Cass Sunstein

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.”

An article by Cass Sunstein: How do you debunk a conspiracy theory? Suppose people think that Israel carried out the 9/11 attacks or that the moon landing was faked. Or that Koch money or Hillary Clinton or Pete Buttigieg was behind the Iowa caucus fiasco, or that the coronavirus comes from a fiendish plot by multinational corporations. Conspiracy theorists tend to be emotionally invested in their beliefs, meaning that if you contradict them, you might make them angry. And if you offer them evidence that they’re wrong, you might make them angrier still – and so strengthen their commitment to their belief. Social scientists have found that, in some contexts, corrections actually backfire. If, for example, people still think that the Affordable Care Act contains death panels, a correction can make those people even more certain that the law contains death panels. One reason is that when people are told they’re wrong, they are immediately put on the defensive, and they work hard to defend their beliefs. Another reason is pure suspicion: Why would anyone bother to deny it, if it isn’t true?

An article by Cass Sunstein: Former Solicitor General and federal judge Kenneth Starr made a simple argument this week on behalf of President Donald Trump’s impeachment defense. We are living in the “age of impeachment,” he said on Monday, urging the Senate to acquit Trump and “return to norms” that counsel against using impeachment as a political weapon. If Trump is removed from office, Starr was suggesting, every future president will be vulnerable, at least if the House of Representatives is controlled by the opposing political party, and if the Senate can be persuaded to go along. A president named Joe Biden or Bernie Sanders or Elizabeth Warren might well be exposed to a horrific impeachment battle, simply because of the Trump precedent.

What if it were President Barack Obama who was the subject of the Senate impeachment trial? How would we feel then? Cass Sunstein, a professor at Harvard Law School, suggests a question along those lines in his book “Impeachment: A Citizen’s Guide.” It’s one of several thought experiments that I suggest in order to step back from the hurly-burly in the Senate and interrogate our own principles and motivations. The first approach, as Sunstein puts it, is this: “Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the president’s policies, and thought that he was otherwise doing a splendid job?” Alternatively, if you oppose impeachment and removal, Sunstein suggests you ask yourself: “Would I think the same thing if I abhorred the president’s policies, and thought that he was otherwise doing a horrific job?” In practical terms, this amounts to: What if it were Obama who had been caught in this Ukraine scandal?

An op-ed by Cass Sunstein: Have you ever shopped online for something (say, a hotel room) and selected an option with an excellent price only to learn, at the time of checkout, that the price is much higher than originally advertised? That happens a lot. A key reason is that advertised prices often exclude taxes and fees. Even if there is some disclosure of that fact (“taxes and fees not included”), consumers might not pay attention. Having initially seen a reasonable price and settled on their choice, a lot of them just put in their credit card number even if, at the final stage, they are shocked to see the unexpectedly high cost. In these circumstances, new research suggests that disclosure regulation can do a lot of good.

When we live in an age of information, what information do we choose to absorb? And once we have absorbed information, which factors influence how we process it? Cass Sunstein ’78, the Robert Walmsley University Professor at Harvard, examines those questions in a study published this week in the scientific journal Nature Human Behaviour. The paper, “How people decide what they want to know,” was co-authored by Tali Sharot, a professor of cognitive neuroscience in the department of Experimental Psychology at University College London. ... Sunstein discussed his research with Harvard Law Today in an email interview that took place this week as he was en route to London.