Cass Sunstein

Cass Sunstein
Administrator of the Office of Information and Regulatory Affairs
Incumbent
Assumed office September 10, 2009
President	Barack Obama
Preceded by	Kevin Neyland (Acting)
Personal details
Born	(1954-09-21) September 21, 1954 Concord, Massachusetts, U.S.
Political party	Democratic Party
Spouse(s)	Lisa Ruddick Samantha Power
Alma mater	Harvard University

Cass Robert Sunstein (born September 21, 1954) is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. For 27 years, Sunstein taught at the University of Chicago Law School, where he continues to teach as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration.

Early life and education

Sunstein was born on September 21, 1954 in Concord, Massachusetts, the son of Marian (née Goodrich), a teacher, and Cass Richard Sunstein, a builder. His family was Jewish. He graduated in 1972 from the Middlesex School in Concord, Massachusetts. He earned an A.B. in 1975 from Harvard College, where he was a member of the varsity squash team and the Harvard Lampoon. In 1978, Sunstein received a J.D. magna cum laude from Harvard Law School, where he was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and part of a winning team of the Ames Moot Court Competition. He served as a law clerk first for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court (1978–1979) and later for Justice Thurgood Marshall of the United States Supreme Court (1979–1980).

Career

Sunstein worked in the Office of Legal Counsel in the Justice Department as an attorney-advisor (1980–1981) and then took a job as an assistant professor of law at the University of Chicago Law School (1981–1983), where he also became an assistant professor in the Department of Political Science (1983–1985). In 1985, Sunstein was made a full professor of both political science and law; in 1988, he was named the Karl N. Llewellyn Professor of Jurisprudence in the Law School and Department of Political Science. The university honored him in 1993 with its "distinguished service" accolade, permanently changing his title to Karl N. Llewellyn Distinguished Service Professor of Jurisprudence in the Law School and Department of Political Science.

Sunstein was the Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986 and a visiting professor at Harvard Law School in the spring 1987, winter 2005, and spring 2007 terms. He teaches courses in constitutional law, administrative law, and environmental law, as well as the required first-year course "Elements of the Law", which is an introduction to legal reasoning, legal theory, and the interdisciplinary study of law, including law and economics. In the fall of 2008 he joined the faculty of Harvard Law School and began serving as the director of its Program on Risk Regulation:

The Program on Risk Regulation will focus on how law and policy deal with the central hazards of the 21st century. Anticipated areas of study include terrorism, climate change, occupational safety, infectious diseases, natural disasters, and other low-probability, high-consequence events. Sunstein plans to rely on significant student involvement in the work of this new program.

On January 7, 2009, the Wall Street Journal reported that Sunstein would be named to head the White House Office of Information and Regulatory Affairs (OIRA). That news generated controversy among progressive legal scholars and environmentalists. Sunstein's confirmation was long blocked because of controversy over allegations about his political and academic views. On September 9, 2009, the Senate voted for cloture on Sunstein's nomination as Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget. The motion passed in a 63–35 vote. The Senate confirmed Sunstein on September 10, 2009 in a 57–40 vote.

In his research on risk regulation, Sunstein is known for developing, together with Timur Kuran, the concept of availability cascades, wherein popular discussion of an idea is self-feeding and causes individuals to overweight its importance.

Sunstein's books include After the Rights Revolution (1990), The Partial Constitution (1993), Democracy and the Problem of Free Speech (1993), Legal Reasoning and Political Conflict (1996), Free Markets and Social Justice (1997), One Case at a Time (1999), Risk and Reason (2002), Why Societies Need Dissent (2003), Laws of Fear: Beyond the Precautionary Principle (2005), Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005), Are Judges Political? An Empirical Analysis of the Federal Judiciary (2005), Infotopia: How Many Minds Produce Knowledge (2006), and, co-authored with Richard Thaler, Nudge: Improving Decisions about Health, Wealth, and Happiness (2008).

Sunstein's 2006 book, Infotopia: How Many Minds Produce Knowledge, explores methods for aggregating information; it contains discussions of prediction markets, open-source software, and wikis. Sunstein's 2004 book, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever, advocates the Second Bill of Rights proposed by Franklin D. Roosevelt. Among these rights are a right to an education, a right to a home, a right to health care, and a right to protection against monopolies; Sunstein argues that the Second Bill of Rights has had a large international impact and should be revived in the United States. His 2001 book, Republic.com, argued that the Internet may weaken democracy because it allows citizens to isolate themselves within groups that share their own views and experiences, and thus cut themselves off from any information that might challenge their beliefs, a phenomenon known as cyberbalkanization.

