Cass Sunstein

An article by Cass Sunstein: Democrats 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.

An article by Cass Sunstein: Debates 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.

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.’”

An article by Cass Sunstein: How 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.

An article by Cass Sunstein: Since 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.

An article by Cass Sunstein: It 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.

An article by Cass Sunstein: It 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.

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.

An article by Cass Sunstein: As 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.

A book review by Cass Sunstein: As 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.

An article by Cass Sunstein: Sports 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.

An article by Cass Sunstein: I have long been an enthusiastic defender of quantitative cost-benefit analysis, and recently wrote a book about it. I have also long been a critic of the precautionary principle, which calls for potentially expensive precautions against bad outcomes in the face of scientific uncertainty. In the context of the coronavirus pandemic, it’s unusually challenging to engage in quantitative cost-benefit analysis. But the best available estimates, released within the last few days, suggest that the U.S. should continue with expensive precautions, even if they take a major economic toll. Back to normal by Easter, as President Donald Trump suggested? The new estimates show that that would be reckless. To adapt Patrick Henry, “Give me precautions, or give me death.” It should be acknowledged that Trump, and many others, have been right to emphasize the importance of balancing a range of considerations, and not focusing only on one. Some people in the public-health community like to look only at one side of the ledger. But a zero-risk mentality makes no sense.

An article by Cass Sunstein: Dire as the coronavirus pandemic has become, it’s worth remembering that there are other severe public health threats that can’t be ignored. That’s a reason to applaud the Food and Drug Administration for issuing, even in this period, a tough new tobacco regulation that should save lives: It has required graphic warnings on cigarette packages. Whenever customers buy a pack of cigarettes, or stop to contemplate buying one, they will see one of 11 gruesome images, accompanied by a grim verbal message. The image might be a woman with a large neck tumor, alongside these words: “Smoking causes head and neck cancer.” Or it might be a diseased lung, with these words: “Tobacco smoke causes fatal lung disease in nonsmokers.” Or it might be an obviously diseased body of a patient, with these words: “Smoking can cause heart disease and strokes by clogging arteries.” The images cannot be small: “The new required warnings must appear prominently on cigarette packages and in cigarette advertisements, occupying the top 50 percent of the front and rear panels of cigarette packages and at least 20 percent of the area at the top of advertisements,” the FDA states.

An article by Cass Sunstein: Can a press release save lives? No doubt about it. At least if it comes from the Occupational Safety and Health Administration, and it publicizes a serious violation of the occupational safety and health laws. The tale begins in 2009, when OSHA initiated a new policy: If one of its inspections found sufficiently serious workplace safety violations (warranting a fine of at least $40,000), it would issue a press release, identifying the violator. According to David Michaels, the OSHA administrator at the time, press releases would be a form of “regulation of shaming.” Michaels’s hope was that the releases would have “educational and deterrent purposes for other companies in the same industry and geographic area.”

An article by Cass Sunstein: The coronavirus epidemic has produced several different kinds of crises. It is of course a public health crisis, first and foremost. But it’s also an economic crisis, an international-relations crisis and a crisis of public morale. Fear is widespread and mounting. There was no pandemic, of course, but the economic crisis was incomparably worse. And the crisis of public morale, though also much worse, had similar features. The U.S. has not been here before, but it has been in the vicinity. In some ways, the closest analogy is to the Great Depression.

An article by Cass Sunstein: The Supreme Court heard oral arguments on Tuesday in the most important separation-of-powers case in several decades. The central issue is simple: Did Congress violate the Constitution in making the Consumer Financial Protection Bureau independent of the president when it created that agency in 2009? Under the law as it now stands, the president can fire the bureau’s director only for “inefficiency, neglect of duty, or malfeasance in office.” Whether that restriction is constitutional bears on the entire structure of the U.S. government. Many federal agencies are “executive,” in the sense that their heads work for the president and can be discharged for whatever reasons he likes. That’s true, for example, of the Departments of State, Defense, Transportation, Agriculture, Justice, Education, Energy, Labor, Interior, Treasury and Commerce. It’s also true of the Environmental Protection Agency.

The Supreme Court will hear arguments on Tuesday in a case over whether the Consumer Financial Protection Bureau, the regulatory agency established in the wake of the 2008 financial crisis, is constitutionally structured. The case, key to the future of the CFPB, could also have broad implications on other independent federal agencies, according to experts. A decision is expected by the end of June. The dispute turns on whether the CFPB’s director is given too much independence... Herz said the case took on a new significance because of the controversy over the sentencing last month of Republican operative Roger Stone, a friend of the president who was convicted crimes related to witness tampering and lying to Congress. After Trump suggested on Twitter that the sentence sought by the Justice Department was too stiff, top DOJ officials overruled career prosecutors in order to seek a more lenient sentence. That move prompted all the Justice Department attorneys working on the case to remove themselves from it in a shocking mass exodus. The developments came as some scholars, including Harvard Law School professor Cass Sunstein, have proposed that Congress make the Justice Department an independent agency.

An article by Cass Sunstein: At this stage, no one can specify the magnitude of the threat from the coronavirus. But one thing is clear: A lot of people are more scared than they have any reason to be. They have an exaggerated sense of their own personal risk. How come? The best answer goes by an unlovely name: “probability neglect.” Suppose that a potential outcome grips your emotions, maybe because it is absolutely terrifying, maybe because it is amazingly wonderful. If so, there is an excellent chance that you will focus on it -- and pay far less attention than you should to a crucial question, which is how likely it is to occur. One of the simplest and most vivid demonstrations comes from Christopher Hsee of the University of Chicago and Yuval Rottenstreich of the University of California at San Diego. They asked a group of people how much they would pay to avoid a 1% chance of a “short, painful, but not dangerous electric shock.” They asked another, similar group of people how much they would pay to avoid a 99% chance of getting such a shock. There’s a massive difference between a 1% chance and a 99% chance. But people didn’t register that difference. To avoid a 1% chance of an electric shock, the median amount that people were willing to pay was $7. To avoid a 99% chance, the number was $10 – not a whole lot higher.

An op-ed by Cass Sunstein: After an unprecedented delay, the Donald Trump administration has released what is required by law to be an annual report on the costs and benefits of federal regulations. The good news in this important document is that in the last two years, the costs of federal regulations have been stunningly low. The less good news is that in the last two years, the benefits of federal regulations have been...stunningly low. A central reason is that in this period, relatively few regulations have been issued that had a significant economic impact.

In October, the Supreme Court heard a lawsuit from Stephens challenging her termination based on Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of “sex.” ... Gorsuch ignored that research, citing only a minority of scholars who agree with him. “I admire Justice Gorsuch’s writing,” Cass Sunstein, a Harvard law professor and former Obama-administration official, told me. “But his discussion in Gundy isn’t close to historical standards. There’s a ton of terrific work on the nondelegation doctrine, and he cites none of it. Then there is some not-terrific material, which he does cite.”