Faculty Bibliography

Informational and reputational cascades often arise in the presence of four factors: (1) preference falsification; (2) diverse thresholds; (3) social interactions; and (4) group polarization. In the context of animal welfare, cascades have often occurred, and more consequential ones are possible. First: In this domain, preference falsification has run and is running rampant. Those who care about animal welfare, or are inclined to want to say or do something about it, often silence themselves. They know that if they speak or act, they might incur social disapproval or worse. Second: People have different thresholds for disclosing their views or for taking action. With respect to animal welfare, some people really will speak out or act, even if no one else does. Others need someone to follow – but only one. Still others need two, or three, or a hundred, or more. Third: Social interactions are and continue to be crucial to the movement for animal welfare. Who is seeing whom? When? Who is talking to whom? Are visible people speaking and acting in ways that support animal welfare? Are they credible? With whom? Fourth: In many times and places, believers in animal rights, animal welfare, or both have created communities of like-minded people. These communities can be highly effective. They create a commitment to a belief that might have been held tentatively. They make that belief salient, potentially part of people’s identity. They increase confidence and unity.

Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously seen as bad or as terrible may come to be seen as fine or mildly bad. Call this “opprobrium contraction.” As behavior in general improves, actions that were previously seen as fine or as mildly bad may come to seem bad or terrible. Call this “opprobrium expansion.” Because law has a signaling function, it can heighten or diminish these phenomena.

Both government regulators and private companies regularly assign a monetary value to human lives. A new book argues that the price is too low, and can entrench inequalities.

The Supreme Court is conspicuously uneasy about its Chevron framework, which requires courts to defer to agency interpretations of law, so long as those interpretations are “reasonable.” One of the principal manifestations of its uneasiness is the “major question” doctrine, which makes Chevron inapplicable to questions of great “economic and political significance.” But the major question doctrine is actually two separate doctrines. The weak version is a kind of “Chevron carve-out,” meant to ensure that courts exercise independent judgment, and so do not defer to agencies, with respect to the meaning of statutes as applied to especially important questions. By contrast, the strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad authority over the private sector. Both versions of the major question doctrine can claim a connection to the nondelegation doctrine. The arguments on behalf of the weak version are very different from the arguments on behalf of the strong version.

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority. The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward.

Imagine that two doctors in the same city give different diagnoses to identical patients — or that two judges in the same courthouse give different sentences to people who have committed the same crime. Suppose that different food inspectors give different ratings to indistinguishable restaurants — or that when a company is handling customer complaints, the resolution depends on who happens to be handling the particular complaint. Now imagine that the same doctor, the same judge, the same inspector, or the same company official makes different decisions, depending on whether it is morning or afternoon, or Monday rather than Wednesday. These are examples of noise: variability in judgments that should be identical. In Noise, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein show how noise helps produce errors in many fields, including medicine, law, public health, economic forecasting, food safety, forensic science, bail, child protection, strategy, performance reviews and and personnel selection. And although noise can be found wherever people make judgments and decisions, individuals and organizations alike commonly ignore to its role in their judgments and in their actions. They show “noise neglect.” With a few simple remedies, people can reduce both noise and bias, and so make far better decisions. Packed with new ideas, and drawing on the same kind of diligent, insightful research that made Thinking, Fast and Slow and Nudge groundbreaking New York Times bestsellers, Noise explains how and why humans are so susceptible to noise in judgment — and what we can do about it.

Psychological research shows that judgment is surprisingly dependent on mood—and that being in a bad one has a silver lining.

The world is increasingly confronted with new challenges related to climate change, globalization, disease, and technology. Governments are faced with having to decide how much risk is worth taking, how much destruction and death can be tolerated, and how much money should be invested in the hopes of avoiding catastrophe. Lacking full information, should decision-makers focus on avoiding the most catastrophic outcomes? When should extreme measures be taken to prevent as much destruction as possible? Averting Catastrophe explores how governments ought to make decisions in times of imminent disaster. Cass R. Sunstein argues that using the “maximin rule,” which calls for choosing the approach that eliminates the worst of the worst-case scenarios, may be necessary when public officials lack important information, and when the worst-case scenario is too disastrous to contemplate. He underscores this argument by emphasizing the reality of “Knightian uncertainty,” found in circumstances in which it is not possible to assign probabilities to various outcomes. Sunstein brings foundational issues in decision theory in close contact with real problems in regulation, law, and daily life, and considers other potential future risks. At once an approachable introduction to decision-theory and a provocative argument for how governments ought to handle risk, Averting Catastrophe offers a definitive path forward in a world rife with uncertainty.

