Cass Sunstein

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.

An op-ed by Cass Sunstein. U.S. Supreme Court justices may be wise, obtuse, fair or political, but we don't ordinarily think of them as eccentric. William O. Douglas, who was on the court in the middle of the 20th century, has long counted as the only unambiguously eccentric justice. But now, as an opinion on separation of powers issued last week makes clear, Justice Clarence Thomas has joined him. A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court. A judge who is eccentric is not necessarily wrong, and eccentricity can be appealing. To many liberals, and especially to many law students, Justice Douglas seemed bold and admirably rebellious, in part because he was not bound by precedents.

An op-ed by Cass Sunstein. Is law just a form of politics? Is the Supreme Court highly politicized? If you focus on the court’s anticipated divisions over Obamacare and same-sex marriage, you probably think so. But the court’s two dissent-free decisions Monday offer a different picture. They are a triumph for the ideal of a Supreme Court that focuses on law.

An op-ed by Cass Sunstein. Is law just a form of politics? Is the Supreme Court highly politicized? If you focus on the court’s anticipated divisions over Obamacare and same-sex marriage, you probably think so. But the court’s two dissent-free decisions Monday offer a different picture. They are a triumph for the ideal of a Supreme Court that focuses on law.

An op-ed by Cass Sunstein. The controversy over Hillary Clinton’s use of a private e-mail account while serving as secretary of state raises issues that go beyond partisan positioning and any single official. The issue involves the arcane area of records management and its complicated role in the era of electronic communications. As a starting point, the idea of transparency is helpful, but it is far too simple to capture all the values and interests at stake. The public and the government alike benefit from clear, simple rules designed to increase efficiency, reduce costs and protect the historical record.

An op-ed by Cass Sunstein. The growing national concern about economic inequality raises many questions. One has to do with demographic groups. Are some doing better than others? If so, exactly why? A new study from the Federal Reserve Bank of St. Louis shows that as most people assume, education is a key both to mobility and to the accumulation of wealth. But another important factor is economic decision-making. And when it comes to financial prudence, whites and Asian-Americans appear to be doing a lot better than Hispanics and African-Americans.

An op-ed by Cass Sunstein. The U.S. has a pressing need to increase the number of well-educated graduates in science, technology, engineering and math, pretty much everyone agrees...But why, exactly, aren’t more girls focusing on math and science?...A new study...indicates that much of the problem lies with biased primary school teachers, who have major and enduring influences on female achievement. That’s really hard to prove, but Victor Lavy of the University of Warwick and Edith Sand of Tel Aviv University found a way by studying children in Israel.

An op-ed by Cass Sunstein. The decision by a federal judge in Texas on Monday to strike down President Barack Obama’s immigration reform initiative runs to a whopping 123 pages. But the crucial ruling is fairly narrow: In adopting a plan to allow unlawful immigrants to apply for “deferred action,” Judge Andrew S. Hanen said, the Department of Homeland Security acted unlawfully because it did not allow the public to comment in advance. With this conclusion, Hanen almost certainly overreached.

An op-ed by Cass Sunstein. Brian Williams and Sam Smith may have little in common, apart from being award-winning celebrities (Williams has 12 Emmys and Smith, four Grammys), but at the moment both are being held accountable for wrongdoing. Together, the two cases spotlight a risk that anyone in public life must run. Let’s call it the Denominator Problem. Over the course of a career, a politician, a news anchor, a musician, a movie star or a professional athlete will have said and done countless things. In this respect, they are no different from anyone else -- except that their statements and actions are subject to continual and sometimes obsessive public scrutiny.

An op-ed by Cass Sunstein. Are Americans worried about climate change? Do they want their government to regulate greenhouse gases? A recent survey -- from Stanford University, the New York Times and Resources for the Future -- found that strong majorities say “yes” to both questions. But there’s a big catch, which isn't getting the attention it deserves: A strong majority also say that they oppose increasing taxes on either gasoline or electricity in order to reduce climate change. That’s important, because any serious effort to lower emissions is going to raise prices (certainly in the short run).

An op-ed by Cass Sunstein. Supreme Court Justices Antonin Scalia and Clarence Thomas are famous for being “originalists”; they believe that constitutional provisions mean what they meant at the time they were ratified. In Scalia’s words, originalism promotes the rule of law, because it can help ensure a “rock-solid, unchanging Constitution.” Whether or not we agree, Scalia's goal is honorable: He wants to limit the discretion of federal judges and allow the American people to govern themselves. As the lawyers prepare their briefs for the upcoming Supreme Court argument about bans on same-sex marriage, how remarkable, then, that some prominent originalists -- and admirers of Scalia -- are saying that such bans are inconsistent with the original understanding of the 14th Amendment.

Statistics released by the Social Science Research Network (SSRN) indicate that, as of the end of 2014, Harvard Law School faculty members featured prominently on SSRN’s list of the 100 most-cited law professors.

...To investigate the role of motivated reasoning in the sort of institutional flip-flops that politicians and judges engage in, Harvard Law School professor Cass Sunstein and I conducted a series of surveys. In one, we asked people whether President Bush acted rightly by using a loophole to make appointments in defiance of Senate opposition. Most Republicans said he did the right thing while most Democrats said he acted wrongly. We then put Obama’s name in for Bush with a different group of respondents and asked the same question. This time the vast majority of Republicans opposed the appointments while most Democrats said he did the right thing.

An op-ed by Cass R. Sunstein. For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers. A week ago, Senator Rand Paul -- a likely candidate for president, and among the most influential members of the Republican Party -- explicitly embraced Lochner, and proudly endorsed the whole idea of “judicial activism.” That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.

An op-ed by Cass Sunstein. As recently as 20 years ago, it would have been pretty preposterous to argue that the U.S. Constitution requires states to recognize same-sex marriages. But there is a good chance that this summer, the Supreme Court will rule that it does. To the many people who believe in judicial restraint, or in following the original understanding of the document, such a dramatic shift in the Constitution’s meaning is alarming, even illegitimate. Are they right? A vivid answer can be found in an important but widely neglected speech from one of the greatest figures in the history of America law: Justice Thurgood Marshall.

An op-ed by Cass Sunstein. Suppose you're watching a baseball game, and your favorite player, a terrific hitter with a .320 average, has struck out three times in a row. If you’re like most people, you might think, “He’s due!” -- and conclude that on his fourth at-bat, he’s likely to get a hit. Now suppose that you are working in a college admissions office. Your job is to evaluate 200 applicants, about 50 of whom will be admitted. You've just accepted three in a row, and now you might be inclined to think that the next two are unlikely to deserve admission. You might even evaluate their applications with that skeptical thought in mind.

An op-ed by Cass Sunstein. Here's a quiz. Why did President Barack Obama take steps to normalize relations with Cuba? (a) To polish his legacy. (b) To improve the position of the Democratic Party for the 2016 election. (c) To weaken the Cuba lobby. (d) To show leadership. (e) None of the above. If you answered anything other than (e), you're wrong.