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Cass Sunstein

  • Twitter’s ’Mild’ Label Policy Is Fair, Legal: Sunstein

    May 29, 2020

    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.

  • Twitter Strikes Fair Balance Between Liberty and Lies

    May 28, 2020

    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.

  • Machteld van Egmond

    Machteld van Egmond LL.M. ’20: A physician-researcher with a curious mind turns to the practice of law

    May 24, 2020

    A physician-researcher, Machteld van Egmond LL.M. ’20 explored the intersections among empirical science, law, and medicine during her LL.M. year at Harvard Law School.

  • The cost-benefit analysis of saving an American life, featuring Cass Sunstein

    May 22, 2020

    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.

  • How to Make Coronavirus Restrictions Easier to Swallow

    May 20, 2020

    An article by Cass SunsteinTo 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.

  • The Debate Over Constitutional Originalism Just Got Ugly

    May 18, 2020

    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.

  • Coronavirus Is Giving Cost-Benefit Analysts Fits

    May 13, 2020

    An article by Cass SunsteinI 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.

  • Don’t Ignore Costs of Coronavirus Regulation

    May 12, 2020

    An article by Cass SunsteinIn 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.

  • Why Presidential Lies Are Even Worse Than They Seem

    May 6, 2020

    An article by Cass SunsteinPresident 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.

  • The Democrats Are Divided, Just Not in the Way We Think

    April 30, 2020

    An article by Cass SunsteinDemocrats have been rallying around former Vice President Joe Biden, but they are struggling with serious internal divisions. The more you examine what they’re actually saying, the more you see that it is hopelessly inadequate to say, as most people are doing, that some Democrats are in the center while others are on the left. If you hope to understand the tensions within American progressivism — and most Democrats do qualify as progressive to one degree or another — your best bet is to explore the work of three influential writers from a century ago, when the U.S. saw a flowering of left-wing thinking. The first was Walter Lippmann, who believed in scientists and experts, and who wanted to solve the nation’s problems by increasing their role in American government. The second was Max Eastman, who focused on economic inequality, class conflict and the rights of working people. The third was Randolph Bourne, who emphasized, and celebrated, separate social identities, and who wanted to ensure that no social group would be subordinated to another. The three offered radically different diagnoses of what ails our country — and radically different prescriptions. The deepest splits within the Democratic Party reflect not some center-to-left continuum, but their competing legacies.

  • Constitution May Block Progressives on Wealth Tax

    April 24, 2020

    An article by Cass SunsteinDebates about the idea of a wealth tax are suddenly sounding a lot less hypothetical. With massive expenditures related to the Covid-19 pandemic, the U.S. needs to find ways to raise revenue. And with the economic burdens of the calamity falling disproportionately on the less affluent, income inequality has only become more glaring. No wonder the call to target the richest has increasing appeal. But is a wealth tax constitutional? It’s a question legal scholars have long discussed. Unfortunately, the answer is elusive. For that reason alone, there is a good argument that progressives should focus on other options – such as imposing higher income taxes on the wealthy and closing the many loopholes that benefit them. Let’s start with the 16th Amendment to the Constitution, ratified in 1913, which provides: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” If Congress wants to raise rates on the wealthy, it’s perfectly entitled to do that. Notably, however, the 16th Amendment is limited to “taxes on incomes,” so it does not authorize wealth taxes.

  • ‘How do we overcome fear?’ Americans need confidence before life can return to normal.

    April 20, 2020

    Danny Meyer — restaurateur and founder of Shake Shack — said he is already envisioning the changes he will make when he finally gets the green light to reopen his restaurant empire. Kitchen employees will have to wear masks and not only have their temperature taken, but also look their manager in the eye and verbally confirm they are feeling healthy...Last week, President Trump released a set of guidelines for beginning to reopen the country amid the coronavirus pandemic. But what Trump says won’t much matter if skittish elected leaders, business owners and customers don’t trust that they will be safe returning to their daily lives — and at the moment, most Americans don’t have that confidence. In a poll released Thursday by the Pew Research Center, three-quarters of U.S. adults said the worst is yet to come with the novel coronavirus, and two-thirds were worried that restrictions would be lifted too soon...Cass Sunstein, a professor at Harvard Law School and a former adviser to President Barack Obama, said people’s behavior will hinge in part on how trustworthy they view the leader offering the guidance. “If the governor seems to be credible on the health topic,” Sunstein said, people are far more likely to be reassured “than if the governor seems to be responding to political pressure or seems to be scared of something.” But, he added, community signals will also be crucial. “What do people see people like them doing?” Sunstein asked. “If people see everyone else staying home, they tend to think that’s the right thing to do, and they see everyone going out, they tend to think, ‘Well, I should go out, too.’”

