within courts, but also about broader relationships among leaders, personnel, path dependence, prevailing norms, and the Court’s future. With respect to group behavior, it suggests the possibility of multiple equilibria: With small differences in leadership style and prevailing norms, the level of publicly expressed dissent can either grow or wither. With respect to the normative issues, the standard arguments in favor of a higher level of consensus within the Court – pointing to the values of legitimacy, stability, and minimalism – rest on fragile empirical foundations. It is true that a badly fractured Supreme Court can create uncertainty, and that internal divisions have costs as well as benefits, but there is no sufficient reason to hope for a return to the pre-1941 patterns.
Cass R. Sunstein, Unhelpful Abstractions and the Standard View, 12 Econ J. Watch 68 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
It is not fruitful to puzzle over the question whether economists and others ‘favor’ or ‘lean’ toward the regulatory or welfare state; that is an unhelpful and confusing question, one that orients people in the wrong way. It is better to begin by emphasizing that the first should be designed to handle market failures, and that the second should be designed to respond to economic deprivation and unjustified inequality.
Cass R. Sunstein, Simpler: The Future of Government (Simon & Schuster 2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
Simpler government arrived four years ago. It helped put money in your pocket. It saved hours of your time. It improved your children’s diet, lengthened your life span, and benefited businesses large and small. It did so by issuing fewer regulations, by insisting on smarter regulations, and by eliminating or improving old regulations. Cass R. Sunstein, as administrator of the most powerful White House office you’ve never heard of, oversaw it and explains how it works, why government will never be the same again (thank goodness), and what must happen in the future. Cutting-edge research in behavioral economics has influenced business and politics. Long at the forefront of that research, Sunstein, for three years President Obama’s “regulatory czar” heading the White House Office of Information and Regulatory Affairs, oversaw a far-reaching restructuring of America’s regulatory state. In this highly anticipated book, Sunstein pulls back the curtain to show what was done, why Americans are better off as a result, and what the future has in store. The evidence is all around you, and more is coming soon. Simplified mortgages and student loan applications. Scorecards for colleges and universities. Improved labeling of food and energy-efficient appliances and cars. Calories printed on chain restaurant menus. Healthier food in public schools. Backed by historic executive orders ensuring transparency and accountability, simpler government can be found in new initiatives that save money and time, improve health, and lengthen lives. Simpler: The Future of Government will transform what you think government can and should accomplish.
Cass R. Sunstein & Reid Hastie, Making Dumb Groups Smarter, 93 Harv. Bus. Rev. 91 (Dec. 2014).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Psychology & Psychiatry
Type: Article
Cass R. Sunstein, The Limits of Quantification, 102 Calif. L. Rev. 1369 (2014).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Executive Office
Type: Article
Abstract
The problem of nonquantifiability is a recurrent one in both public policy and ordinary life. Much of the time, we cannot quantify the benefits of potential courses of action, or the costs, or both, and we must nonetheless decided whether and how to proceed. Under existing Executive Orders, agencies are generally required to quantify both benefits and costs, and (to the extent permitted by law) to show that the former justify the latter. But agencies are also permitted to consider apparently nonquantifiable factors, such as human dignity and fairness, and also to consider factors that are not quantifiable because of the limits of existing knowledge. When quantification is impossible, agencies should engage in “breakeven analysis,” by which they explore how high the nonquantifiable benefits would have to be in order for the benefits to justify the costs. Breakeven analysis can be used and potentially disciplined in three different ways. (1) Sometimes agencies are able to identity lower or upper bounds, either through point estimates or through an assessment of expected value. (2) Agencies can often make progress by exploring comparison cases in which relevant values have already been assigned (such as for a statistical life). (3) When agencies cannot identify lower or upper bounds, and when helpful comparisons are unavailable, breakeven analysis requires agencies to identify what information is missing and to specify the conditions under which benefits would justify costs (“conditional justification”). In admittedly rare cases, regulators, no less than individuals, might have to “pick” or instead to “opt.”
Cass R. Sunstein, From Technocrat To Democrat, 128 Harv. L. Rev. 488 (2014).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein & Adrian Vermeule, The Law of “Not Now”: When Agencies Defer Decisions, 103 Geo. L.J. 157 (2014).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Administrative agencies frequently say “not now.” They defer decisions about rulemaking or adjudication, or decide not to decide, potentially jeopardiz- ing public health, national security, or other important goals. Such decisions are often made as a result of general Administration policy, may be highly controversial, and are at least potentially subject to legal challenge. When is it lawful for agencies to defer decisions? A substantial degree of agency autonomy is guaranteed by a recognition of resource constraints, which require agencies to set priorities, often with reference to their independent assessments of the relative importance of national policies. Agencies frequently defer decisions because they do not believe that certain policies warrant prompt attention. Unless a fair reading of congressional instructions suggests otherwise, agencies may defer decisions because of their own judgments about appropriate timing. At the same time, agencies may not defer decisions—or decide not to decide—if (1) Congress has imposed a statutory deadline, (2) their failure to act amounts to a circumvention of express or implied statutory requirements, or (3) that failure counts as an abdication of the agency’s basic responsibility to promote and enforce policies established by Congress. Difficult questions are raised by moratoria, formal or informal, on regulatory activity, especially if they are motivated by political considerations. Difficult questions also arise when agencies cannot feasibly meet statutory deadlines while fulfilling their obligation to engage in reasoned decisionmaking.
