Cass Sunstein

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.

An op-ed by Cass Sunstein: We 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?

An op-ed by Cass Sunstein: Have 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.

An article by Cass Sunstein: Some 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.

An article by Cass Sunstein:  Now that President Donald Trump has tested positive for Covid-19, the Department of Justice is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president. No one who works for a sitting president wants to think about that amendment. But in any administration, worst-case scenarios get attention, and if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires. The good news is that for most imaginable health outcomes associated with the virus, it is entirely clear. The less good news is that for some imaginable health outcomes, especially those associated with Covid-19, the 25th Amendment is ambiguous. It offers two different routes by which the transfer of power can occur. Section 3 says this: ‘Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.’ Section 4 says this: ‘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.’ Under section 3, the president voluntarily transfers power to the vice president. Under section 4, the decision is made by the president’s own team – by majority vote.

An article by Cass Sunstein: Here is a paradox. It is pretty easy to predict the voting patterns of new Supreme Court justices. But it can be exceedingly difficult to predict the votes of justices in specific cases, which means that it can be difficult as well to predict how those cases are going to be decided. When President Bill Clinton appointed Stephen Breyer to the Supreme Court in 1994, those who knew Breyer’s work knew that his voting patterns would be moderately liberal — more centrist than those of progressive heroes Justices Thurgood Marshall and William Brennan, but to the left, for sure, of Justice Antonin Scalia. And when President George W. Bush appointed John Roberts as chief justice in 2005, it was clear, from Roberts’ record, that his voting patterns would be moderately conservative — distinctly more conservative than those of Breyer, but distinctly less so than those of Scalia. Something similar can be said about every Supreme Court nominee over the last half-century. At the same time, the court is capable of big surprises. For example, many experts did not predict that in 2015, it would rule in favor of same-sex marriage; that in 2020, it would strike down President Donald Trump’s decision to repeal President Barack Obama’s Deferred Action for Childhood Arrivals program, designed to protect some unauthorized aliens from removal; or that in the same year, it would interpret the Civil Rights Act of 1964 to forbid discrimination on the basis of sexual orientation.

The U.S. Constitution’s separation of powers is a concession to man’s fallibility. Man tends to abuse power, so the Founders dispersed it. To preserve liberty and promote the public interest requires not just intentions but also institutions. Yet when we think of our institutions merely as safeguards, we sell them short...Justice Thomas and other judges and scholars have grown increasingly vocal in challenging the administrative state’s constitutional legitimacy. They question the statutes and judicial precedents that undergird the administrative state. In court-made doctrines of judicial “deference” to agencies’ legal interpretations, these jurists see abdication of the Constitution’s “judicial power.” In old statutes giving some agencies substantial independence from presidential control, they see violations of the Constitution’s grant of “executive power” to the president alone. And in old statutes empowering agencies to regulate with minimal limits, they see violations of the Constitution’s vesting of “legislative powers” in the Congress alone. All of these, they argue, undermine republican government and the rule of law. Cass R. Sunstein and Adrian Vermeule reject that position in “Law + Leviathan: Redeeming the Administrative State.” Mr. Sunstein was President Obama’s White House regulatory coordinator and is perhaps the leading regulatory thinker in Democratic policy-making circles. Mr. Vermeule is an intellectual leader for a rising generation of conservatives who demand a much more explicitly paternalistic and moralistic constitutionalism. While the two Harvard Law professors surely disagree on many things, they both believe that the administrative state doesn’t undermine the rule of law but exemplifies it. Drawing inspiration from “The Morality of Law” (1964), a major work of legal philosophy by Lon Fuller, they argue that “American administrative law has its own internal morality,” which “embraces many of the concerns and objections of those who are deeply skeptical of the administrative state” and which ultimately serves to “both empower and constrain the administrative state.”

