Cass R. Sunstein

Robert Walmsley University Professor

Biography

Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President's Review Board on Intelligence and Communications Technologies and on the Pentagon's Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom.

Mr. Sunstein is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013), The Ethics of Influence (2015), #Republic (2017), Impeachment: A Citizen's Guide (2017), The Cost-Benefit Revolution (2018), On Freedom (2019), Conformity (2019), How Change Happens (2019), and Too Much Information (2020). He is now working on a variety of projects involving the regulatory state, "sludge" (defined to include paperwork and similar burdens), fake news, and freedom of speech.

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 & Adrian Vermeule, Law and Leviathan (forthcoming Sept. 15, 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Politics & Political Theory
,
Legal Ethics
Type: Book
Abstract
"Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall." -- Harvard University Press
Cass R. Sunstein, Too Much Information: Understanding What You Don't Want to Know (MIT Press, forthcoming Sept. 1, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.
Micha Kaiser, Manuela Bernauer, Cass R. Sunstein & Lucia A. Reisch, The Power of Green Defaults: The Impact of Regional Variation of Opt-out Tariffs on Green Energy Demand in Germany, 174 Ecological Econ. (forthcoming Aug. 2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Empirical Legal Studies
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
,
European Law
Type: Article
Abstract
The present paper focuses on green defaults as demand-side policies supporting the uptake of renewable energy in Germany. It sets out to gain a better understanding of whether and for whom green electricity defaults work. The present study is one of the first to use a large-scale data set to investigate this question. We combine micro-level data from the German Socio-Economic Panel (GSOEP) covering private households (including a wealth of individual information) with macro-level information such as population density of a region and proportion of energy suppliers in a given region that use a green opt-out tariff within their basic supply. We show that in Germany, green defaults, automatically enrolling customers in renewable energy sources, tend to stick, especially but not only among those who are concerned about the problem of climate change. This finding, based on real-world rather than experimental evidence, attests to the power of automatic enrollment in addressing environmental problems in Germany and potentially beyond, including climate change, and also adds to the growing literature on the substantial effects of shifting from opt-in to opt-out strategies.
Cass R. Sunstein, The Triumph of the Friendly: A Review of Brian Hare and Vanessa Woods, Survival of the Friendliest, 22 J. Bioecon. 131 (2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Animal Law
Type: Article
Katrine Bach Habersaat, Cornelia Betsch, Margie Danchin, Cass R. Sunstein, Robert Böhm, Armin Falk, Noel T. Brewer, Saad B. Omer, Martha Scherzer, Sunita Sah et al., Ten Considerations for Effectively Managing the COVID-19 Transition, Nature Hum. Behav., June 24, 2020.
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
,
International Law
,
Nonprofit & Nongovernmental Organizations
Type: Article
Abstract
Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.
Cass R. Sunstein, Are Food Labels Good? (June 15, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Other
Abstract
Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.
Philipp Lorenz-Spreen, Stephan Lewandowsky, Cass R. Sunstein & Ralph Hertwig, How Behavioural Sciences Can Promote Truth, Autonomy and Democratic Discourse Online, Nature Hum. Behav., June 15, 2020.
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
,
Information Commons
,
Communications Law
Type: Article
Abstract
Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.
Cass R. Sunstein, Behavioral Welfare Economics, 11 J. Benefit-Cost Analysis 196 (2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
A growing body of normative work explores whether and how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost–benefit analysis, and regulatory policy. In light of behavioral findings, regulators should adopt a working presumption in favor of respect for people’s self-regarding choices, but only if those choices are adequately informed and sufficiently free from behavioral biases. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well. For example, people might die prematurely or suffer from serious illness, and what they receive in return might not (on any plausible account of welfare) be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.
Cass R. Sunstein, On the Wrongness of Lies (May 6, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Other
Abstract
Why are lies wrong? The Kantian answer sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometime because they substitute the liar’s will for that of the chooser, who has much better information about the chooser’s welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Mill’s Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.
Johanna Mollerstrom & Cass R. Sunstein, How Special is Democracy?: An Experimental Study of Recommendations in the Minimum Effort Game, 190 Econ. Letters 109066 (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Elections & Voting
Type: Article
Abstract
Democratic institutions aggregate voters’ preferences about policy options and thereby help determine which policies are implemented. Previous research has, however, suggested that such institutions can also have a direct, positive effect on cooperative and efficient behavior. In a laboratory experiment, we test this suggestion by comparing the effect of recommendations on how to play that are generated through a group vote to expert-generated recommendations, on play in a minimum effort game. We find no difference between the two: both expert recommendations and democratically generated recommendations increase the efficiency of choices. In addition, we find that merely considering potential recommendations, and knowing that others have done so as well, can help enhance efficient coordination.
Michael Eber, Cass R. Sunstein, James K. Hammitt & Jennifer Yeh, The Modest Effects of Fact Boxes on Cancer Screening (Apr. 19, 2020).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Other
Abstract
As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools. In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen (PSA) testing. For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test. More-numerate subjects also seem to become more anxious in response to the risk information.