Cass R. Sunstein, Nudges: Good and Bad (in response to Jeremy Waldron’s It’s All for Your Own Good, N.Y. Rev. Books, Oct. 9, 2014), 61 N.Y. Rev. Books 81 (Oct. 23, 2014).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Cass R. Sunstein, Choosing Not to Choose, 64 Duke L.J. 1 (2014).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Choice can be an extraordinary benefit or an immense burden. In some contexts, people choose not to choose, or would do so if they were asked. For example, many people prefer not to make choices about their health or retirement plans; they want to delegate those choices to a private or public institution that they trust (and may well be willing to pay a considerable amount for such delegations). This point suggests that however well-accepted, the line between active choosing and paternalism is often illusory. When private or public institutions override people’s desire not to choose, and insist on active choosing, they may well be behaving paternalistically, through a form of choice-requiring paternalism. Active choosing can be seen as a form of libertarian paternalism, and a frequently attractive one, if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose); it is a form of nonlibertarian paternalism insofar as people are required to choose. For both ordinary people and private or public institutions, the ultimate judgment in favor of active choosing, or in favor of choosing not to choose, depends largely on the costs of decisions and the costs of errors. But the value of learning, and of developing one’s own preferences and values, is also important, and may argue on behalf of active choosing, and against the choice not to choose. For law and policy, these points raise intriguing puzzles about the idea of “predictive shopping,” which is increasingly feasible with the rise of large data sets containing information about people’s previous choices. Some empirical results are presented about people’s reactions to predictive shopping; the central message is that most (but not all) people reject predictive shopping in favor of active choosing.
Cass R. Sunstein, What If Counterfactuals Never Existed?, 245 New Republic 35 (Sept. 29, 2014)(reviewing Richard J. Evans, Altered Pasts: Counterfactuals in History (2014)).
Categories:
Legal Profession
Sub-Categories:
Legal History
Type: Article
Cass R. Sunstein, The Refounding Father, 61 N.Y. Rev. Books 8 (June 5, 2014)(reviewing John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution (2014)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Cass R. Sunstein, The Man Who Made Libertarians Wrong About the Constitution, 245 New Republic 31 (May 26, 2014)(reviewing Richard A. Epstein, The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2014)).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
Cass R. Sunstein, On Not Revisiting Official Discount Rates: Institutional Inertia and the Social Cost of Carbon, 104 Am. Econ. Rev. 547 (2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Environmental Law
Sub-Categories:
Law & Economics
,
Climate Change
Type: Article
Abstract
Within the federal government, official decisions are a product of both substantive judgments and institutional constraints. With respect to discounting, current practice is governed by OMB Circular A-4 and the 2010 and 2013 technical support documents of the Interagency Working Group on the Social Cost of Carbon. Reconsideration of existing judgments must be subjected to a demanding process of internal review (and potentially to external review as well). Institutional constraints, including the need to obtain consensus, can impose obstacles to efforts to rethink existing practices, especially in an area like discounting, which is at once technical and highly controversial. Both decisions costs and error costs must be considered.
Cass R. Sunstein, The Regulatory Lookback, 94 B.U. L. Rev. 579 (2014).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
Type: Article
Abstract
Technocratic judgments can have a “cooling function.” An insistent focus on the facts, and on the likely consequences of policies, might soften political divisions and produce consensus. Within the federal government, cost-benefit analysis is a prominent example of the cooling function of technocracy. But when undertaken prospectively, such analysis is sometimes speculative and can be error-prone; in addition, circumstances change, often in unanticipated ways. For this reason, retrospective analysis, designed to identify the actual rather than expected effects, has significant advantages. The “regulatory lookback,” first initiated in 2011 and undertaken within and throughout the executive branch, has considerable promise for simplifying the regulatory state, reducing cumulative burdens, and increasing net benefits. It deserves a prominent place in the next generation of regulatory practice. Recent history also suggests that it might well soften political divisions.
Francesca Dominici, Michael Greenstone & Cass R. Sunstein, Particulate Matter Matters, 344 Science 257 (2014).
Categories:
Government & Politics
,
Environmental Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
Cass R. Sunstein, Why Nudge?: The Politics of Libertarian Paternalism (Yale Univ. Press 2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
The best-selling author of Simpler offers an argument for protecting people from their own mistakes.
Cass R. Sunstein & Lucia A. Reisch, Automatically Green: Behavioral Economics and Environmental Protection, 38 Harv. Envtl. L. Rev. 127 (2014).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Careful attention to choice architecture promises to open up new possibilities for environmental protection – possibilities that go well beyond, and that may be more effective than, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between environmentally-friendly products or services and alternatives that are potentially damaging to the environment but less expensive? The answer may well depend on the default rule. Indeed, green default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, green defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. Such defaults may or may not be more expensive to consumers. In deciding whether to establish green defaults, choice architects should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of green defaults, particularly when both economic and environmental considerations point in their direction. But when choice architects lack relevant information, when interest-group maneuvering is a potential problem, and when externalities are not likely to be significant, active choosing, perhaps accompanied by various influences (including provision of relevant information), will usually be preferable to a green default.
Cass R. Sunstein, Constitutional Personae, 2013 Sup. Ct. Rev. 433 (2014).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
American constitutional law is dominated by four Constitutional Personae, who can be identified by their inclinations, their temperaments, their sensibilities, and their self-presentations. Indeed, many constitutional debates consist of stylized disagreements among the leading Personae: Heroes, Soldiers, Burkeans, and Mutes. Earl Warren is the iconic Hero; Oliver Wendell Holmes, Jr. is the iconic Soldier; Felix Frankfurter is the iconic Burkean; Alexander Bickel speaks for the Mute. At different times and places, and under different constitutional provisions, liberals and conservatives can be Heroes, Soldiers, Burkeans, or Mutes. While the appeal of one or another Persona undoubtedly has psychological and social sources, the choice of the appropriate Persona, in particular cases, should be a product of the proper theory of constitutional interpretation, which must in turn be chosen on the basis of pragmatic judgments about the magnitude and number of errors.
