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, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
,
Legal Ethics
Type: Book
Abstract
"In recent years, 'nudge units' or 'behavioral insights teams' have been created in the United States, the United Kingdom, Germany, and other nations. All over the world, public officials are using the behavioral sciences to protect the environment, promote employment and economic growth, reduce poverty, and increase national security. In this book, Cass R. Sunstein, the eminent legal scholar and best-selling co-author of Nudge (2008), breaks new ground with a deep yet highly readable investigation into the ethical issues surrounding nudges, choice architecture, and mandates, addressing such issues as welfare, autonomy, self-government, dignity, manipulation, and the constraints and responsibilities of an ethical state. Complementing the ethical discussion, The Ethics of Influence: Government in the Age of Behavioral Science contains a wealth of new data on people's attitudes towards a broad range of nudges, choice architecture, and mandates." --Publisher
Cass R. Sunstein, The World According to Star Wars (Harper Collins 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Humanities
Type: Book
Abstract
"In this fun, erudite, and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings. Sunstein tells the story of the films’ wildly unanticipated success and explores why some things succeed while others fail. Ultimately, Sunstein argues, Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down. Written with buoyant prose and considerable heart, The World According to Star Wars shines a bright new light on the most beloved story of our time."--Adapted from dust jacket.
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
Lucia A. Reisch, Cass R. Sunstein & Wencke Gwozdz, Beyond Carrots and Sticks: Europeans Support Health Nudges, 69 Food Pol'y 1 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Article
Abstract
All over the world, nations are using “health nudges” to promote healthier food choices and to reduce the health care costs of obesity and non-communicable diseases. In some circles, the relevant reforms are controversial. On the basis of nationally representative online surveys, we examine whether Europeans favour such nudges. The simplest answer is that majorities in six European nations (Denmark, France, Germany, Hungary, Italy, and the UK) do so. We find majority approval for a series of nudges, including educational messages in movie theaters, calorie and warning labels, store placement promoting healthier food, sweet-free supermarket cashiers and meat-free days in cafeterias. At the same time, we find somewhat lower approval rates in Hungary and Denmark. An implication for policymakers is that citizens are highly likely to support health nudges. An implication for further research is the importance of identifying the reasons for cross-national differences, where they exist.
Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton Univ. Press forthcoming Mar. 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Book
Abstract
"As the Internet grows more sophisticated, it is creating new threats to democracy. Social media companies such as Facebook can sort us ever more efficiently into groups of the like-minded, creating echo chambers that amplify our views. It's no accident that on some occasions, people of different political views cannot even understand each other. It's also no surprise that terrorist groups have been able to exploit social media to deadly effect. Welcome to the age of #Republic. In this revealing book, Cass Sunstein, the New York Times bestselling author of Nudge and The World According to Star Wars, shows how today's Internet is driving political fragmentation, polarization, and even extremism—and what can be done about it. Thoroughly rethinking the critical relationship between democracy and the Internet, Sunstein describes how the online world creates "cybercascades," exploits "confirmation bias," and assists "polarization entrepreneurs." And he explains why online fragmentation endangers the shared conversations, experiences, and understandings that are the lifeblood of democracy. In response, Sunstein proposes practical and legal changes to make the Internet friendlier to democratic deliberation. These changes would get us out of our information cocoons by increasing the frequency of unchosen, unplanned encounters and exposing us to people, places, things, and ideas that we would never have picked for our Twitter feed. #Republic need not be an ironic term. As Sunstein shows, it can be a rallying cry for the kind of democracy that citizens of diverse societies most need." -- Publisher
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.
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures (Feb. 9, 2017).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.
Cass R. Sunstein, ‘Don't Tell Me What I Can't Do!’ On the Intrinsic Value of Control, Introduction, in The Behavioral Economics Guide 2017 (Alain Samson ed., forthcoming June 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
For most people, control has some intrinsic value; people care about maintaining it and will pay something to do so. Whenever a private or public institution blocks choices or interferes with agency, some people will rebel, even if exercising control would not result in material benefits or might produce material harms. On the other hand, people sometimes want to relinquish control, because exercising agency is burdensome or costly. This essay explores when rational and boundedly rational people will prefer to maintain or exercise control and when they will prefer to delegate it.
Cass R. Sunstein, Deliberative Democracy in the Trenches, Daedalus (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
,
Administrative Law & Agencies
Type: Article
Abstract
In the last decades, many political theorists have explored the idea of “deliberative democracy.” The basic claim is that well-functioning democracies combine accountability with a commitment to reflection, information acquisition, multiple perspectives, and reason-giving. Does that claim illuminate actual practices? Much of the time, the executive branch in the United States combines both democracy and deliberation, not least because it places a high premium on reason-giving and the acquisition of necessary information. It also contains a high degree of internal diversity, encouraging debate and disagreement, not least through the public comment process. These claims are illustrated with concrete, if somewhat stylized, discussions of how the executive branch often operates.
Cass R. Sunstein, Forcing People To Choose Is Paternalistic, 82 Mo. L. Rev. (forthcoming 2017) (Symposium on Libertarian Paternalism).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
It can be paternalistic to force people to choose. Although many people insist on drawing a bright line between active choosing and paternalism, that line is often illusory. Calling for active choosing is a form of libertarian paternalism if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose). By contrast, calling for active choosing is a form of nonlibertarian paternalism insofar as people are actually required to choose. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people’s preferences and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse).
