Cass Sunstein

An op-ed by Cass Sunstein. On his first day in office, President Donald Trump issued a “regulatory freeze,” in the form of a memorandum, signed by chief of staff Reince Priebus, that appeared to halt new regulations in their tracks...But the Priebus memorandum does make two noteworthy changes, which means that it is a more muscular document than Emanuel’s. The changes are a bit technical, but please bear with me; they matter.

An op-ed by Cass Sunstein. Since Franklin Delano Roosevelt’s New Deal, Americans have thought that for any new president, the first 100 days are critical, because he has a honeymoon period in which Congress will do what he wants. But in the modern era, the first 50 days are the defining ones. That’s when the new executive branch is just taking shape, and the White House has maximal discretion to act entirely on its own -- and to turn the government in its preferred directions. The Trump administration seems primed to exercise that discretion. But in a few months, it is likely to slow down, and for identifiable reasons.

An op-ed by Cass Sunstein. If American conservatives have an intellectual hero, it might well be Friedrich Hayek -- and rightly so. More clearly than anyone else, Hayek elaborated the case against government planning and collectivism, and mounted a vigorous argument for free markets. As it turns out, Hayek simultaneously identified a serious problem with the political creed of President-elect Donald Trump. One of Hayek’s most important arguments in his great classic, "The Road to Serfdom," involves the Rule of Law, which he defined to mean “that government in all its actions is bound by rules fixed and announced beforehand.” Because of the Rule of Law, “the government is prevented from stultifying individual efforts by ad hoc action.”

An op-ed by Cass Sunstein. Republicans are putting a great deal of pressure on President-elect Donald Trump to fire Richard Cordray, director of the Consumer Financial Protection Bureau. He should resist that pressure. Any effort to discharge Cordray would be illegal -- and it might even precipitate something close to a constitutional crisis.

An op-ed by Cass Sunstein. Welcome to the period of “institutional flip-flops” -- sudden abandonment of seemingly firm institutional principles, prompted by just one thing: the political party of the current president. A few months ago, many Republicans were enamored with an eight-member Supreme Court, an idea that Democrats treated as a constitutional atrocity. Now that a Republican is about to become president, prominent Democrats have no problem with a short-handed court, while Republicans treat the very thought as an outrage.

An op-ed by Cass Sunstein. The last time progressives were this alarmed about a presidential transition, there were just two Star Wars movies, "Dallas" was the most-watched show on TV, and Ronald Reagan, dismissed by many as an actor and an extremist, was about to become commander-in-chief. At the time, I was a young lawyer in the Department of Justice, fortunate enough to witness important aspects of Reagan’s first year up close. Reagan and his team did two exceedingly smart things early on, providing a remarkably stable foundation for the first term of his transformative presidency.

An op-ed by Cass Sunstein. As everyone knows, the most coveted of the year-end movie awards are the Becons -- the Behavioral Economics Oscars. It’s no surprise that winning the Becon has catapulted previously unknown talents -- including Jessica Chastain, Tom Cruise, Taylor Swift and Daniel Day-Lewis -- to sensationally successful careers. Here are this year’s winners.

An op-ed by Cass Sunstein. Well, no one saw that coming. “Rogue One,” the new stand-alone Star Wars movie, is the best since the beloved original trilogy. With a new tale, it’s much better, and far fresher, than last year’s fun but nostalgic “The Force Awakens.” The surprise is fitting, for here’s a little secret about Star Wars: Its narrative arc wasn’t fully planned out in advance. Some of the most important plot points came to George Lucas, author of the first six episodes, awfully late. At the early stages, he had no clue that Darth Vader would turn out to be Luke Skywalker’s father. And Luke and Leia as twins? That was a late inspiration -- an ingenious (if also creepy) way of resolving the romantic triangle involving Luke, Leia and Han.

An op-ed by Noah Feldman. The story of the Supreme Court in 2016 can be summarized in a statistic: It’s been 311 days since Justice Antonin Scalia died on Feb. 13, and his seat remains unfilled. That’s not the longest Supreme Court vacancy in the modern era, but it’s about to enter second place -- and it will become the longest if Donald Trump’s nominee isn’t confirmed before the end of March. This striking fact will be front and center when the history of the court in 2016 is written. But what really matters isn’t the length of the vacancy. It’s the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland’s nomination. And against the odds, it paid off for them...More recently, the confirmation process for Robert Bork in 1987 had epochal consequences. For the first time, judicial philosophy was the focus. No one disputed Bork’s intelligence or qualifications. Instead liberals, including law professors like my colleague Laurence Tribe, criticized Bork’s conservatism as opposition to fundamental rights...As it turned out, that also meant that Tribe’s generational successor in that role, Cass Sunstein...also had little chance of being nominated, despite being much more centrist than Tribe and just as qualified in his own right. The rules of the game had changed.

An op-ed by Cass Sunstein. I have coauthored a lot of academic essays, but finally, I’ve produced something that everyone absolutely loves. Wow. Just wow. In a recent paper, Harvard law fellow Meirav Furth-Matzkin and I explore this question: Do people’s views about policies shift after they learn that majorities support them? Psychologists call it “social proof”: If you find out that most people like a new product, you’re more likely to buy it. Evidence also suggests that for drug use, energy consumption, and tax compliance, people’s behavior shifts as a result of learning what most other people do. But are policy judgments similarly malleable? Yes. Across a wide range of issues, a lot more people will support a policy if they think that the majority supports it.