Sunstein co-authored Nudge: Improving Decisions about Health, Wealth, and Happiness (Yale University Press, 2008) with economist Richard Thaler of the University of Chicago. Nudge discusses how public and private organizations can help people make better choices in their daily lives. Thaler and Sunstein argue that

People often make poor choices – and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself.

The ideas in the book proved popular with politicians such as U.S. President Barack Obama, British Prime Minister David Cameron, and the British Conservative Party in general. The "Nudge" idea has been criticised. Dr Tammy Boyce, from public health foundation The King's Fund, has said:

We need to move away from short-term, politically motivated initiatives such as the 'nudging people' idea, which are not based on any good evidence and don't help people make long-term behaviour changes.

Sunstein is a contributing editor to The New Republic and The American Prospect and is a frequent witness before congressional committees. He played an active role in opposing the impeachment of Bill Clinton in 1998.

In recent years, Sunstein has been a guest writer on The Volokh Conspiracy blog as well as the blogs of law professors Lawrence Lessig (Harvard) and Jack Balkin (Yale). He is considered so prolific a writer that in 2007, an article in the legal publication The Green Bag coined the concept of a "Sunstein number" reflecting degrees of separation between various legal authors and Sunstein, paralleling the Erdős numbers sometimes assigned to mathematician authors.

He is a member of the American Academy of Arts and Sciences (elected 1992) and the American Law Institute (since 1990).

Views

Legal philosophy

Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping changes to the law or decisions that have broad-reaching effects. Some view him as liberal, despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts, as well as providing strongly maintained theoretical support for the death penalty. Much of his work also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate understanding of how people will respond to legal intervention.

In recent years Sunstein has collaborated with academics who have training in behavioral economics, most notably Daniel Kahneman, Richard Thaler, and Christine M. Jolls, to show how the theoretical assumptions of law and economics should be modified by new empirical findings about how people actually behave.

The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to Sunstein. "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.

Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering people's decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect."

Military commissions

In 2002, at the height of controversy over Bush's creation of military commissions without Congressional approval, Sunstein stepped forward to insist, "Under existing law, President George W. Bush has the legal authority to use military commissions" and that "President Bush's choice stands on firm legal ground." Sunstein scorned as "ludicrous" an argument from law professor George P. Fletcher, who believed that the Supreme Court would find Bush's military commissions without any legal basis.

First Amendment

In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes' conception of free speech as a marketplace “disserves the aspirations of those who wrote America’s founding document.” The purpose of this reformulation would be to “reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views.” He is concerned by the present “situation in which like-minded people speak or listen mostly to one another,” and thinks that in “light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals.” He proposes a “New Deal for speech [that] would draw on Justice Brandeis' insistence on the role of free speech in promoting political deliberation and citizenship.”

Animal rights

Some of Sunstein's work has addressed the question of animal rights, as he co-authored a book dealing with the subject, has written papers on it, and was an invited speaker at "Facing Animals," an event at Harvard University described as "a groundbreaking panel on animals in ethics and the law." “Every reasonable person believes in animal rights,” he says, continuing that "we might conclude that certain practices cannot be defended and should not be allowed to continue, if, in practice, mere regulation will inevitably be insufficient—and if, in practice, mere regulation will ensure that the level of animal suffering will remain very high."

Sunstein's views on animal rights generated controversy when Sen. Saxby Chambliss (R-Ga.) blocked his appointment to the Office of Information and Regulatory Affairs by Obama. Chambliss objected to the introduction of Animal Rights: Current Debates and New Directions, a volume edited by Sunstein and his then-partner Martha Nussbaum. On page 11 of the introduction, during a philosophical discussion about whether animals should be thought of as owned by humans, Sunstein notes that personhood need not be conferred upon an animal in order to grant it various legal protections against abuse or cruelty, even including legal standing for suit. For example, under current law, if someone saw their neighbor beating a dog, they currently cannot sue for animal cruelty because they do not have legal standing to do so. Sunstein suggests that granting standing to animals, actionable by other parties, could decrease animal cruelty by increasing the likelihood that animal abuse will be punished.

Taxation

Sunstein has argued, “We should celebrate tax day.” Sunstein argues that since government (in the form of police, fire departments, insured banks, and courts) protects and preserves property and liberty, individuals should happily finance it with their tax dollars:

In what sense is the money in our pockets and bank accounts fully ‘ours’? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live? Without taxes, there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and exercise their rights without placing any burden whatsoever on the public… There is no liberty without dependency.