Cass R. Sunstein, Formalism in Constitutional Theory, 32 Const. Comment. 27 (2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, Q. J. Experimental Psychol. (forthcoming 2017) (Symposium on ‘the Foreign Language Effect’).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? In some ways, yes. There is considerable evidence to this effect, at least to the extent that they are less likely to rely on intuitions that can lead to serious errors. This finding reinforces, and makes more plausible, a central claim in regulatory policy, which involves the value of cost-benefit analysis. In a sense, cost-benefit analysis is a foreign language, and it reduces the risk that people will rely on intuitions that cause serious errors. Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Cass R. Sunstein, On the Costs and Benefits of Mandatory Labeling, with Special Reference to Genetically Modified Foods 165 U. Pa. L. Rev. (forthcoming 2017).
Categories:
Health Care
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Article
Abstract
As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded. Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: there is a good argument that the benefits of such labels would be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Many people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.
The Economics of Nudge (Cass R. Sunstein & Lucia A. Reisch eds., Routledge forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Law & Social Change
,
Law & Economics
,
Legal Ethics
Type: Book
Abstract
"Proponents of ‘nudge theory’ argue that, because of our human susceptibility to an array of biases, we often make subprime choices and decisions that make us poorer, less healthy, and more miserable than we might otherwise be. However, using behavioural economics—and insights from other disciplines—they suggest that apparently small and subtle solutions (or ‘nudges’) can lead to disproportionately beneficial outcomes without unduly restricting our freedom of choice. Indeed, the apparently virtuous—and cost-effective—possibilities of nudge theory has led to its enthusiastic adoption by adherents in the highest echelons of government and business, and ‘nudge units’ (such as the Behavioural Insights Team in the British Cabinet Office) have been established in the UK, the United States, and Australia. While far from uncontroversial (some critics have questioned its ethical implications and dismissed many of its practical applications as short-term, politically motivated initiatives based on flimsy evidence), in recent years there has been an astonishing growth in scholarly output about and around the economics of nudge. And now, while the hybrid field continues to flourish, Routledge announces a new four-volume collection to provide users with a much-needed compendium of foundational and the very best cutting-edge scholarship. The collection is co-edited by Cass R. Sunstein (Robert Walmsley University Professor at Harvard), the co-author (with Richard Thaler) of the pioneering Nudge: Improving Decisions About Health, Wealth, and Happiness (2008), and Lucia Reisch of the Copenhagen Business School. The Economics of Nudge is fully indexed and has a comprehensive introduction, newly written by the editors, which places the collected material in its historical and intellectual context. It is an essential work of reference and is destined to be valued by scholars, students, and policymakers as a vital resource." --Publisher
Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, U. Chi. L. Rev. (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Judges & Jurisprudence
,
Separation of Powers
Type: Article
Abstract
For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."
Michael Greenstone & Cass R. Sunstein, This Is What Climate Change Costs, N.Y. Times, Dec. 16, 2016, at A35.
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: News
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, Changing Climate Change, 2009-2016: A Preliminary Report (Dec. 1, 2016).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Abstract
In 2009, the Obama Administration entered office in the midst of a serious economic recession. Nonetheless, one of its priorities was to address the problem of climate change. It ultimately did a great deal -- producing, with the aid of market forces, significant reductions in greenhouse gas emissions, which ultimately helped make an international agreement possible. This essay offers a preliminary account of some of the central domestic reforms, including the “endangerment finding”; the selection of a social cost of carbon; fuel economy regulations for motor vehicles; controls on new and existing power plants; and energy efficiency regulations. At various points, potentially challenging issues of law and policy are identified, and different imaginable paths are specified. The essay can be taken as an account of the extent to which the executive branch, relying on pre-existing regulatory authorities, can accomplish a great deal in an area in which the national legislature is blocked. To that extent, the climate change initiatives offer an illuminating case study in the contemporary operation of the system of separation of powers. There is a brief discussion of whether the reforms are likely to prove enduring. Appendices offer an assortment of tables on relevant costs and benefits.
Cass R. Sunstein, Behaviorally Informed Health Policy? Patient Autonomy, Active Choosing, and Paternalism, in Nudging Health: Health Law and Behavioral Economics (I. Glenn Cohen, Holly Fernandez Lynch & Christopher T. Robertson eds., 2016).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Book
Abstract
Many people have insisted on an opposition between active choosing and paternalism, and in some cases, they are right to do so. But in many contexts, the opposition is illusory, because people do not want to choose actively. Nanny states forbid people from choosing, but they also forbid people from choosing not to choose. If and to the extent that health insurers, employers, hospitals and doctors forbid that choice, they are acting paternalistically, and that particular form of paternalism might be unjustified. It is true that active choosing has a central place in a free society, and it needs to play a large role in the health care system. But for those involved in that system, as for everyone else, the same concerns that motivate objections to paternalism in general can be applied to paternalistic interferences with people’s choice not to choose. These points have implications for health insurance, for food safety, for wellness programs, and for the idea of "patient autonomy."
