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Cass Sunstein

  • You Don’t Want to Be a Human Guinea Pig? That’s Unfortunate

    May 16, 2019

    An op-ed by Cass Sunstein; Human beings really don’t like to be guinea pigs. Many people are inclined to rebel if they learn that they are in some kind of experiment. For private companies and for governments, that’s a big problem. Randomized experiments, often known as “A/B tests,” are the best way for private companies and public officials to learn what they should be doing if they want to save money and even lives.

  • Executive Privilege: The Real Battle Is Yet to Come

    May 9, 2019

    An op-ed by Cass Sunstein: President Donald Trump’s “protective assertion of executive privilege,” in response to a subpoena from the House Judiciary Committee, is creating a great deal of confusion. To dispel it, we have to see the trees, not the forest. To do that, it is crucial to understand that the subpoena called not only for the unredacted version of the Mueller report, but also for “[a]ll documents referenced in the Report” and “[a]ll documents obtained and investigative materials created by the Special Counsel’s office.”

  • Congress Has the Upper Hand on Trump’s Tax Returns

    May 8, 2019

    An op-ed by Cass Sunstein: Is President Donald Trump legally entitled to withhold his tax returns from the House Committee on Ways and Means? Probably not – but it’s not simple. The governing legal text, known as section 6103, is buried in a lengthy set of provisions governing confidentiality and disclosure of tax returns. ... Representative Richard Neal, chairman of the Ways and Means Committee, invoked section 6103 on April 3, when he asked for Trump’s federal income tax returns for 2013 through 2018 – along with the returns for eight organizations owned by or associated with Trump. At first glance, section 6103 authorizes Neal to get those returns.

  • Be Honest About the Cost of Renewable-Fuel Standards

    May 7, 2019

    An op-ed by Cass Sunstein: If you are concerned about climate change, you are likely enthusiastic about renewable fuels, such as solar and wind, and about laws that require their use. For example, the Green New Deal calls for “meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources.” Unfortunately, new research shows that renewable-fuel mandates are an unusually expensive way to reduce greenhouse-gas emissions. The expense comes in the form of increased electricity prices, which are a particular problem for low-income consumers. A strong majority of states now have “renewable portfolio standards,” which require that a specified percentage of the electricity supply must come from renewables. In California, the 2030 target is 60 percent. In New York, it is 50 percent.

  • The human game may be coming to a close

    May 3, 2019

    Bill McKibben says it might be curtains for humanity. Cass Sunstein says social movements may surprise you, but they shouldn’t. And a look at one controversial social movement: affirmative action. ... Cass Sunstein, How Change Happens: How many people do you think hold your same opinions? And how well do you think you could predict the next social movement? Harvard Law professor Cass Sunstein says not to be so certain. His latest book is called How Change Happens.

  • Cass Sunstein on “How Change Happens”: Hope that a better society is possible

    April 28, 2019

    At the heart of all politics and activism is the concept of change. People agitate, organize and vote because they believe that they can affect change in the world — or, in some cases, reverse changes that have already happened. But the process of change can be a bit mysterious. How does it happen? How can people make it happen? In his new book, "How Change Happens," Harvard law professor Cass Sunstein tackles these larger issues, looking at a history of social change and analyzing it for lessons that could be useful for those who seek to make changes to the status quo. He sat down with me recently on "Salon Talks" to discuss the way social movements get started and why what used to be considered common sense or can sometimes transform with surprising speed.

  • Trump White House Seeks New Power Over Agencies

    April 23, 2019

    An op-ed by Cass Sunstein: One of the great unresolved questions in American law is whether the president can control the decisions of the “independent” agencies, like the Securities and Exchange Commission, the Federal Reserve Board and the Federal Trade Commission. The Donald Trump administration has just moved in the direction of saying that the answer is yes.

  • Harvard Project Will Use Behavioral Insights to Improve Health Care Decisions and Delivery 

    Cass Sunstein on ‘How Change Happens’

    April 19, 2019

    In a recent book talk sponsored by the Harvard Law School Library, Cass Sunstein discussed the different ways that social change happens, from unleashing to nudging to social cascades.

  • Mueller Left a Strong Hint on Obstruction

    April 18, 2019

    An op-ed by Cass Sunstein: In coming to terms with Special Counsel Robert Mueller’s report, we should adopt a principle of neutrality and put entirely to one side our enthusiasm, or our lack of enthusiasm, for President Donald Trump. It is also essential to emphasize that the report, running to two volumes and some 448 pages, will take some time to absorb. Even so, the most puzzling thing about it is unquestionably a single sentence, repeated several times: “while this report does not conclude that the President committed a crime, neither does it exonerate him.” That is a singularly opaque sentence. What on earth does it mean? That’s a genuine mystery.