George Loewenstein, Cass R. Sunstein & Russell Golman, Disclosure: Psychology Changes Everything, 6 Ann. Rev. Econ. 391 (2014).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Psychology & Psychiatry
Type: Article
Abstract
We review literature examining the effects of laws and regulations that require public disclosure of information. These requirements are most sensibly imposed in situations characterized by misaligned incentives and asymmetric information between, for example, a buyer and seller or an advisor and advisee. We review the economic literature relevant to such disclosure and then discuss how different psychological factors complicate, and in some cases radically change, the economic predictions. For example, limited attention, motivated attention, and biased assessments of probability on the part of information recipients can significantly diminish, or even reverse, the intended effects of disclosure requirements. In many cases, disclosure does not much affect the recipients of the information but does significantly affect the behavior of the providers, sometimes for the better and sometimes for the worse. We review research suggesting that simplified disclosure, standardized disclosure, vivid disclosure, and social comparison information can all be used to enhance the effectiveness of disclosure policies.
Edward Glaeser & Cass R. Sunstein, Does More Speech Correct Falsehoods?, 43 J. Legal Stud. 65 (2014).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Constitutional Law
Sub-Categories:
First Amendment
,
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Psychology & Psychiatry
Type: Article
Cass R. Sunstein, The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers), 114 Colum. L. Rev. 167 (2014).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
,
Banking & Finance
Sub-Categories:
Risk Regulation
,
Law & Economics
,
Law & Behavioral Sciences
,
Climate Change
,
Administrative Law & Agencies
Type: Article
Abstract
Some of the most interesting discussions of cost-benefit analysis focus on exceptionally difficult problems, including catastrophic scenarios, “fat tails,” extreme uncertainty, intergenerational equity, and discounting over long time horizons. As it operates in the actual world of government practice, however, cost-benefit analysis usually does not need to explore the hardest questions, and when it does so, it tends to enlist standardized methods and tools. It is useful to approach cost-benefit analysis not in the abstract but from the bottom up, that is, by anchoring the discussion in specific scenarios involving trade-offs and valuations. Thirty-six stylized scenarios are presented here, alongside an exploration of how they might be handled in practice. Open issues are also discussed.
Cass R. Sunstein, Quants Gone Wild, 244 New Republic, Dec. 9, 2013, at 46 (reviewing Steven Skiena & Charles B. Ward, Who's Bigger?: Where Historical Figures Really Rank (2013)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Empirical Legal Studies
Type: Article
Cass R. Sunstein, Deciding By Default, 163 U. Pa. L. Rev. 1 (2013).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Cass R. Sunstein, Like A Virgin, 244 New Republic, Aug. 19, 2013, at 48 (reviewing Elizabeth Dunn & Michael Norton, Happy Money: The Science of Smarter Spending (2013)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Cass R. Sunstein & Lucia A. Reisch, Green by Default, 66 Kyklos 398 (2013).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Cass R. Sunstein, Regulatory Moneyball: What Washington Can Learn From Sports Geeks, 92 Foreign Aff., May 1, 2013, at 9.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Administrative Law & Agencies
Type: Article
Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838 (2013).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Executive Office
Type: Article
Abstract
Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author’s experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. Perhaps above all, OIRA operates as an information aggregator. One of OIRA’s chief functions is to collect widely dispersed information – information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus closely on them (as do others within the executive branch, particularly the National Economic Council and the Council of Economic Advisers), especially for economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA’s day-to-day work is devoted to helping agencies work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.
Cass R. Sunstein, The Storrs Lectures: Behavioral Economics and Paternalism, 122 Yale L.J. 1826 (2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the United Kingdom, have used this evidence to inform regulatory initiatives and choice architecture. Both the resulting actions and the relevant findings have raised the possibility that an understanding of human errors opens greater space for paternalism (and thus raises doubts about John Stuart Mill’s famous “harm principle”). Such errors can be thought of as behavioral market failures, and they are an important supplement to the standard account of market failures. Actions taken to correct behavioral market failures can sometimes be justified, even if the resulting actions are paternalistic. While hard forms of paternalism cannot be ruled out of bounds, a general principle of behaviorally informed regulation—its first and only law—is that the appropriate responses to behavioral market failures usually consist of nudges, generally in the form of disclosure, warnings, and default rules. Some people invoke autonomy as an objection to paternalism, but the strongest objections are welfarist in character. Official action may fail to respect heterogeneity, may diminish learning and self-help, may be subject to pressures from self-interested private groups (the problem of “behavioral public choice”), and may reflect the same errors that ordinary people make. Where paternalism is optional, the objections, though plausible, are unhelpfully abstract; they depend on empirical assumptions that may not hold in identifiable contexts. There are many opportunities for improving human welfare through improved choice architecture.
Cass R. Sunstein, How to Humble a Wingnut and Other Lessons from Behavioral Economics (Univ. Chicago Press 2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Cass R. Sunstein, The Value of a Statistical Life: Some Clarifications and Puzzles, 4 J. Benefit-Cost Analysis 237 (2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Many people have wondered why the US government conducts cost-benefit analysis with close reference to the value of a statistical life (VSL). It is helpful to answer that question by reference to the “Easy Cases,” in which those who benefit from regulatory protection must pay for it. In such cases, WTP is usually the right foundation for VSL, because beneficiaries are hardly helped by being forced to pay for regulatory protection that they believe not to be in their interests. In the Easy Cases, arguments from both welfare and autonomy support the use of WTP and VSL (with potentially important qualifications involving imperfect information and behavioral market failures). The analysis is less straightforward in harder cases, in which beneficiaries do not pay for all of the cost of what they receive (and may pay little of that cost). In such cases, arguments from welfare and autonomy might not lead in any clear direction. In the harder cases, regulation might be justified on welfare grounds even if the cost-benefit analysis (based on VSL) suggests that it is not. In principle, a direct inquiry into welfare (the master concept) would be preferable to use of cost-benefit analysis. In the harder cases, distributional considerations might also count in favor of proceeding (as prioritarianism suggests). But at the current time, direct inquiries into welfare consequences and into distributional effects are challenging in practice, and hence regulators should generally rely on cost-benefit analysis, making welfarist adjustments, or adjustments based on distributional considerations, only in compelling cases.
