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Cass Sunstein

  • On the Bookshelf: HLS Library Book Talks, Spring 2018 2

    On the bookshelf

    December 15, 2020

    In the unusual year of 2020, Harvard Law authors continued to do what they always have: Write.

  • Undoing One Trump Regulation May Divide Democrats

    December 15, 2020

    An op-ed by Cass SunsteinDonald Trump’s administration is doing an extraordinary amount of “midnight rule-making” — issuing regulations at the very end of the president’s four-year term. This will cause real trouble for the Joe Biden administration, which will have to try to unwind a lot of it. As of now, Trump’s Office of Information and Regulatory Affairs has a whopping 136 regulations under review, suggesting that there might well be a last-minute tsunami. Some of the last-minute regulations are genuinely terrible, such as new restrictions on granting asylum to people threatened with gang or gender violence. But others are more complicated, in the sense that they are likely to produce disparate reactions among Biden’s supporters — and potentially reveal significant fissures among progressives. A recent example comes from Trump’s Environmental Protection Agency, which has finalized a seemingly technical regulation directing how the agency does cost-benefit analysis. The changes have provoked outrage among those who see it a clear effort to make it harder for the EPA to protect public health and the environment. But if you read the rule carefully, you might hate it less, or like it more, than you expected. The rule is called “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” Ignore the boring name and consider its three principal elements.

  • ‘Safe Harbor’ Day Was a Definitive Rebuke of Trump

    December 10, 2020

    An op-ed by Cass SunsteinDec. 8, 2020, was “safe harbor” day — a day forward for President-elect Joe Biden and another step backward for President Donald Trump. It came and went without a constitutional crisis, punctuated by the Supreme Court’s late-afternoon refusal to overturn Biden’s victory in Pennsylvania. It was important because it means people can stop sweating over the next important day in the transfer of presidential power — Dec. 14, when the electors of the president and vice president actually meet and vote. But, first, what does the idea of a “safe harbor” mean? The answer comes from the Electoral Count Act of 1887, enacted after the most chaotic and vicious presidential election in U.S. history, between Samuel Tilden and Rutherford B. Hayes. The vote in 1876 was sharply contested and followed by a lot of sordid wrangling from which Hayes emerged victorious. The 1887 act was designed to ensure that nothing like the Tilden-Hayes fiasco happened again. More specifically, it was designed to ensure the primacy of the states, so long as they proceeded according to their own law. Section 2 of the Act is the safe-harbor provision.

  • Biden Has the Right to Name His Own Cabinet

    December 7, 2020

    An op-ed by Cass SunsteinRepublican senators are threatening to refuse to confirm President-elect Joe Biden’s choices for his cabinet. They appear to be especially unhappy about the selection of Neera Tanden to head the Office of Management and Budget, in part because she posted a number of tweets that were sharply critical of them. But they might choose to make the confirmation process a nightmare for several of Biden’s nominees. That would be a clear betrayal of the U.S. Constitution. Under the constitutional plan, the Senate is obligated to give the president a lot of discretion insofar as he is choosing the people who will be the working for him. (And yes, this objection applies to the many Democratic senators who voted against President Donald Trump’s choices, such as Eugene Scalia for Secretary of Labor.) To see why, let’s begin with the text. Article II, section 1 of the Constitution states, “The executive power shall be vested in a president of the United States of America.” At a minimum, that provision means that members of the president’s cabinet, and other high-level executive branch officials, are exercising authority vested in the president himself. As the Supreme Court recently said, such officials can be fired by the president — if and whenever he chooses. At the very least, it would be awkward to say that the president has broad power to remove his appointees — while also insisting that the Senate can freely reject the president’s choices about who should be working for him.

  • Don’t Read Too Much Into Supreme Court Religion Ruling

    December 1, 2020

    An op-ed by Cass SunsteinThe Supreme Court’s 5-4 decision on Wednesday night, striking down New York State restrictions on the number of people who can attend religious services during the coronavirus pandemic, is being taken as a signal of the emergence of a newly aggressive conservative majority. It’s easy to see why. The majority in the religion case included the court’s newest member, Justice Amy Coney Barrett, alongside the  most conservative of her colleagues: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The dissenters included Chief Justice John Roberts, also conservative but more moderate in his voting patterns — who has been the swing vote in divided decisions for the last year. Notwithstanding the public reaction, the decision is hardly pathbreaking, and it doesn’t signal much at all. As a technical matter, it’s close to a yawner. If it is to be taken a signal, it should be of something more specific: the existence of a majority that will be highly protective of the rights of religious believers. The core of the case was a claim of discrimination against churches and synagogues. New York Governor Andrew Cuomo had issued an order stating that in certain pandemic-infected areas, deemed “red zones,” only 10 people could attend religious services. In less dangerous areas, deemed “orange zones,” the cap was 25.

