A Back-to-Basics Primer for Conservatives
October 19, 2020
An op-ed by Cass Sunstein: A well-functioning democracy requires at least two parties, armed with different ideas and approaches. If Republicans lose the White House to Democratic nominee Joe Biden, what ideas and approaches should they champion? Many Republicans might want to go back to basics and recover some of the foundations of conservative thought, as laid out by such thinkers as Edmund Burke, Michael Oakeshott and Russell Kirk. They might not be eager to seek advice from anyone who is not a trusted conservative. But one of the most clarifying accounts of the conservative tradition comes from a remarkable book, “The Rhetoric of Reaction,” written by the economist Albert Hirschman in 1991. Hirschman himself was no conservative. His aim was to offer a catalog of standard rhetorical “moves” by those opposed to social reform. But Hirschman paid careful attention to centuries of conservative ideas, and he was aware of the power of those moves. He had too much integrity to deny that, some of the time, those who make them are entirely correct. If Biden is elected and tries to deliver on his campaign promises, those on the right would find Hirschman’s catalog useful. Hirschman divided the objections to progressive reforms into three different categories: perversity, futility and jeopardy. Of these, the most effective is the perversity argument. The basic claim is that many seemingly appealing reforms are self-defeating; they hurt the very people they are supposed to help. Societies are systems, and if you interfere with one part of them, you might not like what happens.
Two Important New Books on Knowledge, Bias, and Paternalism
October 19, 2020
Traditional paternalists argue that they know what's good for you regardless of your own preferences. Prohibition advocates, for example, claimed that people must be forced to stay away from "Demon Rum" no matter how much they like to drink, or how carefully they weigh the costs and benefits of doing so. Over the last twenty years, however, intellectually sophisticated paternalists have largely shifted to a different rationale for restricting freedom of choice: "libertarian paternalism." Unlike old-fashioned paternalists, advocates of LP argue that choice must sometimes be restricted in order to enable people to better pursue their own "true" preferences—to do what they themselves would want to do, but for the pernicious influence of ignorance and cognitive biases. LP enthusiasts also contend that policymakers can simultaneously improve decision-making and minimize coercion by using carefully calibrated "nudges" rather than the crude blunderbuss tactics of "hard" paternalists. For their part, critics claim that the behaviorial research underlying LP isn't as robust as advocates assert, and that the new paternalistic policies have many of the same flaws as the old. Two recently published books suggest that there may be more room for common ground between defenders and critics of LP than previously assumed. The first is Too Much Information: Understanding What You Don't Want to Know by Harvard law professor Cass Sunstein, one of the leading advocates of LP. The second, Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy, by economists Mario Rizzo and Glen Whitman (RW), perhaps the leading academic critics of LP. Sunstein and RW are longtime adversaries in the academic debate over paternalism. But these two books have so much in common that readers unfamiliar with the authors' history might assume they are all on the same side.
Barrett’s ‘Originalism’ Can Be Pure Politics
October 14, 2020
An op-ed by Cass Sunstein: We have heard a great deal about Judge Amy Coney Barrett’s approach to the law in the time leading up to her Supreme Court confirmation hearings this week. She believes in adhering to the text of the U.S. Constitution and of statutes enacted by Congress, and in following the “original meaning” of that text. In this respect, she follows her mentor, the late Justice Antonin Scalia. In her words: “… It was the content of Justice’s Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were.” She also explained: “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold." Fair enough. But what would you think about a judge who voted to strike down the Affordable Care Act, to strike down greenhouse-gas regulations, to strike down gun-control laws, and to strike down affirmative-action programs? Would you be quite clear that such a judge had been “resolute in setting aside any policy views they might hold”? What would you think if that very same judge voted to invalidate congressional restrictions on corporate speech, voted to forbid Congress from allowing citizens to bring suit in federal court, voted to strike down campaign-finance regulations, voted in such a way as to hand the 2000 presidential election to President George W. Bush — and consistently voted against constitutional protections of gays and lesbians? Would you be so sure that such a judge was simply “applying the law as written”? And what would you think if that same judge voted to strike down environmental regulations as interfering with property rights, voted to overrule Roe v. Wade, and ruled against a constitutional right to same-sex marriage?
Judge Barrett and the Duck-Rabbit Test
October 13, 2020
An op-ed by Cass Sunstein: Have a look, if you would, at this image: Is it a duck, or is it a rabbit? Many people see it as a duck; many others see it as a rabbit. You might see it as one and then as the other, maybe with some effort. You might try simultaneously to see the image as both a duck and a rabbit, but that is not possible. At any moment, it is one or the other; it is not both. If you can easily see it as one and then the other, congratulations. You might be especially creative. The philosopher Ludwig Wittgenstein used the duck-rabbit figure to explain that there is a difference between “seeing that” and “seeing as.” When you see a table, you are seeing “that” it is a table. It just is a table. But when you see clouds in the sky forming an image of a face, you are seeing the cloud formation “as” a face. In the latter case, your own perspective is crucial. If you see a duck, you might think that you are seeing “that.” But you are really seeing “as.” People often confuse the two. Why do some people see a duck, and why do others see a rabbit? A likely answer points to the importance of our preconceptions. For example, researchers have found that people of all ages, and particularly those between the ages of 2 and 10, were significantly more likely to see the image as a rabbit on Easter Sunday...The duck-rabbit image is both puzzling and fun. It also helps us understand current social divisions, including those in both law and politics. Supreme Court nominee Amy Coney Barrett is a “textualist,” committed to following the ordinary meaning of congressional enactments. But what is that meaning? Textualists insist that they see a duck. But it might also be a rabbit.