Cass R. Sunstein, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349 (2011).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Cass R. Sunstein, Going to Extremes: How Like Minds Unite and Divide (Oxford Univ. Press 2009).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Political Theory
Type: Book
Abstract
Why do people become extremists? What makes people become so dismissive of opposing views? Why is political and cultural polarization so pervasive in America? In Going to Extremes, renowned legal scholar and best-selling author Cass R. Sunstein offers startling insights into why and when people gravitate toward extremism. Sunstein marshals a wealth of evidence that shows that when like-minded people gather in groups, they tend to become more extreme in their views than they were before. Thus when liberals group get together to debate climate change, they end up more alarmed about climate change, while conservatives brought together to discuss same-sex unions become more set against same-sex unions. In courtrooms, radio stations, and chatrooms, enclaves of like-minded people are breeding ground for extreme movements. Indeed, Sunstein shows that a good way to create an extremist group, or a cult of any kind, is to separate members from the rest of society, either physically or psychologically. Sunstein's findings help to explain such diverse phenomena as political outrage on the Internet, unanticipated "blockbusters" in the film and music industry, the success of the disability rights movement, ethnic conflict in Iraq and former Yugoslavia, and Islamic terrorism. Providing a wealth of real-world examples--sometimes entertaining, sometimes alarming--Sunstein offers a fresh explanation of why partisanship has become so bitter and debate so rancorous in America and abroad.
Law and Happiness (Eric A. Posner & Cass R. Sunstein eds., Univ. Chicago Press 2010).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Humanities
,
Law & Behavioral Sciences
Type: Book
Abstract

Since the earliest days of philosophy, thinkers have debated the meaning of the term happiness and the nature of the good life. But it is only in recent years that the study of happiness—or “hedonics”—has developed into a formal field of inquiry, cutting across a broad range of disciplines and offering insights into a variety of crucial questions of law and public policy.

Law and Happiness
brings together the best and most influential thinkers in the field to explore the question of what makes up happiness—and what factors can be demonstrated to increase or decrease it. Martha Nussbaum offers an account of the way that hedonics can productively be applied to psychology, Cass R. Sunstein considers the unexpected relationship between happiness and health problems, Matthew Adler and Eric A. Posner view hedonics through the lens of cost-benefit analysis, David A. Weisbach considers the relationship between happiness and taxation, and Mark A. Cohen examines the role crime—and fear of crime—can play in people’s assessment of their happiness, and much more.

The result is a kaleidoscopic overview of this increasingly prominent field, offering surprising new perspectives and incisive analyses that will have profound implications on public policy.

Cass R. Sunstein, Republic.com 2.0 (Princeton Univ. Press 2009).
Categories:
Government & Politics
,
Technology & Law
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Behavioral Sciences
,
Politics & Political Theory
,
Networked Society
Type: Book
Abstract
What happens to democracy and free speech if people use the Internet to listen and speak only to the like-minded? What is the benefit of the Internet's unlimited choices if citizens narrowly filter the information they receive? Cass Sunstein first asked these questions in 2001's Republic.com. Now, in Republic.com 2.0, Sunstein thoroughly rethinks the critical relationship between democracy and the Internet in a world where partisan Weblogs have emerged as a significant political force. Republic.com 2.0 highlights new research on how people are using the Internet, especially the blogosphere. Sunstein warns against "information cocoons" and "echo chambers," wherein people avoid the news and opinions that they don't want to hear. He also demonstrates the need to regulate the innumerable choices made possible by technology. His proposed remedies and reforms emphasize what consumers and producers can do to help avoid the perils, and realize the promise, of the Internet.
Cass R. Sunstein, Worst-Case Scenarios (Harvard Univ. Press 2007).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
Nuclear bombs in suitcases, anthrax bacilli in ventilators, tsunamis and meteors, avian flu, scorchingly hot temperatures: nightmares that were once the plot of Hollywood movies are now frighteningly real possibilities. How can we steer a path between willful inaction and reckless overreaction? Cass Sunstein explores these and other worst-case scenarios and how we might best prevent them in this vivid, illuminating, and highly original analysis. Singling out the problems of terrorism and climate change, Sunstein explores our susceptibility to two opposite and unhelpful reactions: panic and utter neglect. He shows how private individuals and public officials might best respond to low-probability risks of disaster—emphasizing the need to know what we will lose from precautions as well as from inaction. Finally, he offers an understanding of the uses and limits of cost-benefit analysis, especially when current generations are imposing risks on future generations. Throughout, Sunstein uses climate change as a defining case, because it dramatically illustrates the underlying principles. But he also discusses terrorism, depletion of the ozone layer, genetic modification of food, hurricanes, and worst-case scenarios faced in our ordinary lives. Sunstein concludes that if we can avoid the twin dangers of over-reaction and apathy, we will be able to ameliorate if not avoid future catastrophes, retaining our sanity as well as scarce resources that can be devoted to more constructive ends.
Cass R. Sunstein, The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever (Basic Books 2004).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Law & Public Policy
,
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
In 1944, Franklin Delano Roosevelt gave a State of the Union Address that was arguably the greatest political speech of the twentieth century. In it, Roosevelt grappled with the definition of security in a democracy, concluding that "unless there is security here at home, there cannot be lasting peace in the world." To help ensure that security, he proposed a "Second Bill of Rights" -- economic rights that he saw as necessary to political freedom. Many of the great legislative achievements of the past sixty years stem from Roosevelt's vision. Using this speech as a launching point, Cass R. Sunstein shows how these rights are vital to the continuing security of our nation. This is an ambitious, sweeping book that argues for a new vision of FDR, of constitutional history, and our current political scene.