  • Belief in Trump Fiction Can Be Worn Down by Fact

    November 30, 2020

    An op-ed by Cass SunsteinPresident Donald Trump keeps claiming that the 2020 election was stolen from him, and was replete with fraud. He has spread the false assertion that voting machines made by Dominion Voting Systems Inc. deleted millions of pro-Trump votes and shifted hundreds of thousands to his victorious opponent, President-elect Joe Biden. Many Republicans agree that the presidency has been stolen. Polls show that about half of them think that Trump “rightfully won” the election, and a whopping 68 percent have concerns about a “rigged” process for counting votes. Various media outlets associated with the political right have fueled these beliefs. Social media are playing a major role. Wild ideas are circulating on Facebook, Twitter and elsewhere. In a recent interview, former President Barack Obama identified the contemporary media environment as “the single biggest threat to our democracy.” He added: “If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work. And by definition our democracy doesn’t work. We are entering into an epistemological crisis.” Obama’s claim calls to mind a brilliant 2002 essay, “The Crippled Epistemology of Extremism,” by the late political scientist Russell Hardin, who taught at the University of Chicago and New York University.

  • Cost-Benefit Analysis Faded Under Trump. Biden Can Fix That.

    November 19, 2020

    An op-ed by Cass SunsteinPresident-elect Joe Biden just got an excellent suggestion about how to approach regulation of food safety, clean air, clean water, highway accidents and occupational health. It comes from a brief but illuminating passage in “The Promised Land,” the new memoir by his former boss, President Barack Obama: “Those of us who believed in the government’s ability to solve big problems had an obligation to pay attention to the real-world impact of our decisions and not just trust in the goodness of our intentions. If a proposed agency rule to preserve wetlands was going to lop acreage off a family farm, that agency should have to take the farmer’s losses into account before moving forward.” For that reason, Obama believed in cost-benefit analysis — not as a numerical straightjacket, but as a way to apply science and economics to measurement of the real-world impact of decisions by government agencies. Suppose, for example, that a proposed regulation from the Department of Transportation, requiring vehicles to be equipped with a new technology to reduce crashes, would cost $900 million. What would we get in return for that expenditure? How many lives would be saved? Would it be worthwhile? In 2009, Obama appointed me as administrator of the White House Office of Information and Regulatory Affairs, and he directed me to focus intensely on those questions. During my four years in government, Obama asked me to try to quantify both benefits and costs — and to make sure that for every regulation that I approved, the former would be higher than the latter.

  • There’s Nothing Nefarious About Executive Orders

    November 17, 2020

    An op-ed by Cass Sunstein Here are three popular myths about executive orders: They are a way to bypass Congress; They are an insult to the Constitution; They are new and a product of the imperial presidency. Even among serious and experienced observers, there is widespread belief in these falsehoods. That’s a big problem because President-elect Joe Biden is about to issue a bunch of executive orders. Citizens need to understand what they are and what they do. Executive orders often take the form of directives from the president to his subordinates. For example, Biden might tell the secretary of homeland security to adopt new immigration policies. Or he might direct his secretary of education to reverse President Donald Trump’s civil rights policies. Executive orders do not bypass Congress. Typically, they rely on statutes that Congress has already enacted. If Biden directs the Environmental Protection Agency to issue new regulations to reduce greenhouse-gas emissions, he will be relying on the Clean Air Act, which is already the law. In domains including education, occupational safety, Covid-19, clean water and civil rights, Congress has given plenty of power to executive agencies. Executive orders from the Biden administration would rely on the power that agencies already have. For that reason, they are hardly an insult to the Constitution. So long as what they order is within the bounds set by congressional enactments, they are a perfectly legitimate exercise of executive power — which is, after all, the power to execute the law.

  • illustration of heart being passed

    Nudging organ donation in the United States

    November 13, 2020

    Cass Sunstein ’78, Robert Walmsley University Professor and former Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration, believes “Nudge theory” might help bridge the gap between supply and demand for organ transplants.

