Faculty Bibliography

In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.

Many people have insisted on an opposition between active choosing and paternalism, and in some cases, they are right to do so. But in many contexts, the opposition is illusory, because people do not want to choose actively. Nanny states forbid people from choosing, but they also forbid people from choosing not to choose. If and to the extent that health insurers, employers, hospitals and doctors forbid that choice, they are acting paternalistically, and that particular form of paternalism might be unjustified. It is true that active choosing has a central place in a free society, and it needs to play a large role in the health care system. But for those involved in that system, as for everyone else, the same concerns that motivate objections to paternalism in general can be applied to paternalistic interferences with people’s choice not to choose. These points have implications for health insurance, for food safety, for wellness programs, and for the idea of "patient autonomy."

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, the dominant contemporary test involves clear and present danger. Regulators cannot act on the ground that the benefits justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve cost-benefit analysis, as indeed both Judge Learned Hand and the Supreme Court insisted that it should in the early 1950s. An initial explanation points to the difficulty of quantifying both costs and benefits in the context of speech. That is indeed a serious challenge, but it does not justify the clear and present danger test, because some form of cost-benefit balancing is possible on a more informal, intuitive basis. A second and more plausible explanation points to the serious risk of institutional bias in any assessment of both costs and benefits of speech. This explanation has considerable force, but it depends on questionable assumptions, because institutional safeguards could be introduced to increase accuracy and to reduce any such bias. The third and best justification of the clear and present danger test is that in practice, it does not impose high costs, because the speech that ends up being immunized from regulation has not, in practice, turned out to be harmful. On this view, the benefits of the clear and present danger test turn out to justify its costs. From 1960 or until 2001, this assessment was probably correct for the United States, and it may continue to be correct; but the problem of terrorism, and of recruitment to commit terrorist acts, raises legitimate questions about whether the assumptions on which it rests are correct today.

"Proponents of ‘nudge theory’ argue that, because of our human susceptibility to an array of biases, we often make subprime choices and decisions that make us poorer, less healthy, and more miserable than we might otherwise be. However, using behavioural economics—and insights from other disciplines—they suggest that apparently small and subtle solutions (or ‘nudges’) can lead to disproportionately beneficial outcomes without unduly restricting our freedom of choice. Indeed, the apparently virtuous—and cost-effective—possibilities of nudge theory has led to its enthusiastic adoption by adherents in the highest echelons of government and business, and ‘nudge units’ (such as the Behavioural Insights Team in the British Cabinet Office) have been established in the UK, the United States, and Australia. While far from uncontroversial (some critics have questioned its ethical implications and dismissed many of its practical applications as short-term, politically motivated initiatives based on flimsy evidence), in recent years there has been an astonishing growth in scholarly output about and around the economics of nudge. And now, while the hybrid field continues to flourish, Routledge announces a new four-volume collection to provide users with a much-needed compendium of foundational and the very best cutting-edge scholarship. The collection is co-edited by Cass R. Sunstein (Robert Walmsley University Professor at Harvard), the co-author (with Richard Thaler) of the pioneering Nudge: Improving Decisions About Health, Wealth, and Happiness (2008), and Lucia Reisch of the Copenhagen Business School. The Economics of Nudge is fully indexed and has a comprehensive introduction, newly written by the editors, which places the collected material in its historical and intellectual context. It is an essential work of reference and is destined to be valued by scholars, students, and policymakers as a vital resource." --Publisher

Wholesale prices for electricity vary significantly due to high fluctuations and low elasticity in short-run demand. End-use customers have typically paid flat retail rates for their electricity consumption, and time-varying prices have been proposed to help reduce peak consumption and lower the overall cost of servicing demand. Unfortunately, the general practice is an opt-in system: a default rule in favor of time-varying prices would be far better. A behaviorally informed analysis also shows that when transaction costs and decision biases are taken into account, the most cost-reflective policies are not necessarily the most efficient. On reasonable assumptions, real-time prices can result in less peak conservation of manually controlled devices than time-of-use or critical-peak prices. For that reason, the trade-offs between engaging automated and manually controlled loads must be carefully considered in time-varying rate design. The rate type and accompanying program details should be designed with the behavioral biases of consumers in mind, while minimizing price distortions for automated devices.

In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring choice-preserving approaches, or “nudges,” informed by behavioral science and with the purpose of promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that in important contexts, majorities do indeed prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then large numbers of them will move in its direction. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings, and an accompanying normative analysis, offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.

