Faculty Bibliography

Many nudges are designed to make people better off, as judged by themselves. This criterion, meant to ensure that nudges will increase people’s welfare, contains some ambiguity. It is useful to distinguish among three categories of cases: (1) those in which choosers have clear antecedent preferences, and nudges help them to satisfy those preferences (often by increasing “navigability”); (2) those in which choosers face a self-control problem, and nudges help them to overcome that problem; and (3) those in which choosers would be content with the outcomes produced by two or more nudges, or in which ex post preferences are endogenous to nudges, so that without additional clarification or work, the “as judged by themselves” criterion does identify a unique solution for choice architects. Category (1) is self-evidently large. Because many people agree that they suffer self-control problems, category (2) is large as well. Cases that fall in category (3) create special challenges, which may lead us to make direct inquiries into welfare or to explore what informed, active choosers typically select.

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 that usually show majority approval, but markedly reduced approval rates. We offer some speculations about the relationship between approval rates and trust.

With the election of Donald J. Trump, many people on both the left and right feared that America’s 240-year-old grand experiment in democracy was coming to an end, and that Sinclair Lewis’ satirical novel, It Can’t Happen Here, written during the dark days of the 1930s, could finally be coming true. Is the democratic freedom that the United States symbolizes really secure? Can authoritarianism happen in America? Acclaimed legal scholar, Harvard Professor, and New York Times bestselling author Cass R. Sunstein queried a number of the nation’s leading thinkers. In this thought-provoking collection of essays, these distinguished thinkers and theorists explore the lessons of history, how democracies crumble, how propaganda works, and the role of the media, courts, elections, and "fake news" in the modern political landscape—and what the future of the United States may hold.

In recent years, there has been a great deal of discussion of uses of behavioral economics in policy circles, with a focus on empirical, conceptual and ethical questions. On the basis of data from many nations, our forthcoming book asks and answers a question pressing in democratic and nondemocratic nations alike: What do citizens actually think about behaviorally informed policies? (Short answer: They approve of them.) In the process, we ask and answer two other questions as well: Do citizens of different nations have identifiable principles in mind when they approve or disapprove of behaviorally informed polices? (Short answer: Yes.) Do citizens of different nations agree with each other? (Short answer: Mostly yes, but with intriguing qualifications, involving diverging levels of trust and different evaluations of liberty.) This article previews our book, providing new insights into public approval of nudges and similar policies based on behavioral insights.

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.

Chevron v NRDC may well be the most important case in all of administrative law. It establishes a general principle, which is that agencies may interpret ambiguous statutory provisions, so long as their interpretations are reasonable. That principle is now under serious pressure. If the Court abandoned it, how would Chevron itself be decided? There are five possible approaches: (1) textualism; (2) purposivism; (3) resort to canons of construction; (4) use of Skidmore deference; and (5) validation of the agency’s decision, on the ground that no statutory provision prohibited it. In the context of Chevron, (1) and (2) run into serious problems, but (3), (4), and (5) are promising. The discussion suggests some general lessons for statutory interpretation and administrative law, and offers some cautionary notes for those who want to abandon the Chevron framework. Abandoning that framework would introduce high levels of confusion in the lower courts and the Supreme Court itself, and in all probability, the framework that would ultimately replace it would turn out to look a fair bit like that in Chevron itself.

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.

While acknowledging that, on balance, social media can have a positive effect on democracy, the author also examines the other side of the argument, specifically the perils of polarisation. In doing so, he offers a critical view of certain aspects of the policies of social media companies that seek to offer a “personalized experience” which he argues risks keeping users in an “information cocoon”. However, he notes that there are other policies that counter this trend, which instead seek to keep users informed, and which must be pursued in order to ensure that social media is a tool that can make democracy work better.