As a rule, regulation is not acquired by “the industry,” and it is not designed and operated primarily for its benefit. The mechanisms behind the promulgation of regulations are multiple, and almost all of the time, it greatly matters whether regulators believe that regulations will, all things considered, have good consequences. In terms of understanding the sources of regulations, it would therefore be valuable to obtain more clarity about the sources of the beliefs of regulators — about what information they receive and find credible, and why.

The American administrative state has become a cost-benefit state, at least in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. Some people celebrate this development; others abhor it. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, pure expressivism, political preferences, or interest-group power. Seen most sympathetically, the focus on costs and benefits is a neo-Benthamite effort to attend to the real-world consequences of regulations, and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond coarse arguments, from both the right and the left, that tend to ask this unhelpful question: “Which side are you on?” In the future, however, there will be much better ways, which we might consider neo-Millian, to identify those consequences: (1) by relying less on unreliable ex ante projections and more on actual evaluations; (2) by focusing directly on welfare and not relying on imperfect proxies; and (3) by attending closely to distributional considerations – on who is helped and who is hurt.

This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.

One of Friedrich Hayek's most important arguments pointed to the epistemic advantages of the price system, regarded as an institution. As Hayek showed, the price system incorporates the information held by numerous, dispersed people. Like John Stuart Mill, Hayek also offered an epistemic argument on behalf of freedom of choice. A contemporary challenge to that epistemic argument comes from behavioral economics, which has uncovered an assortment of reasons why choosers err, and also pointed to possible distortions in the price system. But, even if those findings are accepted, what should public institutions do? How should they proceed? A neo-Hayekian approach would seek to reduce the knowledge problem by asking what individual choosers actually do under epistemically favorable conditions. In practice, that question can be disciplined by asking five subsidiary questions: (1) What do consistent choosers, unaffected by self-evidently irrelevant factors, end up choosing? (2) What do informed choosers choose? (3) What do active choosers choose? (4) When people are free of behavioral biases, including (say) present bias or unrealistic optimism, what do they choose? (5) What do people choose when their viewscreen is broad, and they do not suffer from limited attention? These questions are illustrated with reference to the intense controversy over fuel economy standards.

Increasing the uptake of green energy use by households and businesses is a key step toward reducing environmental harm and combating climate change. In a new paper, Liebe et al.show that a non-monetary intervention can have massive effects on green energy consumption, leading to substantial reductions in carbon emissions.

Many people believe that the Chevron framework, calling for judicial deference to reasonable agency interpretations of ambiguous statutory provisions, is fatally inconsistent with section 706 of the Administrative Procedure Act. An investigation of the historical context shows that this belief is incorrect. There is no indication that the provision was generally understood, in the 1940s and 1950s, to require independent judicial judgments about questions of law.

Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech. To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.

Collected here are nineteen responses to the question, “What 21st-century works will merit a close reading in 2050?” Clarifications of that question are provided in a foreword. This tranche represents responses from authors with last names beginning L through Z. The nineteen responses presented here are from Mitchell Langbert, Andrés Marroquín, Steven G. Medema, Alberto Mingardi, Paul D. Mueller, Stephen R. Munzer, Evan W. Osborne, Justin T. Pickett, Rupert Read and Frank M. Scavelli, Hugh Rockoff, Kurt Schuler, Daniel J. Schwekendiek, Per Skedinger, E. Frank Stephenson, Scott Sumner, Cass R. Sunstein, Slaviša Tasić, Clifford F. Thies, and Richard E. Wagner. Responses from authors A through K were provided in the previous issue of this journal

As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools. In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen (PSA) testing. For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test. More-numerate subjects also seem to become more anxious in response to the risk information.

Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.

Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review — and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes egregiously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s directive authority over the independent agencies.

Robert Shiller argues for the power of stories in shaping economics.

Demand-side policies for mitigating climate change based on behavioral insights are gaining increased attention in research and practice. Here we describe a systematic map that catalogs existing research on behaviorally informed interventions targeting changes in consumer food consumption and food waste behavior. The purpose is to gain an overview of research foci and gaps, providing an evidence base for deeper analysis. In terms of food consumption, we focus on animal protein (meat, fish, dairy, and eggs) and its substitutes. The map follows the standards for evidence synthesis from the Collaboration for Environmental Evidence (CEE) as well as the RepOrting Standards for Systematic Evidence Syntheses (ROSES). We identified 49 articles including 56 separate studies, as well as 18 literature reviews. We find a variety of study designs with a focus on canteen and restaurant studies as well as a steep increase of publications since 2016. We create an interactive evidence atlas that plots these studies across geographical space. Here, we find a concentration of research in the Anglo-Saxon world. Most studies follow multi-intervention designs and focus on actual food consumption behavior, fewer on food waste behavior. We identify knowledge clusters amenable for a systematic review focusing on the effectiveness of these interventions, namely: priming, disclosure, defaults, social norms, micro-environment changes, and ease of use. The systematic map highlights knowledge gaps, where more primary research is needed and evidence cannot support policy; it identifies knowledge clusters, where sufficient studies exist but there is a lack of clarity over effectiveness, and so full synthesis can be conducted rapidly; finally, it reveals patterns in research methods that can highlight best practices and issues with methodology that can support the improvement of primary evidence production and mitigation of research waste. To the best of our knowledge, this is the first systematic study mapping this specific area.