Cass R. Sunstein, The Siren of Selfishness, N.Y. Rev. Books, Apr. 9, 2020, at 33 (reviewing Lisa Duggan, Mean Girl: Ayn Rand and the Culture of Greed (2019)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Legal Theory & Philosophy
,
Law & Economics
Type: Article
Cass R. Sunstein, On Neglecting Regulatory Benefits (Feb. 20, 2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Executive Office
Type: Other
Abstract
The administrative state faces a pervasive problem: “benefit neglect,” understood as insufficient attention to the benefits of regulation. In 2017, for example, President Donald Trump issued Executive Order 13771, calling for a regulatory budget of $0 and directing agencies to eliminate two regulations for every regulation that they issue. The order has two laudable ambitions: to reduce the stock of existing regulations and to stem the flow of new regulations. But because it entirely ignores the benefits of regulations and focuses only on costs, it is a singularly crude instrument for achieving those goals. In both theory and practice, it threatens to impose large net costs (including significant increases in mortality and morbidity). It would be much better to abandon the idea of a regulatory budget, focused solely on costs, and instead to engage in two sustained but independent efforts: (1) a continuing “look back” at existing regulations, with the goal of simplifying or eliminating those that are unwarranted, and (2) cost-benefit discipline for new regulations. A third goal, no less important than (1) and (2), should be a very high priority, which is to produce institutional mechanisms to promote issuance of regulations that would have high net benefits (including reductions in mortality and morbidity). Congress, courts, and the executive branch should take steps to combat benefit neglect.
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (Wolters Kluwer 6th ed., 2020).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Cass R. Sunstein, Internalities, Externalities, and Fuel Economy (Jan. 28, 2020).
Categories:
Environmental Law
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Taxation
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Transportation Law
,
Energy & Utilities Law
,
Administrative Law & Agencies
,
Tax Policy
Type: Other
Abstract
It is standard to think that corrective taxes, responding to externalities, are generally or always better than regulatory mandates, but in the face of behavioral market failures, that conclusion might not be right. Fuel economy and energy efficiency mandates are possible examples. Because such mandates might produce billions of dollars in annual consumer savings, they might have very high net benefits, complicating the choice between such mandates and externality-correcting taxes (such as carbon taxes). The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of taxes that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities. An important qualification is that corrective taxes might be designed to reduce both externalities and internalities, in which case they would almost certainly be preferable to a regulatory mandate.
Cass R. Sunstein, A Note on Human Welfare and the Administrative State (Jan. 15, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The American administrative state has become, in important respects, a cost-benefit state. At least this is so in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, expressivism, or interest-group power. The focus on costs and benefits is an important effort to attend to the real-world consequences of regulations – and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. In the future, however, there will be better ways to identify those consequences, by focusing directly on welfare, and not relying on imperfect proxies.
Cass R. Sunstein, Behaviorally Informed, in The State of Economics, The State of the World 349 (Kaushik Basu, David Rosenblatt & Claudia Sepúlveda eds., 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Cass R. Sunstein, Sludge Audits, Behav. Pub. Pol'y (Jan. 6, 2020).
Categories:
Government & Politics
,
Consumer Finance
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Information Privacy & Security
Type: Article
Abstract
Consumers, employees, students, and others are often subjected to “sludge”: excessive or unjustified frictions, such as paperwork burdens, that cost time or money; that may make life difficult to navigate; that may be frustrating, stigmatizing, or humiliating; and that might end up depriving people of access to important goods, opportunities, and services. Because of behavioral biases and cognitive scarcity, sludge can have much more harmful effects than private and public institutions anticipate. To protect consumers, investors, employees, and others, firms, universities, and government agencies should regularly conduct Sludge Audits to catalogue the costs of sludge, and to decide when and how to reduce it. Much of human life is unnecessarily sludgy. Sludge often has costs far in excess of benefits, and it can have hurt the most vulnerable members of society.
Cass R. Sunstein, ‘They Ruined Popcorn’: On the Costs and Benefits of Mandatory Labels, in Law & Marketing (Jacob Gersen & Joel Steckel eds., forthcoming 2020).
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.
Michael Greenstone, Cass R. Sunstein & Sam Ori, Fuel Economy 2.0, 44 Harv. Envtl. L. Rev. 1 (2020).
Categories:
Environmental Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Transportation Law
,
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 2010 and 2012, these standards were significantly expanded in an effort to achieve steep reductions in oil demand and greenhouse gas (“GHG”) emissions through 2025. In 2018, following a review of the standards, the Environmental Protection Agency and National Highway Traffic Safety Administration proposed instead to freeze the standards at 2020 levels, citing high program costs (and potential safety issues). The current debate over the future of U.S. fuel economy standards provides an opportunity to consider whether the existing approach could be improved to achieve environmental and other goals at a lower cost. The current policy prescribes standards that focus on fuel economy alone, as opposed to lifetime consumption, and treats vehicle categories differentially, meaning that it imposes unnecessarily high costs and does not deliver guaranteed GHG savings. On the basis of a commitment to cost-benefit analysis, which has defined U.S. regulatory policy for more than thirty years, we propose novel reforms with three main features: (1) the direct regulation of expected fuel consumption and GHG emissions without consideration of the type or size of the vehicle; (2) use of existing data to assign lifetime fuel consumption and GHG emissions to each model; and (3) creation of a robust cap-and-trade market for automakers to reduce compliance costs. We show that these reforms would reduce fuel consumption and GHG emissions in transportation with greater certainty and do so at a far lower cost per ton of GHG emissions avoided. We also show that the the Environmental Protection Agency and the Department of Transportation could implement such an approach within their existing statutory authority.