An article by Cass Sunstein: Can you predict the performance of Supreme Court appointees? When President Donald Trump chooses a successor to the late Justice Ruth Bader Ginsburg, as he has said he will do by the end of this week, can he be confident that he will be happy with his choice? Many people think that the answer is “no.” In their view, judges often stun people, including the president who appoints them. That’s wrong. Over the last half-century, there have been exactly no surprises. Let’s divide justices into the following categories: very conservative, moderately conservative, centrist, moderately liberal and very liberal. The categories are crude, but they suggest how justices are likely to vote on important issues, such as affirmative action, environmental protection, gun rights, privacy, campaign finance, immigration and religious liberty. If you had studied the pre-appointment records of the 17 Supreme Court justices confirmed since 1971, you would have been surprised by the performance of none. Consider a few examples. Justice Anthony Kennedy, selected by President Ronald Reagan in 1987 after the Senate refused to confirm the very conservative Robert Bork, had an extensive record as a lower court judge. He was unmistakably conservative, but he also showed a degree of moderation, including sympathy for a constitutional right to privacy. His vote in 1991 to preserve Roe v. Wade, the 1973 opinion that established a constitutional right to abortion, was hardly shocking. A close reader of his lower court opinions would not have been amazed to learn that he turned out to be a pivotal vote in favor of protecting gays and lesbians. Justice David Souter, appointed by President George H.W. Bush in 1990, was a centrist. He is often seen as Exhibit A for the proposition that the voting records of Supreme Court choices are surprising. But for those who had read his opinions on the New Hampshire Supreme Court, his centrism was self-evident. In New Hampshire, he was a judge’s judge: cautious, nonideological, closely attentive to precedent.

An article by Cass Sunstein: In an interview Tuesday morning with Speaker of the House Nancy Pelosi, CNBC host Jim Cramer addressed her as “Crazy Nancy.” Here’s the transcript: Jim Cramer: What deal can we have, Crazy Nancy?  I’m sorry, that was the President. I have such reverence for the office. I would never use that term, but it is – Speaker Pelosi: But you just did. [Laughter] But you just did. Cramer: Oh, come on, you know what I mean. You know what I mean. Pelosi: I know what you meant, I do. Cramer later apologized, saying, “I made a very stupid mistake.” President Donald Trump tweeted back: “Jim, you didn’t make a mistake. It’s true, and that’s why you said it. No pandering!” Taken by itself, the incident is merely revolting. But it reveals some larger truths. Let’s assume what is probably the case: Cramer had no conscious intention of addressing the speaker of the House as “Crazy Nancy.” But Trump’s ugly nickname stuck in his head, so that when he saw her face, that’s what came to mind. He used the term automatically and without reflection. There is a clue here about the immense power of ugly nicknames — and also of deception and lies. With respect to statements of fact, human beings show “truth bias”: people tend to think that what they hear is truthful, even when  explicitly told that it is false, or otherwise have excellent reason not to believe it. Indeed, research shows that a real-time disclosure that a statement is untrue may not be enough to stop us from remembering it as true, and potentially from repeating it later, with conviction. It’s hard to get some things out of our heads, even if they are accompanied with strong disclaimers. (Social media platforms, are you paying attention?)

An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

An article by Cass Sunstein and Adrian Vermeule: More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government. Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated. So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities. These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)

An article by Cass Sunstein: The world is soon likely to confront a serious new challenge to the fight against Covid-19: vaccine hesitancy. In the U.S. and U.K., large numbers of people — at least 30 percent — have said in recent surveys that they would hesitate to take or refuse a vaccine that could protect them from the coronavirus and slow its spread. These numbers probably understate the problem. People might tell a researcher that they will get vaccinated even if they won’t. And the problem might be even worse if a vaccine is made available under a speeded up “emergency use” exception to the usually lengthy approval process, amplifying public concerns about rushing it out. What can be done? To answer that question, we need to understand why some people are reluctant to take vaccines. Research explores the influence of three factors, often known as the three Cs. The first is convenience. Human beings suffer from inertia, and they also procrastinate. If it’s not so easy to get vaccinated, many people won’t do it. Physical proximity to vaccination sites helps; so do short waiting times. Long lines hurt. So do paperwork requirements and administrative obstacles. If widespread immunity is the goal, officials must not underestimate the importance of eliminating inconveniences, both small and large. The good news is that when vaccines are easily available, the rate of vaccination increases greatly, even among people who have doubts. The second factor is complacency. With respect to diseases, a lot of people tend to think that their personal risk is low. “Optimism bias,” as it is called, makes vaccination seem unnecessary. The third factor is confidence: public trust in the efficacy and safety of the vaccine, and also in the motivations and competence of those who are behind it.

