Cass R. Sunstein

Robert Walmsley University Professor

Biography

Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Mr. Sunstein has testified before congressional committees on many subjects, and he has been involved in constitution-making and law reform activities in a number of nations.

Mr. Sunstein is author of many articles and books, including Republic.com (2001), Risk and Reason (2002), Why Societies Need Dissent (2003), The Second Bill of Rights (2004), Laws of Fear: Beyond the Precautionary Principle (2005), Worst-Case Scenarios (2001), Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013) and most recently Why Nudge? (2014) and Conspiracy Theories and Other Dangerous Ideas (2014). He is now working on group decisionmaking and various projects on the idea of liberty

Areas of Interest

Cass R. Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
,
Legal Ethics
Type: Book
Abstract
"In recent years, 'nudge units' or 'behavioral insights teams' have been created in the United States, the United Kingdom, Germany, and other nations. All over the world, public officials are using the behavioral sciences to protect the environment, promote employment and economic growth, reduce poverty, and increase national security. In this book, Cass R. Sunstein, the eminent legal scholar and best-selling co-author of Nudge (2008), breaks new ground with a deep yet highly readable investigation into the ethical issues surrounding nudges, choice architecture, and mandates, addressing such issues as welfare, autonomy, self-government, dignity, manipulation, and the constraints and responsibilities of an ethical state. Complementing the ethical discussion, The Ethics of Influence: Government in the Age of Behavioral Science contains a wealth of new data on people's attitudes towards a broad range of nudges, choice architecture, and mandates." --Publisher
Cass R. Sunstein, The World According to Star Wars (Harper Collins 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Humanities
Type: Book
Abstract
"In this fun, erudite, and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings. Sunstein tells the story of the films’ wildly unanticipated success and explores why some things succeed while others fail. Ultimately, Sunstein argues, Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down. Written with buoyant prose and considerable heart, The World According to Star Wars shines a bright new light on the most beloved story of our time."--Adapted from dust jacket.
Cass R. Sunstein & Richard H. Thaler, Nudge: Improving Decisions About Health, Wealth, and Happiness (Yale Univ. Press 2008).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Cass R. Sunstein, The Cost-Benefit Revolution (MIT Press 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Executive Office
Type: Book
Abstract
Opinions on government policies vary widely. Some people feel passionately about the child obesity epidemic and support government regulation of sugary drinks. Others argue that people should be able to eat and drink whatever they like. Some people are alarmed about climate change and favor aggressive government intervention. Others don't feel the need for any sort of climate regulation. In The Cost-Benefit Revolution, Cass Sunstein argues our major disagreements really involve facts, not values. It follows that government policy should not be based on public opinion, intuitions, or pressure from interest groups, but on numbers―meaning careful consideration of costs and benefits. Will a policy save one life, or one thousand lives? Will it impose costs on consumers, and if so, will the costs be high or negligible? Will it hurt workers and small businesses, and, if so, precisely how much? As the Obama administration's "regulatory czar," Sunstein knows his subject in both theory and practice. Drawing on behavioral economics and his well-known emphasis on "nudging," he celebrates the cost-benefit revolution in policy making, tracing its defining moments in the Reagan, Clinton, and Obama administrations (and pondering its uncertain future in the Trump administration). He acknowledges that public officials often lack information about costs and benefits, and outlines state-of-the-art techniques for acquiring that information. Policies should make people's lives better. Quantitative cost-benefit analysis, Sunstein argues, is the best available method for making this happen―even if, in the future, new measures of human well-being, also explored in this book, may be better still.
Cass R. Sunstein, It Can Happen Here, N.Y. Rev. Books, June 28, 2018, at 64 (reviewing Milton Mayer, They Thought They Were Free: The Germans, 1933-45 (2017) & Konrad H. Jarausch, Broken Lives: How Ordinary Germans Experienced the Twentieth Century (2018)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
Sanjit Dhami, Ali al-Nowaihi & Cass R. Sunstein, Heuristics and Public Policy: Decision Making Under Bounded Rationality (June 19, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
How do human beings make decisions when, as the evidence indicates, the assumptions of the Bayesian rationality approach in economics do not hold? Do human beings optimize, or can they? Several decades of research have shown that people possess a toolkit of heuristics to make decisions under certainty, risk, subjective uncertainty, and true uncertainty (or Knightian uncertainty). We outline recent advances in knowledge about the use of heuristics and departures from Bayesian rationality, with particular emphasis on growing formalization of those departures, which add necessary precision. We also explore the relationship between bounded rationality and libertarian paternalism, or nudges, and show that some recent objections, founded on psychological work on the usefulness of certain heuristics, are based on serious misunderstandings.
Cass R. Sunstein, Originalism, 93 Notre Dame L. Rev. 1671 (2018).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Executive Office
,
Politics & Political Theory
,
Congress & Legislation
,
Supreme Court of the United States
Type: Article
Abstract
Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory – for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.
Cass R. Sunstein, The Welfare Effects of Information (June 10, 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “break-even 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 objections. With respect to (4), people may lack the information that would permit them to say how much they would pay for (more) information; they may not know the welfare effects of information; and their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.
Cass R. Sunstein, Willingness to Pay to Use Facebook, Twitter, YouTube, Instagram, Snapchat, and More: A National Survey (June 7, 2018).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Other
Abstract
There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, Youtube, and Instagram), found a massive disparity between willingness to pay and willingness to accept. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Cass R. Sunstein, Lucia A. Reisch & Micha Kaiser, Trusting Nudges? Lessons from an International Survey (June 4, 2018).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Comparative Law
Type: Other
Abstract
In the past decade, policymakers have increasingly used behaviourally informed policies, including “nudges,” to produce desirable social outcomes. But do people actually endorse those policies? This study reports on nationally representative surveys in five countries (Belgium, Denmark, Germany, South Korea, and the US) carried out in 2018. We investigate whether people in these countries approve of a list of 15 nudges regarding health, the environment, and safety issues. A particular focus is whether trust in public institutions is a potential mediator of approval. The study confirms this correlation. We also find strong majority support of all nudges in the five countries. Our findings in general, and about trust in particular, suggest the importance not only of ensuring that behaviourally informed policies are effective, but also of developing them transparently and openly, and with an opportunity for members of the public to engage and to express their concerns.