...After writing several best-selling books that examined unsung mavericks who changed the way people think about and operate in baseball and on Wall Street by using data to help sidestep such cognitive blind spots, author Michael Lewis set his sights on the two men who first identified the flaws embedded in our thinking. In his new book, “The Undoing Project,” Lewis explores the colorful lives of Daniel Kahneman and the late Amos Tversky, who were sometimes called the “Lennon and McCartney of psychology.”...Lewis said the early spark for the book, whose title came from the pair’s effort to “undo the false view of human nature” as well as the unfinished work left after they ended their collaboration, came from Harvard Law School’s Cass Sunstein ’75, J.D. ’78, and Richard Thaler, a behavioral economist at the University of Chicago. In their New Yorker review of Lewis’ 2003 blockbuster “Moneyball,” about the then-emerging use of data analytics to exploit “market inefficiencies” in the way baseball scouts evaluated talent, Sunstein and Thaler pointed Lewis in the direction of Kahneman and Tversky’s research, noting that it was the intellectual foundation for such analysis.

An op-ed by Cass Sunstein. Presidents should generally be allowed to choose their own employees. Unless nominees fall below reasonable standards for honesty and competence, senators should vote to confirm them, even if they disagree intensely with their views. Obstructionism makes it hard for the executive branch to function; it also discourages good people from entering public service. But that doesn't mean the Senate should give a blank check to Donald Trump. Senators should not confirm nominees who reject the mission of the very department they seek to lead.

After Donald Trump’s election, some universities echoed with primal howls. Faculty members canceled classes for weeping, terrified students who asked: How could this possibly be happening? I share apprehensions about President-elect Trump, but I also fear the reaction was evidence of how insular universities have become...Whatever our politics, inhabiting a bubble makes us more shrill. Cass Sunstein, a Harvard professor, conducted a fascinating study of how groupthink shapes federal judges when they are randomly assigned to three-judge panels...The weakest argument against intellectual diversity is that conservatives or evangelicals have nothing to add to the conversation. “The idea that conservative ideas are dumb is so preposterous that you have to live in an echo chamber to think of it,” Sunstein told me.

An op-ed by Cass Sunstein. Those who support aggressive action to reduce greenhouse gases fear that the Donald Trump administration will undo all or most of President Barack Obama’s climate change initiatives. But those fears are probably unwarranted. A good guess, based on a close look at the regulations that matter most, is that the Obama administration’s work on climate is more secure than most people realize; for the most part, Trump is unlikely to revisit it.

An op-ed by Cass Sunstein. As the 2016 presidential election made clear, we live in the era of the echo chamber. To escape their own, progressives need to be reading the best conservative thought -- certainly Friedrich Hayek and Milton Friedman, but also more contemporary figures such as Antonin Scalia and Robert Ellickson. The same is true for conservatives, if they hope to learn from progressives. Here are five books with which they might start.

An op-ed by Cass Sunstein. Donald Trump promises to impose, soon after his inauguration, a new requirement on federal agencies: If they want to issue a new regulation, they have to rescind two regulations that are now on the books. The idea of “one in, two out” has rhetorical appeal, but it’s going to be extremely hard to pull off. In the abstract, of course, it sounds like a gimmick, and it’s a pretty dumb idea. As presidents from Ronald Reagan to Barack Obama have recognized, the real question is whether regulations, whether new or old, are justified. That requires a careful analysis of their costs and their benefits.

As President-elect Donald Trump prepares to take office in January, the legal community has begun to ponder and prepare for the changes the incoming administration may make...Adrian Vermeule ’90, J.D. ’93, the Ralph S. Tyler Jr. Professor of Constitutional Law at HLS, sees two possible prospects for administrative law under Trump. One involves what he called “bipartisan retrenchment.”...Four major signposts during the first 100 days will show whether the Trump administration will transform executive authority or not, said Cass Sunstein, the Robert Walmsley University Professor at Harvard. First, how does the Trump administration handle ostensibly independent regulatory commissions such as the Security and Exchange Commission or the Federal Reserve?...With the executive branch’s role leading the trends in America’s criminal justice system and criminal justice reform, the effect that Trump’s presidency will have in this realm, given that his positions on a number of issues are either unformed or shifting, is still unknown, said criminal law professor Andrew Crespo.

An op-ed by Cass Sunstein. Many Republicans hope, and many Democrats fear, that Donald Trump's administration will close or shrink a variety of federal agencies and offices. Both the hope and the fear are justified -- even without a supermajority in the Senate, there's a lot Republicans can do to restrict the actions of the executive branch. Let’s start with what Trump can't do: Acting on his own, could he disband an agency or department -- say, the Department of Energy? Absolutely not. He would need Congress for that, and almost certainly 60 votes (and it’s not going to get close to that). But his administration could work to cut staff, if only by refusing to fill vacancies, and it could certainly work with Congress to reduce appropriations.