  • Ted Cruz Could Use a Refresher Class on the First Amendment

    April 16, 2019

    An op-ed by Cass Sunstein: Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment? To respond to those questions, you don’t even need to know what Yale is accused of doing. The answers are No and No. Yet, in a highly publicized letter to Dean Heather Gerken, Republican Senator Ted Cruz of Texas accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion – and is therefore unconstitutional. Cruz means business. He announced that the Senate Judiciary Committee’s subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

  • Harvard Professor Cass Sunstein explains how social change happens

    April 15, 2019

    Brian talks to Cass Sunstein, the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served in the Obama administration as the Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012. In his conversation with Brian, he discusses his new book, “How Change Happens,” which answers the question of how social change happens and how change is impacted by social norms.

  • For Barr, the Tests on the Rule of Law Have Just Begun

    April 10, 2019

    An op-ed by Cass Sunstein: After winning the presidential election, the White House finds itself under criminal investigation. It cries “witch hunt.” It attacks the Justice Department as “partisan.” It tries to discredit the “lying” press.” It refers to federal prosecutors as “liberal Democrats” and as “biased.” What is the attorney general to do? The question was posed in 1973, when Richard Nixon’s vice president, Spiro T. Agnew, was under federal investigation for corruption. Agnew was alleged to have accepted hundreds of thousands of dollars in kickbacks and bribes when serving as country executive, governor and vice president. Nixon, Agnew and other White House officials tried to terminate the investigation – even more fiercely, to discredit it. Everything depended on the choices of Nixon’s new attorney general, Elliot Richardson.

  • Mark Zuckerberg Is Also Part of the Solution

    April 3, 2019

    An op-ed by Cass Sunstein: Mark Zuckerberg, Facebook’s chief executive, recently raised a lot of suspicion when he argued for government regulation of his own company and other social media platforms. Some people have been skeptical of his motives, complaining that he is trying to fend off more aggressive regulation or to squelch competition. But instead of attacking the messenger, we should discuss the message on its merits. Zuckerberg’s argument is an important step in the right direction — one that should produce sustained discussion and eventually legislation. Heads of companies don’t usually contend that the government should be regulating them. But Zuckerberg rightly noted that if we were starting anew, we would not want private companies to decide, entirely on their own, how to answer the fundamental questions that social media providers are now facing. Consider the integrity of elections — a problem made most vivid by Russian interference with the 2016 U.S. presidential election.

  • How Much of the Mueller Report to Release? Here’s a Guide.

    April 2, 2019

    An op-ed by Cass SunsteinThe controversy over the delayed release of Robert Mueller’s report, including the nature and extent of the redactions, raises large questions about government transparency in general. We can make progress in answering these questions by examining an important presidential memorandum, still in effect and binding all executive agencies in the federal government (including the Justice Department, which oversees disclosure practices). The memorandum is nominally about the Freedom of Information Act, but it speaks far more broadly. It begins plainly: “A democracy requires accountability, and accountability requires transparency.” It insists that “in the face of doubt, openness prevails.”

  • A New Deal for News

    April 1, 2019

    A nightmare. A wasteland. A place of confusion and half-truth. Ask Americans these days for their impressions of the news media and they are likely to produce such grim descriptions. These sentiments boil and fester as political and regulatory communities, whether motivated to tackle information monopolies or address data-privacy concerns, seem poised to get serious about new laws that could fundamentally alter the media ecosystem. But much of this energy is focused on the big tech companies, when the crisis, as the public perceives it, is deeper. ...The federal government could help address this market failure through the tax code. As the legal scholar Cass Sunstein has pointed out, the government has long held the power to subsidize speech, a tradition begun when America’s 18th-century leaders gave postal subsidies to newspapers and magazines to ensure the diffusion of knowledge throughout the sprawling young republic.