Sunstein goes on to say:

If government could not intervene effectively, none of the individual rights to which Americans have become accustomed could be reliably protected. [...] This is why the overused distinction between "negative" and "positive" rights makes little sense. Rights to private property, freedom of speech, immunity from police abuse, contractual liberty and free exercise of religion—just as much as rights to Social Security, Medicare and food stamps—are taxpayer-funded and government-managed social services designed to improve collective and individual well-being.

Marriage

In a recent book, Sunstein proposes that government recognition of marriage be discontinued. "Under our proposal, the word marriage would no longer appear in any laws, and marriage licenses would no longer be offered or recognized by any level of government," argues Sunstein. He continues, "the only legal status states would confer on couples would be a civil union, which would be a domestic partnership agreement between any two people." He goes on further, "Governments would not be asked to endorse any particular relationships by conferring on them the term marriage," and refers to state-recognized marriage as an "official license scheme."

"Conspiracy Theories" and government infiltration

Sunstein co-authored a 2008 paper with Adrian Vermeule, titled "Conspiracy Theories," dealing with the risks and possible government responses to false conspiracy theories resulting from "cascades" of faulty information within groups that may ultimately lead to violence. In this article they wrote, "The existence of both domestic and foreign conspiracy theories, we suggest, is no trivial matter, posing real risks to the government’s antiterrorism policies, whatever the latter may be." They go on to propose that, "the best response consists in cognitive infiltration of extremist groups", where they suggest, among other tactics, "Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action." They refer, several times, to groups that promote the view that the US Government was responsible or complicit in the September 11 attacks as "extremist groups." They also suggest responses: "We can readily imagine a series of possible responses. (1) Government might ban conspiracy theorizing. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories."

Sunstein and Vermeule also analyze the practice of recruiting "nongovernmental officials"; they suggest that "government can supply these independent experts with information and perhaps prod them into action from behind the scenes," further warning that "too close a connection will be self-defeating if it is exposed." Sunstein and Vermeule argue that the practice of enlisting non-government officials, "might ensure that credible independent experts offer the rebuttal, rather than government officials themselves. There is a tradeoff between credibility and control, however. The price of credibility is that government cannot be seen to control the independent experts." This position has been criticized by some commentators, who argue that it would violate prohibitions on government propaganda aimed at domestic citizens. Sunstein and Vermeule's proposed infiltrations have also been met by sharply critical scholarly critiques.

Sunstein responded to criticism, captured on video, and claimed: "I have written hundreds of articles, and I remember some and not others. That one I don’t remember very well.... But whatever was said in that article, my role in government is to oversee federal rulemaking in a way that is wholly disconnected from the vast majority of my academic writing, including that."

Personal

In the 1980s and early 1990s, Sunstein was married to Lisa Ruddick, whom he met as an undergraduate at Harvard. She is now associate professor of English at the University of Chicago, specializing in British modernism. He then began seeing Martha Nussbaum, philosopher, classicist, and professor of law at the University of Chicago.

On July 4, 2008, Sunstein married Samantha Power, professor of public policy at Harvard, whom he met when they worked as advisors to Sunstein's friend and former colleague at the University of Chicago Law School, President Barack Obama, on his presidential campaign. The wedding took place in County Kerry in Power’s native Ireland.

Sunstein had a pet Rhodesian ridgeback, Perry. During the Clinton impeachment hearings, Sunstein grew tired of appearing on news programs, and agreed to appear on Greta Van Susteren's CNN program only if he could bring Perry on the show with him; she agreed. Perry died in the fall of 2008. The University Of Chicago Law School has created the Perry/Sunstein fund in Perry's memory, a scholarship fund for a student with an interest in animal welfare.

In 2011, Sunstein was defeated in the quarterfinals of the National Capital Squash Association Fisher Cup by the pulmonologist, Carlos Picone.