Cass R. Sunstein, Freedom: The Holberg Lecture, 2018 (June 2, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
If people have freedom of choice, do their lives go better? Under what conditions? By what criteria? Consider three distinct problems. (1) In countless situations, human beings face a serious problem of “navigability”; they do not know how to get to their preferred destination, whether the issue involves health, education, employment, or well-being in general. This problem is especially challenging for people who live under conditions of severe deprivation, but it can be significant for all of us. (2) Many of us face problems of self-control, and our decisions today endanger our own future. What we want, right now, hurts us, next year. (3) In some cases, we would actually be happy or well-off with two or more different outcomes, whether the issue involves our jobs, our diets, our city, or even our friends and partners, and the real question, on which good answers are increasingly available, is what most promotes our welfare. The evaluative problem, in such cases, is especially challenging if a decision would alter people’s identity, values, or character. Private and public institutions -- including small companies, large companies, governments – can help people to have better lives, given (1), (2), and (3). This Essay, the text of the Holberg Lecture 2018, is the basis for a different, thicker, and more elaborate treatment in a book, On Freedom (forthcoming, Princeton University Press, 2019).
Tali Sharot & Cass R. Sunstein, Is Your Doctor a Republican?, N.Y. Times, May 27, 2018, SR, at 6.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: News
Cass R. Sunstein, How Much Would You Pay to Use Facebook? A Behavioral Perspective (May 21, 2018).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Other
Abstract
There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A pilot experiment, designed to monetize the benefits of Facebook use, found a massive disparity between willingness to pay and willingness to accept. The median willingness to pay to use Facebook for a month was $1. By contrast, the median willingness to accept to cease using Facebook for a month was $59. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of Facebook on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Cass Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924 (2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.
Joseph Marks, Eloise Copland, Eleanor Loh, Cass R. Sunstein & Tali Sharot, Epistemic Spillovers: Learning Others’ Political Views Reduces the Ability to Assess and Use Their Expertise in Nonpolitical Domains (Apr. 13, 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: Article
Abstract
On political questions, many people are especially likely to consult and learn from those whose political views are similar to their own, thus creating a risk of echo chambers or information cocoons. Here, we test whether the tendency to prefer knowledge from the politically like-minded generalizes to domains that have nothing to do with politics, even when evidence indicates that person is less skilled in that domain than someone with dissimilar political views. Participants had multiple opportunities to learn about others’ (1) political opinions and (2) ability to categorize geometric shapes. They then decided to whom to turn for advice when solving an incentivized shape categorization task. We find that participants falsely concluded that politically like-minded others were better at categorizing shapes and thus chose to hear from them. Participants were also more influenced by politically like-minded others, even when they had good reason not to be. The results demonstrate that knowing about others’ political views interferes with the ability to learn about their competency in unrelated tasks, leading to suboptimal information-seeking decisions and errors in judgement. Our findings have implications for political polarization and social learning in the midst of political divisions.
Cass R. Sunstein, On Preferring A to B, While Also Preferring B to A (Mar. 21, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In important contexts, people prefer option A to option B when they evaluate the two separately, but prefer option B to option A when they evaluate the two jointly. In consumer behavior, politics, and law, such preference reversals are often a product of the pervasive problem of "evaluability." Some important characteristics of options are difficult or impossible to assess in separate evaluation, and hence choosers disregard or downplay them; those characteristics are much easier to assess in joint evaluation, where they might be decisive. But the empirical findings do not resolve central questions: Is either mode of evaluation reliable? Which mode of evaluation is better? Some people insist that joint evaluation is more reliable than separate evaluation, because it offers more information. But that conclusion is far too simple. In joint evaluation, certain characteristics of options may receive excessive weight, because they do not much affect people's actual experience or because the particular contrast between joint options distorts people’s judgments. In joint as well as separate evaluation, people are subject to manipulation, though for different reasons. It follows that neither mode of evaluation is reliable. The appropriate approach will vary depending on the goal of the task – increasing consumer welfare, preventing discrimination, achieving optimal deterrence, or something else. Under appropriate circumstances, global evaluation would be much better, but it is often not feasible. These conclusions bear on preference reversals in law and policy, where joint evaluation is often better, but where separate evaluation might ensure that certain characteristics or features of situations do not receive excessive weight.
David M. J. Lazer, Matthew A. Baum, Yochai Benkler, Adam J. Berinsky, Kelly M. Greenhill, Filippo Menczer, Miriam J. Metzger, Brendan Nyhan, Gordon Pennycook, David Rothschild, Michael Schudson, Steven A. Sloman, Cass R. Sunstein, Emily A. Thorson, Duncan J. Watts & Jonathan L. Zittrain, The Science of Fake News, Science, Mar. 9, 2018, at 1094.
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Elections & Voting
,
Communications Law
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
The rise of fake news highlights the erosion of long-standing institutional bulwarks against misinformation in the internet age. Concern over the problem is global. However, much remains unknown regarding the vulnerabilities of individuals, institutions, and society to manipulations by malicious actors. A new system of safeguards is needed. Below, we discuss extant social and computer science research regarding belief in fake news and the mechanisms by which it spreads. Fake news has a long history, but we focus on unanswered scientific questions raised by the proliferation of its most recent, politically oriented incarnation. Beyond selected references in the text, suggested further reading can be found in the supplementary materials.
Cass R. Sunstein, Lessons from the American Founding, in Can It Happen Here?: Authoritarianism in America 57 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Politics & Political Theory
,
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Separation of Powers
Type: Book
Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, A World-Wide Consensus on Nudging? Not Quite, But Almost, 12 Reg. & Governance 3 (2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations that usually show majority approval, but markedly reduced approval rates. We offer some speculations about the relationship between approval rates and trust.