Cass R. Sunstein, Does the Clear and Present Danger Test Survive Cost-Benefit Analysis? (Nov. 12, 2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
Type: Other
Abstract
Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, the dominant contemporary test involves clear and present danger. Regulators cannot act on the ground that the benefits justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve cost-benefit analysis, as indeed both Judge Learned Hand and the Supreme Court insisted that it should in the early 1950s. An initial explanation points to the difficulty of quantifying both costs and benefits in the context of speech. That is indeed a serious challenge, but it does not justify the clear and present danger test, because some form of cost-benefit balancing is possible on a more informal, intuitive basis. A second and more plausible explanation points to the serious risk of institutional bias in any assessment of both costs and benefits of speech. This explanation has considerable force, but it depends on questionable assumptions, because institutional safeguards could be introduced to increase accuracy and to reduce any such bias. The third and best justification of the clear and present danger test is that in practice, it does not impose high costs, because the speech that ends up being immunized from regulation has not, in practice, turned out to be harmful. On this view, the benefits of the clear and present danger test turn out to justify its costs. From 1960 or until 2001, this assessment was probably correct for the United States, and it may continue to be correct; but the problem of terrorism, and of recruitment to commit terrorist acts, raises legitimate questions about whether the assumptions on which it rests are correct today.
Cass R. Sunstein, Chief Justice John G. Roberts Jr., John F. Manning, Justice Elena Kagan, Justice Ruth Bader Ginsburg, Martha Minow & Rachel E. Barkow, In Memoriam: Justice Antonin Scalia, 130 Harv. L. Rev. 1 (2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Listen, Economists!, 63 N.Y. Rev. of Books, Nov. 10, 2016, at 53 (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, Autonomy by Default, 16 Am. J. Bioethics 1536 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Cass R. Sunstein, Were the Framers Democrats?, New Rambler Rev., Oct. 31, 2016 (reviewing Michael J. Klarman, The Framers’ Coup: The Making of the United States (2016)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Ian Schneider & Cass R. Sunstein, Behavioral Considerations for Effective Time-Varying Electricity Prices (Oct. 13, 2016).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Science & Technology
Type: Other
Abstract
Wholesale prices for electricity vary significantly due to high fluctuations and low elasticity in short-run demand. End-use customers have typically paid flat retail rates for their electricity consumption, and time-varying prices have been proposed to help reduce peak consumption and lower the overall cost of servicing demand. Unfortunately, the general practice is an opt-in system: a default rule in favor of time-varying prices would be far better. A behaviorally informed analysis also shows that when transaction costs and decision biases are taken into account, the most cost-reflective policies are not necessarily the most efficient. On reasonable assumptions, real-time prices can result in less peak conservation of manually controlled devices than time-of-use or critical-peak prices. For that reason, the trade-offs between engaging automated and manually controlled loads must be carefully considered in time-varying rate design. The rate type and accompanying program details should be designed with the behavioral biases of consumers in mind, while minimizing price distortions for automated devices.
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.
Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro & Tali Sharot, How People Update Beliefs about Climate Change: Good News and Bad News (Sept. 2, 2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Climate Change
Type: Other
Abstract
People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who doubt that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By contrast, people who strongly believe that man-made climate change is occurring, and who favor an international agreement, show the opposite asymmetry: They change their beliefs far more in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought) than in response to unexpected good news (suggesting that average temperature rise is likely to be smaller than previously thought). The results suggest that exposure to varied scientific evidence about climate change may increase polarization within a population due to asymmetrical updating. We explore the implications of our findings for how people will update their beliefs upon receiving new evidence about climate change, and also for other beliefs relevant to politics and law.
Cass R. Sunstein, Output Transparency vs. Input Transparency (Aug. 18, 2016).
Categories:
Government & Politics
Sub-Categories:
Government Transparency
,
Administrative Law & Agencies
Type: Article
Abstract
Government can be transparent about its “outputs”: its regulations and its policies, its findings about air and water quality, its analysis of costs and benefits, its assessment of the risks associated with cigarette smoking, distracted driving, infectious diseases, and silica in the workplace. It can also be transparent about its “inputs”: about who, within government, said what to whom, and when, and why. The argument for output transparency is often very strong, because members of the public can receive information that can help them in their daily lives, and because output transparency can improve the performance of both public and private institutions. Where the public stands to benefit, government should be disclosing outputs even without a formal request under the Freedom of Information Act. In fact it should be doing that far more than it now does. The argument for input transparency is different and often weaker, because the benefits of disclosure can be low and the costs can be high. There is good reason for a large increase in output transparency -- and for caution about input transparency.
Cass R. Sunstein, Nudges That Fail (July 18, 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.
Cass R. Sunstein, Nudges That Fail (July 14, 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.
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 & Lucia A. Reisch, Climate-Friendly Default Rules (June 18, 2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
Type: Article
Abstract
Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly 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, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.
Walter Quattrociocchi, Antonio Scala & Cass Sunstein, Echo Chambers on Facebook (June 15, 2016).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
Type: Other
Abstract
Do echo chambers actually exist on social media? By focusing on how both Italian and US Facebook users relate to two distinct narratives (involving conspiracy theories and science), we offer quantitative evidence that they do. The explanation involves users’ tendency to promote their favored narratives and hence to form polarized groups. Confirmation bias helps to account for users’ decisions about whether to spread content, thus creating informational cascades within identifiable communities. At the same time, aggregation of favored information within those communities reinforces selective exposure and group polarization. We provide empirical evidence that because they focus on their preferred narratives, users tend to assimilate only confirming claims and to ignore apparent refutations.
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, The Most Knowledgeable Branch, 164 U. Pa. L. Rev. 1607 (2016).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Article
Cass R. Sunstein, Cost-Benefit Analysis, Who’s Your Daddy?, 7 J. Benefit-Cost Analysis 107 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
If policymakers could measure the actual welfare effects of regulations, and if they had a properly capacious sense of welfare, they would not need to resort to cost-benefit analysis, which gives undue weight to some values and insufficient weight to others. Surveys of self-reported well-being provide valuable information, but it is not yet possible to “map” regulatory consequences onto well-being scales. It follows that at the present time, self-reported well-being cannot be used to assess the welfare effects of regulations. Nonetheless, greatly improved understandings are inevitable, and current findings with respect to reported well-being – above all the serious adverse effects of unemployment – deserve to play a role in regulatory policymaking.