Cass R. Sunstein, A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before (Princeton Univ. Press 2009).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution--traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do. Sunstein demonstrates that in all three contexts a "many minds" argument is at work--put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today. This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.
Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in American Exceptionalism and Human Rights 90 (Michael Ignatieff ed., 2005).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Cass R. Sunstein, 1944: The Second Bill of Rights, in A New Literary History of America (Greil Marcus & Werner Sollors, eds., 2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Executive Office
Type: Book
Cass R. Sunstein, Reid Hastie, John W. Payne, David A. Schkade & W. Kip Viscusi, Punitive Damages: How Juries Decide (Univ. Chicago Press 2008) (2002).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Practice & Procedure
,
Remedies
,
Torts
,
Law & Behavioral Sciences
Type: Book
Abstract
Over the past two decades, the United States has seen a dramatic increase in the number and magnitude of punitive damages verdicts rendered by juries in civil trials. Probably the most extraordinary example is the July 2000 award of $144.8 billion in the Florida class action lawsuit brought against cigarette manufacturers. Or consider two recent verdicts against the auto manufacturer BMW in Alabama. In identical cases, argued in the same court before the same judge, one jury awarded $4 million in punitive damages, while the other awarded no punitive damages at all. In cases involving accidents, civil rights, and the environment, multimillion-dollar punitive awards have been a subject of intense controversy. But how do juries actually make decisions about punitive damages? To find out, the authors-experts in psychology, economics, and the law-present the results of controlled experiments with more than 600 mock juries involving the responses of more than 8,000 jury-eligible citizens. Although juries tended to agree in their moral judgments about the defendant's conduct, they rendered erratic and unpredictable dollar awards. The experiments also showed that instead of moderating juror verdicts, the process of jury deliberation produced a striking "severity shift" toward ever-higher awards. Jurors also tended to ignore instructions from the judges; were influenced by whatever amount the plaintiff happened to request; showed "hindsight bias," believing that what happened should have been foreseen; and penalized corporations that had based their decisions on careful cost-benefit analyses. While judges made many of the same errors, they performed better in some areas, suggesting that judges (or other specialists) may be better equipped than juries to decide punitive damages. Using a wealth of new experimental data, and offering a host of provocative findings, this book documents a wide range of systematic biases in jury behavior. It will be indispensable for anyone interested not only in punitive damages, but also jury behavior, psychology, and how people think about punishment.
Cass R. Sunstein & Richard H. Thaler, Nudge: Improving Decisions About Health, Wealth, and Happiness (Yale Univ. Press 2008).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Cass R. Sunstein, Why Groups Go to Extremes (AEI Press 2008).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Political Theory
,
Networked Society
Type: Book
Abstract
How does group behavior drive extremism and challenge democratic values? The answer lies in social dynamics–the ways people influence one another. Conventional wisdom suggests that open discussion within groups will lead to compromise and moderation, yet just the opposite often occurs. In the course of exchanging opinions, like-minded people frequently develop more extreme versions of their original views on such issues as climate change, labor policy, same-sex relationships, and affirmative action. Groups ranging from citizens’ forums to judicial panels tend to squelch diversity and polarize opinion. With the Internet facilitating the formation of like-minded groups, this phenomenon may help account for the intensity and division of contemporary social and political debate. Indeed, the dangers of homogeneity and polarization within groups highlight a fundamental tension between the consequences of free speech and assembly, and the value of intellectual diversity to a civil society. In Why Groups Go to Extremes, Cass R. Sunstein argues that the key to preventing the spread of extremist views is not to suppress deliberation among the like-minded; such groups productively challenge conventional thinking and majority opinion. Instead, policymakers should develop institutions to ensure that like-minded groups encounter a diversity of opinions within civil society. The goal, Sunstein contends, must be to create opportunities for civil deliberation that expose like-minded group members to opposing views, while exposing society at large to the views of such groups.
Cass R. Sunstein, David Schkade, Lisa Ellman & Andres Sawicki, Are Judges Political? An Empirical Investigation of the Federal Judiciary (Brookings Inst. Press 2006).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Empirical Legal Studies
,
Judges & Jurisprudence
,
Courts
,
Politics & Political Theory
Type: Book
Abstract
Over the past two decades, the United States has seen an intense debate about the composition of the federal judiciary. Are judges “activists”? Should they stop “legislating from the bench”? Are they abusing their authority? Or are they protecting fundamental rights, in a way that is indispensable in a free society? Are Judges Political? cuts through the noise by looking at what judges actually do. Drawing on a unique data set consisting of thousands of judicial votes, Cass Sunstein and his colleagues analyze the influence of ideology on judicial voting, principally in the courts of appeal. They focus on two questions: Do judges appointed by Republican Presidents vote differently from Democratic appointees in ideologically contested cases? And do judges vote differently depending on the ideological leanings of the other judges hearing the same case? After examining votes on a broad range of issues–including abortion, affirmative action, and capital punishment–the authors do more than just confirm that Democratic and Republican appointees often vote in different ways. They inject precision into an all-too-often impressionistic debate by quantifying this effect and analyzing the conditions under which it holds. This approach sometimes generates surprising results: under certain conditions, for example, Democrat-appointed judges turn out to have more conservative voting patterns than Republican appointees. As a general rule, ideology should not and does not affect legal judgments. Frequently, the law is clear and judges simply implement it, whatever their political commitments. But what happens when the law is unclear? Are Judges Political? addresses this vital question.
Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford Univ. Press 2006).