Cass R. Sunstein, “Better Off, as Judged by Themselves”: A Comment on Evaluating Nudges, 65 Int’l Rev. Econ. 1 (2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
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.
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures, Behavioural Pub. Pol'y (Feb. 15, 2018).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.
Can It Happen Here?: Authoritarianism in America (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
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.
Cäzilia Loibl, Cass R. Sunstein, Julius Rauber & Lucia A. Reisch, Which Europeans Like Nudges? Approval and Controversy in Four European Countries, J. Consumer Aff. (forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
European Law
Type: Article
Abstract
Policy-makers show an increasing interest in “nudges” – behaviorally motivated interventions that steer people in certain directions but maintain freedom of consumer choice. Despite this interest, little evidence has surfaced about which population groups support nudges and nudging. We report the results of nationally representative surveys in Denmark, Hungary, Italy, and the United Kingdom. Individual, household and geographic characteristics served as predictors of nudge approval, and the count of significant predictors as measures of controversy. Less high approval rates of nudges in Denmark and Hungary were reflected in higher controversy about “System 1” nudges, whereas the United Kingdom and Italy were marked by higher controversy about “System 2” nudges, despite high approval rates. High-controversy nudges tended to be associated with current public policy concerns, for example, meat consumption. The results point to means for effective targeting, and increase knowledge about the types of nudges likely to obtain public support.
Cass R. Sunstein & Lucia A. Reisch, Behavioral Economics and Public Opinion, 53 Intereconomics 5 (2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
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.
Cass R. Sunstein, ‘They Ruined Popcorn’: On the Costs and Benefits of Mandatory Labels, in Law & Marketing (Jacob Gersen & Joel Steckel eds., forthcoming 2018).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
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.
Cass R. Sunstein, Changing Climate Change, 2009-2016 42 Harv. Envtl. L. Rev. 231 (2018).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Abstract
In 2009, the Obama Administration entered office in the midst of a serious economic recession. Nonetheless, one of its priorities was to address the problem of climate change. It ultimately did a great deal -- producing, with the aid of market forces, significant reductions in greenhouse gas emissions, which ultimately helped make an international agreement possible. This essay offers a preliminary account of some of the central domestic reforms, including the “endangerment finding”; the selection of a social cost of carbon; fuel economy regulations for motor vehicles; controls on new and existing power plants; and energy efficiency regulations. At various points, potentially challenging issues of law and policy are identified, and different imaginable paths are specified. The essay can be taken as an account of the extent to which the executive branch, relying on pre-existing regulatory authorities, can accomplish a great deal in an area in which the national legislature is blocked. To that extent, the climate change initiatives offer an illuminating case study in the contemporary operation of the system of separation of powers. There is a brief discussion of whether the reforms are likely to prove enduring. Appendices offer an assortment of tables on relevant costs and benefits.
Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet, Pamela S. Karlan, Constitutional Law ((Wolters Kluwer 8th ed. 2018).
Categories:
Constitutional Law
Type: Book
Cass R. Sunstein & Lucia A. Reisch, Greener by Default, Trinity C. L. Rev. 31 (2018).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
Type: Article
Abstract
Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.
Cass R. Sunstein, Growing Outrage, Behavioural Pub. Pol’y (forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
Why and when does outrage grow? This essay explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of “normalization”; people compare apparently outrageous behavior to behavior falling in the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford Univ. Press 2nd ed., 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
,
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Book
Abstract
"[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.
Cass R. Sunstein, Radicals, Democratic and Technocratic, Mich. L. Rev. (forthcoming 2018).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Abstract
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.
Cass R. Sunstein, Unleashed, 85 Soc. Res. 73 (2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Religious Rights
,
Race & Ethnicity
,
Social Welfare Law
,
Law & Behavioral Sciences
,
Law & Social Change
,
Executive Office
,
Elections & Voting
Type: Article
Abstract
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.
Eric A. Posner & Cass R. Sunstein, Moral Commitments in Cost-Benefit Analysis, 103 Va. L. Rev. 1809 (2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Law & Public Policy
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
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.
Cass R. Sunstein, Impeachment: A Citizen's Guide (2017).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Government Accountability
,
Corruption
Type: Book
Abstract
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.
Cass R. Sunstein (with Anne Thorndike), Obesity Prevention in the Supermarket--Choice Architecture and the Supplemental Nutrition Assistance Program, 107 Am. J. Pub. Health 1582 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
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.
Cass R. Sunstein, Misconceptions About Nudges (Sept. 6, 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
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.
Normal Rationality: Decisions and Social Order (Edna Ullmann-Margalit, Cass R. Sunstein & Avishai Margalit eds., 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
Type: Book
Abstract
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.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, Q.J. Experimental Psychol. (Aug. 31, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Cass R. Sunstein & Lisa Randall, Political Control Over Public Communications by Government Scientists (July 4, 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Administrative Law & Agencies
,
Science & Technology
Type: Other
Abstract
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.
Cass R. Sunstein, “Better Off, as Judged by Themselves”: A Comment on Evaluating Nudges, Int’l Rev. Econ. (June 22, 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
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.
Shlomo Benartzi, John Beshears, Katherine L. Milkman, Cass R. Sunstein, Richard H. Thaler, Maya Shankar, Will Tucker-Ray, William J. Congdon, Steven Galing, Should Governments Invest More in Nudging?, 28 Psychol. Sci. 1041 (2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
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.
Sebastian Bobadilla-Suarez, Cass R. Sunstein & Tali Sharot, The Intrinsic Value of Choice: The Propensity to Under-Delegate in the Face of Potential Gains and Losses, 54 J. Risk & Uncertainty 187 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
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.