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.”
Cass R. Sunstein, Cost-Benefit Analysis and Arbitrariness Review (Harvard Pub. Law Working Paper No. 16-12, Mar. 20, 2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
When an agency fails to engage in quantitative cost-benefit analysis, has it acted arbitrarily and hence in violation of the Administrative Procedure Act? At first glance, the question answers itself: Congress sometimes requires that form of analysis, but if it has not done so, then agencies have discretion to proceed as they see fit. But as recent decisions suggest, the underlying issues are far more complicated than they seem. The central reason is that for all its limitations, cost-benefit analysis is the best available method for testing whether regulations increase social welfare. Whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them, and to weigh them against each other, requires a non-arbitrary justification. Potential justifications include the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; and the existence of welfare effects that are not captured by monetized costs and benefits. These justifications will often be sufficient. But in some cases, they are not, and agencies should be found to have acted arbitrarily in failing to quantify costs and benefits and to show that the benefits justify the costs.
Cass R. Sunstein, Fifty Shades of Manipulation, 1 J. Marketing Behav. 213 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Both marketers and politicians are often accused of “manipulation”, but the term is far from self-defining. A statement or action can be said to be manipulative if it does not sufficiently engage or appeal to people’s capacity for reflective and deliberative choice. One problem with manipulation, thus understood, is that it fails to respect people’s autonomy and is an affront to their dignity. Another problem is that if they are products of manipulation, people’s choices might fail to promote their own welfare, and might instead promote the welfare of the manipulator. To that extent, the central objection to manipulation is rooted in a version of John Stuart Mill’s Harm Principle: People know what is in their best interests and should have a (manipulationfree) opportunity to make that decision. On welfarist grounds, the norm against manipulation can be seen as a kind of heuristic, one that generally works well, but that can also lead to serious errors, at least when the manipulator is both informed and genuinely interested in the welfare of the chooser. For politics and law, a pervasive puzzle is why manipulation is rarely policed. The simplest answer is that manipulation has so many shades, and in a social order that values-free markets and consumer sovereignty, it is exceptionally difficult to regulate manipulation as such. Those who sell products are often engaged in at least arguable forms of manipulation. But as the manipulator’s motives become more self-interested or venal, and as efforts to bypass people’s deliberative capacities become more successful, the ethical objections to manipulation may be very forceful, and the argument for a legal response is fortified. The analysis of manipulation bears on emerging free speech issues raised by compelled disclosure, especially in the context of graphic health warnings. It can also help orient the regulation of financial products, where manipulation of consumer choices is an evident but rarely explicit concern.
Cass R. Sunstein, Manipulation, Welfare, and Dignity: A Reply, 1 J. Marketing Behav. 351 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
This essay responds to seven commentaries on my forthcoming essay, Fifty Shades of Manipulation. It offers two general points. The first involves the importance of separating three questions: (1) What is manipulation? (2) What is wrong with manipulation? (3) When might manipulation be justified, notwithstanding the answer to (2)? The second involves the relevance of dignity. We might see dignity as a component of welfare, or we might see it as a wholly independent value. But we will not understand manipulation, or what is wrong with it, if we do not see it at all.
Cass R. Sunstein, Do People Like Nudges?, 68 Admin. L. Rev. 177 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In recent years, there has been a great deal of debate about the ethical questions associated with "nudges," understood as approaches that steer people in certain directions while maintaining their freedom of choice. Evidence about people's views cannot resolve the ethical questions, but in democratic societies (and nondemocratic ones as well), those views will inevitably affect what public officials are willing to do. Existing evidence, including a nationally representative survey, supports six general conclusions. First, there is widespread support for nudges of the kind that democratic societies have adopted or seriously considered in the recent past; surprisingly, that support can be found across partisan lines. While people tend to have serious objections to mandates as such, they do not have similar objections to nudges. Second, the support drops when people suspect the motivations of those who are engaged in nudging and when they fear that because of inertia and inattention, citizens might end up with outcomes that are inconsistent with their interests or their values. Third, there appears to be somewhat greater support for nudges that appeal to conscious, deliberative thinking than for nudges that affect subconscious or unconscious processing though this conclusion is highly qualified, and there can be widespread approval of the latter as well (especially if they are meant to combat self-control problems). Fourth, people's assessment of nudges in general will be greatly affected by the political valence of the particular nudges that they have in mind (or that are brought to their minds). Fifth, transparency about nudging will not, in general, reduce the effectiveness of nudges, because most nudges are already transparent and because people will not, in general, rebel against nudges. Sixth, there is preliminary but suggestive evidence of potential "reactance" against certain nudges.
Sebastian Bobadilla-Suarez, Cass R. Sunstein & Tali Sharot, The Intrinsic Value of Control: The Propensity to Under-Delegate in the Face of Potential Gains and Losses (Feb. 15, 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
Human beings are often faced with a pervasive problem: whether to make their own decisions or to delegate decision tasks to someone else. Here, we test whether people are inclined to forgo monetary rewards in order to retain agency when faced with choices that could lead to losses and gains. In a simple choice task, we show that even though participants have all the information needed to maximize rewards and minimize losses, they choose to pay in order to control their own payoff. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Rather, the results reflect an intrinsic value for choice, which emerges in the domain of both gains and losses. Moreover, our data indicates that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.