Government can be transparent about its “outputs”: its regulations and its policies, its findings about air and water quality, its analysis of costs and benefits, its assessment of the risks associated with cigarette smoking, distracted driving, infectious diseases, and silica in the workplace. It can also be transparent about its “inputs”: about who, within government, said what to whom, and when, and why. The argument for output transparency is often very strong, because members of the public can receive information that can help them in their daily lives, and because output transparency can improve the performance of both public and private institutions. Where the public stands to benefit, government should be disclosing outputs even without a formal request under the Freedom of Information Act. In fact it should be doing that far more than it now does. The argument for input transparency is different and often weaker, because the benefits of disclosure can be low and the costs can be high. There is good reason for a large increase in output transparency -- and for caution about input transparency.

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.

Star Wars and Harry Potter would have been hits in any era.

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.

Do echo chambers actually exist on social media? By focusing on how both Italian and US Facebook users relate to two distinct narratives (involving conspiracy theories and science), we offer quantitative evidence that they do. The explanation involves users’ tendency to promote their favored narratives and hence to form polarized groups. Confirmation bias helps to account for users’ decisions about whether to spread content, thus creating informational cascades within identifiable communities. At the same time, aggregation of favored information within those communities reinforces selective exposure and group polarization. We provide empirical evidence that because they focus on their preferred narratives, users tend to assimilate only confirming claims and to ignore apparent refutations.

How can we measure whether national institutions in general, and regulatory institutions in particular, are dysfunctional? A central question is whether they are helping a nation’s citizens to live good lives. A full answer to that question would require a great deal of philosophical work, but it should be possible to achieve an incompletely theorized agreement on a kind of nonsectarian welfarism, emphasizing the importance of five variables: subjective well-being, longevity, health, educational attainment, and per capita income. In principle, it would be valuable to identify the effects of new initiatives (including regulations) on all of these variables. In practice, it is not feasible to do so; assessments of subjective well-being present particular challenges. In their ideal form, Regulatory Impact Statements should be seen as Nonsectarian Welfare Statements, seeking to identify the consequences of regulatory initiatives for various components of welfare. So understood, they provide reasonable measures of regulatory success or failure, and hence a plausible test of dysfunction. There is a pressing need for improved evaluations, including both randomized controlled trials and ex post assessments.

If policymakers could measure the actual welfare effects of regulations, and if they had a properly capacious sense of welfare, they would not need to resort to cost-benefit analysis, which gives undue weight to some values and insufficient weight to others. Surveys of self-reported well-being provide valuable information, but it is not yet possible to “map” regulatory consequences onto well-being scales. It follows that at the present time, self-reported well-being cannot be used to assess the welfare effects of regulations. Nonetheless, greatly improved understandings are inevitable, and current findings with respect to reported well-being – above all the serious adverse effects of unemployment – deserve to play a role in regulatory policymaking.

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Both marketers and politicians are often accused of “manipulation”, but the term is far from self-defining. A statement or action can be said to be manipulative if it does not sufficiently engage or appeal to people’s capacity for reflective and deliberative choice. One problem with manipulation, thus understood, is that it fails to respect people’s autonomy and is an affront to their dignity. Another problem is that if they are products of manipulation, people’s choices might fail to promote their own welfare, and might instead promote the welfare of the manipulator. To that extent, the central objection to manipulation is rooted in a version of John Stuart Mill’s Harm Principle: People know what is in their best interests and should have a (manipulationfree) opportunity to make that decision. On welfarist grounds, the norm against manipulation can be seen as a kind of heuristic, one that generally works well, but that can also lead to serious errors, at least when the manipulator is both informed and genuinely interested in the welfare of the chooser. For politics and law, a pervasive puzzle is why manipulation is rarely policed. The simplest answer is that manipulation has so many shades, and in a social order that values-free markets and consumer sovereignty, it is exceptionally difficult to regulate manipulation as such. Those who sell products are often engaged in at least arguable forms of manipulation. But as the manipulator’s motives become more self-interested or venal, and as efforts to bypass people’s deliberative capacities become more successful, the ethical objections to manipulation may be very forceful, and the argument for a legal response is fortified. The analysis of manipulation bears on emerging free speech issues raised by compelled disclosure, especially in the context of graphic health warnings. It can also help orient the regulation of financial products, where manipulation of consumer choices is an evident but rarely explicit concern.

This essay responds to seven commentaries on my forthcoming essay, Fifty Shades of Manipulation. It offers two general points. The first involves the importance of separating three questions: (1) What is manipulation? (2) What is wrong with manipulation? (3) When might manipulation be justified, notwithstanding the answer to (2)? The second involves the relevance of dignity. We might see dignity as a component of welfare, or we might see it as a wholly independent value. But we will not understand manipulation, or what is wrong with it, if we do not see it at all.

