Faculty Bibliography

Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.

The U.S. Supreme Court has eliminated the right to abortion and is revisiting all sorts of other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.

This article discusses the opportunities and costs of AI in behavioural science. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in human behaviour and (2) known biases in novel situations. AI will also allow behavioural interventions to be personalised and contextualised, and thus produce significant benefits. Finally, AI can help behavioural scientists to 'see the system,' by enabling the creation of more complex and dynamic models of human behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve the lives of citizens and consumers, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. Some of those costs involve privacy; others involve manipulation.

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.

The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) law-making and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. Of course it is true that the seven principles can be specified in different ways, broadly compatible with the goal of describing the rule of law as a distinct concept, and some of the seven principles might be understood to be more fundamental than others.

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a president of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term “air pollutant” necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. There is a relationship between extravagant inferences and the perception of having been subject to "constitutional gaslighting."

How do judgments about law and morality shift? Why do we come to see political or other conduct as acceptable, when we had formerly seen it as unacceptable, immoral, or even horrific? Why do shifts occur in the opposite direction? Why accounts for the power of “the normal”? A clue comes from the fact that some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people's viewscreens. There are plausible evolutionary explanations for these findings. It follows that conduct that was formerly seen as unethical may come to seem ethical, as terrible behavior becomes more common, and also that conduct that was formerly seen as ethical may come to seem unethical, as good behavior becomes more common. In these circumstances, law (and enforcement practices) can have an important signaling effect, giving people a sense of what is normal and what is not.

A uniform value of a statistical life (VSL) is part of established practice within the federal government. Some people have applauded a uniform VSL on the ground that it respects the equality of persons; takes harm to poor people as seriously as it does harm to wealthy people; avoids expressive harms; and builds appropriate wealth redistribution into regulatory policy. Other people have strenuously objected to a uniform VSL, emphasizing that to reduce mortality risks, poor people are willing to pay less than rich people are, and urging that poor people should not have to pay more than they are willing to pay. Whether a uniform VSL is in the interest of poor people depends on whether we are dealing with subsidies or regulations. In the case of subsidies, a uniform VSL is highly likely to benefit poor people. If we are dealing with regulations, we cannot know whether a uniform VSL helps or harms poor people without knowing the incidence of costs (and benefits).

There are many misconceptions about nudges and nudging, and some of them are widespread. For example, some people believe that that nudges are manipulative; that nudges are hidden or covert; that nudges are difficult to define; that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins, do not affect structures, and cannot accomplish much. These are mistakes. Nudges are generally transparent rather than covert or forms of manipulation; nudges are not difficult to define; nudges always respect, and often promote, human agency; because nudges insist on preserving freedom of choice, they do not put excessive trust in government; many nudges are educative, and even when they are not, they tend to make life simpler and more navigable; and some nudges have quite large impacts. It is true that for countless problems, nudges are hardly enough. They cannot eliminate poverty, unemployment, and corruption. But by itself, any individual initiative – whether it is a tax, a subsidy, a mandate, or a ban – is unlikely to solve large problems. Denting them counts as an achievement.

In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as “tweaks”). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsides for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, and calorie labels, and automatic enrollment in savings plans); sometimes such interventions have significant positive effects, and there is no evidence that they make more aggressive reforms less likely. It is preposterous to suggest that choice-preserving interventions, such as nudges, “crowd out” more aggressive approaches.

In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as "tweaks"). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsidies for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, calorie labels, and automatic enrollment in savings plans); sometimes interventions have significant positive effects and there is no evidence that they make more aggressive forms less likely. Choice-preserving interventions, such as nudges, do not "crowd out" more aggressive approaches.

All over the world, private and public institutions have been attracted to “nudges,” understood as interventions that preserve freedom of choice, but that steer people in particular directions. The most effective nudges are often “defaults,” which establish what happens if people do nothing. For example, automatic enrollment in savings plans is a default nudge, as is automatic enrollment in green energy. Default rules are in widespread use, but we have very little information about how people experience them, whether they see themselves as manipulated by them, and whether they approve of them in practice. In this book, Patrik Michaelsen and Cass R. Sunstein offer a wealth of new evidence about people’s experiences and perceptions with respect to default rules. They argue that this evidence can help us to answer important questions about the effectiveness and ethics of nudging. The evidence offers a generally positive picture of how default nudges are perceived and experienced. The central conclusion is simple: empirical findings strongly support the conclusion that, taken as such, default nudges are both ethical and effective. These findings, and the accompanying discussion, have significant implications for policymakers in many nations, and also for the private sector.

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of living, whether we are speaking of religious practices, family arrangements, political associations, civic associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion (which it would protect against the imposition of secular values); it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to endorse or defend it, but as a thought experiment and to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, Common Law Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails – of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator’s “fixed points,” which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.

There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress’ likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.