"[This book presents the author's] new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. [The author] analyzes the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies, calling such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, [the author] goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seem impenetrable, mysterious, baroque. [This book] helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court, ...[the author] moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: to the legislatures elected by the people. In this second edition, the author updates the previous edition bringing the book into the current mainstream of twenty-first century legal reasoning and judicial decision-making focusing on the many relevant contemporary issues and developments that occurred since its initial 1996 publication."-- Provided by publisher.

Understanding factors that influence public support for “nudging” policies, like pictorial cigarette pack warnings, may offer insight about how to increase such support. We sought to examine factors that influence smokers’ support for requiring pictorial warnings on cigarette packs. In 2014 and 2015, we randomly assigned 2149 adult US smokers to receive either pictorial warnings or text-only warnings on their cigarette packs for 4 weeks. The outcome examined in the current study was support for a policy requiring pictorial warnings on cigarette packs in the US. Support for pictorial warnings was high at baseline (mean: 3.2 out of 4). Exposure to pictorial warnings increased policy support at week 4 (β = .05, p = .03). This effect was explained by increases in perceived message effectiveness (p < .001) and reported conversations about policy support (p < .001). Message reactance (i.e., an oppositional reaction to the warning) partially diminished the impact of pictorial warnings on policy support (p < .001). Exposing people to a new policy through implementation could increase public support for that policy by increasing perceived effectiveness and by prompting conversations about the policy. Reactance may partially weaken the effect of policy exposure on public support.

What kinds of radicalism, if any, turn out to be appealing? Do radicals from former eras speak to us – perhaps as cautionary tales, perhaps as models? Jeremy McCarter has written a magnificent book about five young radicals, who did their most important early work about a century ago, when the United States experienced an outpouring of left-wing thought. McCarter’s radicals were idealists, revolutionaries; they thought that society should and could be remade in fundamental ways. They were exploding with energy, humor, and wit. They loved drama, satire, and sex. Some of the largest and most intriguing lessons involve the tensions among the drama-chasing, principle-free, where-the-action-is radicalism of John Reed, who loved the Russian Revolution; the democratic radicalism of Alice Paul, who fought for women’s suffrage and objected to the subordination of women; and the technocratic radicalism of Walter Lippmann, who emphasized the role of “fake news” and the inevitability of epistemic gaps on the part of the citizenry, and who prized knowledge and expertise. Paul and Lippmann emerge as very different heroes of the period.

Social norms have been used to nudge people toward specified outcomes in various domains. But can people be nudged to support, or to reject, proposed government policies? How do people’s views change when they learn that the majority approves of a particular policy, or that the majority opposes it? To answer these questions, we conducted a series of experiments. We find that in important contexts, learning about the majority’s opinion causes a significant shift toward support for or opposition to particular policies. At the same time, we find that when people’s views are fixed and firm, they are unlikely to conform to the majority’s view and that they might even show reactance. We show this pattern of results with respect to people’s support for or opposition to governmental policies in a wide range of substantive areas — and also to the use of paternalistic tools, such as nudges or bans.

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.

Significant social change often comes from the unleashing of hidden preferences; it also comes from the construction of novel preferences. Under the pressure of social norms, people sometimes falsify their preferences. They do not feel free to say or do as they wish. Once norms are weakened or revised, through private efforts or law, it becomes possible to discover preexisting preferences. Because those preferences existed but were concealed, large-scale movements are both possible and exceedingly difficult to predict; they are often startling. But revisions of norms can also construct rather than uncover preferences. Once norms are altered, again through private efforts or law, people come to hold preferences that they did not hold before. Nothing has been unleashed. These points bear on the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity). They also help illuminate the dynamics of social cascades and the effects of social norms on diverse practices and developments, including smoking, drinking, police brutality, protest activity, veganism, drug use, crime, white nationalism, “ethnification,” considerateness, and the public expression of religious beliefs.

The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.

As Benjamin Franklin famously put it, Americans have a republic, if we can keep it. Preserving the Constitution and the democratic system it supports is the public’s responsibility. One route the Constitution provides for discharging that duty—a route rarely traveled—is impeachment. Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings. With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.