  • Justice Clarence Thomas Stirs Up a First Amendment Squabble Over Libel Law

    April 1, 2019

    Imagine, for a moment, what would happen if President Donald Trump or other like-minded public officials traded in their Twitter accounts for a new weapon in the ongoing war against the news media: suing journalists and news organizations for libel. For decades, media lawyers and journalists had little reason to worry about such a scenario, thanks to the 1964 Supreme Court decision New York Times v. Sullivan. To foster “uninhibited, robust, and wide-open” debate, the court required that public officials filing libel lawsuits must prove that the defamatory statements at issue were made with “actual malice,” a standard that made it almost impossible for public figures to mount and win libel lawsuits. But on Feb. 19, Justice Clarence Thomas wrote an unexpected opinion that unsettled that sense of security. ...Not everyone thought Thomas was wrong to raise the issue. “Some kind of chilling effect is not the worst idea, because it reduces the risk that falsehoods will destroy people’s reputations,” Harvard Law School professor Cass Sunstein wrote in a Bloomberg opinion column. “And in this context, the idea of democracy is a double-edged sword. If a speaker lies about a politician, and destroys her reputation in the process, democracy is not exactly well-served.”

  • Barr’s Quick Decision on Obstruction Was Awkward. And Troubling.

    March 25, 2019

    An op-ed by Cass Sunstein: Attorney General William Barr has produced an exceptionally brief summary of what is undoubtedly a lengthy report from special counsel Robert Mueller. For an issue of this magnitude – involving potentially serious misconduct by a successful presidential campaign and a sitting president – it is best to insist on a principle of neutrality, and to evaluate the summary not in political terms, but as a matter of fact and law.

  • Air Pollution Is About Justice as Well as Health

    March 20, 2019

    An op-ed by Cass SunsteinMany advocates of a Green New Deal insist that air pollution and racial justice are related and must be addressed simultaneously. In 2018, they point out, researchers from the Environmental Protection Agency concluded that black Americans suffer disproportionately from exposure to emissions.  More recent research does not merely provide fresh details about the relationship between environmental degradation and racial justice. It adds disturbing new findings about apparent inequities across racial lines. In brief: African-Americans and Hispanics are subject to far more air pollution than they cause by their consumption choices. By contrast, white people are subject to far less air pollution than they cause by their consumption choices.

  • Pelosi’s Stance on Impeachment Needs Some Explaining

    March 13, 2019

    An op-ed by Cass Sunstein: In an important statement, House Speaker Nancy Pelosi said, in response to an interview question, “I’m not for impeachment.” She explained: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.” There is a lot of sense in her comment. But it can easily be read in a way that puts it at odds with the Constitution itself. It’s best to assume that Pelosi did not mean it in that way. But on such a fundamental question, we should get very clear on the constitutional responsibility of the House of Representatives.

  • If Not Trump, Then Who? Pelosi Fuels Impeachment Debate With Long Implications

    March 13, 2019

    In throwing cold water on the idea of impeachment, Speaker Nancy Pelosi in some ways was simply offering a clear-eyed assessment of the state of politics today in the nation’s hyperpolarized capital: There are not enough votes to convict and remove President Trump from office. ... Unlike Mr. Matz, Cass R. Sunstein, a Harvard Law School professor who once worked in President Barack Obama’s White House, argued that the Constitution offers lawmakers little choice. “If we have a clear impeachable offense that is not a borderline one but a clear one, the impeachment process is mandatory because the House of Representatives is an agent of ‘we the people,’ the first three words of the Constitution,” said Mr. Sunstein, whose latest book, “On Freedom,” was published last month.

  • Putting the Calorie Count Before the Cheeseburger

    March 11, 2019

    An op-ed by Cass Sunstein: A provision of the Affordable Care Act that is strongly supported by Donald Trump’s administration requires calorie labels at U.S. chain restaurants. The basic idea is that if consumers are informed, they will reduce their calorie consumption -- and improve their health. Unfortunately, it isn’t clear that calorie labels are doing much good.

  • Political savagery makes self-government impossible

    March 8, 2019

    An op-ed by Cass Sunstein: This is the first in a series of opinion pieces on how to fix democracy.  Democracies Depend for their stability on four things. First, well-functioning institutions. Second, the delivery of good or at least decent outcomes for most citizens. Third, norms of reciprocity and forbearance. And fourth, certain character traits among both officials and citizens. While the four are closely connected, the last is the most fundamental.  In particular, democracies require high levels of personal grace. They are gravely endangered by its opposite, which is savagery. James Madison, the principal thinker behind the American Constitution, focused mostly on institutional design. But in the Virginia Ratifying Constitution, he went in a different direction, and offered a kind of cri de coeur: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure.”

  • Alford receives the Li Buyun Law Prize 2

    Alford receives the Li Buyun Law Prize

    March 5, 2019

    William P. Alford ’77, the Jerome A. and Joan L. Cohen Professor of East Asian Legal Studies at Harvard Law School, has received the Li Buyun Law Prize from the Shanghai Institute of Finance and Law, a leading Chinese academic society.