Eric Posner & Cass R. Sunstein, Institutional Flip-Flops, 94 Tex. L. Rev. 485 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
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, The Rise of Behavioral Economics: Richard Thaler’s ♠Misbehaving (Harvard Law Sch. Pub. Law & Legal Theory, Working Paper No. 16-01, 2016)(reviewing Richard H. Thaler, Misbehaving: The Making of Behavioral Economics (2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Behavioral economics emerged in the 1980s, above all because of the creative work of Richard Thaler, exploring the relevance of the endowment effect, mental accounting, concern for fairness, and other "anomalies" from the standpoint of standard economic theory. His engaging book, "Misbehaving," offers a narrative account of how these ideas came about, and also explores some of their implications for the future. Continuing challenges include making predictions when behavioral findings cut in different directions (as, for example, where optimistic bias conflicts with availability bias); understanding the line between nudging and manipulation; and applying behavioral findings to pressing public policy challenges, such as poverty, education, terrorism, and climate change.
Cass R. Sunstein, Parking the Big Money, 63 N.Y. Rev. Books, Jan. 14, 2016, at 37 (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, Historical Explanations Always Involve Counterfactual History 10 J. Phil. Hist. 433 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Historical explanations are a form of counterfactual history. To offer an explanation of what happened, historians have to identify causes, and whenever they identify causes, they immediately conjure up a counterfactual history, a parallel world. No one doubts that there is a great deal of distance between science fiction novelists and the world’s great historians, but along an important dimension, they are playing the same game.
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
,
Supreme Court of the United States
,
Congress & Legislation
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 & Lucia Reisch, Behaviorally Green: Why, Which and When Defaults Can Help, in New Perspectives for Environmental Policies Through Behavioral Economics 161 (Frank Beckenbach & Walter Kahlenborn eds., 2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Renewable Resources Law
Type: Book
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, Foreword to Nudging Health: Health Law and Behavioral Economics xi (I. Glenn Cohen, Holly Fernandez Lynch & Christopher T. Robertson eds., Johns Hopkins Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Health Law & Policy
,
Legal Ethics
Type: Book
Bent Flyvbjerg & Cass R. Sunstein, The Principle of the Malevolent Hiding Hand; or, the Planning Fallacy Writ Large, 83 Soc. Res. 979 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
Type: Article
Abstract
The article discusses the principle of the malevolent hiding hand and the planning fallacy writ large. Particular focus is given on economist Albert O. Hirschman's ideas on social-scientific laws. Hirchman believes that social planners tend to be unrealistically optimistic, particularly in underdeveloped nations. He adds that their neglect of bad surprises is countered by a much happier surprise. He also believes that the hiding hand provides a spur and a remedy in the form of mechanism that makes the risk-averter take risks.
Cass R. Sunstein, She was Houdini’s Greatest Challenge, 62 N.Y. Rev. Books, Dec. 17, 2015, at 54 (reviewing David Jaher, The Witch of Lime Street: Seance, Seduction, and Houdini in the Spirit World (2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Article
Abstract
Review of The Witch of Lime Street: Seance, Seduction, and Houdini in the Spirit World by David Jaher (2015).
Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 39 (2015).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
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, 62 N.Y. Rev. Books, Oct. 22, 2015, at 40 (reviewing Phishing for Phools: The Economics of Manipulation and Deception (George A. Akerlof & Robert J. Shiller eds., 2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
Type: Article
Abstract
Review of Phishing for Phools: The Economics of Manipulation and Deception, edited by George A. Akerlof and Robert J. Shiller (2015).
Cass R. Sunstein, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Oxford Univ. Press 2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
Type: Book
Abstract
"Since America's founding, hundreds of U.S. Supreme Court Justices have issued a vast number of decisions on a staggeringly wide variety of subjects. Yet as the eminent legal scholar, Cass R. Sunstein shows, constitutional law is dominated by a mere quartet of character types, regardless of ideology : the hero, the soldier, the minimalist, and the mute."--Jacket flap.
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.
Cass R. Sunstein, Nudges Do Not Undermine Human Agency, 38 J. Consumer Pol’y 207 (2015).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Some people believe that nudges undermine human agency, but with appropriate nudges, neither agency nor consumer freedom is at risk. On the contrary, nudges can promote both goals. In some contexts, they are indispensable. There is no opposition between education on the one hand and nudges on the other. Many nudges are educative. Even when they are not, they can complement, and not displace, consumer education.
Cass R. Sunstein, Nudges, Agency, and Abstraction: A Reply to Critics, 6 Rev. Phil. & Psychol. 511 (2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
This essay has three general themes. The first involves the claim that nudging threatens human agency. My basic response is that human agency is fully retained (because nudges do not compromise freedom of choice) and that agency is always exercised in the context of some kind of choice architecture. The second theme involves the importance of having a sufficiently capacious sense of the category of nudges, and a full appreciation of the differences among them. Some nudges either enlist or combat behavioral biases but others do not, and even among those that do enlist or combat such biases, there are significant differences. The third general theme is the need to bring various concerns (including ethical ones) in close contact with particular examples. A legitimate point about default rules may not apply to warnings or reminders. An ethical objection to the use of social norms may not apply to information disclosure. Here as elsewhere, abstraction can be a trap. We continue to learn about the relevant ethical issues, about likely public reactions to nudging, and about differences across cultures and nations. Future progress will depend on a high level of concreteness, perhaps especially in dealing with the vexing problem of time-inconsistency.