The article discusses obesity-related health care costs in America in relation to a debate about whether the U.S. government should allow consumers to purchase sugar-sweetened beverages (SSBs) and other unhealthy food products through food assistance programs such as the Supplemental Nutrition Assistance Program (SNAP) as of 2017. A choice architecture concept involving decision making by consumers is examined, along with supermarkets and American public health.

Some people believe that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges are covert; that nudges are manipulative; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins and cannot accomplish much. These are misconceptions. Nudges always respect, and often promote, human agency; because nudges insist on preserving freedom of choice, they do not put excessive trust in government; nudges are generally transparent rather than covert or forms of manipulation; 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.

During medical visits, the stakes are high for many patients, who are put in a position to make, or to begin to make, important health-related decisions. But in such visits, patients often make cognitive errors. Traditionally, those errors are thought to result from poor communication with physicians; complicated subject matter; and patient anxiety. To date, measures to improve patient understanding and recall have had only modest effects. This paper reviews the current literature on behavioral insights in the patient experience and argues that an understanding of those cognitive errors can be improved by reference to a behavioral science framework, which distinguishes between a "System 1" mindset, in which patients are reliant on intuition and vulnerable to biases and imperfectly reliable heuristics, and a "System 2" mindset, which is reflective, slow, deliberative, and detailed-oriented.

We present the results of a randomized-assignment experiment that shows that patients perform very poorly on the Cognitive Reflection Test and thus are overwhelmingly in a System 1 state prior to a physician visit. Assigning patients the task of completing patient-reported outcomes measures immediately prior to the visit had a small numerical, but not statistically significant, shift towards a reflective frame of mind. We describe hypotheses to explain poor performance by patients, which may be due to anxiety, a bandwidth tax, or a scarcity effect, and outline further direction for study. Understanding the behavioral sources of errors on the part of patients in their interactions with physicians and in their decision-making is necessary to implement measures improve shared decision-making, patient experience, and (perhaps above all) clinical outcomes.

Normal Rationality is a selection of the most important work of Edna Ullmann-Margalit, presenting some influential and widely admired essays alongside some that are not well known. She was an unorthodox and deeply original philosopher whose work illuminated the largest mysteries of human life. Much of her writing focuses on two fundamental questions. (1) How do people proceed when they cannot act on the basis of reasons, or project likely consequences? (2) How is social order possible? Ullmann-Margalit's answers, emphasizing what might be called biased rationality, are important not only for philosophy, but also for political science, psychology, sociology, cognitive science, economics (including behavioral economics), law, and even public policy. Ullmann-Margalit demonstrates that people have identifiable strategies for making difficult decisions, whether the question is small (what to buy at a supermarket) or big (whether to transform one's life in some large-scale way). She also shows that social dilemmas are solved by norms; that invisible-hand explanations take two identifiable (and dramatically different) forms; that trust can emerge in seemingly unpromising situations; and that considerateness is the foundation on which our relationships are organized in both the thin context of the public space and the intimate context of the family. One of the distinguishing features of Ullmann-Margalit's work is its close attention to the details of human experience, and its use of those details to offer fresh understandings of social phenomena. Her essays cast new light on a diverse assortment of problems in philosophy, social science, and individual lives.

In recent years, there has been a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. This essay argues for adoption and implementation of a framework that accommodates those interests—a framework that allows advance notice to political officials, including the White House, without hindering the free flow of scientific information.

Governments are increasingly adopting behavioral science techniques for changing individual behavior in pursuit of policy objectives. The types of “nudge” interventions that governments are now adopting alter people’s decisions without coercion or significant changes to economic incentives. We calculated ratios of impact to cost for nudge interventions and for traditional policy tools, such as tax incentives and other financial inducements, and we found that nudge interventions often compare favorably with traditional interventions. We conclude that nudging is a valuable approach that should be used more often in conjunction with traditional policies, but more calculations are needed to determine the relative effectiveness of nudging.