Tali Sharot & Cass R. Sunstein, How People Decide What They Want to Know, 4 Nature Hum. Behav. 14 (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
Immense amounts of information are now accessible to people, including information that bears on their past, present and future. An important research challenge is to determine how people decide to seek or avoid information. Here we propose a framework of information-seeking that aims to integrate the diverse motives that drive information-seeking and its avoidance. Our framework rests on the idea that information can alter people’s action, affect and cognition in both positive and negative ways. The suggestion is that people assess these influences and integrate them into a calculation of the value of information that leads to information-seeking or avoidance. The theory offers a framework for characterizing and quantifying individual differences in information-seeking, which we hypothesize may also be diagnostic of mental health. We consider biases that can lead to both insufficient and excessive information-seeking. We also discuss how the framework can help government agencies to assess the welfare effects of mandatory information disclosure.
Cass R. Sunstein & Julien L. Gosset, Optimal Sludge? The Price of Program Integrity, Duke L.J. Online (forthcoming 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Public officials often impose eligibility requirements that have two effects: (1) they screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork of administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: what is the optimal tradeoff between (1) and (2)? It is plausible to think that a great deal depends on numbers. If, for example, the number of ineligible people who are screened out is very large, and if the number of eligible people who are screened out is very small, then there would seem little ground for objection. But if the number of eligible people who are screened out is very large, there is a serious problem, and it might be worthwhile to consider an approach that would not screen out eligible people, even if it would simultaneously fail to screen out, or effectively “screen in,” a small number of ineligible people. We identify competing, plausible positions on the normative question, which we label consequentialist and legalist. We also offer the results of a pilot study, which shows that the overwhelming majority of respondents would favor changes that allow ineligible people to receive benefits, if that is the price of ensuring that eligible people do so as well – unless the number of ineligible recipients is very high. The survey results suggest that most people reject the legalist position and embrace a form of consequentialism.
Cass R. Sunstein & Adrian Vermeule, Presidential Review: The President’s Statutory Authority Over Independent Agencies, Geo. L.J. (forthcoming 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
,
Congress & Legislation
Type: Article
Abstract
Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review — and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes egregiously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s directive authority over the independent agencies.
Cass R. Sunstein, Self-Silencing and Online Learning, J. Legal Educ. (forthcoming 2020).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Legal Education
Type: Article
Abstract
Social influences play a large role in legal education, and they may lead to self-silencing, group polarization, hidden profiles, and cascade effects. In some cases, class discussion may converge on a view that is, in fact, supported by only a minority of students, who do not hear what others actually think or have to say. In other cases, the view is supported by a majority, but uninformed by the minority or minorities. The result can be a failure to take advantage of the information, experiences, or perspectives that students actually have. Given a certain distribution of social norms, or bad luck, conservative students might be silenced; the same is true of students with certain religious convictions, libertarian students, students with far-left views, female students, and students of color. Online learning might be designed or used in such a way as to reduce the relevant
Cass R. Sunstein, Superheroes of A Thousand Faces: The Irresistible Stan Lee, L.A. Rev. Books (forthcoming 2020) (reviewing Liel Leibovitz, Stan Lee: A Life in Comics (2020)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
,
Law & Humanities
Type: Article
Abstract
One of the most influential storytellers of the last sixty years was the exuberant Stan Lee, who helped create Spider-Man, the Fantastic Four, the Hulk, Daredevil, Iron Man, the Black Panther, and the X-Men. In a short burst of creativity in the early 1960s, Lee created most of his iconic characters, and changed popular culture in the process. This essay, a review of Liel Leibovitz’s Stan Lee: A Life in Comics (2020), explores Lee’s astonishing creativity and distinctiveness, which can be found in a combination of joyful ebullience, capacity to wink, delight in human diversity, wit, commitment to human rights, and understanding of the essentials of the hero’s journey, or the monomyth, as described by Joseph Campbell.
Cass R. Sunstein, The Meaning of Masks, J. Behavioral Econ. for Pol’y (forthcoming 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Many incentives are monetary, and when private or public institutions seek to change behavior, it is natural to change monetary incentives. But many other incentives are a product of social meanings, about which people may not much deliberate, but which can operate as subsidies or as taxes. In some times and places, for example the social meaning of smoking has been positive, increasing the incentive to smoke; in other times and places, it has been negative, and thus served to reduce smoking. With respect to safety and health, social meanings change radically over time, and they can be dramatically different in one place from what they are in another. Often people live in accordance with meanings that they deplore, or at least wish were otherwise. But it is exceptionally difficult for individuals to alter meanings on their own. Alteration of meanings can come from law, which may, through a mandate, transform the meaning of action into a bland, “I comply with law,” or into a less bland, “I am a good citizen.” Alteration of social meanings can also come from large-scale private action, engineered or promoted by “meaning entrepreneurs,” who can turn the meaning of action from, “I am an oddball,” to, “I do my civic duty,” or, “I protect others from harm.” Sometimes subgroups rebel against new or altered meanings, produced by law or meaning entrepreneurs, but often those meanings stick and produce significant change.
Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, Sup. Ct. Rev. (forthcoming 2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Supreme Court of the United States
,
Separation of Powers
Type: Article
Abstract
Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.