Originalist Judges Have a Problem With Equality
October 6, 2020
An article by Cass Sunstein: Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution’s text. The late Justice Antonin Scalia was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett. Debates about originalism have become complicated. But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race. Let’s spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way. Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle. On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government. Here’s why.
What Happens If Trump Is ‘Unable’ to Govern
October 5, 2020
An article by Cass Sunstein: Now that President Donald Trump has tested positive for Covid-19, the Department of Justice is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president. No one who works for a sitting president wants to think about that amendment. But in any administration, worst-case scenarios get attention, and if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires. The good news is that for most imaginable health outcomes associated with the virus, it is entirely clear. The less good news is that for some imaginable health outcomes, especially those associated with Covid-19, the 25th Amendment is ambiguous. It offers two different routes by which the transfer of power can occur. Section 3 says this: ‘Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.’ Section 4 says this: ‘Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.’ Under section 3, the president voluntarily transfers power to the vice president. Under section 4, the decision is made by the president’s own team – by majority vote.
There’s Room for Surprises From Amy Coney Barrett
September 28, 2020
An article by Cass Sunstein: Here is a paradox. It is pretty easy to predict the voting patterns of new Supreme Court justices. But it can be exceedingly difficult to predict the votes of justices in specific cases, which means that it can be difficult as well to predict how those cases are going to be decided. When President Bill Clinton appointed Stephen Breyer to the Supreme Court in 1994, those who knew Breyer’s work knew that his voting patterns would be moderately liberal — more centrist than those of progressive heroes Justices Thurgood Marshall and William Brennan, but to the left, for sure, of Justice Antonin Scalia. And when President George W. Bush appointed John Roberts as chief justice in 2005, it was clear, from Roberts’ record, that his voting patterns would be moderately conservative — distinctly more conservative than those of Breyer, but distinctly less so than those of Scalia. Something similar can be said about every Supreme Court nominee over the last half-century. At the same time, the court is capable of big surprises. For example, many experts did not predict that in 2015, it would rule in favor of same-sex marriage; that in 2020, it would strike down President Donald Trump’s decision to repeal President Barack Obama’s Deferred Action for Childhood Arrivals program, designed to protect some unauthorized aliens from removal; or that in the same year, it would interpret the Civil Rights Act of 1964 to forbid discrimination on the basis of sexual orientation.
‘Law & Leviathan’ Review: Self-Government Minus the Self
September 24, 2020
The U.S. Constitution’s separation of powers is a concession to man’s fallibility. Man tends to abuse power, so the Founders dispersed it. To preserve liberty and promote the public interest requires not just intentions but also institutions. Yet when we think of our institutions merely as safeguards, we sell them short...Justice Thomas and other judges and scholars have grown increasingly vocal in challenging the administrative state’s constitutional legitimacy. They question the statutes and judicial precedents that undergird the administrative state. In court-made doctrines of judicial “deference” to agencies’ legal interpretations, these jurists see abdication of the Constitution’s “judicial power.” In old statutes giving some agencies substantial independence from presidential control, they see violations of the Constitution’s grant of “executive power” to the president alone. And in old statutes empowering agencies to regulate with minimal limits, they see violations of the Constitution’s vesting of “legislative powers” in the Congress alone. All of these, they argue, undermine republican government and the rule of law. Cass R. Sunstein and Adrian Vermeule reject that position in “Law + Leviathan: Redeeming the Administrative State.” Mr. Sunstein was President Obama’s White House regulatory coordinator and is perhaps the leading regulatory thinker in Democratic policy-making circles. Mr. Vermeule is an intellectual leader for a rising generation of conservatives who demand a much more explicitly paternalistic and moralistic constitutionalism. While the two Harvard Law professors surely disagree on many things, they both believe that the administrative state doesn’t undermine the rule of law but exemplifies it. Drawing inspiration from “The Morality of Law” (1964), a major work of legal philosophy by Lon Fuller, they argue that “American administrative law has its own internal morality,” which “embraces many of the concerns and objections of those who are deeply skeptical of the administrative state” and which ultimately serves to “both empower and constrain the administrative state.”
