Cass Sunstein

An article by Cass Sunstein: A lot of Americans aren’t taking Covid-19 seriously. They aren’t wearing masks. They aren’t social distancing. They aren’t staying home. That’s one reason that the number of cases is spiking in the South and West. The problem is especially serious in Florida, Arizona, South Carolina, North Carolina, California, Tennessee and Texas, which are reporting the highest numbers of hospitalizations since the coronavirus pandemic started spreading across the U.S. in March. The result is likely to be many thousands of preventable deaths. Why are so many people refusing to take precautions? A key reason is their sense of their identity — their understanding of what kind of person they are, and of the groups with whom they are affiliated. It follows that appeals to adopt responsible practices are unlikely to work unless they take group identity into account. An alarming example: In Alabama, college students have been holding “Covid-19 parties,” including people who are infected and intentionally designed to see who else can catch the virus first. In the last decades, behavioral science has drawn attention to the immense importance of personal identity in motivating behavior. A central idea, pressed by Dan Kahan, a law and psychology professor at Yale University, is that people’s beliefs and understandings are often “identity-protective.” With respect to some risks — such as those posed by climate change, nuclear power and gun violence — people’s judgments about whether a danger is high or low are deeply influenced by their understanding of the group, or tribe, to which they belong. People ask, “Am I the sort of person who thinks and does this, or not?” The answer to that question can be decisive.

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

An article by Cass Sunstein: The year: 1964. The location: the Oval Office. President Lyndon Johnson, an improbable advocate for civil rights, was meeting with Governor George Wallace, an implacable foe of civil rights. Wallace had requested the meeting. The specific topic was voting rights and the ongoing demonstrations on their behalf. He wanted the president to help stop them. After a little small talk, the governor began the conversation by alleging that many of the “malcontents” had been “trained in Moscow.” Johnson responded that all the protesters wanted was the right to vote. He added that “you can’t stop a fever by putting an icepack on your head. You’ve got to use antibiotics and get to the cause of the fever.” Wallace was disdainful. He said that it was impossible to “deal with street revolutionaries,” who could never be satisfied. You might give them the right to vote, but “then it’s jobs; then it’s distribution of wealth without work.” Increasingly frustrated, Johnson asked Wallace to think about the verdict of history, not about the current moment. He asked: "George, what do you want left behind? Do you want a great big marble monument that says 'George Wallace: He Built'? Or do you want a little piece of scrawny pine lying there along that hot caliche soil that says 'George Wallace: He Hated'?" Wallace was shaken. Later he said to an aide, “Hell, if I’d stayed in there much longer, he’d have had me coming out for civil rights.” Johnson’s key distinction — between the builders and the haters — is keenly relevant today, of course. Most important, it captures the split between those who are working for racial justice, including voting rights (and jobs), and the modern-day Wallaces, who in various forms are complaining of “street revolutionaries,” doubting the patriotism of the protesters, and emphasizing looting and acts of violence, as if they are all that matter.

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. Guests: PGIM CEO David Hunt, Ford COO Jim Farley, Harvard Law Professor Cass Sunstein.

An op-ed by Cass Sunstein: To reduce inequality and racial injustice, a lot of people are interested in making college available to all. The most ambitious proposals would cost a great deal of money — and taxpayers would have to foot the bill. Last week, the city of West Sacramento, California, did something fresh and creative — and cheap. It automatically admitted every one of its graduating high school seniors to a local two-year college, Sacramento City College. Here are the first words of the letter received by each graduate: “Congratulations on your graduation and your acceptance to Sacramento City College!” As Mayor Christopher Cabaldon put it, “Imagine no one in your family has ever gone to college, and you open up an envelope with a letter of admission.” He added that the new effort “will make it just as simple to go from high school to college as it is to go from kindergarten to first grade.” By itself, automatic admission costs almost nothing. It’s just a letter. But there’s every reason to think it will have a real impact. For many students, it will make all the difference, just because of its automatic quality. Mayor Cabaldon’s initiative builds on one of the most important findings in behavioral science: If you ask people whether they want to opt into something, you will get much lower participation rates than if you enroll them automatically, and ask them whether they want to opt out.

An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. ... The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

An article by Cass Sunstein: Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.

An article by Cass Sunstein: In the early 1980s, I was one of four law clerks for Justice Thurgood Marshall, probably the greatest civil rights lawyer in U.S. history and the first African American to be appointed to the Supreme Court. In a discussion with our boss, we expressed concern that the high court might overrule its Miranda decision, which requires police officers to provide the famous warnings to people in custody. We thought that the Miranda warnings were an essential means of preventing official abuse in general and of protecting African Americans in particular. Marshall looked at us with amusement. This is what he said: “Miranda? I like Miranda well enough. But not all that much. When I lived in New York City, a long time ago, I had a nice, long talk with head of a local precinct about police misconduct and the United States Constitution. Here’s what he did the next week. He got all his cops in a big room, and said, ‘If I hear that any of you has mistreated anyone in New York – beaten him up, knocked him down, violated his civil rights, targeted him because of his race, anything like that – you’re fired. Immediately. On the day.’” Marshall took a long pause. And then he thundered: “And that’s a lot better than Miranda!” In the 1990s, I lived on the south side of Chicago, and my car was stolen. A police officer recovered it. As we talked about what had happened, he asked me, “And what do you do for a living?” I responded, “I teach constitutional law.” He looked displeased. I thought I knew why, and asked, “Oh, does the Fourth Amendment give you any trouble?” (The Fourth Amendment forbids unreasonable searches and seizures.) His answer: “Oh, no, not at all. I didn’t violate the Fourth Amendment unless I say that I violated the Fourth Amendment, and I never say that I violated the Fourth Amendment.”