Cass R. Sunstein, Default Rules Are Better Than Active Choosing (Often), 21 Trends Cognitive Sci. 600 (2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
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.
Cass R. Sunstein, The American Nondelegation Doctrine (May 23, 2017).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Administrative Law & Agencies
,
Executive Office
,
Statutory Interpretation
Type: Article
Abstract
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.
Cass R. Sunstein, The American Nondelegation Doctrine (May 23, 2017).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Administrative Law & Agencies
,
Executive Office
,
Statutory Interpretation
Type: Other
Abstract
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.
Cass R. Sunstein, Human Agency and Behavioral Economics: Nudging Fast and Slow (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
"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
Cass R. Sunstein, 'Better Off, as Judged by Themselves': Bounded Rationality and Nudging, in Routledge Handbook on Bounded Rationality (Riccardo Viale ed., 2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
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.
Lucia A. Reisch, Cass R. Sunstein & Wencke Gwozdz, Beyond Carrots and Sticks: Europeans Support Health Nudges, 69 Food Pol'y 1 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Article
Abstract
All over the world, nations are using “health nudges” to promote healthier food choices and to reduce the health care costs of obesity and non-communicable diseases. In some circles, the relevant reforms are controversial. On the basis of nationally representative online surveys, we examine whether Europeans favour such nudges. The simplest answer is that majorities in six European nations (Denmark, France, Germany, Hungary, Italy, and the UK) do so. We find majority approval for a series of nudges, including educational messages in movie theaters, calorie and warning labels, store placement promoting healthier food, sweet-free supermarket cashiers and meat-free days in cafeterias. At the same time, we find somewhat lower approval rates in Hungary and Denmark. An implication for policymakers is that citizens are highly likely to support health nudges. An implication for further research is the importance of identifying the reasons for cross-national differences, where they exist.
Cass R. Sunstein, Nudges That Fail, 1 Behavioural Pub. Pol’y 4 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.
Cass R. Sunstein, The Statements I Most Regret, 14 Econ J. Watch 294 (2017).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Legal Scholarship
Type: Article
Ada C. Stefanescu Schmidt, Ami Bhatt & Cass R. Sunstein, Boundedly Rational Patients? Health and Patient Mistakes in a Behavioral Framework (Harv. Pub. L. Working Paper No. 17-29, Apr. 25, 2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Other
Abstract
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.
Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Adrian Vermeule & Michael Herz, Administrative Law and Regulatory Policy: problems, text, and cases (Wolters Kluwer 8th ed. 2017).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book
Michael Greenstone, Cass R. Sunstein & Sam Ori, The Next Generation of Transportation Policy (Mar. 29, 2017).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
,
Administrative Law & Agencies
Type: Other
Abstract
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.
Michael Greenstone, Cass R. Sunstein & Sam Ori, The Next Generation of Transportation Policy (Mar. 29, 2017).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
,
Administrative Law & Agencies
Type: Article
Abstract
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.
Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton Univ. Press forthcoming Mar. 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Book
Abstract
"As the Internet grows more sophisticated, it is creating new threats to democracy. Social media companies such as Facebook can sort us ever more efficiently into groups of the like-minded, creating echo chambers that amplify our views. It's no accident that on some occasions, people of different political views cannot even understand each other. It's also no surprise that terrorist groups have been able to exploit social media to deadly effect. Welcome to the age of #Republic. In this revealing book, Cass Sunstein, the New York Times bestselling author of Nudge and The World According to Star Wars, shows how today's Internet is driving political fragmentation, polarization, and even extremism—and what can be done about it. Thoroughly rethinking the critical relationship between democracy and the Internet, Sunstein describes how the online world creates "cybercascades," exploits "confirmation bias," and assists "polarization entrepreneurs." And he explains why online fragmentation endangers the shared conversations, experiences, and understandings that are the lifeblood of democracy. In response, Sunstein proposes practical and legal changes to make the Internet friendlier to democratic deliberation. These changes would get us out of our information cocoons by increasing the frequency of unchosen, unplanned encounters and exposing us to people, places, things, and ideas that we would never have picked for our Twitter feed. #Republic need not be an ironic term. As Sunstein shows, it can be a rallying cry for the kind of democracy that citizens of diverse societies most need." -- Publisher
Eric A. Posner & Cass R. Sunstein, Moral Commitments in Cost-Benefit Analysis (Univ. of Chicago Coase-Sandor Inst. for Law & Econ. Research Paper No. 802, Univ. of Chicago, Pub. Law Working Paper No. 620, Mar. 8, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
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 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 them. 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 bear on a wide variety of issues, including protection of foreigners, of children, of rape victims, of future generations, and of animals.
Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, Behavioral Insights All Over the World? Public Attitudes Toward Nudging in a Multi-Country Study (Feb. 21, 2017).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations with markedly lower approval ratings for nudges. We offer some speculations about the relationship between approval rates and trust.
Cass R. Sunstein, ‘Don't Tell Me What I Can't Do!’ On the Intrinsic Value of Control, Introduction, in The Behavioral Economics Guide 2017 (Alain Samson ed., forthcoming June 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
For most people, control has some intrinsic value; people care about maintaining it and will pay something to do so. Whenever a private or public institution blocks choices or interferes with agency, some people will rebel, even if exercising control would not result in material benefits or might produce material harms. On the other hand, people sometimes want to relinquish control, because exercising agency is burdensome or costly. This essay explores when rational and boundedly rational people will prefer to maintain or exercise control and when they will prefer to delegate it.
Cass R. Sunstein, Cost-Benefit Analysis and Arbitrariness Review, 41 Harv. Envtl. L. Rev. 1 (2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
When an agency fails to engage in quantitative cost-benefit analysis, has it acted arbitrarily and hence in violation of the Administrative Procedure Act? At first glance, the question answers itself: Congress sometimes requires that form of analysis, but if it has not done so, then agencies have discretion to proceed as they see fit. But as recent decisions suggest, the underlying issues are far more complicated than they seem. The central reason is that for all its limitations, cost-benefit analysis is the best available method for testing whether regulations increase social welfare. Whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them, and to weigh them against each other, requires a non-arbitrary justification. Potential justifications include the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; and the existence of welfare effects that are not captured by monetized costs and benefits. These justifications will often be sufficient. But in some cases, they are not, and agencies should be found to have acted arbitrarily in failing to quantify costs and benefits and to show that the benefits justify the costs.