Sludge—excessive time consumed in performing a task—imposes a burden on society. Administrative burdens, reporting requirements, paperwork requirements, waiting time, in-person appearances, and much more operate as a kind of an essential between human beings and something that connects their life. Sludge imposes time-tax (opportunity cost), monetary cost, and psychological costs upon society. There should be a sludge audit to quantify the magnitude of such costs—knowledge of the sludge magnitude would provide the basis for the efforts aimed at sludge-reduction One of the many ways to reduce sludge would be to nudge people into doing something. Nudges, however, are a function of human behaviour, therefore, it is important to understand human behaviour regarding what motivates a person to do something or refrain from another. Human beings suffer from cognitive scarcity, and they have a limited processing capacity in their mind. If we are sick, elderly, or suffering from incapacity, the cognitive ability will be reduced further. We have spent a great deal of time debating economic scarcity over the last hundred years. Now, we need to spend a great deal of time in the next hundred years debating cognitive scarcity.

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. Responding to the constitutional crisis of 1876, the Electoral Count Act of 1887 (ECA) attempted to offer more specific rules. The ECA was a major advance, but in important ways, it was exceedingly complicated and also ambiguous, leaving important puzzles and gaps. The Electoral Count Reform Act of 2022 (ECRA), amending the ECA in response to the horrors of January 6, 2022, is a phenomenal achievement; on essentially all questions, it offers a great deal of clarity. The signal virtue of the ECRA is that it vindicates the rule of law by sharply cabining the discretion of both Congress and the states. For the first time in U.S. history, the ECRA largely succeeds in ensuring the supremacy of the rule of law in presidential elections, by limiting the risk of on-the-spot, ex post maneuvering in either Congresss or the states.

Should there be a right not to be manipulated? On Kantian grounds, manipulation, lies and paternalistic coercion are moral wrongs, and for similar reasons; they deprive people of agency, insult their dignity, and fail to respect personal autonomy. On welfarist grounds, manipulation, lies and paternalistic coercion share a different characteristic; they displace the choices of those whose lives are directly at stake, and who are likely to have epistemic advantages, with the choices of outsiders, who lack critical information. Kantians and welfarists should be prepared to endorse a (moral) right not to be manipulated, though on very different grounds. At the same time, the creation of a legal right not to be manipulated raises hard questions, in part because of definitional challenges. With welfarist considerations in mind, it is best to start by prohibiting the most egregious instances of manipulation, while emphasizing that they may not count as fraud or deception. The basic goal should be to build on the claim that in certain cases, manipulation is a form of theft; the law should forbid theft, whether it occurs through force, lies, or manipulation.

The judgments of human beings can be biased; they can also be noisy. Across a wide range of settings, use of algorithms is likely to improve accuracy, because algorithms will reduce both bias and noise. Indeed, algorithms can help identify the role of human biases; they might even identify biases that have not been named before. As compared to algorithms, for example, human judges, deciding whether to give bail to criminal defendants, show Current Offense Bias and Mugshot Bias; as compared to algorithms, human doctors, deciding whether to test people for heart attacks, show Current Symptom Bias and Demographic Bias. But in important cases, algorithms struggle to make accurate predictions, not because they are algorithms but because they do not have necessary data. (1) Algorithms might not be able to identify people’s preferences, which might be concealed or falsified, and which might be revealed at an unexpected time. (2) Algorithms might not be able to foresee the effects of social interactions, which can lead in unanticipated and unpredictable directions. (3) Algorithms might not be able to anticipate sudden or unprecedented leaps or shocks (a technological breakthrough, a successful terrorist attack, a pandemic, a black swan). (4) Algorithms might not have “local knowledge,” or private information, which human beings might have. (5) Algorithms might not be able to foresee the effects of context, timing, serendipity, or mood. Predictions about romantic attraction, about the success of cultural products, and about coming revolutions are cases in point. The limitations of algorithms are analogous to the limitations of planners, emphasized by Hayek in his famous critique of central planning. It is an unresolved question whether and to what extent some of the limitations of algorithms might be reduced or overcome over time, with more data or various improvements; in the relevant contexts, there is no equivalent to the price system to elicit and aggregate dispersed knowledge.

Bob Dylan celebrates “songs about roses growing out of people’s brains and lovers who are really geese and swans that turn into angels.” He thinks that “museums are vulgar,” because “they’re all against sex.” He proclaims,“Folk music is a bunch of fat people.” He notes, “Just because someone mentions the word ‘bomb,’ I’m not going to go ‘Aalee!’ and start clapping.” These remarks about lovers who are really geese, museums, folk music, and protest songs capture Dylan’s distaste for whatever is rote or routine, and help explain his refusal to identify with the social movements of the 1960s. The remarks also tell us something about the central themes of “Desolation Row” and “The Philosophy of Modern Song,” and also about why “Like A Rolling Stone” is not a finger-pointing song but a celebration of movement and rootlessness. Dylan’s work is dishabituating, and he cherishes the dishabituating power of music and art in general.

Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.

Applying a cost-benefit analysis to people’s problems may seem “bloodless,” but it can be a corrective to interest group lobbying, ideology, and bias.

Many consumers suffer from present bias. To present-biased consumers, the long-term is a foreign country, and they are not sure that they will ever visit. If consumers suffer from present bias, there is room to rethink national policies in multiple domains. For example, regulatory mandates might turn out to be better than economic incentives. Fuel economy and energy efficiency mandates might produce billions of dollars in annual savings to present-biased consumers. The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of incentives that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities.

Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law. One reason is that as a matter of simple psychology, it is extremely difficult for any judge consistently to embrace it. Another reason is that Thayer’s defense of Thayerism was very thin; for the most part, he purported to be describing longstanding practice, rather than to be justifying it. But if we make certain judgments about the likely capacities and performance of judges, legislators, and others, Thayerism would make a great deal of sense. If we make contrary judgments, Thayerism would be preposterous. Selective Thayerism, of the sort defended by Bickel or Ely, might follow from yet another set of judgments. The broader lesson is that no approach to constitutional law can be adopted or rejected in the absence of an answer to the question whether it would make our constitutional order better rather than worse, which requires in turn a set of judgments about the likely behavior of various institutions. We might also understand Thayerism as a kind of arms control agreement: I will adopt a Thayerian approach if you will as well. More particularly, left-of-center judges might be willing to be Thayerian if and only if right-of-center judges are willing to be Thayerian as well. The problem, of course, is that unless a strong norm is in place, both sides will be tempted to defect. And that is, in fact, what we observe.

Why did the Beatles become a worldwide sensation? Why do some cultural products succeed, and others fail? On one view, the simplest and most general explanation is best, and it points to quality, appropriately measured: the Beatles succeeded because of the sheer quality of their music. On another view, timely enthusiasm or timely indifference can make the difference for all, including the Beatles, and informational cascades are often necessary for spectacular success. For those who emphasize informational cascades, success and failure are not inevitable; they depend on seemingly small or serendipitous factors. There is no question that the success of the Beatles, and the rise of Beatlemania, involved an informational cascade. We may doubt that in a counterfactual world there might have been Kinksmania or Holliesmania, but it would be reckless to rule out the possibility that some other band, obscure or unknown, might have taken the place of the Beatles.

In The Rhetoric of Reaction, published in 1991, Albert Hirschman identified three standard objections to reform proposals: perversity, futility and jeopardy. In Hirschman’s account, these objections define reactionary rhetoric. A proposal would be “perverse” if it would aggravate the very problem it is meant to solve; it would be “futile” if it would not even dent the problem; it would produce “jeopardy” if it would endanger some other goal or value (such as liberty or economic growth). The rhetoric of reaction comes from both left and right, though in Hirschman’s account, it is a special favorite of the right. In recent years, the perversity, futility and jeopardy theses have often been invoked to challenge reforms, including nudges. While the three theses are sometimes supported by the evidence, they are often evidence-free speculations, confirming Hirschman’s suggestion that the rhetoric of reaction has “a certain elementary sophistication and paradoxical quality that carry conviction for those who are in search of instant insights and utter certainties.”

In Bolling v. Sharpe, the Supreme Court struck down a federal statute segregating the schools in the District of Columbia. The Equal Protection Clause is inapplicable to the national government, and the Court relied on the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe has been followed by many cases that find an “equal protection component” to the Due Process Clause of the Fifth Amendment (“reverse incorporation”). These cases are impossible to defend on originalist grounds, and they are exceptionally challenging to defend on textualist grounds. They are best understood as an embodiment of “living constitutionalism” or some related approach (potentially including common good constitutionalism). Dobbs v. Jackson Women’s Health Center, overruling Roe v. Wade, adopts an interpretation of the Due Process Clause of the Fourteenth Amendment, rooted in a combination of text, originalism, and tradition, that generally sets itself against living constitutionalism or related approaches, and that is incompatible with the approach in Bolling and successor cases. Under the approach in Dobbs, discrimination on the basis of race and sex, or on any other ground, should be subject to rational basis review (at most) – and should frequently be upheld. If this is an unacceptable conclusion, it is a strong point for Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.

In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare. At the same time, antitrust law’s contribution to reducing inequality is subject to substantial diminishing returns.