An article by Cass Sunstein: Would you adopt a fox? The prudent answer is “no”; foxes are wild animals. Or are they? In something out of science fiction, new research suggests that we are now starting to see two different kinds of foxes: the wild and the domesticated. The research tells us something about mammals in general, including the beloved Canine Lupus Familiaris (also known as the dog) and Homo Sapiens. It is also uplifting – a hopeful sign in these dark days. The relevant research, by Kevin Parsons of the University of Glasgow and colleagues, has a daunting title: “Skull morphology diverges between urban and rural populations of red foxes mirroring patterns of domestication and macroevolution.” But the title contains a bombshell. For some time, urban populations of red foxes have been domesticating themselves in London and its environs. True, they’re not dogs, but they have been moving in that direction. In areas around London, fox populations are looking different from their rural counterparts. Their snouts are shorter and wider. The differences between males and females are less pronounced. Their brains are smaller. These changes are characteristic of a process identified by Charles Darwin and known as the “domestication syndrome.” If you compare dogs with wolves, you will see the same kinds of differences that are now separating urban foxes from rural ones.

An article by Cass Sunstein: What pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.

An article by Cass Sunstein: With widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”

An article by Cass Sunstein: President Donald Trump’s executive order targeting social-media companies raises tough questions about presidential power, presidential bullying and freedom of speech. To understand it, we need to start with what’s clear, and then explore what’s not. An executive order is not a law. It doesn’t bind the private sector. It doesn’t require Twitter or YouTube to do anything at all. Many executive orders are orders from the president to his subordinates, directing them to do things. That’s what this one is. With respect to the communications market (of which the social-media companies are an important part), the most important federal agency is the Federal Communications Commission, an independent agency not subject to the president’s policy control. The executive order signed by Trump on Thursday respects the FCC’s independence. It doesn’t direct the FCC to take action. Some passages of this executive order read like a fit of pique, or an attempt at punishment. Indeed, the order does not obscure the fact that it is, at least in part, a response to behavior by Twitter that Trump didn’t like: adding fact-check labels to two misleading presidential tweets about voting by mail.

Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Cass Sunstein: President Donald Trump says a lot of things on Twitter that aren’t true. Twitter has a set of formal policies designed to combat misleading information. This week, Twitter applied its policies to two of Trump’s tweets, in which the president made misleading claims about voting by mail. Trump responded with a threat: "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen." The threat had an immediate effect on the stock of Twitter Inc.; it fell dramatically afterward. To understand the controversy, we need to step back a bit. Social-media platforms such as Twitter, Facebook and YouTube are not subject to the Constitution at all. The First Amendment, which guarantees freedom of speech, applies only to the government. If Twitter denied a platform to Trump, or if it allowed only Republicans or only Democrats to have access to its platform, it would not be violating the Constitution. Nonetheless, Twitter has good reason to allow something like a free-for-all. Its whole purpose is to permit plenty of diverse people to say plenty of diverse things. That’s its business model. And if it’s providing a public service, as I believe that it is, it should not favor any particular side. It should certainly not appoint itself as the truth police.

What price does the U.S. government put on saving a life? The coronavirus pandemic and the push to reopen the nation and the American economy have resurfaced the notion that the federal government is often faced with the tough decision of choosing between taking an action that could save lives and the cost of implementing that policy or regulation. Harvard Law School professor and American legal expert Cass Sunstein joins the podcast to discuss this heavy topic. He draws upon his experience heading the White House Office of Information and Regulatory Affairs during the Obama administration and the calculus that goes into the cost-benefit analysis of regulations. “It’s very normal, and it’s surreal” to weigh the cost of an American life, Sunstein says in the podcast. “The balancing as you say of lives saved against cost happens all the time. And there are strategies the government uses and that are not politically contested really to handle them.” For instance, a new clean air regulation that might save one life at a cost of $90 billion — that’s probably dead on arrival. However, a transportation safety change that is estimated to save 500 lives a year at a cost of $10 million has a much better shot as a high-benefit, low-cost regulation.

