Cass Sunstein

An op-ed by Cass Sunstein. Civil disobedience is an honorable American tradition. The Boston Tea Party helped spark the Revolutionary War, and during the 1960s civil rights movement, Martin Luther King Jr. celebrated civil disobedience as “expressing the highest respect for law.” Invoking King’s idea (if not his name), prominent conservatives are now calling for new forms of disobedience. Some of their arguments are hard to accept, but they have a kind of internal logic, and they are resonating in influential circles. Consider Charles Murray’s spirited new book, “By the People: Rebuilding Liberty Without Permission,” which is rooted in an extraordinary claim: “America is no longer the land of the free.” The source of this unfreedom is not NSA surveillance, police misconduct or mass incarceration. It is the rise of the modern regulatory state, from the New Deal to the present, which has subordinated our founding commitment to freedom.

An op-ed by Cass Sunstein. The universal voter registration system that Hillary Clinton is calling for is a terrific idea. Free speech and freedom of religion are every American's right; no paperwork is required to get them. To be protected against unreasonable searches and seizures or to enjoy a right to a jury trial, there is no need to register with the authorities. The right to vote should be treated the same way.

An op-ed by Cass R. Sunstein. This month, as the Supreme Court finalizes some unusually momentous decisions, it’s a good time to ask: Which of the justices' opinions have been the greatest of all time? To qualify as great, an opinion must be foundational, in the sense that it helps orient large areas of the law. It also has to have extraordinary analytic power or sheer eloquence. Here's my short list, in ascending order:

...At Harvard, many centers, courses, and collaborations maintain a sharp focus on the intellect, but they increasingly also are working to address everyday issues in life, and they’re crossing academic boundaries to do so more effectively...Working to harness the power of collective wisdom, the Behavioral Insights Group (BIG) at Harvard Kennedy School (HKS) has assembled 28 decision-research scholars, behavioral economists, and behavioral scientists from across Harvard to share their work and develop evidence-based approaches to public policy problems that bedevil governments, school districts, and other organizations, including key issues like student underachievement, gender inequality in the workplace, and even tax collection...The nudge concept was first popularized by the 2008 bestseller from Richard Thaler, an economist at the University of Chicago, and Cass Sunstein, now the Robert Walmsley University Professor at Harvard Law School (HLS). Sunstein is a member of BIG.

An op-ed by Cass Sunstein. In case you haven’t heard, the world’s first Global Family Reunion will be June 6 in New York City. The invitation list runs to 7 billion people: Earth's entire population. So far, 77 million of them have a proven connection to the world’s biggest family tree, created by A. J. Jacobs, the reunion’s mastermind, who is fascinated that many millions of people can find familial connections to many millions of other people, past and present. You’re a cousin, so you're welcome to attend. As it happens, Jacobs is a pretty close cousin of mine. He’s my father’s sister’s grandson. Because of this and because he knows his own family tree, he can show my connection to lots of people. Frank Sinatra, it turns out, is a very distant cousin (by marriage -- many marriages, actually). Abraham Lincoln is a distant cousin, too. And, of course, Lady Gaga. It turns out that radio host Glenn Beck -- who has called me “the most dangerous man in America” and also “the most evil” -- is a cousin as well. Welcome to the family, Glenn!

Who knew that George Lucas and constitutional law had so much in common? Evidently Cass R. Sunstein did. The Harvard Law School constitutional scholar and former administrator of the Office of Information and Regulatory Affairs for President Obama makes such an argument in his forthcoming Michigan Law Review article titled How Star Wars Illuminates Constitutional Law. The paper's abstract (and, trust us, this paper is abstract) sums up Sunstein's thinking on the topic: "Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis—and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.

An op-ed by Cass Sunstein. With the loss of at least eight lives, this week’s train crash in Philadelphia is of course a national tragedy. It’s crucial to understand why the accident occurred and to take steps to make such tragedies less likely in the future. But there is also a serious risk of overreaction. Many Americans might feel inclined to avoid taking trains, even though their safety record is extraordinarily impressive. There are two reasons for such overreactions, both of which have been carefully explored by behavioral scientists. The first is called “probability neglect”...The second source of public overreactions is called the “availability heuristic.”

An op-ed by Cass Sunstein. In the past 40 years, we have seen a revolution in thinking about thinking. The central idea is that human beings depart, in systematic ways, from standard economic approaches to rationality. Because the departures are systematic and predictable, they can be taken into account by researchers, clinicians, and others who want to improve health and reduce premature mortality. Behavioral scientists have shown, for example, that people are “loss averse”; they tend to dislike losses more than they like corresponding gains...These and related findings help to explain preventable health problems and also suggest a wide range of potentially promising interventions.

What would make a smoker more likely to quit, a big reward for succeeding or a little penalty for failing? That is what researchers wanted to know when they assigned a large group of CVS employees, their relatives and friends to different smoking cessation programs. The answer offered a surprising insight into human behavior. Many more people agreed to sign up for the reward program, but once they were in it, only a small share actually quit smoking. ...“This is an original set of findings,” said Cass R. Sunstein, a Harvard law professor who helped develop some influential ideas in the field of behavioral economics, notably that if the social environment can be changed — for example, by posting simple warnings — people can be nudged into better behavior. “They could be applied to many health issues, like alcoholism, or whenever people face serious self-control problems.”