  • What Is a ‘Very Good Job’ on Coronavirus Deaths?

    April 20, 2020

    An article by Cass SunsteinHow many Americans are going to die from the coronavirus? How will we know if the national government or the states have done a commendable job or a terrible one? Here’s a comment from President Donald Trump in late March: "So you’re talking about 2.2 million deaths, 2.2 million people from this. And so if we could hold that down, as we’re saying, to 100,000. It’s a horrible number, maybe even less — but to 100,000. So we have between 100 and 200,000, and we altogether have done a very good job." Do you see what Trump did there? It’s called “anchoring,” and it’s one of the most important findings in behavioral science. People who have been involved in real estate, like Trump, are often experts in the use of anchors. Trump specified an anchor (2.2 million deaths), and he used it to support his claim that if 100,000 to 200,000 Americans end up dying, he has “done a very good job.” Whenever the goal is to affect people’s evaluations, it’s smart to get a particular number in their heads, whether it involves pricing property or estimating deaths. That number often sticks. It influences their judgments about what’s likely or what’s fair, and about what counts as a successful outcome or instead a disaster.

  • Why Is Trump Gutting Regulations That Save Lives?

    April 17, 2020

    An article by Cass SunsteinSince Jan. 30, 2017, the Trump administration’s approach to federal regulation has been defined by a simple requirement: “one in, two out.” The basic idea, set out in one of President Trump’s first executive orders, is that whenever a federal agency issues one regulation, it has to take at least two regulations away — and produce an incremental cost, on the private sector, of zero. The idea was absurd from the very start. It was profoundly demoralizing to experts in federal agencies, who know a lot about science and who have plenty of good ideas about how to protect public health and safety. But its absurdity has been put in a whole new light by the Covid-19 pandemic, which demonstrates that the regulatory state is no enemy of the people — and that smart safeguards, designed by specialists, save lives. It is true that to many people, the one-in, two-out idea has a lot of intuitive appeal. For one thing, it instructs regulators — at the Environmental Protection Agency, the Department of Transportation, the Department of Health and Human Services and elsewhere — to get rid of outmoded or dumb regulations. If we want to free up the private sector from regulations that do more harm than good, it might make sense to insist: If you want to do something new, you had better get rid of something old. But there is a subtler point. Mr. Trump clearly wanted to slow the issuance of new regulations. The one-in, two-out principle is well suited to achieving that goal.

  • Can Trump Delay the 2020 Election? Here’s What the Constitution Says

    April 14, 2020

    An article by Cass SunsteinIt is alarming, to say the least, that people are even asking this question: Does President Donald Trump have the legal authority to postpone or cancel the 2020 presidential election? The answer is entirely clear: He does not. Start with the Constitution itself: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” The founding document reflects an unambiguous judgment that Congress, and not a potentially self-interested president, gets to decide when the leader of the United States shall be chosen. If the president could set the time of his own election, he could specify a date that is favorable to him – or postpone a specified date until the conditions are just right. Congress has exercised the authority that the Constitution gives it. A law enacted in 1948 says this: "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." A finicky reader might respond: Those provisions are about selection of members of the Electoral College. What does that have to do with the popular vote? The answer is that the two are inextricably intertwined.

  • As With Cigarettes and Seat Belts, Face Mask Expectations Will Change

    April 10, 2020

    An article by Cass SunsteinIt has been almost a week since the Trump administration recommended that all Americans wear masks, or some face coverings, in public to protect against the spread of coronavirus. But the president himself is still not following that advice. As he put it, “Wearing a face mask as I greet presidents, prime ministers, dictators, kings, queens — I just don't see it." Why doesn’t he “see it”? To answer that question, let’s ask another one. If you pass a neighbor on the street or in a grocery store, and if he’s wearing a mask, what do you think? Here are some possibilities: 1. He has coronavirus. 2. He is far more frightened than he should be. 3. He looks weird. 4. He is being prudent. 5. He is simply following the government’s recent recommendations. All over the country, people who wear masks are still producing reactions 1, 2 or 3. To be sure, those reasons were more common a few weeks ago than they are now -- but they continue to be widespread. Here’s the problem: If you know you’re going to produce one of the first three reactions, you’re less likely to wear a mask, even if it’s a sensible thing to do.