Categories:
Technology & Law
Sub-Categories:
Information Commons
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Book
Abstract
The rise of the "information society" offers not only considerable peril but also great promise. Beset from all sides by a never-ending barrage of media, how can we ensure that the most accurate information emerges and is heeded? In this book, Cass R. Sunstein develops a deeply optimistic understanding of the human potential to pool information, and to use that knowledge to improve our lives. In an age of information overload, it is easy to fall back on our own prejudices and insulate ourselves with comforting opinions that reaffirm our core beliefs. Crowds quickly become mobs. The justification for the Iraq war, the collapse of Enron, the explosion of the space shuttle Columbia--all of these resulted from decisions made by leaders and groups trapped in "information cocoons," shielded from information at odds with their preconceptions. How can leaders and ordinary people challenge insular decision making and gain access to the sum of human knowledge? Stunning new ways to share and aggregate information, many Internet-based, are helping companies, schools, governments, and individuals not only to acquire, but also to create, ever-growing bodies of accurate knowledge. Through a ceaseless flurry of self-correcting exchanges, wikis, covering everything from politics and business plans to sports and science fiction subcultures, amass--and refine--information. Open-source software enables large numbers of people to participate in technological development. Prediction markets aggregate information in a way that allows companies, ranging from computer manufacturers to Hollywood studios, to make better decisions about product launches and office openings. Sunstein shows how people can assimilate aggregated information without succumbing to the dangers of the herd mentality--and when and why the new aggregation techniques are so astoundingly accurate. In a world where opinion and anecdote increasingly compete on equal footing with hard evidence, the on-line effort of many minds coming together might well provide the best path to infotopia.
Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Basic Books 2005).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Book
Abstract
Praised as a must-have primer during the Roberts and Alito hearings, Radicals in Robes offers a rigorous yet accessible analysis of what’s at stake in the judiciary choices made during these warring days of the Warren/Rehnquist legacy. Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what conservatives really intend.
Stephen Breyer, Richard B. Stewart, Cass R. Sunstein & Adrian Vermeule, Administrative Law and Regulatory Policy: Problems, Text, and Cases (Aspen Pub. 6th ed. 2006).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book
Cass R. Sunstein, Deliberation and Prediction Markets, in Information Markets: A New Way of Making Decisions 67 (Robert Hahn & Paul Tetlock eds., 2006).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Economics
,
Law & Behavioral Sciences
Type: Book
Abstract
This collection of essays provides a state-of-the-art analysis of the potential impact of information markets on public policy and private decision-making.
Cass R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge Univ. Press 2005).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Legal Theory & Philosophy
,
Law & Political Theory
,
Law & Economics
Type: Book
Abstract
This book is about the complex relationship between fear, danger, and the law. Cass Sunstein argues that the precautionary principle is incoherent and potentially paralyzing, as risks exist on all sides of social situations and there is no 'general' precautionary principle as such. His insight into The Laws of Fear represents a major statement for the contemporary world from one of the most influential political and legal theorists writing today.
Cass R. Sunstein, Sexual Freedom and Political Freedom, in On "Nineteen Eighty-Four": Orwell and Our Future (Abbott Gleason, Jack Goldsmith & Martha C. Nussbaum eds., 2005).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Law & Political Theory
,
Law & Humanities
Type: Book
Cass R. Sunstein, Why Societies Need Dissent (Harvard Univ. Press 2003).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Public Policy
,
Law & Political Theory
Type: Book
Abstract
In this timely book, Cass R. Sunstein shows that organizations and nations are far more likely to prosper if they welcome dissent and promote openness. Attacking “political correctness” in all forms, Sunstein demonstrates that corporations, legislatures, even presidents are likely to blunder if they do not cultivate a culture of candor and disclosure. He shows that unjustified extremism, including violence and terrorism, often results from failure to tolerate dissenting views. The tragedy is that blunders and cruelties could be avoided if people spoke out. Sunstein casts new light on freedom of speech, showing that a free society not only forbids censorship but also provides public spaces for dissenters to expose widely held myths and pervasive injustices. He provides evidence about the effects of conformity and dissent on the federal courts. The evidence shows not only that Republican appointees vote differently from Democratic appointees but also that both Republican and Democratic judges are likely to go to extremes if unchecked by opposing views. Understanding the need for dissent illuminates countless social debates, including those over affirmative action in higher education, because diversity is indispensable to learning. Dissenters are often portrayed as selfish and disloyal, but Sunstein shows that those who reject pressures imposed by others perform valuable social functions, often at their own expense. This is true for dissenters in boardrooms, churches, unions, and academia. It is true for dissenters in the White House, Congress, and the Supreme Court. And it is true during times of war and peace.
Animal Rights: Current Controversies and New Directions (Cass R. Sunstein & Martha Nussbaum eds., Oxford Univ. Press 2004).
Categories:
Environmental Law
Sub-Categories:
Animal Law
Type: Book
Abstract
Cass Sunstein and Martha Nussbaum bring together an all-star cast of contributors to explore the legal and political issues that underlie the campaign for animal rights and the opposition to it. Addressing ethical questions about ownership, protection against unjustified suffering, and the ability of animals to make their own choices free from human control, the authors offer numerous different perspectives on animal rights and animal welfare. They show that whatever one's ultimate conclusions, the relationship between human beings and nonhuman animals is being fundamentally rethought. This book offers a state-of-the-art treatment of that rethinking.
Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge Univ. Press 2002).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
What should be done about airplane safety and terrorism, global warming, polluted water, nuclear power, and genetically engineered food? Decision-makers often respond to temporary fears, and the result is a situation of hysteria and neglect--and unnecessary illness and death. Risk and Reason explains the sources of these problems and explores what can be done about them. It shows how individual thinking and social interactions lead us in foolish directions. Offering sound proposals for social reform, it explains how a more sensible system of risk regulation, embodied in the idea of a "cost-benefit state," could save many thousands of lives and many billions of dollars too--and protect the environment in the process.
Cass R. Sunstein, The Cost-Benefit State: The Future of Regulatory Protection (Am. Bar Ass'n 2002).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
This book discusses the current topic of Federal Government regulations increasingly assessed by asking whether the benefits of the regulation justifies the cost of the regulation.