An article by Cass Sunstein: Imagine, if you would, that it is Jan. 21, 2021, and that Joe Biden is president of the United States. The nation awaits his first executive order — a formal presidential decree, binding on the executive branch, that directs departments and agencies what to do. At 9 a.m., the executive order appears. Its name? “Scientific Integrity.” Here are its opening words: "Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security." It continues: "The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public." But that’s just the start. President Biden’s order gives unprecedented authority to the director of a relatively obscure White House office, the Office of Science and Technology Policy, to make scientific integrity real. It requires federal agencies to put new procedures in place, designed “to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised.” To ensure that political leaders do not politicize science, it calls for protection of whistle-blowers.

An article by Cass Sunstein: The White House has powerful reasons to fear the electoral repercussions of reported comments by President Donald Trump in which he is alleged to have described fallen soldiers as “suckers” and “losers.” Those comments threaten his most important political advantage. To see why, we need to back up a bit. Jonathan Haidt, a social scientist at New York University, has specified some of the central differences between conservatives and liberals. He identified five foundations for moral judgments: harm, fairness, loyalty, authority and sanctity. Both the right and the left care about harm and fairness, even if they do not understand them the same way. But the right cares far more about loyalty, authority and sanctity. A mountain of evidence supports this conclusion. If, for example, people have been disloyal to their nation or their family, shown disrespect to their superiors, or done something disgusting, conservatives will be far more likely to show outrage. If you ask Americans how much they would have to be paid to burn their nation’s flag, or to curse their parents to their face, people on the left might demand a lot of money. But people on the right will demand more, and they might say that no amount is high enough. Building on Haidt’s work, Harvard economist Benjamin Enke has studied the rhetoric of numerous recent presidential candidates, and found that one has done better than all others in emphasizing loyalty, authority and sanctity: Trump. On the same scales, Hillary Clinton was especially bad. (Barack Obama was far better.) Enke also found that Trump’s emphasis on these values mattered to many voters, and attracted them to his side.

An article by Cass Sunstein: Suppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.

An article by Cass Sunstein: After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled. We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”). To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner. What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College. In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors. Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump. But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?

While the Science Weekly team take a summer break, we’re bringing you an episode from the archives – one that seems particularly pertinent as the pandemic continues and governments take a more prominent role in our day-to-day lives. Back in 2017, Ian Sample investigated how we’re constantly “nudged” to change how we act. Exploring the psychology, history and ethics of nudge theory, Ian spoke to the Harvard Law School professor Cass Sunstein and Dr. David Halpern, one of the field’s founders, who is currently advising the UK government on nudging during the coronavirus outbreak.

An op-ed by Cass Sunstein: What if nudges fail? Because of the coronavirus, that question has suddenly become urgent. Efforts to nudge people to wear masks, to engage in social distancing, and to use other protective measures have done some good. But with more than 170,000 deaths, they cannot be counted a smashing success. A nudge is an intervention that steers people in particular directions, but that fully preserves freedom of choice. A GPS device nudges. So does a calorie label or a warning (“this product contains peanuts”). Whenever a nudge fails, there are three major options. The first is to give up — declare victory and insist that freedom worked, because a major point of nudging is to allow people to go their own way. The second is to nudge better. The third is to turn to some other tool, such as a mandate or a ban.

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.