An article by Cass Sunstein: To address the coronavirus pandemic, it’s essential to influence human behavior; to promote social distancing, to get people to wear masks, to encourage people to stay home. Many nations have imposed mandates as well. But to enforce the mandates and to promote safer choices as the mandates wind down, people have to be nudged. To organize current and coming efforts, a simple framework can be captured in an acronym: FEAST. The idea begins with the EAST framework from the Behavioural Insights Team in the U.K., which deserves to be better known. EAST refers to four ideas: easy, attractive, social and timely. If you want people to do something, make it easy for them. They have to know what to do and how to do it, and it should not be too burdensome, painful or costly. Automatic enrollment — for example, in savings plans or green energy — significantly increases participation rates, because it is so easy. Whenever the goal is to change behavior, the best question is easy to overlook: Why aren’t people doing it already? After getting the answer, public officials, employers, schools and others can take steps to remove the barrier. It matters whether an option or message is attractive. A simple and vivid communication has more impact than a dull and complicated one. With respect to Covid-19, officials in Ireland have made excellent use of this insight with striking informational signs. The same is true of New Zealand.

An article by Cass Sunstein: Are most members of the Supreme Court violating their oath of office? Might Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan be committing impeachable offenses? Did some of history’s most celebrated justices — Oliver Wendell Holmes, Louis Brandeis, Robert Jackson, Earl Warren, Thurgood Marshall, William Rehnquist and Sandra Day O’Connor — also act inconsistently with their oath of office? Some prominent law professors at distinguished institutions are making precisely that argument. It’s unpleasant stuff, the academic equivalent of “lock her up!” But like that howl of rage, the new argument is resonating in influential circles. Before long, it will probably enter into public debates. To understand what’s afoot, we need to explore a much-disputed question: How should the Supreme Court interpret the U.S. Constitution? Many justices think that the founding document contains what Justice Felix Frankfurter called “majestic generalities,” phrases like freedom of speech, equal protection, unreasonable searches and seizures, due process of law...By contrast, some justices, including Clarence Thomas and the late Antonin Scalia, are “originalists.” They believe that the Constitution must be interpreted to fit with its “original public meaning” — that is, the meaning that members of the public would have given to it at the time of ratification. The debates between originalists and their adversaries have become sophisticated and elaborate.

An article by Cass Sunstein: I love cost-benefit analysis. But for the coronavirus pandemic, cost-benefit analysis and I are going to have to see a marriage therapist. We might be headed for a divorce. Consider the following questions: What kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be, exactly, and exactly when? To answer such questions, governors, mayors and President Donald Trump seem to be engaging in a kind of intuitive cost-benefit analysis as they struggle to balance the value of increased economic activity against the threat to public health. Regulators and executive-branch policymakers try to be more rigorous in their analysis of costs and benefits. They ask: How do you calculate the benefits of restrictions, and what’s the right measure of costs? They try to come up with reliable numbers. The goal is to impose restrictions when (and only when) the benefits exceed the costs — and to adopt an approach that has the highest net benefits, that is, benefits minus costs. You might not think that’s the loveliest way to proceed, but the basic thinking is simple: Official decisions should have the best possible consequences for people. Looking at costs and benefits is the best available way of figuring out what decisions will have the best consequences.

An article by Cass Sunstein: In Congress and the executive branch, U.S. officials are about to face an unexpected dilemma, one that will define a range of domestic policy in the coming years, and that has the potential to redefine how Americans think about the modern regulatory state. On the one hand, the coronavirus pandemic has made it unmistakably clear that in some areas, the U.S. needs more regulation, especially to protect health and safety. On the other hand, the economic destruction it has caused will require new caution about costly regulatory mandates. Businesses, large and small, are facing unprecedented challenges. For many of them, survival is at stake, and expensive regulations might prove devastating. It is almost certain that the administration of President Donald Trump will be keenly alert to the second point, while neglecting the first. There’s also a risk that progressives — including those in charge if Joe Biden wins the White House in November — will be keenly alert to the first point, but insufficiently appreciative of the second. Over the past three years, Trump’s regulators have kept down the costs of new regulations. On an annual basis, those costs have been far lower than they were under Presidents Bill Clinton, George W. Bush and Barack Obama. (Regulatory costs were not officially documented before 1998.) The less good news is that Trump’s regulators have also produced unprecedentedly low benefits, a category that includes not only purely economic savings, but also reductions in death and disease.

An article by Cass Sunstein: President Donald Trump is a liar — hardly the first but certainly the worst among U.S. presidents. By one count, he has made about 18,000 false or misleading claims, an unmistakable sign of his willingness to deceive. His supporters do not seem especially bothered. They focus on what Trump does, not on whether he tells the truth. Which raises a question: Is presidential lying really so bad? Actually, it’s worse than bad, and for reasons much broader than the dangerous confusion it has sown during the coronavirus pandemic. To see why, let us consult two moral traditions that have explored what's wrong with lying, and what makes it so corrosive. The first is rooted in the work of Immanuel Kant, the 18th-century German philosopher who emphasized the importance of treating people as ends rather than mere means. The second comes from Jeremy Bentham, Kant’s younger British contemporary and the founder of utilitarianism.