It’s Actually Easy to Predict Supreme Court Performance
September 23, 2020
An article by Cass Sunstein: Can you predict the performance of Supreme Court appointees? When President Donald Trump chooses a successor to the late Justice Ruth Bader Ginsburg, as he has said he will do by the end of this week, can he be confident that he will be happy with his choice? Many people think that the answer is “no.” In their view, judges often stun people, including the president who appoints them. That’s wrong. Over the last half-century, there have been exactly no surprises. Let’s divide justices into the following categories: very conservative, moderately conservative, centrist, moderately liberal and very liberal. The categories are crude, but they suggest how justices are likely to vote on important issues, such as affirmative action, environmental protection, gun rights, privacy, campaign finance, immigration and religious liberty. If you had studied the pre-appointment records of the 17 Supreme Court justices confirmed since 1971, you would have been surprised by the performance of none. Consider a few examples. Justice Anthony Kennedy, selected by President Ronald Reagan in 1987 after the Senate refused to confirm the very conservative Robert Bork, had an extensive record as a lower court judge. He was unmistakably conservative, but he also showed a degree of moderation, including sympathy for a constitutional right to privacy. His vote in 1991 to preserve Roe v. Wade, the 1973 opinion that established a constitutional right to abortion, was hardly shocking. A close reader of his lower court opinions would not have been amazed to learn that he turned out to be a pivotal vote in favor of protecting gays and lesbians. Justice David Souter, appointed by President George H.W. Bush in 1990, was a centrist. He is often seen as Exhibit A for the proposition that the voting records of Supreme Court choices are surprising. But for those who had read his opinions on the New Hampshire Supreme Court, his centrism was self-evident. In New Hampshire, he was a judge’s judge: cautious, nonideological, closely attentive to precedent.
Trump’s Nasty Nicknames Spread Like a Virus
September 22, 2020
An article by Cass Sunstein: In an interview Tuesday morning with Speaker of the House Nancy Pelosi, CNBC host Jim Cramer addressed her as “Crazy Nancy.” Here’s the transcript: Jim Cramer: What deal can we have, Crazy Nancy? I’m sorry, that was the President. I have such reverence for the office. I would never use that term, but it is – Speaker Pelosi: But you just did. [Laughter] But you just did. Cramer: Oh, come on, you know what I mean. You know what I mean. Pelosi: I know what you meant, I do. Cramer later apologized, saying, “I made a very stupid mistake.” President Donald Trump tweeted back: “Jim, you didn’t make a mistake. It’s true, and that’s why you said it. No pandering!” Taken by itself, the incident is merely revolting. But it reveals some larger truths. Let’s assume what is probably the case: Cramer had no conscious intention of addressing the speaker of the House as “Crazy Nancy.” But Trump’s ugly nickname stuck in his head, so that when he saw her face, that’s what came to mind. He used the term automatically and without reflection. There is a clue here about the immense power of ugly nicknames — and also of deception and lies. With respect to statements of fact, human beings show “truth bias”: people tend to think that what they hear is truthful, even when explicitly told that it is false, or otherwise have excellent reason not to believe it. Indeed, research shows that a real-time disclosure that a statement is untrue may not be enough to stop us from remembering it as true, and potentially from repeating it later, with conviction. It’s hard to get some things out of our heads, even if they are accompanied with strong disclaimers. (Social media platforms, are you paying attention?)
Ginsburg Cleared Path to Include the Excluded
September 21, 2020
An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”
The Very Structure of Modern Government Is Under Legal Assault
September 15, 2020
An article by Cass Sunstein and Adrian Vermeule: More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government. Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated. So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities. These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)
How to Fight Back Against Coronavirus Vaccine Phobia
September 14, 2020
An article by Cass Sunstein: The world is soon likely to confront a serious new challenge to the fight against Covid-19: vaccine hesitancy. In the U.S. and U.K., large numbers of people — at least 30 percent — have said in recent surveys that they would hesitate to take or refuse a vaccine that could protect them from the coronavirus and slow its spread. These numbers probably understate the problem. People might tell a researcher that they will get vaccinated even if they won’t. And the problem might be even worse if a vaccine is made available under a speeded up “emergency use” exception to the usually lengthy approval process, amplifying public concerns about rushing it out. What can be done? To answer that question, we need to understand why some people are reluctant to take vaccines. Research explores the influence of three factors, often known as the three Cs. The first is convenience. Human beings suffer from inertia, and they also procrastinate. If it’s not so easy to get vaccinated, many people won’t do it. Physical proximity to vaccination sites helps; so do short waiting times. Long lines hurt. So do paperwork requirements and administrative obstacles. If widespread immunity is the goal, officials must not underestimate the importance of eliminating inconveniences, both small and large. The good news is that when vaccines are easily available, the rate of vaccination increases greatly, even among people who have doubts. The second factor is complacency. With respect to diseases, a lot of people tend to think that their personal risk is low. “Optimism bias,” as it is called, makes vaccination seem unnecessary. The third factor is confidence: public trust in the efficacy and safety of the vaccine, and also in the motivations and competence of those who are behind it.