Cass R. Sunstein, Voluntary Agreements, J. Econ. Methodology (forthcoming 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Banking & Finance
Sub-Categories:
Contracts
,
Economics
,
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts. But contractarianism in political philosophy stands (or falls) on altogether different grounds from enthusiasm for contractual ordering in economics and law. When participants in voluntary agreements lack information or suffer from behavioral biases (including adaptive preferences), there is reason to help them, potentially through mandates and bans. In philosophy, the idea of contractarianism can help lead to instructive thought experiments about what justice requires, as with John Rawls’ use of the veil of ignorance and the original position; it should not be taken as a basis for theories of legitimacy that rest on actual agreements among actual groups, in which some people have more information and power than others, and in which malice and self-interest may lead to distortions.
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures, 3 Behavioural Pub. Pol'y 209 (2019).
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.
Cass R. Sunstein, Maximin (Oct. 29, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it. In general, the maximin rule is a terrible idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. (1) The worst-cases are very bad, and not improbable, so that it may make sense to eliminate them under conventional cost-benefit analysis. (2) The worst-case outcomes are highly improbable, but they are so bad that even in terms of expected value, it may make sense to eliminate them under conventional cost-benefit analysis. (3) The probability distributions may include “fat tails,” in which very bad outcomes are more probable than merely bad outcomes; it may make sense to eliminate those outcomes for that reason. (4) In circumstances of Knightian uncertainty, where observers (including regulators) cannot assign probabilities to imaginable outcomes, the maximin rule may make sense. (It may be possible to combine (3) and (4).) With respect to (3) and (4), the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. There are also reasons to be cautious about imposing regulation when technology offers the promise of “moonshots,” or “miracles,” offering a low probability or an uncertain probability of extraordinarily high payoffs. Miracles may present a mirror-image of worst-case scenarios.
Cass Sunstein, The World According to Star Wars (rev. ed. 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Humanities
Type: Book
Cass R. Sunstein, Like a Dog, L.A. Rev. of Books (Oct. 24, 2019)(reviewing Lee Alan Dugatkin & Lyudmila Trut, How to Tame a Fox (and Build a Dog (2017) and Richard Wrangham, The Goodness Paradox: The Strange Relationship Between Virtue and Violence in Human Evolution (2019)).
Categories:
Environmental Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Animal Law
Type: Article
Abstract
Where do dogs come from? Where do human beings come from? Recent research suggests a single answer: domestication. The various characteristics of dogs, distinguishing them from wolves, appear to be byproducts of domestication and (as recently shown by Richard Wrangham) a reduction in “reactive aggression.” It has long been thought that human beings domesticated dogs, but it is more plausible to think that that dogs domesticated themselves. As dogs are to wolves, so is the less robust but more docile Homo sapiens to various other, now extinct human species, including Homo erectus, Neanderthals, and Denisovans. Homo sapiens can be seen as the dog of the various human species. Homo sapiens survived in part because a reduction in reactive aggression made it possible for us to display significant increases in social learning and cooperation.
Hasan Sheikh & Cass R. Sunstein, To Persuade As an Expert, Order Matters: 'Information First, then Opinion' for Effective Communication (Oct. 24, 2019).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Other
Abstract
As the information gap between experts and non-experts narrows, it is increasingly important that experts learn to give advice to non-experts in a way that is effective, and that respects their autonomy and agency. We surveyed 508 participants using a hypothetical medical scenario in which participants were counseled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred: (1) to make their own decision based on the information or, (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy.
Cass R. Sunstein, Behaviorally Informed Policy: A Brisk Progress Report (Sept. 29, 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The goal of this essay is to offer a brisk progress report about behaviorally informed policy and law, while also providing some conceptual clarifications. It identifies a diverse range of initiatives, focusing largely on experience in the United States, that involve nudging and uses of behavioral science. It also explores prominent objections, coming both from those who believe that nudges are unduly aggressive, and should be avoided, and from those who believe that they are too weak and timid, and should be replaced or supplemented with mandates and bans.
L.A. Paul & Cass R. Sunstein, 'As Judged By Themselves': Transformative Experiences and Endogenous Preferences (Sept. 17, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
One way to evaluate various interventions in people’s lives is to ask whether they make choosers better off, “as judged by themselves.” This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. Giving ultimate authority to choosers might be taken to respect their autonomy and also promote their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the “as judged by themselves” criterion is indeterminate. In such cases, what people care about shifts, depending on their choice. Some choices change people’s preferences and values, and in this sense, change their identity. In these situations, sometimes involving transformative experiences, the criterion does not offer a unique solution. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability. Considerations of autonomy are also relevant to choice-influencing interventions that promote transformative experiences.
Cass R. Sunstein, Should Public Figures Apologize? Preliminary Evidence and Speculations (Aug. 7, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
,
Elections & Voting
,
Government Accountability
,
Executive Office
Type: Other
Abstract
In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.
Cass R. Sunstein Opinion, Apologies are for Losers, N.Y. Times, July 28, 2019, at SR8.
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Elections & Voting
,
Politics & Political Theory
Type: News
Cass R. Sunstein, Falsehoods and the First Amendment (July 25, 2019).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Politics & Political Theory
,
Supreme Court of the United States
,
Communications Law
,
Networked Society
Type: Other
Abstract
What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.
