Cass Sunstein

A book review by Samuel Moyn: Whenever I need to drive somewhere, I use Waze. The app saves me a lot of trouble, because it aggregates information to which I have no access and even plans how to distribute the traffic rationally to avoid clogging the roads. It has a lot of pop-up ads, but I try to ignore them because they seem a minor annoyance...But whatever its drawbacks, Waze marks a triumph for “navigability,” the ungainly term that Cass Sunstein uses in his new book, On Freedom, to describe how easy or difficult it is to get from here to there and, in the metaphorical sense, to achieve a goal once you’ve set one for yourself. For Sunstein, government ought to be more like Waze, helping people fulfill their desires and dreams, especially when they themselves are blocking that fulfillment. But any inquiry into navigability is inseparable from a much bigger theory of where our desires come from and how society fits them together not just with others’ but also into a common scheme of life. For too long, liberals have abstained from inquiring into what people want and have ignored how most obstructions come from neither the state nor the self but from a deregulated market and an unreformed society in which oppression is the rule.

An op-ed by Cass Sunstein: Parody and satire are a legitimate part of public debate. Doctored videos are all over the place. Some are funny. Some are meant to make a point. Arguments of this kind are being made to support Facebook’s decision not to take down the doctored video of House Speaker Nancy Pelosi, in which she was made to appear drunk or otherwise impaired. One version, posted on the Facebook page Politics WatchDog, was seen over two million times in just a few days. There is no question that many viewers thought that the video was real. Acknowledging that it was fake, Facebook said, “We don’t have a policy that stipulates that the information you post on Facebook must be true.”

An op-ed by Cass Sunstein: Andrew Wheeler, administrator of the Environmental Protection Agency, recently released an important memorandum that makes terrific sense. In principle, it should improve the EPA’s performance -- and receive bipartisan applause. In practice? Well, that might be another story. The background is provided by two Supreme Court decisions. In 2009, the court ruled that whenever a congressional enactment is ambiguous, the EPA has the authority to consider the costs of its regulations and to weigh them against the benefits.

An op-ed by Cass Sunstein: The English language needs a word for what happens when a group of people, outraged by some real or imagined transgression, responds in a way that is disproportionate to the occasion, thus ruining the transgressor’s day, month, year or life. 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. For a recent example of lapidation, consider the case of Ronald Sullivan, a Harvard law professor who joined the team of lawyers defending Hollywood producer Harvey Weinstein against charges of rape and sexual abuse.

An op-ed by Cass Sunstein: It’s increasingly clear that Roe v. Wade, the U.S. Supreme Court decision protecting a woman’s right to choose abortion, is in jeopardy. But what is Roe all about? Privacy? Liberty? Women’s equality? Its survival may depend partly on the answer, so let’s go back to first principles. The Roe opinion, written by Justice Harry Blackmun in 1973, was entirely about privacy. As Blackmun put it, the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” For two reasons, that’s awkward. First, the U.S. Constitution does not protect a general right of privacy at all. Second, any right of privacy, if it does exist, would not seem to encompass the right to choose abortion. Privacy usually refers to the right to control access to personal information.1 What does abortion have to do with that?

An op-ed by Cass Sunstein; Human beings really don’t like to be guinea pigs. Many people are inclined to rebel if they learn that they are in some kind of experiment. For private companies and for governments, that’s a big problem. Randomized experiments, often known as “A/B tests,” are the best way for private companies and public officials to learn what they should be doing if they want to save money and even lives.

An op-ed by Cass Sunstein: President Donald Trump’s “protective assertion of executive privilege,” in response to a subpoena from the House Judiciary Committee, is creating a great deal of confusion. To dispel it, we have to see the trees, not the forest. To do that, it is crucial to understand that the subpoena called not only for the unredacted version of the Mueller report, but also for “[a]ll documents referenced in the Report” and “[a]ll documents obtained and investigative materials created by the Special Counsel’s office.”

An op-ed by Cass Sunstein: Is President Donald Trump legally entitled to withhold his tax returns from the House Committee on Ways and Means? Probably not – but it’s not simple. The governing legal text, known as section 6103, is buried in a lengthy set of provisions governing confidentiality and disclosure of tax returns. ... Representative Richard Neal, chairman of the Ways and Means Committee, invoked section 6103 on April 3, when he asked for Trump’s federal income tax returns for 2013 through 2018 – along with the returns for eight organizations owned by or associated with Trump. At first glance, section 6103 authorizes Neal to get those returns.

An op-ed by Cass Sunstein: If you are concerned about climate change, you are likely enthusiastic about renewable fuels, such as solar and wind, and about laws that require their use. For example, the Green New Deal calls for “meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources.” Unfortunately, new research shows that renewable-fuel mandates are an unusually expensive way to reduce greenhouse-gas emissions. The expense comes in the form of increased electricity prices, which are a particular problem for low-income consumers. A strong majority of states now have “renewable portfolio standards,” which require that a specified percentage of the electricity supply must come from renewables. In California, the 2030 target is 60 percent. In New York, it is 50 percent.

Bill McKibben says it might be curtains for humanity. Cass Sunstein says social movements may surprise you, but they shouldn’t. And a look at one controversial social movement: affirmative action. ... Cass Sunstein, How Change Happens: How many people do you think hold your same opinions? And how well do you think you could predict the next social movement? Harvard Law professor Cass Sunstein says not to be so certain. His latest book is called How Change Happens.