Edward R. Glaeser & Cass R. Sunstein, A Theory of Civil Disobedience (Nat'l Bureau of Econ. Research, Working Paper No. 21338, 2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Elections & Voting
Type: Article
Abstract
From the streets of Hong Kong to Ferguson, Missouri, civil disobedience has again become newsworthy. What explains the prevalence and extremity of acts of civil disobedience? This paper presents a model in which protest planners choose the nature of the disturbance hoping to influence voters (or other decision-makers in less democratic regimes) both through the size of the unrest and by generating a response. The model suggests that protesters will either choose a mild “epsilon” protest, such as a peaceful march, which serves mainly to signal the size of the disgruntled population, or a “sweet spot” protest, which is painful enough to generate a response but not painful enough so that an aggressive response is universally applauded. Since non-epsilon protests serve primarily to signal the leaders’ type, they will occur either when protesters have private information about the leader’s type or when the distribution of voters’ preferences are convex in a way that leads the revelation of uncertainty to increase the probability of regime change. The requirements needed for rational civil disobedience seem not to hold in many world settings, and so we explore ways in which bounded rationality by protesters, voters, and incumbent leaders can also explain civil disobedience.
Cass R. Sunstein, Which Nudges Do People Like? A National Survey (June 19, 2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In surveys, majorities of Americans disapprove of twelve hypothetical nudges (seven involving default rules, five involving education campaigns or disclosure requirements). These results provide an illuminating contrast with the majority support for twenty-two nudges that were also tested, and that are more realistic examples of the kinds of nudges that have been adopted or seriously considered in democratic nations. In general (and with some interesting exceptions), there is a strikingly broad consensus, across partisan lines, about which nudges do and do not deserve support. The best understanding of the data is that people dislike those nudges that (a) promote what people see as illicit ends or (b) are perceived as inconsistent with either the interests or values of most choosers. A ranking of the thirty-four nudges, in terms of their popularity, is provided, along with reports of differences (when they exist) among Democrats, Republicans, and Independents.
Cass R. Sunstein, The Mischievous Science of Richard ThalerNew Rambler Rev., June 8, 2015 (reviewing Richard H. Thaler, Misbehaving:  The Making of Behavioral Economics (2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
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
Cass R. Sunstein, How Star Wars Illuminates Constitutional Law (and Authorship)New Rambler Rev., Apr. 20, 2015 (reviewing Chris TaylorHow Star Wars Conquered the Universe: The Past, Present, and Future of a Multibillion Dollar Franchise (2015)).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
Type: Article
Abstract
Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time. Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.
Cass R. Sunstein, John & Harriet:  Still Mysterious, 62 N.Y. Rev. Books, Apr. 2, 2015, at 67 (reviewing Friedrich Hayek, Hayek on Mill: The Mill-Taylor Friendship and Other Writings (Sandra J. Peart ed., 2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Cass R. Sunstein, Where Do Norms Come From?, New Rambler Rev., Mar. 4, 2015 (reviewing Edna Ullmann-Margalit, The Emergence of Norms (1978)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Behavioral Sciences
Type: Article
Abstract
This essay is a review of Edna Ullmann-Margalit’s pathbreaking 1978 book, The Emergence of Norms. It urges that Ullmann-Margalit’s treatment of PD norms and coordination norms remains convincing, but that a great deal of work remains to be done on the topic of norms of partiality, where adaptive preferences and preference falsification play significant roles. It also emphasizes the importance of distinguishing between causal and functional accounts of norms.
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, Nudging and Choice Architecture: Ethical Considerations, 32 Yale J. on Reg. 413 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
All over the world, governments are using nudges as regulatory tools. Is this ethical? Much of the answer depends on whether nudges promote or instead undermine welfare, autonomy, and dignity. Many nudges, and those that deserve support, promote some or all of those ideals, and undermine none of them. If welfare is our guide, much nudging is actually required on ethical grounds, even if it comes from government. If autonomy is our guide, much nudging is also required on ethical grounds, in part because some nudges actually promote autonomy, in part because some nudges enable people to devote their limited time and attention to their most important concerns. Finally, nudges should not, and need not, compromise individual dignity, which many nudges actually promote. There is, however, a genuine risk that some nudges might count as manipulation; an emphasis on welfare, autonomy, and dignity helps to show how to avoid that risk.
Cass R. Sunstein, 'Practically Binding': General Policy Statements and Notice-and-Comment Rulemaking (Jan. 6, 2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Other
Abstract
Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale. Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale.