Biden’s Day 1 Assignment: Order the Government to Follow Science
September 9, 2020
An article by Cass Sunstein: Imagine, if you would, that it is Jan. 21, 2021, and that Joe Biden is president of the United States. The nation awaits his first executive order — a formal presidential decree, binding on the executive branch, that directs departments and agencies what to do. At 9 a.m., the executive order appears. Its name? “Scientific Integrity.” Here are its opening words: "Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security." It continues: "The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public." But that’s just the start. President Biden’s order gives unprecedented authority to the director of a relatively obscure White House office, the Office of Science and Technology Policy, to make scientific integrity real. It requires federal agencies to put new procedures in place, designed “to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised.” To ensure that political leaders do not politicize science, it calls for protection of whistle-blowers.
Fallen Soldier Insults Give Trump a Lot to Fear
September 8, 2020
An article by Cass Sunstein: The White House has powerful reasons to fear the electoral repercussions of reported comments by President Donald Trump in which he is alleged to have described fallen soldiers as “suckers” and “losers.” Those comments threaten his most important political advantage. To see why, we need to back up a bit. Jonathan Haidt, a social scientist at New York University, has specified some of the central differences between conservatives and liberals. He identified five foundations for moral judgments: harm, fairness, loyalty, authority and sanctity. Both the right and the left care about harm and fairness, even if they do not understand them the same way. But the right cares far more about loyalty, authority and sanctity. A mountain of evidence supports this conclusion. If, for example, people have been disloyal to their nation or their family, shown disrespect to their superiors, or done something disgusting, conservatives will be far more likely to show outrage. If you ask Americans how much they would have to be paid to burn their nation’s flag, or to curse their parents to their face, people on the left might demand a lot of money. But people on the right will demand more, and they might say that no amount is high enough. Building on Haidt’s work, Harvard economist Benjamin Enke has studied the rhetoric of numerous recent presidential candidates, and found that one has done better than all others in emphasizing loyalty, authority and sanctity: Trump. On the same scales, Hillary Clinton was especially bad. (Barack Obama was far better.) Enke also found that Trump’s emphasis on these values mattered to many voters, and attracted them to his side.
Worried About a Disputed Election? Steel Yourself
September 1, 2020
An article by Cass Sunstein: Suppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.
Responding to a Contested Election, Step by Step
August 31, 2020
An article by Cass Sunstein: After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled. We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”). To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner. What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College. In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors. Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump. But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?
While the Science Weekly team take a summer break, we’re bringing you an episode from the archives – one that seems particularly pertinent as the pandemic continues and governments take a more prominent role in our day-to-day lives. Back in 2017, Ian Sample investigated how we’re constantly “nudged” to change how we act. Exploring the psychology, history and ethics of nudge theory, Ian spoke to the Harvard Law School professor Cass Sunstein and Dr. David Halpern, one of the field’s founders, who is currently advising the UK government on nudging during the coronavirus outbreak.
Cass Sunstein tapped to chair WHO technical advisory group
August 24, 2020
Cass Sunstein ’78, the Robert Walmsley University Professor at Harvard, has been tapped by the World Health Organization to chair its Technical Advisory Group on Behavioural Insights and Sciences for Health.
Require People to Wear Masks When Nudges Fall Short
August 20, 2020
An op-ed by Cass Sunstein: What if nudges fail? Because of the coronavirus, that question has suddenly become urgent. Efforts to nudge people to wear masks, to engage in social distancing, and to use other protective measures have done some good. But with more than 170,000 deaths, they cannot be counted a smashing success. A nudge is an intervention that steers people in particular directions, but that fully preserves freedom of choice. A GPS device nudges. So does a calorie label or a warning (“this product contains peanuts”). Whenever a nudge fails, there are three major options. The first is to give up — declare victory and insist that freedom worked, because a major point of nudging is to allow people to go their own way. The second is to nudge better. The third is to turn to some other tool, such as a mandate or a ban.
Bloomberg ‘Balance of Power’
August 20, 2020
"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.
How to Block Foreign Subversion of U.S. Elections
August 19, 2020
An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.
School Reopenings Depend on Numbers, Not Guesswork
August 17, 2020
An article by Cass Sunstein: The intense debates over school openings are missing something crucial: numbers. Without them, it’s essentially impossible to know what to do, or to evaluate what is being proposed. Here’s an analogy. Suppose that the Food and Drug Administration is contemplating a new food safety regulation, or that the Department of Transportation is considering new restrictions on railroads. The White House Office of Information and Regulatory Affairs is supposed to require it to identify the gains and the losses — the benefits and the costs. Those numbers might not be decisive, but they’re needed. In their absence, the decision whether to proceed, or not to proceed, is essentially a stab in the dark. To be sure, some numbers might be hard to specify. The agencies might not know enough to provide them. But officials have well-established techniques for dealing with that problem. For example, agencies might be asked to disclose the ranges, including the best and worst cases, and their respective likelihoods. It’s true that politics might intervene, and you might not be able to trust the numbers. But when the system is working well, they are checked and rechecked by people who know what they are doing, and aren’t affected by political considerations. The decision whether and how to reopen schools is being made by states and localities, not by Washington, and numbers need to inform those choices. The problem is that for school openings (and much more), we’re mostly hearing abstractions and generalities — expressions of agitation and fear. On the one hand, reasonable people are pointing to the immense strain on parents of having young kids at home and the many problems with online learning. On the other hand, reasonable people (including teachers’ unions) are pointing to the risk of an outbreak and a spike in deaths.