  • We need smart solutions to mitigate the coronavirus’s impact. Here are 16.

    April 6, 2020

    The coronavirus crisis has upended American life, and fresh ideas are needed for dealing with the problems it’s creating. Here is a collection of smart solutions... "House mild cases in hotels" by Jeremy Samuel Faust and Cass Sunstein: One of the toughest decisions facing physicians and public health officials is where to send patients who test positive for the covid-19 coronavirus. For the small but significant proportion with severe or critical illness, the decision to hospitalize is trivial. But where to send the apparently large majority of cases that are mild or even symptom-free? These patients, often young, need to be isolated to reduce spread. But using a hospital bed for isolation alone takes up capacity, puts others at risk and chews through protective equipment that doctors, nurses and other staff desperately need. A natural alternative is to send people home, with clear instructions to self-isolate. But in some cases that is not feasible, and it poses evident risks. The World Health Organization recommends placing mildly ill patients in dedicated covid-19 facilities as the gold standard for isolation. While countries such as China have the logistical capability to erect new hospitals for this purpose in a matter of days, most places cannot achieve that. Fortunately, there is a potential answer: America’s prodigious hotel industry. And in case you haven’t noticed, there is plenty of room at the inn.

  • The War on Coronavirus Is Also a War on Paperwork

    April 6, 2020

    An article by Cass SunsteinAs part of the war on coronavirus, U.S. regulators are taking aggressive steps against “sludge” – paperwork burdens and bureaucratic obstacles. This new battle front is aimed at eliminating frictions, or administrative barriers, that have been badly hurting doctors, nurses, hospitals, patients, and beneficiaries of essential public and private programs. Increasingly used in behavioral science, the term sludge refers to everything from form-filling requirements to time spent waiting in line to rules mandating in-person interviews imposed by both private and public sectors. Sometimes those burdens are justified – as, for example, when the Social Security Administration takes steps to ensure that those who receive benefits actually qualify for them. But far too often, sludge is imposed with little thought about its potentially devastating impact. The coronavirus pandemic is concentrating the bureaucratic mind – and leading to impressive and brisk reforms. Consider a few examples.

  • Detail of Austin Hall

    Harvard Law excels in SSRN citation rankings

    April 6, 2020

    Statistics released by the Social Science Research Network (SSRN) indicate that, as of the beginning of 2020, Harvard Law School faculty members featured prominently on SSRN’s list of the most-cited law professors.

  • The Siren of Selfishness

    April 3, 2020

    A book review by Cass SunsteinAs a teenager, I fell for Ayn Rand. More precisely, I fell for her novels. Reading The Fountainhead at the age of fourteen, I was overwhelmed by the intensity and passion of Rand’s heroic characters. Who could forget the indomitable Howard Roark? His face was like a law of nature—a thing one could not question, alter or implore. It had high cheekbones over gaunt, hollow cheeks; gray eyes, cold and steady; a contemptuous mouth, shut tight, the mouth of an executioner or a saint. Roark was defined by his fierce independence: “I do not recognize anyone’s right to one minute of my life,” he says in the novel. “Nor to any part of my energy. Nor to any achievement of mine. No matter who makes the claim, how large their number or how great their need.” Like countless teenage boys, I aspired to be like Roark. And I found Rand’s heroine, Dominique Francon, irresistible.

  • Why Coronavirus (and Other) Falsehoods Are Believable

    April 1, 2020

    An article by Cass SunsteinSports fans have been thrilled to learn that Major League Baseball will be back in May. Okay, that’s false. But if you’re like most people, that false statement will linger in your memory, making you think, in some part of your mind, that baseball might indeed be returning pretty soon. (Sorry!) The broader phenomenon is something that psychologists call “truth bias”: People show a general tendency to think that statements are truthful, even if they have good reason to disbelieve those statements. If, for example, people are provided with information that has clearly been discredited, they might nonetheless rely on that information in forming their judgments. Similarly, people are more likely to misremember, as true, a statement that they have been explicitly told is false than to misremember, as false, a statement that they have been explicitly told is true. It follows that if you are told that some public official is a liar and a crook, you might continue to believe that even after you learn that she’s perfectly honest. And if you are told that if you’re under the age of 50, you really don’t need to worry about the coronavirus, you might hold onto that belief, at least in some part of your mind, even after you are informed that people under 50 can get really sick.