Cass Sunstein

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.”

An op-ed by Cass Sunstein: Attorney General William Barr has produced an exceptionally brief summary of what is undoubtedly a lengthy report from special counsel Robert Mueller. For an issue of this magnitude – involving potentially serious misconduct by a successful presidential campaign and a sitting president – it is best to insist on a principle of neutrality, and to evaluate the summary not in political terms, but as a matter of fact and law.

An op-ed by Cass Sunstein: Many advocates of a Green New Deal insist that air pollution and racial justice are related and must be addressed simultaneously. In 2018, they point out, researchers from the Environmental Protection Agency concluded that black Americans suffer disproportionately from exposure to emissions.  More recent research does not merely provide fresh details about the relationship between environmental degradation and racial justice. It adds disturbing new findings about apparent inequities across racial lines. In brief: African-Americans and Hispanics are subject to far more air pollution than they cause by their consumption choices. By contrast, white people are subject to far less air pollution than they cause by their consumption choices.

An op-ed by Cass Sunstein: In an important statement, House Speaker Nancy Pelosi said, in response to an interview question, “I’m not for impeachment.” She explained: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.” There is a lot of sense in her comment. But it can easily be read in a way that puts it at odds with the Constitution itself. It’s best to assume that Pelosi did not mean it in that way. But on such a fundamental question, we should get very clear on the constitutional responsibility of the House of Representatives.

In throwing cold water on the idea of impeachment, Speaker Nancy Pelosi in some ways was simply offering a clear-eyed assessment of the state of politics today in the nation’s hyperpolarized capital: There are not enough votes to convict and remove President Trump from office. ... Unlike Mr. Matz, Cass R. Sunstein, a Harvard Law School professor who once worked in President Barack Obama’s White House, argued that the Constitution offers lawmakers little choice. “If we have a clear impeachable offense that is not a borderline one but a clear one, the impeachment process is mandatory because the House of Representatives is an agent of ‘we the people,’ the first three words of the Constitution,” said Mr. Sunstein, whose latest book, “On Freedom,” was published last month.

An op-ed by Cass Sunstein: A provision of the Affordable Care Act that is strongly supported by Donald Trump’s administration requires calorie labels at U.S. chain restaurants. The basic idea is that if consumers are informed, they will reduce their calorie consumption -- and improve their health. Unfortunately, it isn’t clear that calorie labels are doing much good.

An op-ed by Cass Sunstein: This is the first in a series of opinion pieces on how to fix democracy.  Democracies Depend for their stability on four things. First, well-functioning institutions. Second, the delivery of good or at least decent outcomes for most citizens. Third, norms of reciprocity and forbearance. And fourth, certain character traits among both officials and citizens. While the four are closely connected, the last is the most fundamental.  In particular, democracies require high levels of personal grace. They are gravely endangered by its opposite, which is savagery. James Madison, the principal thinker behind the American Constitution, focused mostly on institutional design. But in the Virginia Ratifying Constitution, he went in a different direction, and offered a kind of cri de coeur: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure.”

The difficulty of covering the Trump administration is that the scandals are so numerous and frequent that it is nearly impossible to focus on one before being overtaken by another. ... Perhaps the Justice Department and the Federal Communications Commission were deciding these cases on the merits. But T-Mobile executives seem to have gotten the message that they can influence antitrust proceedings by currying favor with the president: They dramatically increased their patronage at the Trump hotel in Washington as soon as they announced a merger with Sprint. If Trump misused his authority to reward his friends in the media and punish his enemies, Harvard law professor Cass Sunstein argues, that would be an impeachable offense.

An op-ed by Cass Sunstein: If you are interested in the resolution calling for a “Green New Deal” that Democrats have introduced in the House, you might want to pay attention to one remarkable phrase in particular. It appears in the resolution no less than three times: “as much as is technologically feasible.”

An op-ed by Cass Sunstein: With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here. To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world. If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress? Thomas doesn’t think so.

Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.

An op-ed by Cass Sunstein: A full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

An op-ed by Cass Sunstein: The U.S. government should not regulate social media. It should stay far away from Facebook, Twitter, YouTube, Instagram and the rest. Any regulatory effort might well violate the First Amendment. Even if it turned out to be constitutional, it would squelch creativity and innovation in the very places where they are most needed.  Until recently, I would have endorsed every sentence in the above paragraph. But as Baron Bramwell, the English judge, once put it, “The matter does not appear to me now as it appears to have appeared to me then.”