Cass Sunstein

Former President Donald Trump’s three U.S. Supreme Court appointees likely will be key to the fate of affirmative action in college admissions as the issue of race-conscious policies returns to the high court. ... Shortly after that ruling, for which Gorsuch was widely praised, Harvard Law’s Cass Sunstein warned that Gorsuch’s adherence to the “original public meaning” of legal texts “gives a real boost to opponents of affirmative action.” The key passage, Sunstein wrote, is where Gorsuch writes that to discriminate is to treat an “individual worse than others who are similarly situated,” and text means that the judge’s “focus should be on individuals, not groups.”

Harvard Law professor Cass Sunstein is best known as co-author, with Nobelist Richard Thaler, of the multi-million selling book Nudge. The idea that the behaviors of citizens and employees can be steered in a way that is beneficial to them have taken root worldwide. Today, there are hundreds of behavioral science teams, often called “nudge units,” in governments and corporations around the world.

This month saw the publication of the inaugural issue of The American Journal of Law and Equality, a project developed by three Harvard Law School professors in collaboration with MIT Press. The first issue features a variety of views from legal, academic and philosophical scholars, including its three editors and founders: 300th Anniversary University Professor Martha Minow; Michael R. Klein Professor of Law Randall L. Kennedy; and Robert Walmsley University Professor Cass R. Sunstein ‘78.

May is blooming with brand-new reads with a little something for everyone... ‘Noise: A Flaw in Human Judgment’ by Daniel Kahneman, Olivier Sibony and Cass R. Sunstein (available May 18): Ever wonder why people sometimes make such bad judgments? Nobel laureate, Princeton psychology professor and bestselling author Daniel Kahneman, along with Cass R. Sunstein, a legal scholar and Harvard law professor, and Olivier Sibony, an HEC Paris business professor, tackle that question and explore how variables of “noise,” akin to bias, affect errors in decision-making. The authors also offer ways to reduce noise and bias — important advice in today’s complicated world.

Cass Sunstein is a public intellectual and provocateur—and he has been pondering a timely issue: public lying. A longtime Harvard law professor and an expert on behavioral economics, Sunstein has written a slew of books, including volumes on cost-benefit analysis, conspiracy theories, animal rights, authoritarianism in the United States, decision-making, and Star Wars. He was recently named senior counselor at the Department of Homeland Security, where he will oversee the Biden administration’s rollback of Donald Trump’s policies. But right before he rejoined the federal government, he released his latest work: Liars: Falsehoods and Free Speech in an Age of Deception. The book is certainly a product of the Trump era, a stretch in which the “former guy” made 30,583 false or misleading claims while serving as president, according to the Washington Post. All his lying kind of worked. Donald Trump was elected despite—or because—of his serial falsehood-flinging. He nearly won reelection after his tsunami of truth-trashing. And after the election, Trump promoted the Big Lie that victory had been stolen from him, and his crusade triggered an insurrectionist raid on the Capitol that threatened the certification of the electoral vote count. After all that—and after Trump’s misleading statements about the COVID-19 pandemic led to the preventable of deaths hundreds of thousands of Americans—Trump remains the leader of the Republican Party and a hero for tens of millions of Americans.

An op-ed by Cass Sunstein: Why do people credit falsehoods? Why don’t they dismiss them? Here is a large part of the answer: Most of the time, we tend to believe other people. When they tell us things, we assume that they are telling the truth.To be sure, we consider some people untrustworthy, perhaps because they have so proved themselves; perhaps because they belong to a group that we think we should distrust. But on average, we trust people even when we should not. We pay too little attention to clear evidence that what is being said is false. We fail to discount for the circumstances. For instance, what if I said: In recent months, scientists have found that climate change is unlikely to be a serious problem. On balance, most people will be unaffected by it. People in the United States and Europe are unlikely to be affected at all. To be sure, there will be some harmful effects elsewhere, including Rwanda and South Africa, but even there, those effects will be small. Remarkably, most of the world’s population will be better off, because the world will be warmer. Actually that is false; I made it up. But if you’re like most people, that false statement might well linger in your memory, making you think, at least for a little while and in some part of your mind, that climate change isn’t a serious problem. (Sorry.)

An op-ed by Cass Sunstein: The U.S. Supreme Court is strongly committed to the “marketplace of ideas.” It tends to believe, in the words of Justice Louis Brandeis, that the remedy for falsehoods and fallacies is “more speech, not enforced silence.” If you believe that, you might also believe that if people lie about Covid-19, the 2020 presidential election, a politician, a journalist, a neighbor — or you or me — nothing can be done. Sure, you can answer with “counterspeech”: the truth. And that’s it. The problem is in many cases, counterspeech is ineffective. Lies lodge in the human mind. They are like cockroaches: You can’t quite get rid of them. This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter, in trying to stop falsehoods. Ironically, those understandings, and those practices, may themselves be based on a mistake of fact — something like misinformation. In United States v. Alvarez, decided in 2012, the Supreme Court appeared to rule that lies and lying are protected by the First Amendment. The court struck down a provision of the Stolen Valor Act, which makes it a federal crime if you claim, falsely, that you won the Congressional Medal of Honor. According to the court, that provision is unconstitutional; the government cannot punish that lie.