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, 188 Cognition 74 (2019).
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, Lapidation and Apology (June 19, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Article
Abstract
Groups of people, outraged by some real or imagined transgression, often respond in a way that is wildly disproportionate to the occasion, thus ruining the transgressor’s day, month, year, or life. To capture that phenomenon, we might repurpose an old word: lapidation. Technically, the word is a synonym for stoning, but it sounds much less violent. It is also obscure, which makes it easier to enlist for contemporary purposes. Lapidation plays a role in affirming, and helping to constitute, tribal identity. It typically occurs when a transgressor is taken to have violated a taboo, which helps account for the different people and events that trigger left-of-center and right-of-center lapidation. One of the problems with lapidation is that it often accomplishes little; it expresses outrage, and allows people to signal their identity, but does no more. Victims of lapidation might be tempted to apologize, but apologies can prove ineffective or even make things worse, depending on the nature of the lapidators.
Sanjit Dhami, Ali al-Nowaihi & Cass R. Sunstein, Heuristics and Public Policy: Decision Making Under Bounded Rationality, 7 Stud. Microecon. 7 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
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, Ruining Popcorn? The Welfare Effects of Information, 58 J. Risk & Uncertainty 121 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
,
Health Law & Policy
Type: Article
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, federal 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 “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 objections. With respect to (4), people may lack the information that would permit them to make good decisions about how much to pay for (more) information; they may not know the welfare effects of information. 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, Which Nudges Do People Like? A National Survey, in Handbook of Behavioural Change and Public Policy 285 (Holger Straßheim & Silke Beck eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Book
Abstract
In surveys, majorities of Americans disapprove of twelve hypothetical nudges (seven involving default rules, five involving education campaigns or disclosure requirements). These results provide an illuminating contrast with majority support for twenty-two nudges that were also tested, and that are much more realistic examples of the kinds of nudges that have been adopted or seriously considered in democratic nations. In general (and with some interesting exceptions), there is a strikingly broad consensus, across partisan lines, about which nudges do and do not deserve support. The best understanding of the data is that people dislike those nudges that (a) promote what people see as illicit ends, or (b) are perceived as inconsistent with either the interests or values of most choosers.
Cass R. Sunstein, Conformity: The Power of Social Influences (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.
Cass R. Sunstein, Growing Outrage, 3 Behavioural Pub. Pol’y 1 (2019).
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, Sludge and Ordeals, 68 Duke L.J. 1843 (2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Government Benefits
Type: Article
Abstract
In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services; the problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. In principle, a serious deregulatory effort should be undertaken to reduce sludge, through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. In most cases, these defenses of sludge turn out to be more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often argue in favor of a neglected form of deregulation: sludge reduction. For both public and private institutions,“Sludge Audits” should become routine. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.
Cass R. Sunstein, Ismism, Or Has Liberalism Ruined Everything? (Apr. 15, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Other
Abstract
There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.
Cass R. Sunstein, Wading Through the Sludge, N.Y. Rev. Books, Apr. 4, 2019, at 34 (reviewing Pamela Herd & Donald P. Moynihan, Administrative Burden: Policymaking By Other Means (2019)).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Cass R. Sunstein, Nudging: A Very Short Guide, 54 Bus. Econ. 127 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
This brief essay offers a general introduction to the idea of nudging, along with a list of ten of the most important “nudges.” It also provides a short discussion of the question whether to create a separate “behavioral insights unit” or instead to rely on existing institutions.
Cass R. Sunstein, Which Radicals?, 117 Mich. L. Rev. 1215 (2019)(reviewing Jeremy McCarter, Young Radicals: In the War for American Ideals (2017)).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Cass R. Sunstein, Valuing Facebook, 3 Behav. Pub. Pol'y (Feb. 27, 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Article
Abstract
In recent years, there has been a great deal of discussion of the welfare effects of digital goods, including social media. 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 (WTP) and willingness to accept (WTA). The sheer magnitude of this disparity reflects a “superendowment effect.” Social media may be Wasting Time Goods (WTG) – goods on which people spend time, but for which they are not, on reflection, willing to pay much (if anything). It is also possible that in the context of the WTP question, people may be giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers may be expressive, rather than reflective of actual welfare effects. At the same time, the WTA measure may also be expressive, a different form of protest, telling us little 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.
Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass Sunstein, Discrimination in the Age of Algorithms (Feb. 5, 2019).
Categories:
Technology & Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Law & Behavioral Sciences
,
Employment Discrimination
,
Networked Society
,
Science & Technology
Type: Other
Abstract
The law forbids discrimination. But the ambiguity of human decision-making often makes it extraordinarily hard for the legal system to know whether anyone has actually discriminated. To understand how algorithms affect discrimination, we must therefore also understand how they affect the problem of detecting discrimination. By one measure, algorithms are fundamentally opaque, not just cognitively but even mathematically. Yet for the task of proving discrimination, processes involving algorithms can provide crucial forms of transparency that are otherwise unavailable. These benefits do not happen automatically. But with appropriate requirements in place, the use of algorithms will make it possible to more easily examine and interrogate the entire decision process, thereby making it far easier to know whether discrimination has occurred. By forcing a new level of specificity, the use of algorithms also highlights, and makes transparent, central tradeoffs among competing values. Algorithms are not only a threat to be regulated; with the right safeguards in place, they have the potential to be a positive force for equity.