Cass R. Sunstein, Deliberative Democracy in the Trenches, Daedalus, Summer 2017, at 129.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
,
Administrative Law & Agencies
Type: Article
Abstract
In the last decades, many political theorists have explored the idea of “deliberative democracy.” The basic claim is that well-functioning democracies combine accountability with a commitment to reflection, information acquisition, multiple perspectives, and reason-giving. Does that claim illuminate actual practices? Much of the time, the executive branch in the United States combines both democracy and deliberation, not least because it places a high premium on reason-giving and the acquisition of necessary information. It also contains a high degree of internal diversity, encouraging debate and disagreement, not least through the public comment process. These claims are illustrated with concrete, if somewhat stylized, discussions of how the executive branch often operates.
Cass R. Sunstein, Forcing People To Choose Is Paternalistic, 82 Mo. L. Rev. 643 (2017) (Symposium on Libertarian Paternalism).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
It can be paternalistic to force people to choose. 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.
Cass R. Sunstein, Formalism in Constitutional Theory, 32 Const. Comment. 27 (2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.
Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro & Tali Sharot, How People Update Beliefs about Climate Change: Good News and Bad News, 102 Cornell L. Rev. 1431 (2017).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Climate Change
Type: Article
Abstract
People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who doubt that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By contrast, people who strongly believe that man-made climate change is occurring, and who favor an international agreement, show the opposite asymmetry: They change their beliefs far more in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought) than in response to unexpected good news (suggesting that average temperature rise is likely to be smaller than previously thought). The results suggest that exposure to varied scientific evidence about climate change may increase polarization within a population due to asymmetrical updating. We explore the implications of our findings for how people will update their beliefs upon receiving new evidence about climate change, and also for other beliefs relevant to politics and law.
Cass R. Sunstein, Irreparability as Irreversibility, 2017 Sup. Ct. Rev 93.
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
,
Technology & Law
Sub-Categories:
First Amendment
,
Discrimination
,
Race & Ethnicity
,
Gender & Sexuality
,
Law & Public Policy
,
Law & Economics
,
Natural Resources Law
,
Administrative Law & Agencies
,
Information Privacy & Security
Type: Article
Abstract
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.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, Q. J. Experimental Psychol. (forthcoming 2017) (Symposium on ‘the Foreign Language Effect’).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? In some ways, yes. There is considerable evidence to this effect, at least to the extent that they are less likely to rely on intuitions that can lead to serious errors. This finding reinforces, and makes more plausible, a central claim in regulatory policy, which involves the value of cost-benefit analysis. In a sense, cost-benefit analysis is a foreign language, and it reduces the risk that people will rely on intuitions that cause serious errors. Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Cass R. Sunstein, On the Costs and Benefits of Mandatory Labeling, with Special Reference to Genetically Modified Foods 165 U. Pa. L. Rev. 1043 (2017).
Categories:
Health Care
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Article
Abstract
As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded. Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: there is a good argument that the benefits of such labels would be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Many people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.
Cass R. Sunstein, Requiring Choice is a Form of Paternalism, 1 J. Behavioral Econ. for Pol’y, no. 1, 2017, at 11.
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
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).
Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, 84 U. Chi. L. Rev. 297 (2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Judges & Jurisprudence
,
Separation of Powers
Type: Article
Abstract
For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."
Michael Greenstone & Cass R. Sunstein, This Is What Climate Change Costs, N.Y. Times, Dec. 16, 2016, at A35.
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: News
Cass R. Sunstein, Beyond Cheneyism and Snowdensim, 83 U. Chi. L. Rev. 271 (2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Economics
,
Legal Theory & Philosophy
,
National Security Law
Type: Article
Abstract
In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.
Cass R. Sunstein, Behaviorally Informed Health Policy? Patient Autonomy, Active Choosing, and Paternalism, in Nudging Health: Health Law and Behavioral Economics (I. Glenn Cohen, Holly Fernandez Lynch & Christopher T. Robertson eds., 2016).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Book
Abstract
Many people have insisted on an opposition between active choosing and paternalism, and in some cases, they are right to do so. But in many contexts, the opposition is illusory, because people do not want to choose actively. Nanny states forbid people from choosing, but they also forbid people from choosing not to choose. If and to the extent that health insurers, employers, hospitals and doctors forbid that choice, they are acting paternalistically, and that particular form of paternalism might be unjustified. It is true that active choosing has a central place in a free society, and it needs to play a large role in the health care system. But for those involved in that system, as for everyone else, the same concerns that motivate objections to paternalism in general can be applied to paternalistic interferences with people’s choice not to choose. These points have implications for health insurance, for food safety, for wellness programs, and for the idea of "patient autonomy."
Cass R. Sunstein, Does the Clear and Present Danger Test Survive Cost-Benefit Analysis? (Nov. 12, 2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
Type: Other
Abstract
Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, the dominant contemporary test involves clear and present danger. Regulators cannot act on the ground that the benefits justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve cost-benefit analysis, as indeed both Judge Learned Hand and the Supreme Court insisted that it should in the early 1950s. An initial explanation points to the difficulty of quantifying both costs and benefits in the context of speech. That is indeed a serious challenge, but it does not justify the clear and present danger test, because some form of cost-benefit balancing is possible on a more informal, intuitive basis. A second and more plausible explanation points to the serious risk of institutional bias in any assessment of both costs and benefits of speech. This explanation has considerable force, but it depends on questionable assumptions, because institutional safeguards could be introduced to increase accuracy and to reduce any such bias. The third and best justification of the clear and present danger test is that in practice, it does not impose high costs, because the speech that ends up being immunized from regulation has not, in practice, turned out to be harmful. On this view, the benefits of the clear and present danger test turn out to justify its costs. From 1960 or until 2001, this assessment was probably correct for the United States, and it may continue to be correct; but the problem of terrorism, and of recruitment to commit terrorist acts, raises legitimate questions about whether the assumptions on which it rests are correct today.