  • Here’s How Executive Orders Actually Work (Hint: Slowly)

    November 13, 2020

    An op-ed by Cass Sunstein: Facing urgent national challenges and probably a Republican-controlled Senate, President-elect Joe Biden will need to use executive actions to respond to problems such as Covid-19, economic recovery, racial equity and climate change. To understand how that works, it is essential to ask: What are executive actions, anyway? How do they happen? How fast, and how slow? The answers speak volumes about the operation of U.S. government, particularly but not only when Congress is gridlocked. Early in any new presidency, some of the most important initiatives begin with an executive order or presidential memorandum, by which the president issues a formal, public directive to those who work for him — typically members of his cabinet. For example, he might direct the secretary of Health and Human Services to take specific actions to control the pandemic, or he might order the Environmental Protection Agency to come up with a plan to reduce greenhouse-gas emissions from power plants. Orders of this kind get a lot of attention, but they merely start a process. It usually works like this: After a period of weeks or months, a department or agency comes up with a proposed rule, often consisting of hundreds of pages. The proposed rule outlines, and tries to justify, regulatory requirements that the agency plans to impose on the private sector, or perhaps on state and local governments. It might also contain alternatives — for example, more stringent and less stringent options.

  • Watch for Biden Decision on Unsung Climate Metric

    November 11, 2020

    An op-ed by Cass SunsteinPresident-elect Joe Biden’s transition team has announced its four top priorities, and no surprise, climate change is among them. For that problem, the social cost of carbon is the straw that stirs the drink. It’s the most important number you’ve never heard of. That number is designed to reflect the monetary equivalent of the damage done by a ton of carbon emissions. For that reason, it is fundamental to decisions about the stringency of coming regulations from the executive branch — governing the fuel economy of cars and trucks, emissions limits for power plants, energy efficiency requirements for appliances and much more. If the social cost of carbon is set high, we’re going to see aggressive regulations, significantly denting the risk of climate change. If the social cost of carbon is set low — well, not so much. In 2009, the administration of President Barack Obama said that the social cost of carbon would be around $52 in 2020. In 2017, President Donald Trump and his appointees slashed that figure to somewhere between $1 and $6. The gap, surprisingly, wasn’t about politics, at least not in any simple sense.

  • How Vote-Counting Became a Job for the States

    November 6, 2020

    An op-ed by Cass Sunstein: The current confusion and anxiety surrounding presidential vote-counting, with different states using different rules and procedures, make it natural to wonder: Wouldn’t it have been better to let the federal government oversee the process? The framers of the U.S. Constitution didn’t think so, for reasons of principle. Some of the foundations of their thinking can be found in the Federalist Papers, written mostly by Alexander Hamilton and James Madison (with a few by John Jay), among the greatest works in all of political science and the most important contemporaneous explanation of the framers’ thinking. Federalist No. 51, written by Madison, may be the best of the 86 essays, and it speaks, with great specificity, to the situation following this week’s national election. The least famous passage in that essay, and the most relevant today, is about one thing: federalism. It tells us a lot about how to think about vote-counting — and about the role of the president and Congress in that process. The essay is mostly a celebration of the system of checks and balances. As Madison put it, “Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The system of separated powers — Congress, the president, the judiciary — provides some of those precautions. But that was not nearly enough. Madison drew attention to “considerations particularly applicable to the federal system of America.” Ours is a “compound republic,” he wrote, in the sense that “the power surrendered by the people is first divided between two distinct governments.” There is the national government, and then there are the states, and this division creates essential security for “the rights of the people.” In important cases, “the different governments will control each other.” These are abstract ideas, but they bear directly on presidential elections, and they help explain the constitutional provisions that govern them.

  • Don’t Invoke Bush v. Gore to Challenge 2020 Voting

    November 4, 2020

    An op-ed by Cass Sunstein: It’s Election Day, and there are already lawsuits challenging votes and voting procedures. Some of them are invoking the Supreme Court’s 2000 decision in Bush v. Gore, which effectively handed that year’s presidential election to George W. Bush. We should expect a lot more to come. Bush v. Gore is widely misunderstood. It rested on exceedingly narrow grounds. As the court put it, the key issue was “whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Florida Supreme Court had ordered a recount that would require votes to be counted in accordance with the “intent” of the voter. There’s nothing wrong with that. The problem was that Florida’s high court failed to lay down specific standards to ensure “equal application” of that principle. And indeed, the standards for accepting or rejecting ballots ended up varying widely, not only from one county to another, but even from one recount team to another. Back in 2000, many Florida voters used punch cards, and many of their votes produced only partly punched ballots, leaving those famous “hanging chads.” Should those ballots have counted? Different recount teams used different standards. That meant that whether a person’s vote would count depended on a kind of lottery — the specific recount team that was doing the counting. In the U.S. Supreme Court’s view, this was unequal treatment, and it violated the equal protection clause. At the same time, the court was careful to say that its ruling was limited to very rare and specific circumstances. “The recount process,” it said, “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.”