Where is the legal star power on this year’s law school commencement circuit? It seems the nine justices of the U.S. Supreme Court will sit out the 2015 graduation grind. ... Preet Bharara, U.S. attorney for the Southern District of New York, seems the 2015 law school graduation MVP. He is slated to deliver remarks during the University of California, Berkeley School of Law’s May 15 ceremony, followed by graduations at Pace Law School on May 17 and New York University School of Law on May 21. Bharara is a veteran on the law commencement scene—he earned rave reviews along with actress Mindy Kaling when they spoke together during Harvard Law School’s class day in 2014. For this year’s class day event, Harvard law students will hear from former U.S. Rep. Gabrielle Giffords and her husband, astronaut Mark Kelly. The couple has advocated gun control since Giffords was wounded in a 2011 mass shooting. ... At least three Harvard law professors will address students at other schools: Cass Sunstein at the University of Pennsylvania Law School; Charles Fried at Columbia Law School; and David Wilkins at the University of Iowa College of Law.

An article by Cass Sunstein. Pop quiz: When you hear the term “PSA,” what comes to mind? Many people will answer: Public Service Announcement. For men of a certain age, another likely response is more ominous (prostate-specific antigen, to be precise). Only a select few will say “Professional Squash Association,” which refers to the organization that oversees squash, a fiercely competitive racquet sport played in an indoor court with a squishy little black ball that goes up to 170 miles per hour. In the United States, squash remains pretty obscure, but it has a realistic chance of becoming an Olympic sport, and the PSA sponsors a tour, organizing more than 200 tournaments annually all over the world. Last week, the tour found its way to Charlotte, North Carolina. In an act of extraordinary generosity, the promoters invited me to participate as a wild-card entry.

An op-ed by Cass Sunstein. The same-sex marriage cases, which will be argued Tuesday, may well rank among the most important constitutional disputes in American history. The best analogy is Brown v. Board of Education, the iconic 1954 decision in which the Supreme Court struck down school segregation. The parallel is very close, and it clarifies what the same-sex marriage cases are really about. Almost everyone now celebrates Brown as self-evidently correct. But beware of hindsight. It obscures the intense disagreements that preceded that decision, and the firestorms that followed it. At the time, eminently sensible people insisted that the court had overreached, not least because racial segregation was entrenched in many states, and because it was not at all obvious that the Constitution stood in its way.

An op-ed by Cass Sunstein. The U.S. Supreme Court will hear oral arguments next week on the question of whether the Constitution allows states to ban same-sex marriages. Whatever it decides, there seems little doubt that the U.S. is moving rapidly toward allowing such marriages, and with remarkably little public controversy. Contrast this with the issue of abortion, which has split the nation for 40 years (and counting). Why the difference? There are three standard answers.

An op-ed by Cass Sunstein. Suppose that you value freedom of choice. Are you committed to the mere opportunity to choose, or will you also insist that people actually exercise that opportunity? Is it enough if the government, or a private institution, gives people the option of going their own way? Or is it particularly important to get people to say precisely what they want? In coming decades, these seemingly abstract questions will grow in importance, because they will decide central features of our lives. Here’s an example. Until last month, all 50 states had a simple policy for voter registration: If you want to become a voter, you have the opportunity to register. Oregon is now the first state to adopt a radically different approach: If the relevant state officials know that you live in Oregon and are 18 or older, you’re automatically registered as a voter. If you don’t want to be one, you have the opportunity to opt out.

An op-ed by Cass Sunstein. What separates conservatives from liberals? In the past decade, the most illuminating answers to this question have come from Jonathan Haidt, a New York University psychologist whose research bears directly on the emerging 2016 presidential campaign -- even if his answers might not be quite right. Haidt’s basic finding is simple. Throughout history, human beings have operated under five sets of moral commitments: avoidance of harm, fairness, loyalty, authority and sanctity. Conservatives recognize all five, but liberals recognize only the first two.

An op-ed by Cass Sunstein. In 1960, the great theater critic Martin Esslin argued that the work of several avant-garde European playwrights -- including Samuel Beckett, Eugene Ionesco and Arthur Adamov -- could be unified under the category of "theater of the absurd." Their plays, Esslin explained, “confront their public with a bewildering experience, a veritable barrage of wildly irrational, often nonsensical goings-on.” The theater of the absurd is characterized, he said, “by the open abandonment of rational devices.”...The stalled nomination of Loretta Lynch, President Barack Obama’s choice to be the next attorney general, has started to look like something straight from Beckett's play.

An op-ed by Cass Sunstein. The most illuminating free-speech case of 2015 has nothing to do with political speech, or civil-rights protests, or hate speech, or any other issues we used to associate with the First Amendment. It has to do with an obscure provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act that directs the Securities and Exchange Commission to require companies to inform the public if their products use conflict minerals. The case, brought by the National Association of Manufacturers, is the culmination of a stunningly successful corporate movement to transform the First Amendment into an all-purpose shield against even modest regulation. Let’s give the movement a name: Free Speech Inc.

An op-ed by Cass Sunstein. This week, Oregon became the first state to adopt automatic voter registration. If you’re an Oregonian over 18, and if you’ve dealt with the state’s Driver and Motor Vehicles Division since 2013, you’ll get a notice in the mail letting you know you’re registered to vote. Then, unless you opt out within three weeks, you’ll automatically receive a ballot 20 days before every election. (Oregon has all-mail voting.) Almost immediately, 300,000 more voters -- a big chunk of the estimated 800,000 state residents who are eligible but still unregistered -- are likely to be signed up.