Cass R. Sunstein, The Laws of Fear, 115 Harv. L. Rev. 1119 (2002)(reviewing Paul Slovic, The Perception of Risk, 2000).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
The Vote: Bush, Gore & the Supreme Court (Cass R. Sunstein & Richard A. Epstein eds., Univ. Chicago Press 2001).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Supreme Court of the United States
,
Politics & Political Theory
,
Executive Office
Type: Book
Abstract
Though George W. Bush took office in January, the nation is still recovering from the prolonged and complex process by which he was elected. The Florida electoral controversy and the subsequent decisions by both the Florida courts and the U.S. Supreme Court left citizens and scholars alike divided over the role of the judiciary in the electoral arena. Now, after a few months of reflection, leading constitutional scholarsCass R. Sunstein, Richard A. Epstein, Pamela S. Karlan, Richard A. Posner, and John Yoo, among others—weigh in on the Supreme Court's actions, which remain sensible, legally legitimate, and pragmatically defensible to some and an egregious abuse of power to others. Representing the full spectrum of views and arguments, The Vote offers the most timely and considered guide to the ultimate consequences and significance of the Supreme Court's decision. The contributors to this volume were highly visible in the national media while the controversy raged, and here they present fully fleshed-out arguments for the positions they promoted on the airwaves. Readers will find in The Vote equally impassioned defenses for and indictments of the Court's actions, and they will come to understand the practical and theoretical implications of the Court's ruling in the realms of both law and politics. No doubt a spate of books will appear on the 2000 presidential election, but none will claim as distinguished a roster of contributors better qualified to place these recent events in their appropriate historical, legal, and political contexts. Leading constitutional scholars render their verdicts on the 2000 presidential election controversy
Cass R. Sunstein, Designing Democracy: What Constitutions Do (Oxford Univ. Press 2001).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
"In modern nations, political disagreement is the source of both the gravest danger and the greatest security," writes Cass Sunstein. All democracies face intense political conflict. But is this conflict necessarily something to fear? In this provocative book, one of our leading political and legal theorists reveals how a nation's divisions of conviction and belief can be used to safeguard democracy. Confronting one explosive political issue after another, from presidential impeachment to the limits of religious liberty, from discrimination against women and gays to the role of the judiciary, Sunstein constructs a powerful new perspective from which to show how democracies negotiate their most divisive real-world problems. He focuses on a series of concrete concerns that go to the heart of the relationship between the idea of democracy and the idea of constitutionalism. Illustrating his discussion with examples from constitutional debates and court-cases in South Africa, Eastern Europe, Israel, America, and elsewhere, Sunstein takes readers through a number of highly charged questions: When should government be permitted to control discriminatory behavior by or within religious organizations? Does it make sense to govern on the basis of popular referenda? Can the right to have an abortion be defended? Can we defend Internet regulation? Should the law step in if children are being schooled in discriminatory preferences and beliefs? Should a constitution protect rights to food, shelter, and health care? Disputes over questions such as these can be fierce enough to pose a grave threat. But in a paradox whose elaboration forms the core of Sunstein's book, it is a nation's apparently threatening diversity of opinion that can ensure its integrity. Extending his important recent work on the way deliberation within like-minded groups can produce extremism, Sunstein breaks new ground in identifying the mechanisms behind political conflict in democratic nations. At the same time, he develops a profound understanding of a constitutional democracy's system of checks and balances. Sunstein shows how a good constitution, fostering a "republic of reasons," enables people of opposing ethical and religious commitments to reach agreement where agreement is necessary, while making it unnecessary to reach agreement when agreement is impossible.
Cass R. Sunstein, One Case At A Time: Judicial Minimalism on the Supreme Court (Harv. Univ. Press 1999).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Courts
Type: Book
Abstract
Abortion, affirmative action, the “right to die,” pornography and free speech, homosexuality and sex discrimination: as eagerly as the Supreme Court’s rulings on these hot issues are awaited and as intently as they’re studied, they never seem to settle anything once and for all. But something is settled in the process—in the incremental approach—as Cass Sunstein shows us in this instructive book. One of America’s preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how—and why—the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the “right to die,” and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress’s efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship—and the public expression of contempt for anyone—while leaving a degree of flexibility to the political process. One Case at a Time also lays out, and celebrates, the remarkable constellation of rights—involving both liberty and equality—that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.
Cass R. Sunstein, Republic.com (Princeton Univ. Press 2001).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Behavioral Sciences
,
Law & Political Theory
,
Networked Society
Type: Book
Abstract
See only what you want to see, hear only what you want to hear, read only what you want to read. In cyberspace, we already have the ability to filter out everything but what we wish to see, hear, and read. Tomorrow, our power to filter promises to increase exponentially. With the advent of the Daily Me, you see only the sports highlights that concern your teams, read about only the issues that interest you, encounter in the op-ed pages only the opinions with which you agree. In all of the applause for this remarkable ascendance of personalized information, Cass Sunstein asks the questions, Is it good for democracy? Is it healthy for the republic? What does this mean for freedom of speech? Republic.com exposes the drawbacks of egocentric Internet use, while showing us how to approach the Internet as responsible citizens, not just concerned consumers. Democracy, Sunstein maintains, depends on shared experiences and requires citizens to be exposed to topics and ideas that they would not have chosen in advance. Newspapers and broadcasters helped create a shared culture, but as their role diminishes and the customization of our communications universe increases, society is in danger of fragmenting, shared communities in danger of dissolving. In their place will arise only louder and ever more extreme echoes of our own voices, our own opinions. In evaluating the consequences of new communications technologies for democracy and free speech, Sunstein argues the question is not whether to regulate the Net (it's already regulated), but how; proves that freedom of speech is not an absolute; and underscores the enormous potential of the Internet to promote freedom as well as its potential to promote "cybercascades" of like-minded opinions that foster and enflame hate groups. The book ends by suggesting a range of potential reforms to correct current misconceptions and to improve deliberative democracy and the health of the American republic.