Cass R. Sunstein, Chief Justice John G. Roberts Jr., John F. Manning, Justice Elena Kagan, Justice Ruth Bader Ginsburg, Martha Minow & Rachel E. Barkow, In Memoriam: Justice Antonin Scalia, 130 Harv. L. Rev. 1 (2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Listen, Economists!, 63 N.Y. Rev. of Books, Nov. 10, 2016, at 53 (reviewing Guido Calabresi, Future of Law and Economics: Essays in Reform and Recollection (2016)).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Economics
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Autonomy by Default, 16 Am. J. Bioethics 1536 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Cass R. Sunstein, Were the Framers Democrats?, New Rambler Rev., Oct. 31, 2016 (reviewing Michael J. Klarman, The Framers’ Coup: The Making of the United States (2016)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
The Economics of Nudge (Cass R. Sunstein & Lucia A. Reisch eds., Routledge 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Law & Social Change
,
Law & Economics
,
Legal Ethics
Type: Book
Abstract
"Proponents of ‘nudge theory’ argue that, because of our human susceptibility to an array of biases, we often make subprime choices and decisions that make us poorer, less healthy, and more miserable than we might otherwise be. However, using behavioural economics—and insights from other disciplines—they suggest that apparently small and subtle solutions (or ‘nudges’) can lead to disproportionately beneficial outcomes without unduly restricting our freedom of choice. Indeed, the apparently virtuous—and cost-effective—possibilities of nudge theory has led to its enthusiastic adoption by adherents in the highest echelons of government and business, and ‘nudge units’ (such as the Behavioural Insights Team in the British Cabinet Office) have been established in the UK, the United States, and Australia. While far from uncontroversial (some critics have questioned its ethical implications and dismissed many of its practical applications as short-term, politically motivated initiatives based on flimsy evidence), in recent years there has been an astonishing growth in scholarly output about and around the economics of nudge. And now, while the hybrid field continues to flourish, Routledge announces a new four-volume collection to provide users with a much-needed compendium of foundational and the very best cutting-edge scholarship. The collection is co-edited by Cass R. Sunstein (Robert Walmsley University Professor at Harvard), the co-author (with Richard Thaler) of the pioneering Nudge: Improving Decisions About Health, Wealth, and Happiness (2008), and Lucia Reisch of the Copenhagen Business School. The Economics of Nudge is fully indexed and has a comprehensive introduction, newly written by the editors, which places the collected material in its historical and intellectual context. It is an essential work of reference and is destined to be valued by scholars, students, and policymakers as a vital resource." --Publisher
Ian Schneider & Cass R. Sunstein, Behavioral Considerations for Effective Time-Varying Electricity Prices (Oct. 13, 2016).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Science & Technology
Type: Other
Abstract
Wholesale prices for electricity vary significantly due to high fluctuations and low elasticity in short-run demand. End-use customers have typically paid flat retail rates for their electricity consumption, and time-varying prices have been proposed to help reduce peak consumption and lower the overall cost of servicing demand. Unfortunately, the general practice is an opt-in system: a default rule in favor of time-varying prices would be far better. A behaviorally informed analysis also shows that when transaction costs and decision biases are taken into account, the most cost-reflective policies are not necessarily the most efficient. On reasonable assumptions, real-time prices can result in less peak conservation of manually controlled devices than time-of-use or critical-peak prices. For that reason, the trade-offs between engaging automated and manually controlled loads must be carefully considered in time-varying rate design. The rate type and accompanying program details should be designed with the behavioral biases of consumers in mind, while minimizing price distortions for automated devices.
Cass R. Sunstein, People Prefer System 2 Nudges (Kind Of), 66 Duke L.J. 121 (2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring choice-preserving approaches, or “nudges,” informed by behavioral science and with the purpose of promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that in important contexts, majorities do indeed prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then large numbers of them will move in its direction. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings, and an accompanying normative analysis, offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.
Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro & Tali Sharot, How People Update Beliefs about Climate Change: Good News and Bad News (Sept. 2, 2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Climate Change
Type: Other
Abstract
People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who doubt that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By contrast, people who strongly believe that man-made climate change is occurring, and who favor an international agreement, show the opposite asymmetry: They change their beliefs far more in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought) than in response to unexpected good news (suggesting that average temperature rise is likely to be smaller than previously thought). The results suggest that exposure to varied scientific evidence about climate change may increase polarization within a population due to asymmetrical updating. We explore the implications of our findings for how people will update their beliefs upon receiving new evidence about climate change, and also for other beliefs relevant to politics and law.
Cass R. Sunstein, Output Transparency vs. Input Transparency (Aug. 18, 2016).
Categories:
Government & Politics
Sub-Categories:
Government Transparency
,
Administrative Law & Agencies
Type: Article
Abstract
Government can be transparent about its “outputs”: its regulations and its policies, its findings about air and water quality, its analysis of costs and benefits, its assessment of the risks associated with cigarette smoking, distracted driving, infectious diseases, and silica in the workplace. It can also be transparent about its “inputs”: about who, within government, said what to whom, and when, and why. The argument for output transparency is often very strong, because members of the public can receive information that can help them in their daily lives, and because output transparency can improve the performance of both public and private institutions. Where the public stands to benefit, government should be disclosing outputs even without a formal request under the Freedom of Information Act. In fact it should be doing that far more than it now does. The argument for input transparency is different and often weaker, because the benefits of disclosure can be low and the costs can be high. There is good reason for a large increase in output transparency -- and for caution about input transparency.