Publications

Books

• Law and Happiness (The University of Chicago Press 2010) ISBN 978-0-226-67600-5
• On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done (Macmillan Publishers 2009)
• Going to Extremes: How Like Minds Unite and Divide (Oxford University Press, 2009)
• Nudge: Improving Decisions about Health, Wealth, and Happiness with Richard Thaler (Yale University Press, 2008)
• Worst-Case Scenarios, (Harvard University Press 2007)
• Republic.com 2.0 (Princeton University Press 2007)
• Are Judges Political? An Empirical Investigation of the Federal Judiciary with David Schkade, Lisa Ellman, and Andres Sawicki, (Brookings Institution Press 2006)
• Infotopia: How Many Minds Produce Knowledge, (Oxford University Press 2006)
• The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever, (Basic Books 2006)
• Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Basic Books 2005)
• Constitutional Law 5th ed. with G. Stone, L.M. Seidman, P. Karlan, and M. Tushnet, (Aspen 2005)
• The Laws of Fear: Beyond the Precautionary Principle (based on the Seeley Lectures 2004 at Cambridge University), (Cambridge University Press 2005)(Trad. esp.: Leyes de miedo, Buenos Aires/Madrid, Katz editores S.A, 2009, ISBN 978-84-96859-61-6)
• The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever (Basic Books 2004)
• Why Societies Need Dissent, (Harvard University Press 2003).
• Animal Rights: Current Controversies and New Directions edited with Martha Nussbaum, (Oxford University Press 2004)
• Risk and Reason, (Cambridge University Press 2002) (Trad. esp.: Riesgo y razón, Buenos Aires/Madrid, Katz editores S.A, 2006, ISBN 84-609-8350-1)
• The Cost-Benefit State, (American Bar Association 2002)
• Punitive Damages: How Juries Decide with Reid Hastie, John Payne and David Schkade, (University of Chicago Press 2002)
• Republic.com, (Princeton University Press 2002)
• Administrative Law and Regulatory Policy with Stephen Breyer, Richard B. Stewart, and Matthew Spitzer, (1999; new edition 2002)
• Free Markets and Social Justice, (2002)
• Designing Democracy: What Constitutions Do (Oxford University Press 2001)
• The Vote: Bush, Gore & the Supreme Court with Richard Epstein, (University of Chicago Press 2001)
• Constitutional Law 4th ed. with Stone, Seidman, and Tushnet, (2001)
• Behavioral Law and Economics, (editor, Cambridge University Press 2000)
• One Case At A Time: Judicial Minimalism on the Supreme Court (Harvard University Press 1999)
• The Cost of Rights with Stephen Holmes, (1999, W.W. Norton paperback 2000)
• Clones and Clones: Facts and Fantasies About Human Cloning with Martha Nussbaum, (W.W. Norton 1998)
• Legal Reasoning and Political Conflict, (Oxford University Press 1996)
• Free Markets and Social Justice, (Oxford University Press 1997)
• Democracy and the Problem of Free Speech, (The Free Press 1993)
• The Partial Constitution, (Harvard University Press 1993)
• After the Rights Revolution: Reconceiving the Regulatory State, (Harvard University Press 1990)
• Constitutional Law, (Little, Brown & Co. 1st edition 1986; 2d edition 1991; 3d edition 1995)
• The Bill of Rights and the Modern State co-editor with Geoffey R. Stone and Richard A. Epstein, (University of Chicago Press 1992)
• Feminism and Political Theory, (editor, University of Chicago Press 1990)

See also

• List of law clerks of the Supreme Court of the United States
• Barack Obama Supreme Court candidates
• Choice architecture
• List of U.S. executive branch 'czars'

External links

• White House Office of Information and Regulatory Affairs biography
• Sunstein's Faculty Page
• CPAT Articles
• Sunstein's articles for The New Republic
• Cass Sunstein discusses Why Societies Need Dissent, at the Carnegie Council
• Sunstein on Wikipedia
• Sunstein blogging at Balkinization
• Sunstein blogging at the Oxford University Press blog
• Podcast featuring Sunstein Sunstein discusses Infotopia on EconTalk
• Nudge web page
• Nudge blog
• Video interview, September 2004 The Chicago Judges Project,
• Video interview, December 2004 The Greatest Speech of the Century: FDR's Second Bill of Rights
• Video Interview/Discussion from June 2008 with Eugene Volokh on Bloggingheads.tv
• Video debate with Sunstein and Henry Farrell on Bloggingheads.tv
• "Catching up with Cass" interview in the Harvard Law Record
• Report on Sunstein's Harvard Law chair lecture reported in the Harvard Law Record
• Green nudges: An interview with Obama regulatory czar Cass Sunstein interview on Grist.org
• Sunstein author page and article archive fromThe New York Review of Books
• Podcast of lecture, 2007 If the Public Would be Outraged by Their Rulings, Should Judges Care?