  • If Trump really attempted to ruin CNN, he deserves to be impeached

    March 5, 2019

    The difficulty of covering the Trump administration is that the scandals are so numerous and frequent that it is nearly impossible to focus on one before being overtaken by another. ... Perhaps the Justice Department and the Federal Communications Commission were deciding these cases on the merits. But T-Mobile executives seem to have gotten the message that they can influence antitrust proceedings by currying favor with the president: They dramatically increased their patronage at the Trump hotel in Washington as soon as they announced a merger with Sprint. If Trump misused his authority to reward his friends in the media and punish his enemies, Harvard law professor Cass Sunstein argues, that would be an impeachable offense.

  • Library Book Talk - Cass Sunstein on Freedom

    Video: Cass Sunstein, “On Freedom”

    March 1, 2019

    As part of its regular Book Talk series, the Harvard Law School Library recently hosted Robert Walmsley University Professor Cass Sunstein for a discussion of his latest release, "On Freedom."

  • The Misguided Idea in the House’s Green New Deal

    February 26, 2019

    An op-ed by Cass Sunstein: If you are interested in the resolution calling for a “Green New Deal” that Democrats have introduced in the House, you might want to pay attention to one remarkable phrase in particular. It appears in the resolution no less than three times: “as much as is technologically feasible.”

  • Clarence Thomas Has a Point About Free-Speech Law

    February 21, 2019

    An op-ed by Cass Sunstein: With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here. To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world. If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress? Thomas doesn’t think so.

  • Trump might have a solid case for emergency declaration, analysts say

    February 20, 2019

    Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.

  • Four False Assumptions About Trump’s Wall Emergency

    February 19, 2019

    An op-ed by Cass SunsteinA full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

  • Regulate Facebook and Twitter? The Case Is Getting Stronger

    February 15, 2019

    An op-ed by Cass SunsteinThe U.S. government should not regulate social media. It should stay far away from Facebook, Twitter, YouTube, Instagram and the rest. Any regulatory effort might well violate the First Amendment. Even if it turned out to be constitutional, it would squelch creativity and innovation in the very places where they are most needed.  Until recently, I would have endorsed every sentence in the above paragraph. But as Baron Bramwell, the English judge, once put it, “The matter does not appear to me now as it appears to have appeared to me then.”

  • Trump Is Right to Warn Democrats About Socialism

    February 7, 2019

    An op-ed by Cass SunsteinIn his State of the Union address, President Donald Trump was entirely right to reject “new calls to adopt socialism in our country.” He was right to add that “America was founded on liberty and independence — not government coercion,” and to “renew our resolve that America will never be a socialist country.” Yet to many Americans, the idea of socialism seems to have growing appeal.  Representative Alexandria Ocasio-Cortez, one of the nation’s most influential new voices, is a member of the Democratic Socialists of America. Senator Bernie Sanders, a leading voice among progressives, has long described himself as a socialist. Since 2010, most Democrats have had a favorable attitude toward socialism. Recently, 57 percent of Democrats reported such a favorable attitude, well above the 47 percent who said they have a positive attitude toward capitalism. (By contrast, 71 percent of Republicans are upbeat about capitalism, and only 16 percent feel positively about socialism.)

  • Facebook Bums Us Out But We’ll Pay for It Anyway

    February 4, 2019

    An op-ed by Cass SunsteinWould you be better off without Facebook? Would society benefit, too? A team of economists, led by Hunt Allcott of New York University, has just produced the most impressive research to date on these questions. In general, the researchers’ findings are not good news for Facebook 1 and its users. Getting off the platform appears to increase people’s well-being — and significantly decrease political polarization.

  • weight balancing illustration / dollars vs people

    The Price Is Right

    January 29, 2019

    HLS Professor Cass Sunstein ’78 argues that for all their differences, every president since Ronald Reagan has agreed on one fundamental principle of government. That is, “No action may be taken unless the benefits justify the costs.” Sunstein identifies President Reagan as the main architect of this concept, and he credits the president he served under, Barack Obama ’91, with cementing what he calls “the cost-benefit revolution,” which is also the title of Sunstein’s new book.

  • Government Without the Drama and Tumult

    January 29, 2019

    An op-ed by Cass Sunstein: Many social problems seem impossibly daunting, simply because they are so large. Poverty, immigration, cancer deaths, gun violence, climate change – in light of the magnitude of those problems, most imaginable reforms seem pretty small. In their book “Switch: How to Change Things When Change Is Hard,” Chip Heath and Dan Heath argue that the best response to big challenges is often to “shrink the change.” Instead of trying to solve a problem, dent it.