In recent years, there has been a great deal of debate about the ethical questions associated with "nudges," understood as approaches that steer people in certain directions while maintaining their freedom of choice. Evidence about people's views cannot resolve the ethical questions, but in democratic societies (and nondemocratic ones as well), those views will inevitably affect what public officials are willing to do. Existing evidence, including a nationally representative survey, supports six general conclusions. First, there is widespread support for nudges of the kind that democratic societies have adopted or seriously considered in the recent past; surprisingly, that support can be found across partisan lines. While people tend to have serious objections to mandates as such, they do not have similar objections to nudges. Second, the support drops when people suspect the motivations of those who are engaged in nudging and when they fear that because of inertia and inattention, citizens might end up with outcomes that are inconsistent with their interests or their values. Third, there appears to be somewhat greater support for nudges that appeal to conscious, deliberative thinking than for nudges that affect subconscious or unconscious processing though this conclusion is highly qualified, and there can be widespread approval of the latter as well (especially if they are meant to combat self-control problems). Fourth, people's assessment of nudges in general will be greatly affected by the political valence of the particular nudges that they have in mind (or that are brought to their minds). Fifth, transparency about nudging will not, in general, reduce the effectiveness of nudges, because most nudges are already transparent and because people will not, in general, rebel against nudges. Sixth, there is preliminary but suggestive evidence of potential "reactance" against certain nudges.

Human beings are often faced with a pervasive problem: whether to make their own decisions or to delegate decision tasks to someone else. Here, we test whether people are inclined to forgo monetary rewards in order to retain agency when faced with choices that could lead to losses and gains. In a simple choice task, we show that even though participants have all the information needed to maximize rewards and minimize losses, they choose to pay in order to control their own payoff. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Rather, the results reflect an intrinsic value for choice, which emerges in the domain of both gains and losses. Moreover, our data indicates that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.

Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.

Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale. Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale.

Careful attention to choice architecture promises to open up new possibilities for environmental protection – possibilities that go well beyond, and that may be more effective than, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between environmentally-friendly products or services and alternatives that are potentially damaging to the environment but less expensive? The answer may well depend on the default rule. Indeed, green default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, green defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. Such defaults may or may not be more expensive to consumers. In deciding whether to establish green defaults, choice architects should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of green defaults, particularly when both economic and environmental considerations point in their direction. But when choice architects lack relevant information, when interest-group maneuvering is a potential problem, and when externalities are not likely to be significant, active choosing, perhaps accompanied by various influences (including provision of relevant information), will usually be preferable to a green default.

Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single authored works, and even more in multi-authored ones extending over time. Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.

Many officials have been considering whether it is possible or desirable to use choice architecture to increase use of environmentally friendly (“green”) products and activities. The right approach could produce significant environmental benefits, including large reductions in greenhouse gas emissions and better air quality. This Article presents new data from an online experiment (N=1,245) in which participants were asked questions about hypothetical green energy programs. The central finding is that active choosing had larger effects than green energy defaults (automatic enrollment in green energy), apparently because of the interaction between people’s feelings of guilt and their feelings of reactance. This finding is driven principally by the fact that when green energy costs more, there is a significant increase in opt-outs from green defaults, whereas with active choosing, green energy retains considerable appeal even when it costs more. More specifically, we report four principal findings. First, forcing participants to make an active choice between a green energy provider and a standard energy provider led to higher enrollment in the green program than did either green energy defaults or standard energy defaults. Second, active choosing caused participants to feel more guilty about not enrolling in the green energy program than did either green energy defaults or standard energy defaults; the level of guilt was positively related to the probability of enrolling. Third, respondents were less likely to approve of the green energy default than of the standard energy default, but only when green energy cost extra, which suggests reactance towards green defaults when enrollment means additional private costs. Fourth, respondents appeared to have inferred that green energy automatically would come at a higher cost and/or be of worse quality than less environmentally friendly energy. These findings raise important questions both for future research and for policymaking. If they reflect real-world behavior, they suggest the potentially large effects of active choosing — perhaps larger, in some cases, than those of green energy defaults.

Historical explanations are a form of counterfactual history. To offer an explanation of what happened, historians have to identify causes, and whenever they identify causes, they immediately conjure up a counterfactual history, a parallel world. No one doubts that there is a great deal of distance between science fiction novelists and the world’s great historians, but along an important dimension, they are playing the same game.

Findings in behavioral science, including psychology, have influenced policies and reforms in many nations. Choice architecture can affect outcomes even if material incentives are not involved. In some contexts, default rules, simplification, and social norms have had even larger effects than significant economic incentives. Psychological research is helping to inform initiatives in savings, finance, highway safety, consumer protection, energy, climate change, obesity, education, poverty, development, crime, corruption, health, and the environment. No nation has yet created a council of psychological advisers, but the role of behavioral research in policy domains is likely to grow in the coming years, especially in light of the mounting interest in promoting ease and simplification (“navigability”); in increasing effectiveness, economic growth, and competitiveness; and in providing low-cost, choice-preserving approaches.

