Cass Sunstein

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.

An op-ed by Cass Sunstein: Sedition! It’s an alarming accusation, and when it is made, it is often a serious danger to free expression. In many nations, including the U.S., the threat of sedition prosecutions has been used to criminalize dissent — to intimidate, and perhaps even imprison, people who strenuously object to what the government is doing. The Alien and Sedition Acts of 1798, with their restrictions on freedom of speech, are often taken as a shameful violation of constitutional principles. In some of its most notorious decisions, the U.S. Supreme Court upheld laws that forbid sedition, even when applied to political protestors. The Justice Department is now considering sedition charges against the mob that stormed the U.S. Capitol on Jan. 6 as Congress was voting to certify President Joe Biden’s electoral college victory. Some people have even called for prosecution, on charges of sedition, of former President Donald Trump, for inspiring and egging on the rioters before they invaded the Capitol. The crime of sedition has been defined in many different ways. A broad definition might extend to heated political protests, meant to cast doubt on the competence, good faith or legitimacy of the current government. A narrow definition might be limited to acts of violence, in which people physically attack public officials and public property in a clear effort to overthrow the current government.

An op-ed by Cass Sunstein: Can a former president be impeached? Can he be convicted? Those are two different constitutional questions. And President Donald Trump, impeached last week while still in office and potentially subject to conviction after departing, has obvious reason to offer a firm “no” to the second question. Under the Constitution, the House of Representatives is authorized to impeach a president, and then the Senate is authorized to convict him. But that doesn’t answer the questions about a former president. Let’s start with the text. Article I says this: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Article II says this: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Under these provisions, it should be clear that the House cannot impeach someone who has never held public office, and who merely aspires to do so.

An op-ed by Cass Sunstein: A lot of people are falsely shouting fire these days, and causing panics. Should they be punished? What about the platforms that host them? For some shouts, the answer is clearly yes. In 2019, Facebook’s Mark Zuckerberg called for national regulation, specifically emphasizing harmful content and the integrity of elections. Whatever you think of his particular proposals, he pointed in promising directions. In the last year, Twitter and Facebook have taken significant voluntary steps to combat misinformation, including warnings, reduced circulation and removal. Should the government step in to oversee those steps? Should it require them? Should it forbid them? Should it demand more? To answer these questions, we need to engage the First Amendment. The Supreme Court did that in 2012, offering something like a green light for falsehoods. In a key passage in the case of  U.S. v. Alvarez, the court invoked the totalitarian dystopia of George Orwell’s “1984” to declare, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” The case involved Xavier Alvarez, an inveterate liar who falsely claimed that he had been awarded the Congressional Medal of Honor. That claim violated the Stolen Valor Act, which made telling that particular lie a crime. The court struck down the law, ruling that Alvarez’s lie was protected by the First Amendment.

An op-ed by Cass Sunstein: Jan. 6, 2021 is a day that should live in infamy — a day on which the fundamental institutions of the U.S. were suddenly and deliberately attacked. It will take a long time to understand fully why political passion crossed the line into an insurrection at the U.S. Capitol, but social science research illuminates part of the picture. Long-standing feelings of rage, humiliation, racism and hatred did not explode spontaneously. They were fueled and unleashed, above all by President Donald Trump. That’s what turned those feelings into action. The fundamental idea, brilliantly elaborated by the Duke University economist Timur Kuran, involves “preference falsification.” Kuran’s starting point is that for better or for worse, people’s desires, beliefs and values are often silenced by prevailing social norms. If you despise immigrants or hate Jews, you might keep your thoughts to yourself because you think that other people think differently — and perhaps would hate you if they knew what you think. Kuran’s claim is that when a lot of people silence themselves, the conditions are ripe for some kind of explosion. But precisely because of the self-silencing, it’s impossible to predict how, when or whether the explosion will actually occur.

An op-ed by Cass Sunstein: President Donald Trump is reportedly considering issuing himself a pardon, perhaps on his last day in office. Is he really allowed to do that? The best answer is simple: No. Begin with the Constitution’s text, which states that the president “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” You might be tempted to read those words, as some specialists do, to mean that the president’s pardon power is unlimited, with the sole exception of impeachment. If that’s the right interpretation, there would be nothing wrong with self-pardons. But there is an immediate qualification: Any president would be impeachable if he used the pardon power in certain ways. Suppose, for example, that a president pardoned everyone who committed crimes at his behest and on his behalf. That would be an impeachable offense. This conclusion emerges clearly from the Virginia ratification debates of 1787, where George Mason objected to the apparent breadth of the pardon power, contending that it was a fatal defect in the proposed constitution. Mason urged that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

An op-ed by Cass Sunstein: It’s been widely reported that President Donald Trump is considering granting a batch of pardons, possibly on his last day in office. Some of the people named as likely beneficiaries have not been convicted or even indicted for any crime. That raises a question: Does the president have the power to issue a preemptive pardon, one that would protect someone from prosecution in the future? Really? The answer, given by the Supreme Court in 1866, is yes. In the 1860s, Augustus Hill Garland was a lawyer in Little Rock, Arkansas, who strongly sympathized with the Confederacy. From 1861 until the end of the Civil War, he represented his state in the Confederate Congress. That exposed Garland to a future treason charge. In July 1865, President Andrew Johnson pardoned him, “for all offences by him committed, arising from participation, direct or implied,” in the rebellion against the U.S., with the proviso that the pardon would “be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor.” The Supreme Court held that the pardon was legitimate. Speaking broadly, it said that the Constitution “intended to, and in fact did, clothe the President with the power to pardon all offences, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment.”

An op-ed by Cass Sunstein: In the aftermath of President Donald Trump’s provocation of a riot at the U.S. Capitol, there is fresh discussion of the two avenues for removing a sitting president. The first is impeachment. The second is the 25th Amendment to the U.S. Constitution. There is no question that Trump’s conduct was an impeachable “high crime and misdemeanor.” The applicability of the 25th Amendment isn’t as obvious. The two grounds for removal are fundamentally different. Impeachment is for egregious abuse of the powers of the office. The 25th Amendment is concerned with some kind of impairment that renders a president unable to do his job. For present purposes, its key provision is Section 4: “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.” After this declaration is transmitted, the president’s only recourse is to submit his own declaration, saying that he is indeed able to do his job. At that point, the vice president and the majority of the principal officers of the executive departments (essentially the cabinet) can disagree. If so, Congress gets to decide the question.