Human beings are often faced with a pervasive problem: whether to make their own decision or to delegate the decision task 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 participants choose to pay in order to control their own payoff more than they should if they were to maximize monetary rewards and minimize monetary losses. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Nor can the results be explained by lack of information. Rather, the results seem to reflect an intrinsic value for choice, which emerges in the domain of both gains and of losses. Moreover, our data indicate that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.

In recent years, governments have become keenly interested in behavioral science; new findings in psychology and behavioral economics have led to bold initiatives in areas that involve poverty, consumer protection, savings, health, the environment, and much more. Private institutions have used behavioral findings as well. But there is a pervasive and insufficiently explored question: when is it best to ask people to make active choices, and when is it best to use a default rule, which means that people need not make any choice at all? The answer depends on a form of cost–benefit analysis, which means that it is necessary to investigate whether choosing is a burden or a pleasure, whether learning is important, and whether a default rule would satisfy the informed preferences or all of most people.

An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has explicitly authorized them to do so. In so saying, the American nondelegation doctrine promotes the central goals of the standard doctrine, by preventing Congress from shirking and by requiring it to focus its attention on central questions, and also by protecting liberty. The abstract idea of “certain kinds of decisions” is currently filled in by, among other things, the canon of constitutional avoidance; the rule of lenity; and the presumptions against retroactivity and extraterritoriality. More recent nondelegation canons, not yet firmly entrenched, require agencies to consider costs and forbid them from interpreting statutes in a way that produces a large-scale increase in their regulatory authority. The cost-consideration canon makes a great deal of sense, especially as a way of disciplining the modern regulatory state; the “major questions doctrine,” as it is sometimes called, is less obviously correct. and its proper provenance depends on the nature of the relevant statute.

"This Palgrave Pivot offers comprehensive evidence about what people actually think of “nudge” policies designed to steer decision makers’ choices in positive directions. The data reveal that people in diverse nations generally favor nudges by strong majorities, with a preference for educative efforts – such as calorie labels - that equip individuals to make the best decisions for their own lives. On the other hand, there are significant arguments for noneducational nudges – such as automatic enrollment in savings plans - as they allow people to devote their scarce time and attention to their most pressing concerns. The decision to use either educative or noneducative nudges raises fundamental questions about human freedom in both theory and practice. Sunstein's findings and analysis offer lessons for those involved in law and policy who are choosing which method to support as the most effective way to encourage lifestyle changes." -- Palgrave

Many nudges are designed to make people better off, as judged by themselves. This criterion, meant to ensure that nudges will increase people’s welfare, contains some ambiguity. It is useful to distinguish among three categories of cases: (1) those in which choosers have clear antecedent preferences, and nudges help them to satisfy those preferences (often by increasing “navigability”); (2) those in which choosers face a self-control problem, and nudges help them to overcome that problem; and (3) those in which choosers would be content with the outcomes produced by two or more nudges, or in which ex post preferences are endogenous to nudges, so that without additional clarification or work, the “as judged by themselves” criterion does identify a unique solution for choice architects. Category (1) is self-evidently large. Because many people agree that they suffer self-control problems, category (2) is large as well. Cases that fall in category (3) create special challenges, which may lead us to make direct inquiries into welfare or to explore what informed, active choosers typically select.

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.

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.

During medical visits, the stakes are high for many patients, who are put in a position to make, or to begin to make, important health-related decisions. But in such visits, patients often make cognitive errors. Traditionally, those errors are thought to result from poor communication with physicians; complicated subject matter; and patient anxiety. To date, measures to improve patient understanding and recall have had only modest effects. This paper argues that an understanding of those cognitive errors can be improved by reference to a behavioral science framework, which distinguishes between a “System 1” mindset, in which patients are reliant on intuition and vulnerable to biases and imperfectly reliable heuristics, and a “System 2” mindset, which is reflective, slow, deliberative, and detailed-oriented. To support that argument, we present the results of a randomized-assignment experiment that shows that patients perform very poorly on the Cognitive Reflection Test and thus are overwhelmingly in a System 1 state prior to a physician visit. Assigning patients the task of completing patient-reported outcomes measures immediately prior to the visit had a small numerical, but not statistically significant, shift towards a reflective frame of mind. We describe hypotheses to explain poor performance by patients, which may be due to anxiety, a bandwidth tax, or a scarcity effect, and outline further direction for study. Understanding the behavioral sources of errors on the part of patients in their interactions with physicians and in their decision-making is necessary to implement measures improve shared decision-making, patient experience, and (perhaps above all) clinical outcomes.

