Diversity was squelched; extremism flourished. He found the same effect in his study on judges. When a three-judge panel consisted of only Republican appointees, their thinking became radicalized. Same with three unchecked Democratic appointees. The cure is to expose oneself to competing viewpoints. And that includes reading nasty things about himself. The other day, he read a blog that called him a right-wing maniac.
Power recalls: "I read it over his shoulder and was horrified. These were venomous. They distorted his position, calling him a malicious, malevolent person. And he just said, 'Isn't this fascinating? Sunstein laughs. And to see that about anything--even myself--is interesting.
The only thing that pains me is when they say mean things about Samantha in connection with the campaign. Though I've never witnessed it, Power says that Sunstein does get angry. When people violate the sense of fairness and decency that is so central to him, it's like the Incredible Hulk: 'Mr. McGee, don't make me angry.
You wouldn't like me when I'm angry. They both believe that the Internet has the danger of fostering extremism. It creates echo chambers. Your average political blogger fills his rants with links to like-minded sites. The world splits up into narrow communities that rarely bother to read the other side. The term of art: cyberbalkanization. Power worries this will affect activism.
The key is to increase what they call "serendipitous encounters"--the way people encounter unrelated stories in newspapers.
In fact, Power says her entire career was changed by information serendipity. It was and she was an intern at CBS Sports. Her dream at the time was to be the female Bob Costas. But while in the newsroom taking notes on an Atlanta Braves game, she watched the uncensored live feed from Tiananmen Square of people getting crushed. Incidentally, I'm sure Sunstein and Power would encourage you to read sites that criticize their theories. Try Commentary magazine. It disagrees with pretty much everything they have to say.
How will they affect each other? Power thinks maybe she can bring Sunstein a little street cred. The way she did with his glasses, which have enormous thick black frames that she calls horrific. Being with Sunstein, in turn, might help give her some scientific cred. And Cass buries and channels his emotions into. Sunstein, for his part, might make some progress in confronting painful emotions--something our repressed family avoids at all costs.
Power tells a story about how on their first date she made a reference to the movie Shoah. Claude Lanzmann's documentary, Shoah. He looks at me and says, 'I find the Holocaust really upsetting. But in a sense, it's the right way to react. We should all be like Cass. We should all take it so seriously, we can't even look at it. And there I was, a parody of a Woody Allen character. Their worldviews aren't identical. Power will always be the more outspoken, more willing to plunge in and take a stand.
Sunstein will always be more cautious, more lawyerly. At one point in the afternoon Sunstein started spouting a stream of milquetoast platitudes. She'll never convert to his pet theory on how the Supreme Court justices should make decisions: minimalism. He says the court should make small, incremental decisions, not promote a broad agenda.
When he first explained it to her in an e-mail, she responded, "Minimalism bites. And yet, despite their differences, they do mostly share an outlook. Perhaps even too much. I wonder, Is their marriage itself creating one of those dreaded echo chambers they write about?
Will they become more extreme? Shouldn't they have married Republicans? United States. Type keyword s to search. Today's Top Stories. Every 'Bond' Film Ever, Ranked. Leaving Afghanistan Behind. This content is created and maintained by a third party, and imported onto this page to help users provide their email addresses. You may be able to find more information about this and similar content at piano.
Legal Educ. Social influences play a large role in legal education, and they may lead to self-silencing, group polarization, hidden profiles, and cascade effects. In some cases, class discussion may converge on a view that is, in fact, supported by only a minority of students, who do not hear what others actually think or have to say.
In other cases, the view is supported by a majority, but uninformed by the minority or minorities. The result can be a failure to take advantage of the information, experiences, or perspectives that students actually have. Given a certain distribution of social norms, or bad luck, conservative students might be silenced; the same is true of students with certain religious convictions, libertarian students, students with far-left views, female students, and students of color. Online learning might be designed or used in such a way as to reduce the relevant.
Sunstein, The Meaning of Masks , J. Many incentives are monetary, and when private or public institutions seek to change behavior, it is natural to change monetary incentives. But many other incentives are a product of social meanings, about which people may not much deliberate, but which can operate as subsidies or as taxes. In some times and places, for example the social meaning of smoking has been positive, increasing the incentive to smoke; in other times and places, it has been negative, and thus served to reduce smoking.
With respect to safety and health, social meanings change radically over time, and they can be dramatically different in one place from what they are in another. Often people live in accordance with meanings that they deplore, or at least wish were otherwise. But it is exceptionally difficult for individuals to alter meanings on their own. Michael Eber, Cass R. Sunstein, James K. Categories: Health Care. As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools.
In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen PSA testing.
For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test.
More-numerate subjects also seem to become more anxious in response to the risk information. Sub-Categories: Constitutional History. Under the U. Constitution, is the executive branch unitary, and if so, in what sense?
Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form.
Sunstein, Voluntary Agreements , J. Methodology forthcoming Sub-Categories: Contracts. In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts.