An op-ed by Cass Sunstein: In the impressively detailed memorandum on “scientific integrity” that President Joe Biden recently released, one provision could easily escape notice. It’s an explicit endorsement of behavioral science — and it calls for much more of it. The provision requires the director of the Office of Management and Budget to produce, within 120 days, “guidance to improve agencies’ evidence-building plans and annual evaluation plans.” It calls out President Barack Obama’s Executive Order 13707, issued in 2015, which has guided the use of behavioral science by government officials. Biden’s memorandum instructs the OMB director to build on that order and to work toward better practices. According to the memorandum, those practices “might include use of pilot projects, randomized control trials, quantitative-survey research, and statistical analysis.” In general, the goal is to build on “approaches that may be informed by the social and behavioral sciences and data science.” There’s a strong signal here. Obama’s agencies, including his Social and Behavioral Sciences Team, used behavioral sciences to produce creative solutions to policy problems.

An op-ed by Cass Sunstein: It is already clear that President Joe Biden will be implementing a large number of his policies through executive action. The reason is equally obvious: Democrats control both houses of Congress, but with a 50-50 split in the Senate and thin majority in the House of Representatives, it will be challenging to enact ambitious legislation. Whether the issue involves climate change, Covid-19, occupational safety or civil rights, executive action might be the only game in town. Regulations are a primary vehicle for executive action, and they are often challenged in court. The federal judiciary now includes more than 200 judges chosen by former President Donald Trump. Won’t they be eager to strike down a lot of Biden’s regulations? It’s a fair question, but for the Biden administration, it’s less constructive to ask it than to take account of identifiable judge-made principles that regulators must respect. In recent years, the Supreme Court has issued two rulings that loom particularly large, and that could turn out to impose serious obstacles. The first of those rulings — a big setback for President Barack Obama — emphasizes the importance of cost-benefit analysis. The second — a big setback for Trump — underlines the need for agencies to give careful consideration to how disruptive a regulatory change might be to people who relied on the previous rules and requirements.

An op-ed by Cass Sunstein: It’s the most important number you’ve never heard of, and President Joe Biden is about to change it as he resets U.S. environmental policy. It’s the social cost of carbon, a figure that helps determine the stringency of federal regulations governing cars, trucks, power plants, refrigerators, microwave ovens, washing machines, vending machines and much more. The social cost of carbon is a monetary figure that is meant to capture the damage done by a ton of carbon emissions to health, property and agricultural productivity, among other things. (It has two siblings, the social of nitrous oxide and the social cost of methane.) Because federal agencies often base their decisions on cost-benefit analysis, a high social cost of carbon means aggressive regulation of greenhouse gas emissions and a low one will produce modest regulation. Under President Barack Obama, the social cost of a ton of carbon was set at about $50 by a technical working group.1 In 2016, the analysis of the working group was upheld in court. But in one of his first actions, President Donald Trump disbanded the working group and essentially slicedthe social cost of carbon to a range of $2 to $7. That low number played a large role in justifying significantly weaker regulation of emissions from cars, power plants and more. How did Trump come up with that number? He ordered federal agencies to consider only the damage done in the U.S., and to ignore the damage done to the rest of the world. If greenhouse gas emissions from power plants in the U.S. harmed people in Canada, France and South America, that harm would be ignored.

An op-ed by Cass Sunstein: Amid the flurry of new executive orders and memoranda signed by President Joe Biden on his first day in office, there’s a sleeper. It’s called Modernizing Regulatory Review, and it’s exceedingly important. Crucially, the memorandum affirms the long-standing process managed by the Office of Information and Regulatory Affairs, which includes a significant role for cost-benefit analysis. At the same time, it marks a dramatic departure from the approach favored by the administration of former President Donald Trump and identifies excellent directions for fresh reforms. Since 1981, both Republican and Democratic presidents have directed agencies to submit drafts of their major regulations to OIRA — part of the Office of Management and Budget — for review and scrutiny. Whether the issue involves environmental protection, food safety, homeland security, health care or transportation, agencies must allow OIRA to coordinate a process called interagency review, by which various parts of the federal government are permitted to comment on draft regulations. For regulations with an economic impact of $100 million or more, agencies must also produce a regulatory impact analysis, cataloguing the benefits and costs of regulations, and showing that the benefits justify the costs.