Cass Sunstein

This week, more than a dozen high-profile social scientists and legal scholars charged their profession to help fix democracy by studying the crisis of fake news. Their call to action, published in Science, was notable for listing all that researchers still do not know about the phenomenon. How common is fake news, how does it work, and what can online platforms do to defang it? “There are surprisingly few scientific answers to these basic questions,” the authors write...The authors of the Science essay—who include Cass Sunstein, a Harvard Law School professor and former Obama administration official, and Duncan Watts, a social scientist at Microsoft Research—argue that avoiding the term distorts the issue. Fake news refers to a distinct phenomenon with a specific name, they say, and we should just use that name (fake news) to talk about that problem (fake news)...In an email, [Laurence] Tribe responded: “I do my best to avoid retweeting or relying in any way on dubiously sourced material and assume that, with experience, I’m coming closer to my own ideal. But no source is infallible, and anyone who pretends to reach that goal is guilty of self-deception or worse.”

...Nudges — tiny changes that have surprisingly large effects on how we act — offer policymakers a way to gently push us toward doing the right thing: Automatically sign up drivers as organ donors, or enroll employees in the company retirement plan, unless they opt out. Put the fruit at eye level and hide the cake and candy somewhere inconspicuous. These nudges work because real-world humans don't make decisions like coldly rational Mr. Spocks, but like flawed, idiosyncratic Captain Kirks. Nudges are essentially ways to harness our less-than-rational behaviors to help ourselves, or those around us...The idea first came to public view a decade ago through the best-selling book Nudge, by economist Richard Thaler and legal scholar Cass Sunstein...“The biggest change is the sheer explosion of initiatives, from private and public sectors alike,” says Sunstein, of Harvard University.

An op-ed by Cass Sunstein. President Donald Trump has shown little or no respect for the independence of the nation’s institutions. That lack of respect is what distinguishes him from his recent predecessors, both Republican and Democratic, and above all it is what demonstrates an authoritarian disposition. Reasonable people can differ about the Trump administration’s policies on taxes, regulation, abortion and government spending. For those who strongly support those policies, some of Trump’s less appealing personal characteristics, including a lack of grace, might seem relatively unimportant, a matter of detail.

...To some, our phones and apps are little more than a distraction; to others, they're nothing short of an existential threat. But the vast majority of critics—and more and more companies—agree: People could use help deciding where to place their attention, to ensure that their time with technology is—to borrow an increasingly fashionable phrase—time well spent. And make no mistake: We users do need help. And that help can take a form that's subtle and effective...But our susceptibilities also make us receptive to something Harvard legal scholar Cass Sunstein calls libertarian paternalism, a term he coined with Nobel Prize-winning economist Richard Thaler to describe "nudges" by which institutions help people make better choices (as judged by themselves), while preserving their freedom to make those choices at as low a cost as possible...The question for tech giants, Sunstein says, is not whether they should engage in libertarian paternalism, but the ends to which they do so. "For companies like Facebook and Apple, there is a pressing need for a lot more thought on the goals of choice architecture," he says.

An op-ed by Cass Sunstein. Very quietly, the Trump administration recently issued a draft of its annual report on the costs and benefits of federal regulations. It’s a responsible and highly professional document — and a corrective to the noisiest claims, from both the White House and its critics, on the whole topic of regulation. The report is required by the Regulatory Right-to-Know Act, enacted in 2000. Since that time, Republican and Democratic administrations have cataloged the costs and benefits of federal regulations.

“It Can't Happen Here,” a book written by Sinclair Lewis over 80 years ago, concludes with a president all but ending democracy in favor of an authoritarian regime of his own. To get elected, he promised the nation great economic reform and a return to traditional, patriotic values, vowing to save the country from welfare fraud, sex, crime and a liberal media — sound familiar? That book is now the jumping off point for a new book, “Can It Happen Here? Authoritarianism in America.” It's a collection of essays from some of the nation's leading thinkers, theorists and historians on exactly how democracies can crumble. Jim Braude was joined by Cass Sunstein, former administrator for the White House Office of Information and Regulatory Affairs under President Barack Obama and editor and contributor of “Can It Happen Here?” and Martha Minow, former Dean of Harvard Law School, now professor and contributor to “Can It Happen Here?” to discuss their latest book.

...With 19 people charged by special counsel Robert S. Mueller III (including five cooperating witnesses), some believe a case against Trump is imminent...Advocates for presidential immunity rely heavily on one line by Alexander Hamilton in The Federalist Papers: A president, he said, “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Harvard Law professor Cass Sunstein insists that this quote “means you can’t indict and try a sitting president. He has to be removed first.”

Investors often use rules of thumb or cognitive shortcuts that simplify decisions. In the world of behavioral economics, these rules or shortcuts are known as heuristics. But investors are sometimes blind to the mistakes they might be making when they use rules of thumb and shortcuts. So, what are some heuristics that investors should use and which ones should they avoid?...For his part, Cass Sunstein, a professor at Harvard Law School, calls selling low myopic loss aversion, which is something you want to avoid. “Investors often react intensely to short-term losses,” says Sunstein. “Fear is not a good adviser.”

An op-ed by Cass Sunstein. Amid all the current political clamor, the Justice Department recently did something that is both technical and important -- and that simultaneously promotes freedom and the rule of law. It deserves bipartisan approval for its announcement that it will no longer rely on “guidance documents” to try to bind the private sector. Under the Administrative Procedure Act, enacted in 1946, federal agencies are allowed to issue “interpretative rules” and “general policy statements,” some of which qualify as guidance documents. Many of these advise members of the public -- companies, hospitals, labor unions, charities, immigrants -- about what the government considers to be their legal responsibilities.