In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.

The article discusses the principle of the malevolent hiding hand and the planning fallacy writ large. Particular focus is given on economist Albert O. Hirschman's ideas on social-scientific laws. Hirchman believes that social planners tend to be unrealistically optimistic, particularly in underdeveloped nations. He adds that their neglect of bad surprises is countered by a much happier surprise. He also believes that the hiding hand provides a spur and a remedy in the form of mechanism that makes the risk-averter take risks.

Review of The Witch of Lime Street: Seance, Seduction, and Houdini in the Spirit World by David Jaher (2015).

In recent years, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.

Review of Phishing for Phools: The Economics of Manipulation and Deception, edited by George A. Akerlof and Robert J. Shiller (2015).

"Since America's founding, hundreds of U.S. Supreme Court Justices have issued a vast number of decisions on a staggeringly wide variety of subjects. Yet as the eminent legal scholar, Cass R. Sunstein shows, constitutional law is dominated by a mere quartet of character types, regardless of ideology : the hero, the soldier, the minimalist, and the mute."--Jacket flap.

Many institutions, large or small, make their decisions through some process of deliberation. Nonetheless, deliberating institutions often fail, in the sense that they make judgments that are false or that fail to take advantage of the information that their members have. Micro mistakes can lead to macro blunders or even catastrophes. There are four such failures; all of them have implication for large-scale institutions as well as small ones. (1) Sometimes the predeliberation errors of an institution’s members are amplified, not merely propagated, as a result of deliberation. (2) Institutions fall victim to cascade effects, as the initial speakers or actors are followed by their successors, who do not disclose what they know. Nondisclosure, on the part of those successors, may be a product of either informational or reputational cascades. (3) As a result of group polarization, deliberating institutions sometimes end up in a more extreme position in line with their predeliberation tendencies. Sometimes group polarization leads in desirable directions, but there is no assurance to this effect. (4) In deliberating institutions, shared information often dominates or crowds out unshared information, ensuring that institutions do not learn what their members know. Informational signals and reputational pressure help to explain all four errors. The results can be harmful to numerous institutions, including large ones, and to societies as a whole. Markets are able to correct some of these problems, but cascade effects occur there as well.

Some people believe that nudges undermine human agency, but with appropriate nudges, neither agency nor consumer freedom is at risk. On the contrary, nudges can promote both goals. In some contexts, they are indispensable. There is no opposition between education on the one hand and nudges on the other. Many nudges are educative. Even when they are not, they can complement, and not displace, consumer education.

This essay has three general themes. The first involves the claim that nudging threatens human agency. My basic response is that human agency is fully retained (because nudges do not compromise freedom of choice) and that agency is always exercised in the context of some kind of choice architecture. The second theme involves the importance of having a sufficiently capacious sense of the category of nudges, and a full appreciation of the differences among them. Some nudges either enlist or combat behavioral biases but others do not, and even among those that do enlist or combat such biases, there are significant differences. The third general theme is the need to bring various concerns (including ethical ones) in close contact with particular examples. A legitimate point about default rules may not apply to warnings or reminders. An ethical objection to the use of social norms may not apply to information disclosure. Here as elsewhere, abstraction can be a trap. We continue to learn about the relevant ethical issues, about likely public reactions to nudging, and about differences across cultures and nations. Future progress will depend on a high level of concreteness, perhaps especially in dealing with the vexing problem of time-inconsistency.

But it can be done without humiliating people.

From the streets of Hong Kong to Ferguson, Missouri, civil disobedience has again become newsworthy. What explains the prevalence and extremity of acts of civil disobedience? This paper presents a model in which protest planners choose the nature of the disturbance hoping to influence voters (or other decision-makers in less democratic regimes) both through the size of the unrest and by generating a response. The model suggests that protesters will either choose a mild “epsilon” protest, such as a peaceful march, which serves mainly to signal the size of the disgruntled population, or a “sweet spot” protest, which is painful enough to generate a response but not painful enough so that an aggressive response is universally applauded. Since non-epsilon protests serve primarily to signal the leaders’ type, they will occur either when protesters have private information about the leader’s type or when the distribution of voters’ preferences are convex in a way that leads the revelation of uncertainty to increase the probability of regime change. The requirements needed for rational civil disobedience seem not to hold in many world settings, and so we explore ways in which bounded rationality by protesters, voters, and incumbent leaders can also explain civil disobedience.