Cass R. Sunstein, Nudges That Fail (July 14, 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.
Lucia A. Reisch & Cass R. Sunstein, Do Europeans Like Nudges?, 11 Judgment & Decision Making 310 (2016).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
European Law
Type: Article
Cass R. Sunstein & Lucia A. Reisch, Climate-Friendly Default Rules (June 18, 2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
Type: Article
Abstract
Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.
Walter Quattrociocchi, Antonio Scala & Cass Sunstein, Echo Chambers on Facebook (June 15, 2016).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
Type: Other
Abstract
Do echo chambers actually exist on social media? By focusing on how both Italian and US Facebook users relate to two distinct narratives (involving conspiracy theories and science), we offer quantitative evidence that they do. The explanation involves users’ tendency to promote their favored narratives and hence to form polarized groups. Confirmation bias helps to account for users’ decisions about whether to spread content, thus creating informational cascades within identifiable communities. At the same time, aggregation of favored information within those communities reinforces selective exposure and group polarization. We provide empirical evidence that because they focus on their preferred narratives, users tend to assimilate only confirming claims and to ignore apparent refutations.
Walter Quattrociocchi, Antonio Scala & Cass Sunstein, Echo Chambers on Facebook (June 15, 2016).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
Type: Article
Abstract
Do echo chambers actually exist on social media? By focusing on how both Italian and US Facebook users relate to two distinct narratives (involving conspiracy theories and science), we offer quantitative evidence that they do. The explanation involves users’ tendency to promote their favored narratives and hence to form polarized groups. Confirmation bias helps to account for users’ decisions about whether to spread content, thus creating informational cascades within identifiable communities. At the same time, aggregation of favored information within those communities reinforces selective exposure and group polarization. We provide empirical evidence that because they focus on their preferred narratives, users tend to assimilate only confirming claims and to ignore apparent refutations.
Cass R. Sunstein, Nonsectarian Welfare Statements, 10 Reg. & Governance 126 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
Type: Article
Abstract
How can we measure whether national institutions in general, and regulatory institutions in particular, are dysfunctional? A central question is whether they are helping a nation’s citizens to live good lives. A full answer to that question would require a great deal of philosophical work, but it should be possible to achieve an incompletely theorized agreement on a kind of nonsectarian welfarism, emphasizing the importance of five variables: subjective well-being, longevity, health, educational attainment, and per capita income. In principle, it would be valuable to identify the effects of new initiatives (including regulations) on all of these variables. In practice, it is not feasible to do so; assessments of subjective well-being present particular challenges. In their ideal form, Regulatory Impact Statements should be seen as Nonsectarian Welfare Statements, seeking to identify the consequences of regulatory initiatives for various components of welfare. So understood, they provide reasonable measures of regulatory success or failure, and hence a plausible test of dysfunction. There is a pressing need for improved evaluations, including both randomized controlled trials and ex post assessments.
Cass R. Sunstein, The Most Knowledgeable Branch, 164 U. Pa. L. Rev. 1607 (2016).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Article
Cass R. Sunstein, Cost-Benefit Analysis, Who’s Your Daddy?, 7 J. Benefit-Cost Analysis 107 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
If policymakers could measure the actual welfare effects of regulations, and if they had a properly capacious sense of welfare, they would not need to resort to cost-benefit analysis, which gives undue weight to some values and insufficient weight to others. Surveys of self-reported well-being provide valuable information, but it is not yet possible to “map” regulatory consequences onto well-being scales. It follows that at the present time, self-reported well-being cannot be used to assess the welfare effects of regulations. Nonetheless, greatly improved understandings are inevitable, and current findings with respect to reported well-being – above all the serious adverse effects of unemployment – deserve to play a role in regulatory policymaking.
Cass R. Sunstein, Foreword: In Praise of Law Books and Law Reviews (and Jargon-Filled Academic Writing), 114 Mich. L. Rev. 833 (2016).
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Article
Abstract
Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”
Cass R. Sunstein, Fifty Shades of Manipulation, 1 J. Marketing Behav. 213 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Both marketers and politicians are often accused of “manipulation”, but the term is far from self-defining. A statement or action can be said to be manipulative if it does not sufficiently engage or appeal to people’s capacity for reflective and deliberative choice. One problem with manipulation, thus understood, is that it fails to respect people’s autonomy and is an affront to their dignity. Another problem is that if they are products of manipulation, people’s choices might fail to promote their own welfare, and might instead promote the welfare of the manipulator. To that extent, the central objection to manipulation is rooted in a version of John Stuart Mill’s Harm Principle: People know what is in their best interests and should have a (manipulationfree) opportunity to make that decision. On welfarist grounds, the norm against manipulation can be seen as a kind of heuristic, one that generally works well, but that can also lead to serious errors, at least when the manipulator is both informed and genuinely interested in the welfare of the chooser. For politics and law, a pervasive puzzle is why manipulation is rarely policed. The simplest answer is that manipulation has so many shades, and in a social order that values-free markets and consumer sovereignty, it is exceptionally difficult to regulate manipulation as such. Those who sell products are often engaged in at least arguable forms of manipulation. But as the manipulator’s motives become more self-interested or venal, and as efforts to bypass people’s deliberative capacities become more successful, the ethical objections to manipulation may be very forceful, and the argument for a legal response is fortified. The analysis of manipulation bears on emerging free speech issues raised by compelled disclosure, especially in the context of graphic health warnings. It can also help orient the regulation of financial products, where manipulation of consumer choices is an evident but rarely explicit concern.
Cass R. Sunstein, Manipulation, Welfare, and Dignity: A Reply, 1 J. Marketing Behav. 351 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
This essay responds to seven commentaries on my forthcoming essay, Fifty Shades of Manipulation. It offers two general points. The first involves the importance of separating three questions: (1) What is manipulation? (2) What is wrong with manipulation? (3) When might manipulation be justified, notwithstanding the answer to (2)? The second involves the relevance of dignity. We might see dignity as a component of welfare, or we might see it as a wholly independent value. But we will not understand manipulation, or what is wrong with it, if we do not see it at all.