Republicans’ Hypocrisy Endangers Separation of Powers
August 11, 2020
An article by Cass Sunstein: The system of separation of powers is in real trouble. That’s the main conclusion to draw from President Donald Trump’s recent executive orders, attempting to circumvent Congress with actions that (he said) would provide some economic relief made necessary by the pandemic. A central assumption behind the U.S. Constitution no longer holds. The reason is that when members of Congress are asked to assess aggressive and possibly unlawful actions of a sitting president, they now ask one question: Is he a Democrat or a Republican? If he’s a Democrat, Republicans will complain of intolerable overreaching and an unconstitutional power grab, even if there’s no overreaching at all. If he’s a Republican, Republicans will stand by silently or applaud, even if there’s palpable overreaching. It’s probably right to say that Democrats show the same pattern, just in reverse. But because the outrage of Republican members over President Barack Obama’s unilateral actions is so recent, and because it is such a wild contrast with their general acquiescence in Trump’s unilateral actions, it’s fair to point to Republican hypocrisy in particular. (Disclosure: During the Obama administration, I served as administrator of the Office of Information and Regulatory Affairs.) It wasn’t supposed to be this way. The framers of the Constitution specifically sought to ensure that members of Congress would care about their institutional authority and work hard to protect it, no matter who occupied the White House. In the Federalist No. 51, James Madison emphasized the importance of giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” As he put it, “Ambition must be made to counteract ambition.” Madison added, “The interest of the man must be connected with the constitutional rights of the place.” Those are the most important words in Madison’s argument.
Virtual College Classrooms Can Stifle Free Speech, Too
August 5, 2020
An article by Cass Sunstein: Universities have come under fire from many directions for discouraging students from speaking up. A number of conservatives have said that they risk ostracism, ridicule and even threats if they express their views, or if they simply question what they see as a liberal orthodoxy. Some women complain that men dominate class discussion, while some Black and other minority students say that they resent having to explain themselves, as if they were representatives of their race or ethnicity. Can online learning reduce the problem of self-censorship? All of a sudden, with the coronavirus changing how students engage with one another and their professors, that’s a pertinent question. For the many students who are inclined to self-silence, what’s needed is what Virginia Woolf described as “a room of one’s own” — a place of freedom to say what they think, “a quiet room or a sound-proof room,” one of safety and a kind of immunity. According to a recent poll by the Cato Institute, 62 percent of Americans are afraid to disclose their political views. The percentage of Republicans who say this is especially high (77 percent). But a majority of Democrats say so as well (52 percent). Independents also claim that they self-censor (59 percent). In universities, self-censorship can be a particular problem. As a general rule, students should feel free to say what they think, at least if it is relevant to the topic. Education depends on that. Yet most experienced teachers have heard plenty of students say, after class, “I thought the discussion was way off, but I didn’t feel comfortable saying so.” For every student who is willing to take the trouble to say that, how many just stand by in silence? Some students are afraid to disclose their political convictions.
Democracy Is the Loser of Trump’s Vote-Delay Ploy
July 31, 2020
An article by Cass Sunstein: What once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: "With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???" There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”
Harvard Law faculty summer book recommendations
July 30, 2020
Looking for something to add to your summer book list? HLS faculty share what they’re reading.
Biden Needs a Battle Plan to Defend Modern Government
July 21, 2020
An article by Cass Sunstein: Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.
For the past several weeks, Americans have been greeted daily with agonizing news about the coronavirus pandemic. Not simply from the anguish of the country’s spiraling cases and death tolls, but the incompetence of much of its political culture, too: Governors who flip-flop on mask-wearing, local officials who cave to pressure on public health measures, and a President who long ago stopped attending his pandemic meetings in favor of heaping abuse on his own public health agencies. But some thinkers are exploring how the country could still craft an effective pandemic policy, even in the absence of a federal one. Cass Sunstein is one of those thinkers, a longtime professor at Harvard Law School who has written extensively on the exploding area of cognitive science known as behavioral economics, and its implications for government policy. In 2008, Sunstein published the book “Nudge” along with co-author Richard Thaler, another leading scholar in behavioral economics. Together, Sunstein and Thaler envisioned a marriage of cognitive science and policy at various levels of American government that they dubbed “libertarian paternalism.” To take an example: If the cognitive bias toward “loss aversion” dictates that humans react less often to the prospect of reward than they do to the prospect of losing something they already have, such an insight could be applied to myriad aspects of policy—from “opt-out” schemes for organ donation at the DMV, to the Army’s interactions with the Taliban in Afghanistan. Fittingly, Sunstein ended up doing exactly that, serving in the Obama administration’s Office of Information and Regulatory Affairs from 2009 to 2012, where he sought out creative applications of behavioral economics to the White House policy portfolio. Lately, Sunstein has been advising foreign governments and other organizations on their own behavioral framework for addressing the pandemic, too. In an interview edited for length and clarity, Sunstein tells Washingtonian why pandemics are particularly suited to manipulating human biases, why New Zealand has tapped the cognitive power of fun, and what Texas might be able to teach the country after all.