Cass R. Sunstein, On Freedom (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In this pathbreaking book, New York Times bestselling author Cass Sunstein asks us to rethink freedom. He shows that freedom of choice isn’t nearly enough. To be free, we must also be able to navigate life. People often need something like a GPS device to help them get where they want to go—whether the issue involves health, money, jobs, children, or relationships. In both rich and poor countries, citizens often have no idea how to get to their desired destination. That is why they are unfree. People also face serious problems of self-control, as many of them make decisions today that can make their lives worse tomorrow. And in some cases, we would be just as happy with other choices, whether a different partner, career, or place to live—which raises the difficult question of which outcome best promotes our well-being. Accessible and lively, and drawing on perspectives from the humanities, religion, and the arts, as well as social science and the law, On Freedom explores a crucial dimension of the human condition that philosophers and economists have long missed—and shows what it would take to make freedom real.
Adam Oliver & Cass Sunstein, Does Size Matter? The Allais Paradox and Preference Reversals with Varying Outcome Magnitudes, 78 J. Behavioral & Experimental Econ. 45 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
The common consequence effect and preference reversals are two of the foundational violations of the standard model of rational choice (i.e. von Neumann–Morgenstern expected utility theory) and, as such, played an important role in the development of empirical behavioural economics. One can hypothesise, however, that due to varying degrees of risk aversion when faced with outcomes of different magnitude, the rate of both of these violations may vary with outcome size. Using various types of outcome, this article reports tests of these violations using different outcome magnitudes in within-respondent designs. The results observed are broadly consistent across outcome type: the common consequence effect, while rarely being substantially observed in any of the tests undertaken, was often found to be somewhat susceptible to outcome size while preference reversals, which were everywhere substantially observed, were not. In and of itself, the observation of systematic preference reversals implies that preferences are often constructed according to the way in which questions are asked, and is sufficient to question the usefulness of stated preference techniques for informing public policy.
Cass R. Sunstein, How Change Happens (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Social Change
Type: Book
Abstract
How does social change happen? When do social movements take off? Sexual harassment was once something that women had to endure; now a movement has risen up against it. White nationalist sentiments, on the other hand, were largely kept out of mainstream discourse; now there is no shortage of media outlets for them. In this book, with the help of behavioral economics, psychology, and other fields, Cass Sunstein casts a bright new light on how change happens. Sunstein focuses on the crucial role of social norms—and on their frequent collapse. When norms lead people to silence themselves, even an unpopular status quo can persist. Then one day, someone challenges the norm—a child who exclaims that the emperor has no clothes; a woman who says “me too.” Sometimes suppressed outrage is unleashed, and long-standing practices fall. Sometimes change is more gradual, as “nudges” help produce new and different decisions—apps that count calories; texted reminders of deadlines; automatic enrollment in green energy or pension plans. Sunstein explores what kinds of nudges are effective and shows why nudges sometimes give way to bans and mandates. Finally, he considers social divisions, social cascades, and “partyism,” when identification with a political party creates a strong bias against all members of an opposing party—which can both fuel and block social change.
Cass R. Sunstein & Lucia A. Reisch, Trusting Nudges: Toward a Bill of Rights for Nudging (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Many "nudges" aim to make life simpler, safer, or easier for people to navigate, but what do members of the public really think about these policies? Drawing on surveys from numerous nations around the world, Sunstein and Reisch explore whether citizens approve of nudge policies. Their most important finding is simple and striking. In diverse countries, both democratic and nondemocratic, strong majorities approve of nudges designed to promote health, safety, and environmental protection—and their approval cuts across political divisions. In recent years, many governments have implemented behaviorally informed policies, focusing on nudges—understood as interventions that preserve freedom of choice, but that also steer people in certain directions. In some circles, nudges have become controversial, with questions raised about whether they amount to forms of manipulation. This fascinating book carefully considers these criticisms and answers important questions. What do citizens actually think about behaviorally informed policies? Do citizens have identifiable principles in mind when they approve or disapprove of the policies? Do citizens of different nations agree with each other? From the answers to these questions, the authors identify six principles of legitimacy—a "bill of rights" for nudging that build on strong public support for nudging policies around the world, while also recognizing what citizens disapprove of. Their bill of rights is designed to capture citizens’ central concerns, reflecting widespread commitments to freedom and welfare that transcend national boundaries.
Cass R. Sunstein, #MeToo As A Revolutionary Cascade, 2019 U. Chi. Legal F. 261.