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, Choosing Not to Choose: Understanding the Value of Choice (Oxford Univ. Press 2015).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
"Our ability to make choices is fundamental to our sense of ourselves as human beings, and essential to the political values of freedom-protecting nations. Whom we love; where we work; how we spend our time; what we buy; such choices define us in the eyes of ourselves and others, and much blood and ink has been spilt to establish and protect our rights to make them freely. Choice can also be a burden. Our cognitive capacity to research and make the best decisions is limited, so every active choice comes at a cost. In modern life the requirement to make active choices can often be overwhelming. So, across broad areas of our lives, from health plans to energy suppliers, many of us choose not to choose. By following our default options, we save ourselves the costs of making active choices. By setting those options, governments and corporations dictate the outcomes for when we decide by default. This is among the most significant ways in which they effect social change, yet we are just beginning to understand the power and impact of default rules. Many central questions remain unanswered: When should governments set such defaults, and when should they insist on active choices? How should such defaults be made? What makes some defaults successful while others fail? Cass R. Sunstein has long been at the forefront of developing public policy and regulation to use government power to encourage people to make better decisions. In this major new book, Choosing Not to Choose, he presents his most complete argument yet for how we should understand the value of choice, and when and how we should enable people to choose not to choose. The onset of big data gives corporations and governments the power to make ever more sophisticated decisions on our behalf, defaulting us to buy the goods we predictably want, or vote for the parties and policies we predictably support. As consumers we are starting to embrace the benefits this can bring. But should we? What will be the long-term effects of limiting our active choices on our agency? And can such personalized defaults be imported from the marketplace to politics and the law? Confronting the challenging future of data-driven decision-making, Sunstein presents a manifesto for how personalized defaults should be used to enhance, rather than restrict, our freedom and well-being"-- Provided by publisher.
Cass R. Sunstein, Cost-Benefit Analysis and the Knowledge Problem (Harvard Kennedy School, Mossavar-Rahmani Ctr. for Bus. & Gov’t, Regulatory Policy Program Working Paper RPP-2015-03, 2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
In the modern regulatory state, there is a serious tension between two indispensable ideas. The first is that it is important to measure, both in advance and on a continuing basis, the effects of regulation on social welfare, usually through cost-benefit analysis. The second idea, attributable above all to Friedrich Hayek, is that knowledge is widely dispersed in society. As Hayek and his followers emphasize, governments planners cannot possibly know what individuals know, simply because they lack that dispersed knowledge. When important information is missing, cost-benefit analysis can be exceptionally difficult to conduct. There are three ways to respond to that problem. The first involves notice-and-comment rulemaking, which has particular promise in the modern era, where regulators are in a far better position to collect the dispersed information of the public. The second involves retrospective analysis, accompanied by a process for obtaining public comment. In many cases, retrospective analysis has found that the ex ante estimates were wrong, thus pointing the way toward potential improvements both in rules and in future estimates. The third, and potentially the most valuable, involves experiments, above all randomized controlled trials, which can give a clear understanding of the likely effects of regulations.
Cass R. Sunstein, Partyism, 2015 U. Chi. Legal F. 1 (2015).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: Article
Abstract
“Partyism” is a form of hostility and prejudice that operates across political lines. For example, some Republicans have an immediate aversive reaction to Democrats, and some Democrats have the same aversive reaction to Republicans, so much so that they would discriminate against them in hiring or promotion decisions, or in imposing punishment. If elected officials suffer from partyism – perhaps because their constituents do – they will devalue proposals from the opposing party and refuse to enter into agreements with its members, even if their independent assessment, freed from partyism, would be favorably disposed toward those proposals or agreements. In the United States, partyism has been rapidly growing, and it is quite pronounced – in some ways, more so than racism. It also has a series of adverse effects on governance itself, above all by making it difficult to enact desirable legislation and thus disrupting the system of separation of powers. Under circumstances of severe partyism, relatively broad delegations of authority to the executive branch, and a suitably receptive approach to the Chevron principle, have considerable appeal as ways of allowing significant social problems to be addressed. This conclusion bears on both domestic issues and foreign affairs.
Cass R. Sunstein, There is Nothing That Interpretation Just Is, 30 Const. Comment. 193 (2015).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
Type: Article
Abstract
Some people believe that the very idea of interpretation requires judges to adopt a particular method for interpreting the Constitution. The problem with this view is that in constitutional law, the general idea of interpretation is compatible with a range of different approaches, and among them, none is mandatory, in the sense of having some unique or privileged connection with the general idea. Any particular approach must be defended on the ground that it would make our constitutional order better rather than worse. No one should doubt that there are legitimate questions about the institutional capacities of judges, and about the virtues and vices of a deferential role on their part; the answers to those questions can motivate a view about constitutional interpretation. But they do not depend on an understanding of what interpretation necessarily requires.
Cass R. Sunstein & Reid Hastie, Wiser: Getting Beyond Groupthink to Make Groups Smarter (Harvard Bus. Review Press 2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
"Why are group decisions so hard? Since the beginning of human history, people have made decisions in groups--first in families and villages, and now as part of companies, governments, school boards, religious organizations, or any one of countless other groups. And having more than one person to help decide is good because the group benefits from the collective knowledge of all of its members, and this results in better decisions. Right? Back to reality. We've all been involved in group decisions--and they're hard. And they often turn out badly. Why? Many blame bad decisions on "groupthink" without a clear idea of what that term really means. Now, "Nudge" coauthor Cass Sunstein and leading decision-making scholar Reid Hastie shed light on the specifics of why and how group decisions go wrong--and offer tactics and lessons to help leaders avoid the pitfalls and reach better outcomes. In the first part of the book, they explain in clear and fascinating detail the distinct problems groups run into: They often amplify, rather than correct, individual errors in judgment; They fall victim to cascade effects, as members follow what others say or do; They become polarized, adopting more extreme positions than the ones they began with; They emphasize what everybody knows instead of focusing on critical information that only a few people know. In the second part of the book, the authors turn to straightforward methods and advice for making groups smarter. These approaches include silencing the leader so that the views of other group members can surface, rethinking rewards and incentives to encourage people to reveal their own knowledge, thoughtfully assigning roles that are aligned with people's unique strengths, and more. With examples from a range of organizations--from Google to the CIA--and written in an engaging and witty style, "Wiser" will not only enlighten you; it will help your team and your organization make better decisions--decisions that lead to greater success." --Publisher
Cass R. Sunstein, Who Knows If You’re Happy?, 61 N.Y. Rev. Books, Dec. 4, 2014, at 20 (reviewing Paul Dolan, Happiness by Design: Change What You Do, Not How You Think (2014) & Subjective Well-Being: Measuring Happiness, Suffering, and Other Dimensions of Experience (Arthur A. Stone & Christopher Mackie eds., 2014)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Abstract
The article reviews the books "Happiness by Design: Change What You Do, Not How You Think" by Paul Dolan, with a foreword by Daniel Kahneman and "Subjective Well-Being: Measuring Happiness, Suffering, and Other Dimensions of Experience" edited by Arthur A. Stone and Christopher Mackie.