New technology makes it possible to create videos that show a person doing or saying anything the creator wants—and it’s not clear what U.S. law can do about it.

Why are lies wrong? The answer bears on continuing disputes about freedom of speech and the protection of lies and falsehoods. One answer, rooted in the work of Immanuel Kant, sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometimes because they substitute the liar's will for that of the chooser, who has much better information about the chooser's welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Milll's Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court took a highly aggressive approach to restrictions imposed by the state of New York on houses of worship, even though those restrictions were vigorously defended on public health grounds. Because of the serious health effects of the COVID-19 pandemic, and because of the plausibility of a plea for judicial respect for complex choices and tradeoffs by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-Korematsu – that is, as a strong signal of judicial solicitude for constitutional rights, and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line. Roman Catholic Diocese can also and equally be seen as a vindication of Justice Robert Jackson’s argument in Railway Express, in which he called for relatively ready invocation of antidiscrimination principles, as opposed to liberty principles, on the ground that the former, unlike the latter, trigger political safeguards against unjustified actions. Nonetheless, there are two open questions. The first is how to think about claims of discrimination in the context of actual and potentially challenging questions about the appropriate comparator, that is, the institutions that are best seen as comparable to houses of worship, in terms of the health risks that they create. The second is whether Roman Catholic Diocese is genuinely generalizable as an anti-Korematsu, or whether it is best seen as a distinctive product of the contemporary Court’s particular solicitude for religion and religious institutions.

Although there has been a proliferation of research and policy work into how nudges shape people’s behaviour, most studies stop far short of welfare analysis. In the current work, we critically reflect on recent efforts to proxy the welfare impact of nudges using willingness to pay and subjective wellbeing reports and explore an alternative unobtrusive approach: automatic facial expression coding. In an exploratory lab study, we use facial expression coding to assess the short-run emotional impacts of being presented with calorie information about a popcorn snack in the context of a stylized ‘Cinema experience’. The results of the study indicate that calorie information has heterogeneous impacts on people’s likelihood of choosing the snack and on the emotions they experience during the moment of choice which varies based on their level of health consciousness. The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the short-run welfare effects of nudges and calling for further research into this promising technique.

This paper results from the Arthur M. Sackler Colloquium of the National Academy of Sciences, “The Science of Deep Learning,” held March 13–14, 2019, at the National Academy of Sciences in Washington, DC. Preventing discrimination requires that we have means of detecting it, and this can be enormously difficult when human beings are making the underlying decisions. As applied today, algorithms can increase the risk of discrimination. But as we argue here, algorithms by their nature require a far greater level of specificity than is usually possible with human decision making, and this specificity makes it possible to probe aspects of the decision in additional ways. With the right changes to legal and regulatory systems, algorithms can thus potentially make it easier to detect—and hence to help prevent—discrimination.

In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.

Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

Public officials often impose eligibility requirements that have two effects: (1) they screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork of administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: what is the optimal tradeoff between (1) and (2)? It is plausible to think that a great deal depends on numbers. If, for example, the number of ineligible people who are screened out is very large, and if the number of eligible people who are screened out is very small, then there would seem little ground for objection. But if the number of eligible people who are screened out is very large, there is a serious problem, and it might be worthwhile to consider an approach that would not screen out eligible people, even if it would simultaneously fail to screen out, or effectively “screen in,” a small number of ineligible people. We identify competing, plausible positions on the normative question, which we label consequentialist and legalist. We also offer the results of a pilot study, which shows that the overwhelming majority of respondents would favor changes that allow ineligible people to receive benefits, if that is the price of ensuring that eligible people do so as well – unless the number of ineligible recipients is very high. The survey results suggest that most people reject the legalist position and embrace a form of consequentialism.

Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.