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Law & Behavioral Sciences
Type: Article
Abstract
Why do revolutions happen? Why are they so difficult to anticipate? Some of the most instructive answers point to three factors: (1) preference falsification on the part of rebels or revolutionaries; (2) diverse thresholds for revolutionary activity; and (3) social interactions that do or do not trigger the relevant thresholds. Under conditions of actual or perceived injustice or oppression, true preferences and thresholds are probably impossible to observe; social interactions are impossible to anticipate. Even if we could observe (1) and (2), the challenge of anticipating (3) would make it essentially impossible to foresee revolutions. For all their differences, and with appropriate qualifications, the French Revolution, the Russian Revolution, the fall of Communism, and the Arab Spring were unanticipated largely for these reasons. And in light of (1), (2), and (3), it is hazardous to think that the success of successful revolutions is essentially inevitable. (The same is true for the failure of unsuccessful revolutions.) History is only run once, so we will never know, but small or serendipitous factors might have initiated (or stopped) a revolutionary cascade. The #MeToo movement can be seen as such a cascade, marked by (1), (2), and (3). For that movement, as for successful revolutions, we might be able to point to some factors as necessary conditions, but hindsight is hazardous. It is also important to note that in revolutions, as in #MeToo, preferences and beliefs are not merely revealed; they are also transformed. Revolutionary activity, large or small, puts issues about preference falsification, experience falsification, and adaptive preferences in a new light.
Cass R. Sunstein, Algorithms, Correcting Biases, 86 Soc. Res. 499 (2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Criminal Law & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Judges & Jurisprudence
,
Networked Society
,
Science & Technology
Type: Article
Abstract
A great deal of theoretical work explores the possibility that algorithms may be biased in one or another respect. But for purposes of law and policy, some of the most important empirical research finds exactly the opposite. In the context of bail decisions, an algorithm designed to predict flight risk does much better than human judges, in large part because the latter place an excessive emphasis on the current offense. Current Offense Bias, as we might call it, is best seen as a cousin of “availability bias,” a well-known source of mistaken probability judgments. The broader lesson is that well-designed algorithms should be able to avoid cognitive biases of many kinds. Existing research on bail decisions also casts a new light on how to think about the risk that algorithms will discriminate on the basis of race (or other factors). Algorithms can easily be designed so as to avoid taking account of race (or other factors). They can also be constrained so as to produce whatever kind of racial balance is sought, and thus to reveal tradeoffs among various social values.
Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
Type: Article
Abstract
Chevron v. NRDC, the foundation for much of contemporary administrative law, is now under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the executive branch. Some people think that the transfer is a recipe for a form of authoritarianism – and inconsistent with the proposition that it is the province of the judiciary to say what the law is. To assess such objections, the starting point is simple: Whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, there is a plausible argument that Chevron was wrong when decided; but the issue is intriguingly cloudy if the APA’s text is taken in its context. In these circumstances, Chevron should not be overruled. Doing so would introduce a great deal of confusion and increase the role of political judgments within the courts of appeals. Nonetheless, Chevron’s critics have legitimate concerns. Those concerns should be taken into account (1) by insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) by invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) by deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, 72 Q.J. Experimental Psychol. 3 (2019).
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, Rear Visibility and Some Problems for Economic Analysis (With Particular Reference to Experience Goods), 10 J. Benefit-Cost Analysis 317 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
Type: Article
Abstract
In 2014, the National Highway Traffic Safety Administration finalized its rear visibility regulation, which requires cameras in all new vehicles, with the goal of allowing drivers to see what is behind them and thus reducing backover accidents. In 2018, the Trump administration embraced the regulation. The rear visibility initiative raises numerous puzzles. First: Congress’ grant of authority was essentially standardless – perhaps the most open-ended in all of federal regulatory law. Second: It is not easy to identify a market failure to justify the regulation. Third: The monetized costs of the regulation greatly exceeded the monetized benefits, and yet on welfare grounds, the regulation can plausibly be counted as a significant success. Rearview cameras produce a set of benefits that are hard to quantify, including increased ease of driving, and those benefits might have been made a part of “breakeven analysis,” accompanying standard cost-benefit analysis. In addition, rearview cameras significantly improve the experience of driving, and it is plausible to think that in deciding whether to demand them, many vehicle purchasers did not sufficiently anticipate that improvement. This is a problem of limited foresight; rearview cameras are “experience goods.” A survey conducted in 2019 strongly supports this proposition, finding that about 56 percent of consumers would demand at least $300 to buy a car without a rearview camera, and that fewer than 6 percent would demand $50 or less. Almost all of that 6 percent consists of people who do not own a car with a rearview camera. (The per-person cost is usually under $50.) These conclusions may have general implications for other domains in which regulation has the potential to improve people’s lives, even if it fails standard cost-benefit analysis; the defining category involves situations in which people lack experience with a good whose provision might have significant welfare effects.
Hasan Sheikh & Cass R. Sunstein, Respecting Autonomy:“Information First, Then Opinion” is More Effective Than “Opinion First, Then Information,” 3 J. Behavioral Econ. for Pol’y 5 (2019).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Article
Abstract
As the information gap between experts and non-experts narrows, it is increasingly important for experts to give advice to non-experts in a way that is both effective and respectful of their autonomy. We surveyed 508 participants using a hypothetical medical scenario in which participants were counselled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred (1) to make their own decision based on the information or (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that in some important contexts, “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy. Our finding might have general implications for expert communications.
Lawrence B. Solum & Cass R. Sunstein, Chevron as Construction (Dec. 13, 2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.
Cäzilia Loibl, Cass R. Sunstein, Julius Rauber & Lucia A. Reisch, Which Europeans Like Nudges? Approval and Controversy in Four European Countries, 52 J. Consumer Aff. 655 (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, Opinion, A Quiet Revolution Has Given the U.S. Smarter Regulations, Wall St. J., Oct. 22, 2018, at A19.