At the heart of all politics and activism is the concept of change. People agitate, organize and vote because they believe that they can affect change in the world — or, in some cases, reverse changes that have already happened. But the process of change can be a bit mysterious. How does it happen? How can people make it happen? In his new book, "How Change Happens," Harvard law professor Cass Sunstein tackles these larger issues, looking at a history of social change and analyzing it for lessons that could be useful for those who seek to make changes to the status quo. He sat down with me recently on "Salon Talks" to discuss the way social movements get started and why what used to be considered common sense or can sometimes transform with surprising speed.

An op-ed by Cass Sunstein: One of the great unresolved questions in American law is whether the president can control the decisions of the “independent” agencies, like the Securities and Exchange Commission, the Federal Reserve Board and the Federal Trade Commission. The Donald Trump administration has just moved in the direction of saying that the answer is yes.

An op-ed by Cass Sunstein: In coming to terms with Special Counsel Robert Mueller’s report, we should adopt a principle of neutrality and put entirely to one side our enthusiasm, or our lack of enthusiasm, for President Donald Trump. It is also essential to emphasize that the report, running to two volumes and some 448 pages, will take some time to absorb. Even so, the most puzzling thing about it is unquestionably a single sentence, repeated several times: “while this report does not conclude that the President committed a crime, neither does it exonerate him.” That is a singularly opaque sentence. What on earth does it mean? That’s a genuine mystery.

An op-ed by Cass Sunstein: Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment? To respond to those questions, you don’t even need to know what Yale is accused of doing. The answers are No and No. Yet, in a highly publicized letter to Dean Heather Gerken, Republican Senator Ted Cruz of Texas accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion – and is therefore unconstitutional. Cruz means business. He announced that the Senate Judiciary Committee’s subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

Brian talks to Cass Sunstein, the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served in the Obama administration as the Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012. In his conversation with Brian, he discusses his new book, “How Change Happens,” which answers the question of how social change happens and how change is impacted by social norms.

An op-ed by Cass Sunstein: After winning the presidential election, the White House finds itself under criminal investigation. It cries “witch hunt.” It attacks the Justice Department as “partisan.” It tries to discredit the “lying” press.” It refers to federal prosecutors as “liberal Democrats” and as “biased.” What is the attorney general to do? The question was posed in 1973, when Richard Nixon’s vice president, Spiro T. Agnew, was under federal investigation for corruption. Agnew was alleged to have accepted hundreds of thousands of dollars in kickbacks and bribes when serving as country executive, governor and vice president. Nixon, Agnew and other White House officials tried to terminate the investigation – even more fiercely, to discredit it. Everything depended on the choices of Nixon’s new attorney general, Elliot Richardson.

An op-ed by Cass Sunstein: Mark Zuckerberg, Facebook’s chief executive, recently raised a lot of suspicion when he argued for government regulation of his own company and other social media platforms. Some people have been skeptical of his motives, complaining that he is trying to fend off more aggressive regulation or to squelch competition. But instead of attacking the messenger, we should discuss the message on its merits. Zuckerberg’s argument is an important step in the right direction — one that should produce sustained discussion and eventually legislation. Heads of companies don’t usually contend that the government should be regulating them. But Zuckerberg rightly noted that if we were starting anew, we would not want private companies to decide, entirely on their own, how to answer the fundamental questions that social media providers are now facing. Consider the integrity of elections — a problem made most vivid by Russian interference with the 2016 U.S. presidential election.

An op-ed by Cass Sunstein: The controversy over the delayed release of Robert Mueller’s report, including the nature and extent of the redactions, raises large questions about government transparency in general. We can make progress in answering these questions by examining an important presidential memorandum, still in effect and binding all executive agencies in the federal government (including the Justice Department, which oversees disclosure practices). The memorandum is nominally about the Freedom of Information Act, but it speaks far more broadly. It begins plainly: “A democracy requires accountability, and accountability requires transparency.” It insists that “in the face of doubt, openness prevails.”

A nightmare. A wasteland. A place of confusion and half-truth. Ask Americans these days for their impressions of the news media and they are likely to produce such grim descriptions. These sentiments boil and fester as political and regulatory communities, whether motivated to tackle information monopolies or address data-privacy concerns, seem poised to get serious about new laws that could fundamentally alter the media ecosystem. But much of this energy is focused on the big tech companies, when the crisis, as the public perceives it, is deeper. ...The federal government could help address this market failure through the tax code. As the legal scholar Cass Sunstein has pointed out, the government has long held the power to subsidize speech, a tradition begun when America’s 18th-century leaders gave postal subsidies to newspapers and magazines to ensure the diffusion of knowledge throughout the sprawling young republic.

Imagine, for a moment, what would happen if President Donald Trump or other like-minded public officials traded in their Twitter accounts for a new weapon in the ongoing war against the news media: suing journalists and news organizations for libel. For decades, media lawyers and journalists had little reason to worry about such a scenario, thanks to the 1964 Supreme Court decision New York Times v. Sullivan. To foster “uninhibited, robust, and wide-open” debate, the court required that public officials filing libel lawsuits must prove that the defamatory statements at issue were made with “actual malice,” a standard that made it almost impossible for public figures to mount and win libel lawsuits. But on Feb. 19, Justice Clarence Thomas wrote an unexpected opinion that unsettled that sense of security. ...Not everyone thought Thomas was wrong to raise the issue. “Some kind of chilling effect is not the worst idea, because it reduces the risk that falsehoods will destroy people’s reputations,” Harvard Law School professor Cass Sunstein wrote in a Bloomberg opinion column. “And in this context, the idea of democracy is a double-edged sword. If a speaker lies about a politician, and destroys her reputation in the process, democracy is not exactly well-served.”