Roberts, No Centrist, Is in the Supreme Court’s Middle
July 10, 2020
An article by Cass Sunstein: In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts. A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention. O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens. While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law. O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways. Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.
An article by Cass Sunstein: Does President Donald Trump want to deport everyone who is not an American citizen? Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic. The announcement is cruel. It’s also stupid. It is cruel to those students, many of whom are now living in the U.S., and who are suddenly threatened with deportation. It is stupid because one of the greatest U.S. strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the U.S. and its people, keenly appreciative of the best American traditions and values. Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the U.S., and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here. It’s no wonder that the new rule has prompted a lawsuit, filed on Wednesday by Harvard University and the Massachusetts Institute of Technology. But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.
How to Nudge a Coronavirus Nonbeliever
July 6, 2020
An article by Cass Sunstein: A lot of Americans aren’t taking Covid-19 seriously. They aren’t wearing masks. They aren’t social distancing. They aren’t staying home. That’s one reason that the number of cases is spiking in the South and West. The problem is especially serious in Florida, Arizona, South Carolina, North Carolina, California, Tennessee and Texas, which are reporting the highest numbers of hospitalizations since the coronavirus pandemic started spreading across the U.S. in March. The result is likely to be many thousands of preventable deaths. Why are so many people refusing to take precautions? A key reason is their sense of their identity — their understanding of what kind of person they are, and of the groups with whom they are affiliated. It follows that appeals to adopt responsible practices are unlikely to work unless they take group identity into account. An alarming example: In Alabama, college students have been holding “Covid-19 parties,” including people who are infected and intentionally designed to see who else can catch the virus first. In the last decades, behavioral science has drawn attention to the immense importance of personal identity in motivating behavior. A central idea, pressed by Dan Kahan, a law and psychology professor at Yale University, is that people’s beliefs and understandings are often “identity-protective.” With respect to some risks — such as those posed by climate change, nuclear power and gun violence — people’s judgments about whether a danger is high or low are deeply influenced by their understanding of the group, or tribe, to which they belong. People ask, “Am I the sort of person who thinks and does this, or not?” The answer to that question can be decisive.
Supreme Court Puts Independent Agencies at Risk
July 1, 2020
An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.
An article by Cass Sunstein: The year: 1964. The location: the Oval Office. President Lyndon Johnson, an improbable advocate for civil rights, was meeting with Governor George Wallace, an implacable foe of civil rights. Wallace had requested the meeting. The specific topic was voting rights and the ongoing demonstrations on their behalf. He wanted the president to help stop them. After a little small talk, the governor began the conversation by alleging that many of the “malcontents” had been “trained in Moscow.” Johnson responded that all the protesters wanted was the right to vote. He added that “you can’t stop a fever by putting an icepack on your head. You’ve got to use antibiotics and get to the cause of the fever.” Wallace was disdainful. He said that it was impossible to “deal with street revolutionaries,” who could never be satisfied. You might give them the right to vote, but “then it’s jobs; then it’s distribution of wealth without work.” Increasingly frustrated, Johnson asked Wallace to think about the verdict of history, not about the current moment. He asked: "George, what do you want left behind? Do you want a great big marble monument that says 'George Wallace: He Built'? Or do you want a little piece of scrawny pine lying there along that hot caliche soil that says 'George Wallace: He Hated'?" Wallace was shaken. Later he said to an aide, “Hell, if I’d stayed in there much longer, he’d have had me coming out for civil rights.” Johnson’s key distinction — between the builders and the haters — is keenly relevant today, of course. Most important, it captures the split between those who are working for racial justice, including voting rights (and jobs), and the modern-day Wallaces, who in various forms are complaining of “street revolutionaries,” doubting the patriotism of the protesters, and emphasizing looting and acts of violence, as if they are all that matter.
‘Balance of Power’ Full Show (06/26/2020)
June 29, 2020
"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. Guests: PGIM CEO David Hunt, Ford COO Jim Farley, Harvard Law Professor Cass Sunstein.
Automatic Enrollment in College Helps Fight Inequality
June 22, 2020
An op-ed by Cass Sunstein: To reduce inequality and racial injustice, a lot of people are interested in making college available to all. The most ambitious proposals would cost a great deal of money — and taxpayers would have to foot the bill. Last week, the city of West Sacramento, California, did something fresh and creative — and cheap. It automatically admitted every one of its graduating high school seniors to a local two-year college, Sacramento City College. Here are the first words of the letter received by each graduate: “Congratulations on your graduation and your acceptance to Sacramento City College!” As Mayor Christopher Cabaldon put it, “Imagine no one in your family has ever gone to college, and you open up an envelope with a letter of admission.” He added that the new effort “will make it just as simple to go from high school to college as it is to go from kindergarten to first grade.” By itself, automatic admission costs almost nothing. It’s just a letter. But there’s every reason to think it will have a real impact. For many students, it will make all the difference, just because of its automatic quality. Mayor Cabaldon’s initiative builds on one of the most important findings in behavioral science: If you ask people whether they want to opt into something, you will get much lower participation rates than if you enroll them automatically, and ask them whether they want to opt out.