Categories:
Government & Politics
,
Environmental Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Politics & Political Theory
,
Executive Office
Type: News
Cass R. Sunstein, "They Are and Were There", Soc. Res., Fall 2018, at 687 (reviewing A. S. Byatt, Possession: A Romance).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Article
Abstract
How well can anyone know a historical figure? How well can one person know another? What really matters? This essay explores those questions with reference to A.S. Byatt's masterpiece, Possession. A novel or a romance will not give crisp answers to such questions, but Byatt's answers, at once life-affirming and heartbreaking, are the right ones.
Cass R. Sunstein, The Power of the Normal (Aug. 21, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Legal Theory & Philosophy
Type: Other
Abstract
How do judgments about law and morality shift? Why do we come to see conduct as egregiously wrong, when we had formerly seen it as merely inappropriate or even unobjectionable? Why do shifts occur in the opposite direction? A clue comes from the fact that some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. It follows that conduct that was formerly seen as ethical may come to seem unethical, as terrible behavior becomes less common, and also that conduct that was formerly seen as unethical may come to seem ethical, as terrible behavior becomes more common. In these circumstances, law (and enforcement practices) can have an important signaling effect, giving people a sense of what is normal and what is not. There is an important supplemental point, intensifying these effects: Once conduct comes to be seen as part of an unacceptable category – abusiveness, racism, lack of patriotism, microaggression, sexual harassment – real or apparent exemplars that are not so egregious, or perhaps not objectionable at all, might be taken as egregious, because they take on the stigma now associated with the category. Stigmatization by categorization can intensify the process by which formerly unobjectionable behavior becomes regarded as abhorrent. There is a relationship between stigmatization by categorization and “concept creep,” an idea applied in psychology to shifting understandings of such concepts as abuse, bullying, mental illness, and prejudice.
Cass R. Sunstein, Reply: Sure It Can, N.Y. Rev. Books, Aug. 16, 2018, at 77 (in response to Cass R. Sunstein, It Can Happen Here, N.Y. Rev. Books, June 28, 2018, at 64).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Law & Political Theory
,
Law & Behavioral Sciences
Type: Article
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, Jena B. Anupam & Tanner R. Hicks, Opinion, How to Avoid A Ticket, N.Y. Times, Aug. 5, 2018, at 9.
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Cass R. Sunstein, On Preferring A to B, While Also Preferring B to A, 30 Rationality & Soc'y 305 (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.
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
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 R. Sunstein, Jena B. Anupam & Josh Gray, Opinion, '13 Reasons Why,' More Doc Visits on Suicide, USA Today, May 18, 2018, at 7a.
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
,
Communications Law
,
Networked Society
Type: News
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.
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.
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.
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, 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.
Cass R. Sunstein, Chevron Without Chevron, 2018 Sup. Ct. Rev. 59.
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Statutory Interpretation
Type: Article
Abstract
Chevron v NRDC may well be the most important case in all of administrative law. It establishes a general principle, which is that agencies may interpret ambiguous statutory provisions, so long as their interpretations are reasonable. That principle is now under serious pressure. If the Court abandoned it, how would Chevron itself be decided? There are five possible approaches: (1) textualism; (2) purposivism; (3) resort to canons of construction; (4) use of Skidmore deference; and (5) validation of the agency’s decision, on the ground that no statutory provision prohibited it. In the context of Chevron, (1) and (2) run into serious problems, but (3), (4), and (5) are promising. The discussion suggests some general lessons for statutory interpretation and administrative law, and offers some cautionary notes for those who want to abandon the Chevron framework. Abandoning that framework would introduce high levels of confusion in the lower courts and the Supreme Court itself, and in all probability, the framework that would ultimately replace it would turn out to look a fair bit like that in Chevron itself.
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, Is Social Media Good or Bad for Democracy?, 15 Sur: Int'l J. on Hum. Rts. 83 (2018).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Networked Society
Type: Article
Abstract
While acknowledging that, on balance, social media can have a positive effect on democracy, the author also examines the other side of the argument, specifically the perils of polarisation. In doing so, he offers a critical view of certain aspects of the policies of social media companies that seek to offer a “personalized experience” which he argues risks keeping users in an “information cocoon”. However, he notes that there are other policies that counter this trend, which instead seek to keep users informed, and which must be pursued in order to ensure that social media is a tool that can make democracy work better.
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.
Meirav Furth-Matzkin & Cass R. Sunstein, Social Influences on Policy Preferences: Conformity and Reactance, 102 Minn. L. Rev. 1339 (2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Social norms have been used to nudge people toward specified outcomes in various domains. But can people be nudged to support, or to reject, proposed government policies? How do people’s views change when they learn that the majority approves of a particular policy, or that the majority opposes it? To answer these questions, we conducted a series of experiments. We find that in important contexts, learning about the majority’s opinion causes a significant shift toward support for or opposition to particular policies. At the same time, we find that when people’s views are fixed and firm, they are unlikely to conform to the majority’s view and that they might even show reactance. We show this pattern of results with respect to people’s support for or opposition to governmental policies in a wide range of substantive areas — and also to the use of paternalistic tools, such as nudges or bans.
Cass R.Sunstein, The Rise of Behavioral Economics: Richard Thaler’s Misbehaving, 2 J. Behavioral Econ. for Pol’y 53 (2018) (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, 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.

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