  • William Barr’s Baffling and Alarming View of Executive Power

    January 22, 2019

    An op-ed by Cass Sunstein: By all accounts, William Barr, President Donald Trump’s nominee for the position of attorney general, is a lawyer of integrity, decency and competence. For that reason, his memorandum of June 8, 2018, raising serious constitutional doubts about Robert Mueller’s investigation, is baffling -- a genuine head-scratcher. It is important to understand exactly why. Barr has legitimate concerns. The legal definition of “obstruction of justice” is far from clear. Under federal law, a person is guilty of obstruction if he corruptly: (1) “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or (2) “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Barr is deeply worried about the meaning of (2).

  • HLS faculty maintain top position in SSRN citation rankings 2

    HLS faculty maintain top position in SSRN citation rankings

    January 18, 2019

    Statistics released by the Social Science Research Network (SSRN) indicate that, as of the end of 2018, Harvard Law School faculty members have continued to feature prominently on SSRN’s list of the 100 most-cited law professors.

  • Trump’s Emergency Powers Won’t Get Him a Wall

    January 15, 2019

    An op-ed by Cass Sunstein: Does President Donald Trump have the legal authority to declare a national emergency, and order the military to build a wall between Mexico and the United States? We are dealing with a novel question here, which means that any judgment has to have a degree of tentativeness. But the best answer appears to be no.

  • The Sense and Nonsense in the EPA’s Mercury Rule

    January 14, 2019

    An op-ed by Cass Sunstein: Whenever the Trump administration proposes to eliminate a regulation, many people are tempted to give it a standing ovation. Many others are tempted to boo and hiss. Sometimes it’s right to do one or the other. But with respect to the Environmental Protection Agency’s recent decision to rethink its controversial mercury regulation — well, it’s complicated and unusually interesting.

  • Can Trump Fire Powell? Only Custom Stands in His Way

    January 9, 2019

    An op-ed by Stephen Mihm: How safe is Federal Reserve Chair Jerome Powell’s job? After President Donald Trump threatened to fire him several weeks ago, Powell upped the ante by declaring that he would refuse to resign if Trump tried to get rid of him, effectively drawing a line in the sand. ... The court also drew a hard and fast distinction between executive officers under the direct control of the president (e.g. cabinet heads) and the officers of independent agencies. And yet, as the Bloomberg Opinion columnist Cass Sunstein and his fellow legal scholar Lawrence Lessig observed in a 1994 law review article, the court “has not said what ‘good cause’ means. The Court has also failed to define “inefficiency, neglect of duty, or malfeasance in office … There is no controlling judicial decision on how ‘independent’ the independent agencies and officers can legitimately claim to be.”

  • Trump’s Wall Fails Trump’s Test for New Regulations

    January 8, 2019

    An op-ed by Cass Sunstein: Suppose that in the next few weeks, a federal agency wanted to issue a new regulation that would cost the American people $5 billion in 2019. Under both Republican and Democratic administrations, the agency would be required to submit its regulation to the White House Office of Information and Regulatory Affairs, seeking its approval. OIRA, as the regulatory office is known, would be highly skeptical.  By any calculation, $5 billion is a huge amount. In fact, it would exceed the reported annual cost of all federal regulations approved by OIRA in some recent years.

  • Best Movies of 2018 (From a Behavioral Economics Point of View)

    January 3, 2019

    An op-ed by Cass Sunstein: The Oscars were first presented in 1929. The Behavioral Economics Oscars, known throughout Hollywood as the Becons, did not appear until 2012. But as the iPhone is to the rotary phone, and as Lady Gaga is to Dean Martin, so are the Becons to the Oscars. After months of careful deliberation, the top-secret committee has finalized its choices. Here are the Becons for 2018.

  • Must-Reads of 2018: Poker, Politics and, Yes, Bob Dylan

    December 20, 2018

    An op-ed by Cass Sunstein: Most lists of the year’s best books reflect the personal tastes of those who produce them. This list is different. It’s entirely objective. What unites these six books is that nothing is rote or by-the-numbers about them. Each of them crackles with a kind of demonic energy.