...Where does the outrage come from, and why does it seem to emerge so suddenly? Media reporting is often a trigger, but for every hard-hitting investigation that unleashes a sustained storm, a dozen squalls blow over swiftly. One clue comes from a large research study of jury-style deliberations, conducted by psychologists Daniel Kahneman and David Schkade, along with Cass Sunstein, who has recently been exploring the dynamics of outrage. (Mr Sunstein was a senior official in the Obama administration, co-author with Richard Thaler of Nudge and is a legal scholar at Harvard Law School.) This study looked at debates over punitive damage awards against corporations. When individual jurors felt a corporate crime was outrageous, the group displayed a “severity shift”.

An op-ed by Cass Sunstein. The use of the Second Amendment to block consideration of sensible gun control measures is a national disgrace. And conservatives themselves have explained why this is true. For decades, conservatives have objected to the use of constitutional provisions as a political weapon, insisting that controversies should be resolved in democratic arenas instead. They have made this argument to oppose judicial recognition of the right to choose abortion; protection of same-sex marriage; creation of a rigid “wall” between church and state; and creation of new rights in the criminal justice system. Going even further, they have argued against the left’s efforts to use the Constitution to block reasonable political debates — about religion, about privacy, about equality — that the justices have never settled.

An op-ed by Cass Sunstein. In 2012, the Barack Obama administration imposed regulatory standards that require significant increases in the fuel economy of automobiles. 1 Intent on reducing regulatory costs, the Donald Trump administration is rethinking those standards. But it’s encountering a major roadblock: California. Because California is so large, and because more cars are sold there, by far, than in any other state, its regulators are in a strong position to drive the national market with respect to fuel economy — and to influence national regulators as well.

An op-ed by Cass Sunstein. Late last year, the Department of Labor proposed an important and controversial federal regulation without a serious analysis of its costs and benefits, and of its likely effects on low-income American workers. That’s a big mistake, a disservice to the public and a bad precedent. It might cause legal trouble as well. The absence of such an analysis, including numbers, is inconsistent with decades of practice supported by both Republican and Democratic presidents.

An op-ed by Cass Sunstein. In the last 35 years of U.S. regulatory policy, both Democratic and Republican presidents have agreed that cost-benefit analysis is an excellent idea. For that reason, it was welcome news this week when the Federal Communications Commission, led by Chairman Ajit Pai, voted to create an Office of Economics and Analytics, and to incorporate its work into the agency's decision-making. This development should have long-term benefits for communications policy in the U.S.

Twelve of the top 100 most-cited law professors of all time teach at Harvard Law School, according to the Social Science Research Network—and professors Lucian A. Bebchuk and Steven Shavell took the first two spots. An electronic service that aims to make research papers and scholarly articles easily accessible, the SSRN contains over 650,000 documents by more than 360,000 authors...“The rankings reflect the significant impact that the Harvard Law School faculty has on policy research and the legal academy,” Bebchuk wrote in an email. Law Professor Cass R. Sunstein ’75, who ranks in fourth place with 1,484 citations, said he thinks there is a significant benefit to publishing work on SSRN. “I think it’s a good thing if you have a paper that’s published and that could benefit from the comments and criticisms of others,” Sunstein said...The list also includes Law professors Louis Kaplow, Reinier H. Kraakman ’71, Mark J. Roe, Jesse M. Fried ’86, Alma Cohen, Allen Ferrell, John Coates IV, Oren Bar-Gill, and J. Mark Ramseyer.

An op-ed by Cass Sunstein. Special counsel Robert Mueller is reportedly seeking testimony from President Donald Trump, who recently said that “he would love to” testify and that he would do so under oath – though he needs to speak with his lawyers. The qualification is important and wise. For any high-level public official, testimony under oath comes with serious risks. For the commander-in-chief, the risks are multiplied, not only because of the overriding importance of his office, but also because foolish steps, establishing precedents, could have long-term effects on future presidents as well.

An op-ed by Cass Sunstein. On balance, the question of whether social media platforms are good for democracy is easy. On balance, they are not merely good; they are terrific. For people to govern themselves, they need to have information. They also need to be able to convey it to others. Social media platforms make that tons easier. There is a subtler point as well. When democracies are functioning properly, people’s sufferings and challenges are not entirely private matters. Social media platforms help us alert one another to a million and one different problems. In the process, the existence of social media can prod citizens to seek solutions.

An op-ed by Cass Sunstein. Combining stock market performance and approval ratings provides useful (and different) information about presidential performance. The market boom under Trump is not the largest rally in history, but it’s big. We don’t know to what extent Trump’s policies are responsible for the rise, but he didn’t hurt and he probably helped. At the same time, his approval ratings are under 40 percent. In modern history, no president has entered his second year with such low numbers.

An op-ed by Cass Sunstein. The White House was quick to condemn a federal judge’s decision last week striking down the Trump administration’s efforts to terminate the Deferred Action for Childhood Arrivals program. It called the ruling “outrageous,” and President Donald Trump tweeted that it shows “how broken and unfair our court system is.” But the judge’s decision to invalidate the program’s termination, and thus to protect young immigrants who were brought to the U.S. illegally as children, was not outrageous. Strictly as a matter of law, it was eminently reasonable – whatever Congress does or does not do in the coming days and weeks.

An op-ed by Cass Sunstein. When people get new information – about immigration, about President Donald Trump, about climate change – will they change their minds? It’s common to say that if they don’t, the reason is “confirmation bias," which means that people are far more likely to accept information that supports their current beliefs. But in some situations, what really matters is something different and even more insidious: “desirability bias.” When people display desirability bias, they find information more credible when it pleases them – even if it fails to confirm their pre-existing beliefs.