Motor vehicle fuel-economy standards have long been a cornerstone of U.S. policy to reduce fuel consumption in the light-duty vehicle fleet. In 2011 and 2012 these standards were significantly expanded in an effort to achieve steep reductions in oil demand and greenhouse gas emissions through 2025, consistent with long-term U.S. policy goals. As a policy approach, however, standards that focus on efficiency alone, as opposed to lifetime consumption, impose unnecessarily high costs and do not deliver guaranteed petroleum savings. On the basis of a commitment to cost-benefit analysis, defining U.S. regulatory policy for more than 30 years, we propose a novel policy solution that would implement a cap-and-trade system in transportation. Acknowledging that the very idea of cap and trade has become controversial, we show that this approach would increase the certainty of reductions in fuel consumption in transportation and do so at a far lower cost per gallon avoided. Such an approach is consistent with the regulatory authority existing at key federal agencies.

"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

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.

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.

Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. In the United States, federal 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, conceptual, and empirical objections. Approach (3) will exaggerate what consumers gain, because many people suffer welfare losses when they see labels, whether or not they end up making different choices. (Part of that loss is captured in one reaction to mandatory calorie labels: “They ruined popcorn!”) In principle, approach (4) is usually best, but people may lack the information that would permit them to say how much they would pay for (more) information, and sometimes tastes and values shift over time, which means that willingness to pay may fail to capture welfare effects. These points raise fundamental conceptual, normative, and empirical questions about welfarist approaches to public policy.

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.

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.

It can be paternalistic to force people to choose. Often people do not wish to choose, but both private and public institutions ask or force them to do so, thus overriding their wishes. As a result, people’s autonomy may be badly compromised and their welfare may be greatly reduced. 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 values, and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse). People have limited mental bandwidth, and forcing choices can impose a hedonic or cognitive tax. Sometimes that tax is high.

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.

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.

Some things, people say, are “gone forever.” But what exactly does that mean? Some losses are irreparable in the sense that nothing can be done to restore the status quo ante – or if something can be done, it is not enough (or perhaps outsiders can never know if it is). The Irreversible Harm Precautionary Principle takes the form of an insistence on paying a premium to freeze the status quo and to maintain flexibility for the future, while new information is acquired. In many settings, it makes sense to pay for an option to avoid a risk of irreversible losses. An implicit understanding of option value can be found in the emphasis on irreversibility in National Environmental Policy Act and other federal statutes, along with many international agreements. The idea of irreversibility offers a distinctive perspective on the legal concept of “irreparable harm,” a prerequisite for granting preliminary injunctions. In fact some irreparable harms seem to qualify as such precisely because they are irreversible. We can obtain new insights into the time-honored idea of irreparable harm through the lens of irreversibility, especially in environmental cases but also in many contexts, including freedom of speech, privacy, and discrimination on the basis of race and sex.

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.

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.

Many people insist on drawing a line between active choosing and paternalism, but that line is often illusory. Whenever private or public institutions override people’s desire not to choose, and insist on active choosing, they are likely to be behaving paternalistically, through a kind of choice-requiring paternalism. Active choosing can be seen as 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). This is a distinctive approach – “simplified active choosing” – and in many contexts, it has considerable appeal. By contrast, active choosing is a form of nonlibertarian paternalism insofar as people are required to choose. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, or insist on it, may well be overriding people’s preferences (for better or for worse).

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."