Behavioral Law and Economics (Cass R. Sunstein ed., Cambridge Univ. Press 2003) (2000).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
Analyzes law with reference to new findings in cognitive psychology and behavioral economics.
Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (W. W. Norton & Co. 2000).
Categories:
Taxation
,
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Law & Economics
,
Property Rights
,
Tax Policy
Type: Book
Abstract
A cogent and timely analysis of the economic realities lying beneath our arguments about rights and their protection and enforcement shows how both conservative and progressive forces selectively ignore the often harsh truths about the cost ...
Clones and Clones: Facts and Fantasies About Human Cloning (Cass R. Sunstein & Martha Nussbaum eds., W.W. Norton 1998).
Categories:
Health Care
,
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Bioethics
,
Science & Technology
Type: Book
Abstract
Examines the ethical, political, psychological, and legal ramifications of the possibility of human cloning
Cass R. Sunstein, Free Markets and Social Justice (Oxford Univ. Press 1999).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Political Theory
,
Legal Theory & Philosophy
Type: Book
Abstract
The newest work from one of the most pre-eminent voices writing in the legal/political arena today, this important book presents a new conception of the relationship between free markets and social justice. The work begins with foundations--the appropriate role of existing "preferences," the importance of social norms, the question whether human goods are commensurable, and issues of distributional equity. Continuing with rights, the work shows that markets have only a partial but instrumental role in the protection of rights. The book concludes with a discussion on regulation, developing approaches that would promote both economic and democratic goals, especially in the context of risks to life and health. Free Markets and Social Justice develops seven basic themes during its discussion: the myth of laissez-faire; preference formation and social norms; the contextual character of choice; the importance of fair distribution; the diversity of human goods; how law can shape preferences; and the puzzles of human rationality. As the latest word from an internationally-renowned writer, this work will raise a number of important questions about economic analysis of law in its conventional form.
Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford Univ. Press 1996).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Book
Abstract
In Legal Reasoning and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seem impenetrable, mysterious, baroque. Legal Reasoning and Political Conflict helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.
Cass R. Sunstein, Democracy and the Problem of Free Speech (The Free Press 1993).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Abstract
This book is a must read for anyone who wants to think seriously about the free speech issues facing this generation. -- Akhil Amar, Southmayd Professor, Yale Law School This is an important book.
Cass R. Sunstein, The Partial Constitution (Harv. Univ. Press 1993).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country’s founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations—and Sunstein makes a strong case for reviving this broader understanding of the Constitution’s role. In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, “hate speech,” and government funding of religious schools and the arts. In an especially striking argument, he claims that the equal protection clause of the Fourteenth Amendment—not the right to privacy—protects a woman’s right to choose abortion. Sunstein connects these and other debates to the Constitution’s historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.
Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Harv. Univ. Press 1990).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Federalism
,
Politics & Political Theory
Type: Book
Abstract
In the twentieth century, American society has experienced a "rights revolution": a commitment by the national government to promote a healthful environment, safe products, freedom from discrimination, and other rights unknown to the founding generation. This development has profoundly affected constitutional democracy by skewing the original understanding of checks and balances, federalism, and individual rights. Cass Sunstein tells us how it is possible to interpret and reform this regulatory state regime in a way that will enhance freedom and welfare while remaining faithful to constitutional commitments. Sunstein vigorously defends government regulation against Reaganite/Thatcherite attacks based on free-market economics and pre-New Deal principles of private right. Focusing on the important interests in clean air and water, a safe workplace, access to the air waves, and protection against discrimination, he shows that regulatory initiatives have proved far superior to an approach that relies solely on private enterprise. Sunstein grants that some regulatory regimes have failed and calls for reforms that would amount to an American perestroika: a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets.
The Bill of Rights and the Modern State (Cass R. Sunstein, Geoffey R. Stone & Richard A. Epstein eds., Univ. Chicago Press 1992).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
First Amendment
,
Civil Rights
,
Religious Rights
Type: Book
Abstract
Although the Bill of Rights has existed for two hundred years, the last half century has seen dramatic changes in its meaning and scope. The essays collected in this volume represent the full range of views and interpretations of what these first ten amendments to the U. S. Constitution mean today as guarantors of individual rights. The contributors to this volume are among the most prominent constitutional scholars in the country. Most of the essays are grouped in pairs, each of which offers conflicting positions on current constitutional controversies, including property rights, freedom of religion, freedom of speech, levels of generality in constitutional interpreation, and unemumerated rights. The contributors are: Bruce Ackerman, Mary E. Becker, Ronald Dworkin, Frank H. Easterbrook, Richard A. Epstein, Charles Fried, Mary Ann Glendon, Philip B. Kurland, Frank J. Michaelman, Michael W. McConnell, Richard A. Posner, Kathleen M. Sullivan, John Paul Stevens, David A. Strauss, and Cass R. Sunstein.
Feminism and Political Theory (Cass R. Sunstein ed., Univ. Chicago Press 1990).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Legal Theory & Philosophy
,
Law & Political Theory
Type: Book
Abstract
This volume collects some of today's most original and important work at the intersection of feminism and political theory. A representative and wide-ranging set of readings on feminist political thought, the authors provide large-scale critiques, and in some instances reconstructions, of important strains in political thought, including notions of equality, rights-based justice, and contract theories. The fourteen essays are organized around four major themes: "The Question of a Different Voice: Care, Justice, and Rights," "Equality and Inequality in Politics and Elsewhere," "Coercion versus Consent, Public versus Private, and Sexuality," and "Trust and Responsibility."
Cass R. Sunstein, Participation, Public-Law, and Venue Reform, 49 U. Chi. L. Rev. 976 (1982).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Public Law
Type: Article

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