Supreme Court’s DACA Ruling Thwarts Administrative State
June 19, 2020
An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. ... The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.
Gorsuch Paves Way for Attack on Affirmative Action
June 18, 2020
An article by Cass Sunstein: Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.
An article by Cass Sunstein: In the early 1980s, I was one of four law clerks for Justice Thurgood Marshall, probably the greatest civil rights lawyer in U.S. history and the first African American to be appointed to the Supreme Court. In a discussion with our boss, we expressed concern that the high court might overrule its Miranda decision, which requires police officers to provide the famous warnings to people in custody. We thought that the Miranda warnings were an essential means of preventing official abuse in general and of protecting African Americans in particular. Marshall looked at us with amusement. This is what he said: “Miranda? I like Miranda well enough. But not all that much. When I lived in New York City, a long time ago, I had a nice, long talk with head of a local precinct about police misconduct and the United States Constitution. Here’s what he did the next week. He got all his cops in a big room, and said, ‘If I hear that any of you has mistreated anyone in New York – beaten him up, knocked him down, violated his civil rights, targeted him because of his race, anything like that – you’re fired. Immediately. On the day.’” Marshall took a long pause. And then he thundered: “And that’s a lot better than Miranda!” In the 1990s, I lived on the south side of Chicago, and my car was stolen. A police officer recovered it. As we talked about what had happened, he asked me, “And what do you do for a living?” I responded, “I teach constitutional law.” He looked displeased. I thought I knew why, and asked, “Oh, does the Fourth Amendment give you any trouble?” (The Fourth Amendment forbids unreasonable searches and seizures.) His answer: “Oh, no, not at all. I didn’t violate the Fourth Amendment unless I say that I violated the Fourth Amendment, and I never say that I violated the Fourth Amendment.”
Here’s Something We Can Learn From the Urban Fox
June 15, 2020
An article by Cass Sunstein: Would you adopt a fox? The prudent answer is “no”; foxes are wild animals. Or are they? In something out of science fiction, new research suggests that we are now starting to see two different kinds of foxes: the wild and the domesticated. The research tells us something about mammals in general, including the beloved Canine Lupus Familiaris (also known as the dog) and Homo Sapiens. It is also uplifting – a hopeful sign in these dark days. The relevant research, by Kevin Parsons of the University of Glasgow and colleagues, has a daunting title: “Skull morphology diverges between urban and rural populations of red foxes mirroring patterns of domestication and macroevolution.” But the title contains a bombshell. For some time, urban populations of red foxes have been domesticating themselves in London and its environs. True, they’re not dogs, but they have been moving in that direction. In areas around London, fox populations are looking different from their rural counterparts. Their snouts are shorter and wider. The differences between males and females are less pronounced. Their brains are smaller. These changes are characteristic of a process identified by Charles Darwin and known as the “domestication syndrome.” If you compare dogs with wolves, you will see the same kinds of differences that are now separating urban foxes from rural ones.
An article by Cass Sunstein: What pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.
Bobby Kennedy’s Big Omission: White Racism
June 3, 2020
An article by Cass Sunstein: With widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”
Twitter Shield Needs Fresh Look, Not Trump Spite
June 1, 2020
An article by Cass Sunstein: President Donald Trump’s executive order targeting social-media companies raises tough questions about presidential power, presidential bullying and freedom of speech. To understand it, we need to start with what’s clear, and then explore what’s not. An executive order is not a law. It doesn’t bind the private sector. It doesn’t require Twitter or YouTube to do anything at all. Many executive orders are orders from the president to his subordinates, directing them to do things. That’s what this one is. With respect to the communications market (of which the social-media companies are an important part), the most important federal agency is the Federal Communications Commission, an independent agency not subject to the president’s policy control. The executive order signed by Trump on Thursday respects the FCC’s independence. It doesn’t direct the FCC to take action. Some passages of this executive order read like a fit of pique, or an attempt at punishment. Indeed, the order does not obscure the fact that it is, at least in part, a response to behavior by Twitter that Trump didn’t like: adding fact-check labels to two misleading presidential tweets about voting by mail.
Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.
An article by Cass Sunstein: President Donald Trump says a lot of things on Twitter that aren’t true. Twitter has a set of formal policies designed to combat misleading information. This week, Twitter applied its policies to two of Trump’s tweets, in which the president made misleading claims about voting by mail. Trump responded with a threat: "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen." The threat had an immediate effect on the stock of Twitter Inc.; it fell dramatically afterward. To understand the controversy, we need to step back a bit. Social-media platforms such as Twitter, Facebook and YouTube are not subject to the Constitution at all. The First Amendment, which guarantees freedom of speech, applies only to the government. If Twitter denied a platform to Trump, or if it allowed only Republicans or only Democrats to have access to its platform, it would not be violating the Constitution. Nonetheless, Twitter has good reason to allow something like a free-for-all. Its whole purpose is to permit plenty of diverse people to say plenty of diverse things. That’s its business model. And if it’s providing a public service, as I believe that it is, it should not favor any particular side. It should certainly not appoint itself as the truth police.