But contractarianism in political philosophy stands or falls on altogether different grounds from enthusiasm for contractual ordering in economics and law. When participants in voluntary agreements lack information or suffer from behavioral biases including adaptive preferences , there is reason to help them, potentially through mandates and bans. Chevron, U. National Resources Defense Council, Inc. Several members of the Supreme Court have suggested that they would like to overrule it.
Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework?
Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines.
Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by 1 insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; 2 invalidating arbitrary or unreasonable agency interpretations at Step Two; and 3 deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court took a highly aggressive approach to restrictions imposed by the state of New York on houses of worship, even though those restrictions were vigorously defended on public health grounds. Because of the serious health effects of the COVID pandemic, and because of the plausibility of a plea for judicial respect for complex choices and tradeoffs by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-Korematsu — that is, as a strong signal of judicial solicitude for constitutional rights, and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line.
Nonetheless, there are two open questions. The first is how to think about claims of discrimination in the context of actual and potentially challenging questions about the appropriate comparator, that is, the institutions that are best seen as comparable to houses of worship, in terms of the health risks that they create.
Sub-Categories: Social Welfare Law. In the current work, we critically reflect on recent efforts to proxy the welfare impact of nudges using willingness to pay and subjective wellbeing reports and explore an alternative unobtrusive approach: automatic facial expression coding.
The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the short-run welfare effects of nudges and calling for further research into this promising technique.
Sunstein, Algorithms as Discrimination Detectors , Proc. Nat'l Acad. Sub-Categories: Discrimination. This paper results from the Arthur M.
Preventing discrimination requires that we have means of detecting it, and this can be enormously difficult when human beings are making the underlying decisions. As applied today, algorithms can increase the risk of discrimination. But as we argue here, algorithms by their nature require a far greater level of specificity than is usually possible with human decision making, and this specificity makes it possible to probe aspects of the decision in additional ways.
With the right changes to legal and regulatory systems, algorithms can thus potentially make it easier to detect—and hence to help prevent—discrimination. Sunstein , Behavioral Science and Public Policy By contrast, the strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad authority over the private sector.
Both versions of the major question doctrine can claim a connection to the nondelegation doctrine. The arguments on behalf of the weak version are very different from the arguments on behalf of the strong version. Sunstein, On Overruling Chevron Nov. Sunstein, Hayekian Behavioral Economics Oct. Like John Stuart Mill, Friedrich Hayek also offered an epistemic argument on behalf of freedom of choice.
He emphasized that outsiders know much less than choosers do, which means that interferences with personal freedom, by those outsiders, will make choosers worse off. A contemporary challenge to that epistemic argument comes from behavioral economics, which has uncovered an assortment of reasons why choosers err, and also pointed to possible distortions in the price system. But even if those findings are accepted, what should outsiders do?
How should they proceed? A neo-Hayekian approach would seek to reduce the knowledge problem by asking not what outsiders want, but what individual choosers actually do under epistemically favorable conditions.
In practice, that question can be disciplined by asking five subsidiary questions: 1 What do consistent choosers, unaffected by self-evidently irrelevant factors, end up choosing? These kinds of questions can be answered empirically. These conclusions are illustrated with reference to the controversy over fuel economy standards, with an acknowledgement that on broadly Hayekian grounds, the best approach might be to inform consumers of potential savings, while using a corrective tax to control externalities.
Sunstein, Marvelous Belief , L. Books Sept. In a short burst of creativity in the early s, Lee created most of his iconic characters, and changed popular culture in the process. An International Survey Sept. What information would people like to have? What information would they prefer to avoid? How does the provision of information bear on welfare? Representative surveys in eleven nations find that substantial percentages of people do not want to receive information even when it bears on health, sustainability, and consumer welfare.
We develop a model and estimate the welfare effects. We find substantial benefits and costs, with the former outweighing the latter. How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit.
He finds that people avoid information if they think it will make them sad and seek information they think will make them happy. Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more.
What we need is more clarity about what information is actually doing or achieving. Sunstein, Freerolls July 27, When policymakers focus on costs and benefits, they often find that hard questions become easy — as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge.
In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll.
Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. Some regulatory options are binds, and there are faux binds as well. Lawrence B. Sunstein, Chevron as Construction , Cornell L. In , the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable.
The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges or agencies must ascertain the meaning of a statutory term. In cases of construction, judges or agencies must develop implementing principles or specify a statutory term.
In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial.
Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the s and also in the post-Chevron era.
Sunstein, Maximin , 37 Yale J. For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it.
In general, the maximin rule is a terrible idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. It may be possible to combine 3 and 4. With respect to 3 and 4 , the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. Miracles may present a mirror-image of worst-case scenarios.
Sunstein, Behavioral Welfare Economics , 11 J. Benefit-Cost Analysis This work has strong implications for economic analysis of law, cost—benefit analysis, and regulatory policy. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well.
For example, people might die prematurely or suffer from serious illness, and what they receive in return might not on any plausible account of welfare be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.