One of the most influential storytellers of the last sixty years was the exuberant Stan Lee, who helped create Spider-Man, the Fantastic Four, the Hulk, Daredevil, Iron Man, the Black Panther, and the X-Men. In a short burst of creativity in the early 1960s, Lee created most of his iconic characters, and changed popular culture in the process. This essay, a review of Liel Leibovitz’s Stan Lee: A Life in Comics (2020), explores Lee’s astonishing creativity and distinctiveness, which can be found in a combination of joyful ebullience, capacity to wink, delight in human diversity, wit, commitment to human rights, and understanding of the essentials of the hero’s journey, or the monomyth, as described by Joseph Campbell.

Many Americans fear the power of unelected, unaccountable bureaucrats – the deep state. Cass Sunstein and Adrian Vermeule seek to calm those fears by proposing a moral regime to ensure that government rulemakers behave transparently and don’t abuse their authority. The administrative state may be a Leviathan, but it can be a principled one.

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.

How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.

The 2020 Annual Supplement, like prior Supplements, includes excerpts from recent scholarship and from important new decisions of the Supreme Court. This was a most interesting Term, and several of the new decisions that are covered in the Annual Supplement are listed below. New to the 2020 supplement: Trump v. Vance Espinoza v. Montana June Medical Services v. Russo Seila Law v. CFPB Our Lady of Guadalupe School v. Morissey-Berra Chiafalo v. Washington Little Sisters of the Poor v. Pennsylvania

The present paper focuses on green defaults as demand-side policies supporting the uptake of renewable energy in Germany. It sets out to gain a better understanding of whether and for whom green electricity defaults work. The present study is one of the first to use a large-scale data set to investigate this question. We combine micro-level data from the German Socio-Economic Panel (GSOEP) covering private households (including a wealth of individual information) with macro-level information such as population density of a region and proportion of energy suppliers in a given region that use a green opt-out tariff within their basic supply. We show that in Germany, green defaults, automatically enrolling customers in renewable energy sources, tend to stick, especially but not only among those who are concerned about the problem of climate change. This finding, based on real-world rather than experimental evidence, attests to the power of automatic enrollment in addressing environmental problems in Germany and potentially beyond, including climate change, and also adds to the growing literature on the substantial effects of shifting from opt-in to opt-out strategies.

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.

For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it. In general, the maximin rule is a terrible idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. (1) The worst-cases are very bad, and not improbable, so that it may make sense to eliminate them under conventional cost-benefit analysis. (2) The worst-case outcomes are highly improbable, but they are so bad that even in terms of expected value, it may make sense to eliminate them under conventional cost-benefit analysis. (3) The probability distributions may include “fat tails,” in which very bad outcomes are more probable than merely bad outcomes; it may make sense to eliminate those outcomes for that reason. (4) In circumstances of Knightian uncertainty, where observers (including regulators) cannot assign probabilities to imaginable outcomes, the maximin rule may make sense. (It may be possible to combine (3) and (4).) With respect to (3) and (4), the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. There are also reasons to be cautious about imposing regulation when technology offers the promise of “moonshots,” or “miracles,” offering a low probability or an uncertain probability of extraordinarily high payoffs. Miracles may present a mirror-image of worst-case scenarios.

A growing body of normative work explores whether and how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost–benefit analysis, and regulatory policy. In light of behavioral findings, regulators should adopt a working presumption in favor of respect for people’s self-regarding choices, but only if those choices are adequately informed and sufficiently free from behavioral biases. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well. For example, people might die prematurely or suffer from serious illness, and what they receive in return might not (on any plausible account of welfare) be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.

There has been considerable recent discussion of the social effects of “liberalism,” which are said to include a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.

Many incentives are monetary, and when private or public institutions seek to change behavior, it is natural to change monetary incentives. But many other incentives are a product of social meanings, about which people may not much deliberate, but which can operate as subsidies or as taxes. In some times and places, for example the social meaning of smoking has been positive, increasing the incentive to smoke; in other times and places, it has been negative, and thus served to reduce smoking. With respect to safety and health, social meanings change radically over time, and they can be dramatically different in one place from what they are in another. Often people live in accordance with meanings that they deplore, or at least wish were otherwise. But it is exceptionally difficult for individuals to alter meanings on their own. Alteration of meanings can come from law, which may, through a mandate, transform the meaning of action into a bland, “I comply with law,” or into a less bland, “I am a good citizen.” Alteration of social meanings can also come from large-scale private action, engineered or promoted by “meaning entrepreneurs,” who can turn the meaning of action from, “I am an oddball,” to, “I do my civic duty,” or, “I protect others from harm.” Sometimes subgroups rebel against new or altered meanings, produced by law or meaning entrepreneurs, but often those meanings stick and produce significant change.