Cass R. Sunstein, In Praise of Jargon, 62 Chron. Higher Educ., Feb. 19, 2016, at B6.
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Article
Cass R. Sunstein, Do People Like Nudges?, 68 Admin. L. Rev. 177 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In recent years, there has been a great deal of debate about the ethical questions associated with "nudges," understood as approaches that steer people in certain directions while maintaining their freedom of choice. Evidence about people's views cannot resolve the ethical questions, but in democratic societies (and nondemocratic ones as well), those views will inevitably affect what public officials are willing to do. Existing evidence, including a nationally representative survey, supports six general conclusions. First, there is widespread support for nudges of the kind that democratic societies have adopted or seriously considered in the recent past; surprisingly, that support can be found across partisan lines. While people tend to have serious objections to mandates as such, they do not have similar objections to nudges. Second, the support drops when people suspect the motivations of those who are engaged in nudging and when they fear that because of inertia and inattention, citizens might end up with outcomes that are inconsistent with their interests or their values. Third, there appears to be somewhat greater support for nudges that appeal to conscious, deliberative thinking than for nudges that affect subconscious or unconscious processing though this conclusion is highly qualified, and there can be widespread approval of the latter as well (especially if they are meant to combat self-control problems). Fourth, people's assessment of nudges in general will be greatly affected by the political valence of the particular nudges that they have in mind (or that are brought to their minds). Fifth, transparency about nudging will not, in general, reduce the effectiveness of nudges, because most nudges are already transparent and because people will not, in general, rebel against nudges. Sixth, there is preliminary but suggestive evidence of potential "reactance" against certain nudges.
Sebastian Bobadilla-Suarez, Cass R. Sunstein & Tali Sharot, The Intrinsic Value of Control: The Propensity to Under-Delegate in the Face of Potential Gains and Losses (Feb. 15, 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
Human beings are often faced with a pervasive problem: whether to make their own decisions or to delegate decision tasks to someone else. Here, we test whether people are inclined to forgo monetary rewards in order to retain agency when faced with choices that could lead to losses and gains. In a simple choice task, we show that even though participants have all the information needed to maximize rewards and minimize losses, they choose to pay in order to control their own payoff. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Rather, the results reflect an intrinsic value for choice, which emerges in the domain of both gains and losses. Moreover, our data indicates that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.
Eric Posner & Cass R. Sunstein, Institutional Flip-Flops, 94 Tex. L. Rev. 485 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.
Cass R.Sunstein, The Rise of Behavioral Economics: Richard Thaler’s ♠Misbehaving (Harvard Law Sch. Pub. Law & Legal Theory, Working Paper No. 16-01, 2016)(reviewing Richard H. Thaler, Misbehaving: The Making of Behavioral Economics (2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Behavioral economics emerged in the 1980s, above all because of the creative work of Richard Thaler, exploring the relevance of the endowment effect, mental accounting, concern for fairness, and other "anomalies" from the standpoint of standard economic theory. His engaging book, "Misbehaving," offers a narrative account of how these ideas came about, and also explores some of their implications for the future. Continuing challenges include making predictions when behavioral findings cut in different directions (as, for example, where optimistic bias conflicts with availability bias); understanding the line between nudging and manipulation; and applying behavioral findings to pressing public policy challenges, such as poverty, education, terrorism, and climate change.
Cass R. Sunstein, Parking the Big Money, 63 N.Y. Rev. Books, Jan. 14, 2016, at 37 (reviewing Gabriel Zucman, The Hidden Wealth of Nations: The Scourge of Tax Havens (2015) & Harold Crooks, The Price We Pay (2014)).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - International
Type: Article
Simon Hedlin & Cass R. Sunstein, Does Active Choosing Promote Green Energy Use? Experimental Evidence, 43 Ecology L.Q. 107 (2016).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
Many officials have been considering whether it is possible or desirable to use choice architecture to increase use of environmentally friendly (“green”) products and activities. The right approach could produce significant environmental benefits, including large reductions in greenhouse gas emissions and better air quality. This Article presents new data from an online experiment (N=1,245) in which participants were asked questions about hypothetical green energy programs. The central finding is that active choosing had larger effects than green energy defaults (automatic enrollment in green energy), apparently because of the interaction between people’s feelings of guilt and their feelings of reactance. This finding is driven principally by the fact that when green energy costs more, there is a significant increase in opt-outs from green defaults, whereas with active choosing, green energy retains considerable appeal even when it costs more. More specifically, we report four principal findings. First, forcing participants to make an active choice between a green energy provider and a standard energy provider led to higher enrollment in the green program than did either green energy defaults or standard energy defaults. Second, active choosing caused participants to feel more guilty about not enrolling in the green energy program than did either green energy defaults or standard energy defaults; the level of guilt was positively related to the probability of enrolling. Third, respondents were less likely to approve of the green energy default than of the standard energy default, but only when green energy cost extra, which suggests reactance towards green defaults when enrollment means additional private costs. Fourth, respondents appeared to have inferred that green energy automatically would come at a higher cost and/or be of worse quality than less environmentally friendly energy. These findings raise important questions both for future research and for policymaking. If they reflect real-world behavior, they suggest the potentially large effects of active choosing — perhaps larger, in some cases, than those of green energy defaults.
Cass R. Sunstein, Historical Explanations Always Involve Counterfactual History 10 J. Phil. Hist. 433 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Historical explanations are a form of counterfactual history. To offer an explanation of what happened, historians have to identify causes, and whenever they identify causes, they immediately conjure up a counterfactual history, a parallel world. No one doubts that there is a great deal of distance between science fiction novelists and the world’s great historians, but along an important dimension, they are playing the same game.

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