Sunstein, The Siren of Selfishness , N. Books , Apr. Sunstein, Falsehoods and the First Amendment , 33 Harv. What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? In , the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm.
But in important ways, seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos.
It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.
The order has two laudable ambitions: to reduce the stock of existing regulations and to stem the flow of new regulations. But because it entirely ignores the benefits of regulations and focuses only on costs, it is a singularly crude instrument for achieving those goals. In both theory and practice, it threatens to impose large net costs including significant increases in mortality and morbidity.
A third goal, no less important than 1 and 2 , should be a very high priority, which is to produce institutional mechanisms to promote issuance of regulations that would have high net benefits including reductions in mortality and morbidity.
Congress, courts, and the executive branch should take steps to combat benefit neglect. Geoffrey R. Stone , Louis M. Seidman , Cass R. Sunstein , Mark V. Categories: Environmental Law. It is standard to think that corrective taxes, responding to externalities, are generally or always better than regulatory mandates, but in the face of behavioral market failures, that conclusion might not be right.
Fuel economy and energy efficiency mandates are possible examples. Because such mandates might produce billions of dollars in annual consumer savings, they might have very high net benefits, complicating the choice between such mandates and externality-correcting taxes such as carbon taxes.
The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of taxes that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities. An important qualification is that corrective taxes might be designed to reduce both externalities and internalities, in which case they would almost certainly be preferable to a regulatory mandate. The American administrative state has become, in important respects, a cost-benefit state.
At least this is so in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, expressivism, or interest-group power.
The focus on costs and benefits is an important effort to attend to the real-world consequences of regulations — and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats.
In the future, however, there will be better ways to identify those consequences, by focusing directly on welfare, and not relying on imperfect proxies. Sunstein, Sludge Audits , Behav. Pol'y Jan. Because of behavioral biases and cognitive scarcity, sludge can have much more harmful effects than private and public institutions anticipate. To protect consumers, investors, employees, and others, firms, universities, and government agencies should regularly conduct Sludge Audits to catalogue the costs of sludge, and to decide when and how to reduce it.
Much of human life is unnecessarily sludgy. Sludge often has costs far in excess of benefits, and it can have hurt the most vulnerable members of society. Categories: Consumer Finance. Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. All of these approaches run into serious normative, conceptual, and empirical objections. Approach 3 will exaggerate what consumers gain, because many people suffer welfare losses when they see labels, whether or not they end up making different choices.
These points raise fundamental conceptual, normative, and empirical questions about welfarist approaches to public policy. Karlan , Constitutional Law: Supplement The Annual Supplement, like prior Supplements, includes excerpts from recent scholarship and from important new decisions of the Supreme Court. This was a most interesting Term, and several of the new decisions that are covered in the Annual Supplement are listed below.
New to the supplement: Trump v. Vance Espinoza v. Montana June Medical Services v. Russo Seila Law v. Morissey-Berra Chiafalo v. Washington Little Sisters of the Poor v. Michael Greenstone, Cass R. Sub-Categories: Transportation Law.
Motor vehicle fuel-economy standards have long been a cornerstone of U. In , following a review of the standards, the Environmental Protection Agency and National Highway Traffic Safety Administration proposed instead to freeze the standards at levels, citing high program costs and potential safety issues. The current debate over the future of U. The current policy prescribes standards that focus on fuel economy alone, as opposed to lifetime consumption, and treats vehicle categories differentially, meaning that it imposes unnecessarily high costs and does not deliver guaranteed GHG savings.
On the basis of a commitment to cost-benefit analysis, which has defined U. We show that these reforms would reduce fuel consumption and GHG emissions in transportation with greater certainty and do so at a far lower cost per ton of GHG emissions avoided. We also show that the the Environmental Protection Agency and the Department of Transportation could implement such an approach within their existing statutory authority.
Sunstein, Has Liberalism Ruined Everything? Theory OIRA publicly rejected an EPA rule to reduce ozone pollution , reportedly after business interests complained to Obama Chief of Staff William Daley, and because Sunstein deemed the costs of protecting the public from a toxic air pollutant were not outweighed by the benefits. Sunstein was reportedly sympathetic, but apparently unwilling to order his staff to veer from their strict adherence to cost-benefit calculations.
A coal ash rule, designed to protect people from toxic discharges that endanger health and drinking water, was delayed and gutted by OIRA, raising questions about whether an OIRA-approved rule could even prevent the coal ash spills that had devastated communities near mining operations.
This time around, however, progressive advocates have been ready. Agency for International Development, so it appeared Sunstein was jockeying for his own berth in D. Neither Goodwin nor Hauser believes that Sunstein has much of a chance of getting his old job back. Goodwin says that progressives have been communicating their views about OIRA since last August, making sure the incoming administration would know their priorities.
Progressives shy away from advocating for certain people, he says, but have communicated what qualities a good candidate for a position should have. And they were clear about the candidates they disapproved of.
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