Cass R. Sunstein & Reid Hastie, Making Dumb Groups Smarter, Harv. Bus. Rev., Dec. 2014, at 91.
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Psychology & Psychiatry
Type: Article
Cass R. Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol'y 583 (2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
This brief essay offers a general introduction to the idea of nudging, along with a list of 10 of the most important “nudges.” It also provides a short discussion of the question whether to create some kind of separate “behavioral insights unit,” capable of conducting its own research, or instead to rely on existing institutions.
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, The Ethics of Nudging (Nov. 20, 2014).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
This essay defends the following propositions. (1) It is pointless to object to choice architecture or nudging as such. Choice architecture cannot be avoided. Nature itself nudges; so does the weather; so do spontaneous orders and invisible hands. The private sector inevitably nudges, as does the government. It is reasonable to object to particular nudges, but not to nudging in general. (2) In this context, ethical abstractions (for example, about autonomy, dignity, and manipulation) can create serious confusion. To make progress, those abstractions must be brought into contact with concrete practices. Nudging and choice architecture take diverse forms, and the force of an ethical objection depends on the specific form. (3) If welfare is our guide, much nudging is actually required on ethical grounds. (4) If autonomy is our guide, much nudging is also required on ethical grounds. (5) Choice architecture should not, and need not, compromise either dignity or self-government, though imaginable forms could do both. (6) Some nudges are objectionable because the choice architect has illicit ends. When the ends are legitimate, and when nudges are fully transparent and subject to public scrutiny, a convincing ethical objection is less likely to be available. (7) There is, however, room for ethical objections in the case of well-motivated but manipulative interventions, certainly if people have not consented to them; such nudges can undermine autonomy and dignity. It follows that both the concept and the practice of manipulation deserve careful attention. The concept of manipulation has a core and a periphery; some interventions fit within the core, others within the periphery, and others outside of both.
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, 61 N.Y. Rev. Books, Oct. 23, 2014, at 81 (in response to Jeremy Waldron’s It’s All for Your Own Good, 61 N.Y. Rev. Books, Oct. 9, 2014, at 61).
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?, New Republic, Sept. 29, 2014, at 35 (reviewing Richard J. Evans, Altered Pasts: Counterfactuals in History (2014)).
Categories:
Legal Profession
Sub-Categories:
Legal History
Type: Article
Cass R. Sunstein, Valuing Life: Humanizing the Regulatory State (Univ. Chi. Press 2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
"The White House Office of Information and Regulatory Affairs (OIRA) is the United States's regulatory overseer. In Valuing Life, Cass R. Sunstein draws on his firsthand experience as the Administrator of OIRA from 2009 to 2012 to argue that we can humanize regulation--and save lives in the process. As OIRA Administrator, Sunstein helped oversee regulation in a broad variety of areas, including highway safety, health care, homeland security, immigration, energy, environmental protection, and education. This background allows him to describe OIRA and how it works--and how it can work better--from an on-the-ground perspective. Using real-world examples, many of them drawn from today's headlines, Sunstein makes a compelling case for improving cost-benefit analysis, a longtime cornerstone of regulatory decision-making, and for taking account of variables that are hard to quantify, such as dignity and personal privacy. He also shows how regulatory decisions about health, safety, and life itself can benefit from taking into account behavioral and psychological research, including new findings about what scares us, and what does not. By better accounting for people's fallibility, Sunstein argues, we can create regulation that is simultaneously more human and more likely to achieve its goals. In this highly readable synthesis of insights from law, policy, economics, and psychology, Sunstein breaks down the intricacies of the regulatory system and offers a new way of thinking about regulation that incorporates human dignity--and an insistent focus on the consequences of our choices." --Publisher
Edward Glaeser & Cass R. Sunstein, How to Deregulate Cities and States, Wall St. J., Aug. 25, 2014, at A15.
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
State & Local Government
Type: News
Cass R. Sunstein, Shopping Made Psychic, N.Y. Times, Aug. 21, 2014, at A21.
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: News
Cass R. Sunstein, The Refounding Father, N.Y. Rev. Books, June 5, 2014, at 8 (reviewing John Paul Stevens, Six Amendments: How & Why We Should Change the Constitution (2014)).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Cass R. Sunstein, The Man Who Made Libertarians Wrong About the Constitution, New Republic, May 26, 2014, at 31 (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.
Cass R. Sunstein, How Do We Know What's Moral?, N.Y. Rev. Books, Apr. 24, 2014, at 14 (reviewing David Edmonds, Would You Kill the Fat Man? The Trolley Problem and What Your Answer Tells Us About Right and Wrong (2013)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
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, 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

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