  • Economics: The Discipline That Refuses to Change

    December 14, 2018

    Literally meaning “economic man,” the origins of the term Homo economicusare somewhat obscure—early references can be traced to the Oxford economist C. S. Devas in 1883—but his characteristics have become all too familiar. .... These insights led to the founding of a new field, behavioral economics, which became a household name 10 years ago, after Cass Sunstein and Richard Thaler published the best-selling book Nudge and showed how this new understanding of human behavior could have major policy consequences. Last year, Thaler won the Nobel Prize in Economics, and promised to spend the $1.1 million in prize money “as irrationally as possible.”

  • Here’s A Year-End Roundup Of White House And Federal Agency Efforts To Streamline Guidance Documents

    December 12, 2018

    President Donald Trump’s executive actions aimed at slowing the pace of new regulation and eliminating existing ones (the first part was easier) continued in 2018. ...In effect, this amounted to “an impressive form of self-abnegation” of power, as noted by former Obama OIRA Director Cass Sunstein, since Trump’s own agencies can no longer rely on post-DOJ-memo guidance in court. While some left-of-center observers were dismissive, claiming that it “merely restated well-understood and otherwise uncontroversial black letter law,” the concern has been a longstanding one on an official basis in the eyes of the ACUS, going back decades before its 2017 report. A beneficial effect of the DOJ move is that it could induce other agencies to lean toward notice-and-comment rulemaking instead of exploiting the guidance loophole. Former OIRA Director Sunstein maintained that guidance can be “exceedingly helpful,” but deemed the Associate AG announcement a “welcome move” against guidance inadvertently behaving as a “regulatory cudgel.”

  • When Impeachment Is Mandatory

    December 12, 2018

    An op-ed by Cass Sunstein: Suppose that within the next few months, it becomes clear that President Donald Trump has committed impeachable offenses. Does the House of Representatives have discretion to decide whether to impeach him? Or does the Constitution require it to do so? The simplest answer, and the best, is that the Constitution requires the House to do so.

  • Does Prayer Help Disaster Victims? Here’s One Way to Measure It

    November 29, 2018

    An op-ed by Cass Sunstein. After a tragedy, it is common for people to send “thoughts and prayers.” Skeptics argue that it’s much better to do something more tangible – to send money, to volunteer, or to press for reforms that will reduce future tragedies. In the context of gun control, the idea of thoughts and prayers has become a parody of ineffectual and even pathetic responses to horrific events. Some people decry thoughts and prayers as doing nothing – except to make bystanders feel better about themselves.

  • A Default Setting That Can Ease the Student Loan Crisis

    November 26, 2018

    An op-ed by Cass Sunstein. Student loans are imposing crushing burdens on millions of young Americans. According to one account, about one-quarter of the borrowers who began repaying their loans in 2005, 2007 or 2009 have since defaulted on them. That number greatly understates the economic hardship, not to mention the daily anxiety, produced by the pressures of repayment. What if there was an easy way to respond to the student debt crisis? A response that did not involve heavy-handed regulatory interventions?

  • Advice to Presidential Hopefuls: Tell the Truth

    November 19, 2018

    An op-ed by Cass Sunstein. I can’t tell a lie, Pa; you know I can’t tell a lie.” Those words, attributed to George Washington at the age of 6, appeared in the fifth edition of Mason Locke Weems’s “The Life of Washington,” published in 1806. In case you’ve forgotten the details of the story: Young George cut down a cherry tree, and when confronted by his father, he confessed, “I did cut it with my hatchet.” Even as a kid, the nation’s first president knew that lying was wrong. He told the truth. It doesn’t matter that the story was a myth. What matters is that it resonated: Lying was taboo.

  • Federal Paperwork Costs as Much as the Deficit

    November 13, 2018

    An op-ed by Cass Sunstein. Can the Republican-controlled Senate and the Democratic-controlled House of Representatives agree on anything? Here is a candidate: reduce paperwork mandates from the U.S. government. Before you laugh, please consider a number: 9.78 billion. That is the number of annual hours of paperwork burdens that the government imposes on its citizens.

  • The Simplest Way to Kill Trump’s Birthright-Citizenship Ban

    November 1, 2018

    An op-ed by Cass Sunstein. If President Donald Trump carries through on his promise to end birthright citizenship for the children of illegal aliens, he will probably lose in court. But don’t be surprised if the ultimate ruling is narrow: To do what he wants, the president needs unambiguous authorization from Congress — and he hasn’t got it. The governing principle is called the “canon of constitutional avoidance” — for short, the Avoidance Canon. It’s a technical idea, but it has immense importance. It links individual rights with the safeguards of checks and balances. It puts the genius of the U.S. constitutional system on fine display.