If we are committed to freedom of speech, must we tolerate lies? This essay provides a framework for thinking about this and other questions regarding falsehoods. The framework focuses on four sets of issues: (1) the speaker’s state of mind, and the (2) magnitude, (3) likelihood, and (4) timing of harm. From this way of thinking about the problem, we can see that current constitutional law fails to strike the right balance. Public officials and public figures should be able to do far more than they are now permitted to do to respond to defamation, as should ordinary citizens subjected to damaging falsehoods. The government should be able to restrict and punish certain kinds of lies and falsehoods that pose serious threats to public health and safety. To protect the democratic process, the government should be able to regulate other kinds of even nondefamatory falsehoods. The essay draws attention to the sheer diversity of tools available to the government. The government need not censor or punish; it might, for example, require disclosure, labels, or warnings, or some form of choice architecture that reduces the likelihood that falsehoods will spread.

Why people do or do not change their beliefs has been a long-standing puzzle. Sometimes people hold onto false beliefs despite ample contradictory evidence; sometimes they change their beliefs without sufficient reason. Here, we propose that the utility of a belief is derived from the potential outcomes associated with holding it. Outcomes can be internal (e.g., positive/negative feelings) or external (e.g., material gain/loss), and only some are dependent on belief accuracy. Belief change can then be understood as an economic transaction in which the multidimensional utility of the old belief is compared against that of the new belief. Change will occur when potential outcomes alter across attributes, for example because of changing environments or when certain outcomes are made more or less salient.

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”

The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver, at least in the domain of “substantive due process.” With Burkean and Thayerian arguments at work, the Court offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Court’s opinion is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditional or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law. The central weakness of the Dobbs opinion – and plausibly, its fatal flaw – is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.

“Informational cascades” can be key in turning the tide against animal cruelty.

In moral and political philosophy, some people emphasize the importance of searching for “reflective equilibrium,” in which (broadly speaking) general principles align with convictions about particular cases, and vice-versa. There is a close analogue in constitutional law; the search for reflective equilibrium plays a central role. Some theories of constitutional interpretation seem to call for results that are inconsistent with “fixed points” in constitutional law (where “fixed points” are understood as particular holdings, such as Brown v. Board of Education, to which people have exceedingly strong commitments). The risk to fixed points strongly counts against such theories. The reason is that among the reasonable candidates, any theory of interpretation must be defended on the ground that it would make our constitutional order better rather than worse. It follows that if a theory would lead to rejection to fixed points, it has a clear strike against it. Many participants in debates about constitutional theory implicitly agree on this point, and they had better; there is no way to choose a theory of constitutional interpretation that refuses to seek reflective equilibrium, which means that consideration of fixed points is essential.

The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government.

There can be a serious tension between the commitment to cost-benefit analysis and a realistic appreciation of the limits of official knowledge. Without significant efforts to reduce those limits, that analysis might be inadequately informed. Whenever regulators face significant informational deficits, or what is sometimes called “the knowledge problem,” it is important to explore tools that take advantage of what the private sector knows; market-friendly approaches, such as economic incentives, have important advantages on that count. An advanced regulatory system should also try to reduce the knowledge problem through three routes: (1) creative use of notice-and-comment rulemaking; (2) retrospective analysis of regulations and their costs and benefits; and (3) advance testing, as a way of informing ex ante analysis. For the future, the most promising approach is (3).

The draft opinion of Justice Samuel Alito, Jr. in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver. With Burkean and Thayerian arguments at work, the Alito draft offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Alito draft is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, a major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditionalist or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditionalist or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law.

The “supreme law of the land” includes “This Constitution,” and federal officers are “bound, by oath or affirmation, to support this Constitution.” In recent years, some people have argued that these words have strong implications for constitutional interpretation: They require oath-takers to be originalists and perhaps to follow the “original public meaning,” properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: The claim that the term “this Constitution” mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.

When policymakers focus on costs and benefits, they often find that hard questions become easy – as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge. In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. We suggest that in difficult cases in which important information is absent, it is useful for policymakers to consider a concept from poker: “freerolls.” A freeroll exists when choosers can lose nothing from selecting an option but stand to gain something (whose magnitude may itself be unknown). In some cases, people display “freeroll neglect.” In terms of social justice, John Rawls’ defense of the difference principle is grounded in the idea that behind the veil of ignorance, choosers have a freeroll. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll. Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. “Binds” are the mirror image of freerolls; they involve options from which people are guaranteed to lose something (of uncertain magnitude). Some regulatory options are binds, and there are faux binds as well.

In the United States, are administrative agencies illegitimate? A threat to democracy? A threat to liberty? A threat to human welfare? Many people think so, and in important ways, they are surely correct. But an understanding of the actual operation of the administrative state in the United States, seen from the inside, makes it exceedingly difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large and abstract objections from the standpoint of democracy, liberty, and welfare. Indeed, it makes those objections seem coarse and insufficiently uninformed. What is needed is less in the way of arguments from adjectives and nouns, and more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

The red tape we all must deal with is more than an inconvenience. It wastes time, money, and energy and ultimately robs us of our freedom.

In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.”