Machteld van Egmond LL.M. ’20: A physician-researcher with a curious mind turns to the practice of law
May 24, 2020
A physician-researcher, Machteld van Egmond LL.M. ’20 explored the intersections among empirical science, law, and medicine during her LL.M. year at Harvard Law School.
What price does the U.S. government put on saving a life? The coronavirus pandemic and the push to reopen the nation and the American economy have resurfaced the notion that the federal government is often faced with the tough decision of choosing between taking an action that could save lives and the cost of implementing that policy or regulation. Harvard Law School professor and American legal expert Cass Sunstein joins the podcast to discuss this heavy topic. He draws upon his experience heading the White House Office of Information and Regulatory Affairs during the Obama administration and the calculus that goes into the cost-benefit analysis of regulations. “It’s very normal, and it’s surreal” to weigh the cost of an American life, Sunstein says in the podcast. “The balancing as you say of lives saved against cost happens all the time. And there are strategies the government uses and that are not politically contested really to handle them.” For instance, a new clean air regulation that might save one life at a cost of $90 billion — that’s probably dead on arrival. However, a transportation safety change that is estimated to save 500 lives a year at a cost of $10 million has a much better shot as a high-benefit, low-cost regulation.
An article by Cass Sunstein: To address the coronavirus pandemic, it’s essential to influence human behavior; to promote social distancing, to get people to wear masks, to encourage people to stay home. Many nations have imposed mandates as well. But to enforce the mandates and to promote safer choices as the mandates wind down, people have to be nudged. To organize current and coming efforts, a simple framework can be captured in an acronym: FEAST. The idea begins with the EAST framework from the Behavioural Insights Team in the U.K., which deserves to be better known. EAST refers to four ideas: easy, attractive, social and timely. If you want people to do something, make it easy for them. They have to know what to do and how to do it, and it should not be too burdensome, painful or costly. Automatic enrollment — for example, in savings plans or green energy — significantly increases participation rates, because it is so easy. Whenever the goal is to change behavior, the best question is easy to overlook: Why aren’t people doing it already? After getting the answer, public officials, employers, schools and others can take steps to remove the barrier. It matters whether an option or message is attractive. A simple and vivid communication has more impact than a dull and complicated one. With respect to Covid-19, officials in Ireland have made excellent use of this insight with striking informational signs. The same is true of New Zealand.
An article by Cass Sunstein: Are most members of the Supreme Court violating their oath of office? Might Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan be committing impeachable offenses? Did some of history’s most celebrated justices — Oliver Wendell Holmes, Louis Brandeis, Robert Jackson, Earl Warren, Thurgood Marshall, William Rehnquist and Sandra Day O’Connor — also act inconsistently with their oath of office? Some prominent law professors at distinguished institutions are making precisely that argument. It’s unpleasant stuff, the academic equivalent of “lock her up!” But like that howl of rage, the new argument is resonating in influential circles. Before long, it will probably enter into public debates. To understand what’s afoot, we need to explore a much-disputed question: How should the Supreme Court interpret the U.S. Constitution? Many justices think that the founding document contains what Justice Felix Frankfurter called “majestic generalities,” phrases like freedom of speech, equal protection, unreasonable searches and seizures, due process of law...By contrast, some justices, including Clarence Thomas and the late Antonin Scalia, are “originalists.” They believe that the Constitution must be interpreted to fit with its “original public meaning” — that is, the meaning that members of the public would have given to it at the time of ratification. The debates between originalists and their adversaries have become sophisticated and elaborate.
Coronavirus Is Giving Cost-Benefit Analysts Fits
May 13, 2020
An article by Cass Sunstein: I love cost-benefit analysis. But for the coronavirus pandemic, cost-benefit analysis and I are going to have to see a marriage therapist. We might be headed for a divorce. Consider the following questions: What kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be, exactly, and exactly when? To answer such questions, governors, mayors and President Donald Trump seem to be engaging in a kind of intuitive cost-benefit analysis as they struggle to balance the value of increased economic activity against the threat to public health. Regulators and executive-branch policymakers try to be more rigorous in their analysis of costs and benefits. They ask: How do you calculate the benefits of restrictions, and what’s the right measure of costs? They try to come up with reliable numbers. The goal is to impose restrictions when (and only when) the benefits exceed the costs — and to adopt an approach that has the highest net benefits, that is, benefits minus costs. You might not think that’s the loveliest way to proceed, but the basic thinking is simple: Official decisions should have the best possible consequences for people. Looking at costs and benefits is the best available way of figuring out what decisions will have the best consequences.