  • Trump’s War on Civil Servants Is Worse Than It Looks

    October 30, 2020

    An op-ed by Cass SunsteinFor decades, U.S. government civil servants have had a degree of job security, in the sense that the president, and his political appointees, could not fire them merely because they were not sufficiently “loyal.” That would change under an executive order issued by President Donald Trump that is aimed at undermining the legal protection long given to many thousands of these career employees. On Jan. 19, 2021, they will apparently become closer to “at will” employees. If the president, or political appointees, want to fire them, they can. This is a horrible idea — more horrible even than it seems. A relatively independent civil service, protected against “at will” discharge, serves the national interest. I saw this close-up in 2009, when I joined the Barack Obama administration as administrator of the Office of Information and Regulatory Affairs, which oversees federal regulation in diverse areas that include clean air, clean water, food safety, homeland security, tobacco, health care, occupational safety, disability rights and transportation. OIRA has a staff of about 45 people, all civil servants. All of them had worked for George W. Bush until Jan. 21, 2009. In the blink of an eye, they were supposed to work for a new administration, with very different values and priorities and with a desire, in many cases, to reverse course as quickly as possible. I am sure that some of them thought that, in important areas, the Bush administration had it right, and that the newcomers were quite wrong. Who cared? Nothing got in the way of their professionalism, expertise, commitment to their jobs, and willingness to raise legitimate objections and concerns. In some cases, Cabinet heads were in a hurry to issue a new regulation — involving, say, air pollution, road safety or visas. Career staff knew that was probably not allowed under the law — and they were entirely unafraid to point that out.

  • What the Democratic Playbook Might Look Like in 2021

    October 28, 2020

    An op-ed by Cass Sunstein“The Untouchables,” the 1987 movie about gangsters and cops in Prohibition-era Chicago, was defined by these lines, spoken by police officer Jim Malone (played by Sean Connery) to his protégé, Eliot Ness (played by Kevin Costner): He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That's the Chicago way. Connery’s character was speaking of Al Capone. But his lines capture something more universal. If you are in some kind of fight, your best response might be to up the ante. If your opponents know that’s what you’ll do, they might back off — in which case you win. And if they don’t back off, they’ll get hurt — in which case you also win. Has the Chicago way become the American way? You could make the argument, at least in Washington. No one should speak of literal violence. But in multiple domains, we have witnessed an escalating political arms race, transgressing longstanding norms. In 2010, Republican Senator Mitch McConnell clearly set the tone with this remarkable statement: “The single most important thing we want to achieve is for President Obama to be a one-term president.” With respect to Supreme Court appointments, Republican efforts culminated in the sprint to confirm Amy Coney Barrett — on the heels of the Senate leadership’s refusal even to allow a hearing for Judge Merrick Garland, nominated by President Barack Obama in 2016. Something much worse is suggested by President Donald Trump’s claim that Joe Biden, his opponent in the presidential race, “should've been locked up weeks ago” for unspecified crimes. If Biden is elected president, and if Democrats gain control of the Senate, both the White House and the Democratic leadership will face a crucial decision on what to do about the spiraling conflict between the parties. This decision would be important in any period. But it has special urgency in light of the public-health crisis and the serious economic downturn produced by the pandemic — in addition to Democrats’ and progressives’ high-priority issues, including climate change, health care, economic inequality and tax reform. There would be three options. In the abstract, none of them could be ruled out.

  • book cover of The Connected Parent

    Books in Brief: Fall 2020

    October 20, 2020

    New works on redeeming the administrative state, navigating parenting in a world in which children are immersed in technology, and understanding the importance of understanding how much information you need.

  • A Back-to-Basics Primer for Conservatives

    October 19, 2020

    An op-ed by Cass SunsteinA 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 SunsteinWe 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 SunsteinHave 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 SunsteinSome 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.