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WORK TITLE: How to Become Famous
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WEBSITE: https://hls.harvard.edu/faculty/cass-r-sunstein/
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NATIONALITY: American
LAST VOLUME: CANR 308
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PERSONAL
Born September 21, 1954, in Salem, MA; son of C.R. (a builder) and Marian (a teacher) Sunstein; married Lisa Ruddick (divorced); married Samantha Power (a political advisor and professor of public policy), 2008; children: (from first marriage) Ellen Ruddick-Sunstein and two others.
EDUCATION:Harvard University, A.B. (magna cum laude), 1975, J.D. (magna cum laude), 1978.
ADDRESS
CAREER
Writer, lawyer, educator. Admitted to the Bar of Washington, DC, 1980. Supreme Judicial Court of Massachusetts, law clerk to Benjamin Kaplan, 1978-79; Supreme Court of the United States, Washington, DC, law clerk to Justice Thurgood Marshall, 1979-80; U.S. Department of Justice, Washington, DC, attorney-advisor to Office of Legal Counsel, 1980-81; University of Chicago, Chicago, IL, assistant professor, 1981-85, professor of law and political science, 1985-88, Karl N. Llewellyn Professor of Jurisprudence, 1988-93, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, 1993-2008, Harry Kalven Visiting Professor of Law, 2008—, codirector of Center on Constitutionalism in Eastern Europe, 1990-97; Harvard Law School, Boston, MA, director of Program on Risk Regulation, 2008—, Felix Frankfurter Professor of Law, 2008—, Robert Walmsley University Professor; U.S. Office of Management and Budget, Washington, DC, administrator of Office of Information and Regulatory Affairs, 2009-12. Columbia University, Samuel Rubin Visiting Professor of Law, 1986; Harvard University, visiting professor, 1987, and Tanner Lecturer on Human Values; University of Cincinnati, Marx Lecturer; Georgetown University, Law Day Lecturer; distinguished lecturer at Boston University, University of Texas at Austin, and University of Connecticut; guest lecturer at colleges and universities in the United States and abroad, including College of William and Mary and University of Beijing; visiting scholar at University of Minnesota, Twin Cities, Rutgers University, and George Washington University. Has also served in numerous advisory capacities, including on the Presidential Advisory Committee on the Public Service Obligations of Digital Television, 1997-98; consultant to the Internal Revenue Service project on compliance and social norms, 1999—; cochair of the Committee on Regulatory Policy, American Bar Association, Administrative Law Section, 2001—; and member of the Institute of Medicine Committee, Reducing Tobacco Use: Strategies, Barriers, and Consequences, 2004—; senior advisor to Boston Consulting Group; senior counselor at the U.S. Department of Homeland Security; member of technical advisory group on behavioral insights and public health at the World Health Organization. Served as a consultant to governments of Ukraine, Romania, Poland, South Africa, Bulgaria, Lithuania, Albania, Israel, and China.
MEMBER:American Bar Association, Association of American Law Schools, American Law Institute, American Academy of Arts and Sciences, World Wildlife Fund (member of national council, 1994—).
AWARDS:American Bar Association Award for best scholarship in administrative law, 1987, for the article “Interest Groups in American Public Law,” 1989, for the article “Interpreting Statutes in the Regulatory State,” and 1999, for article “Is the Clean Air Act Unconstitutional?,” and Certificate of Merit, 1991, for After the Rights Revolution; Goldsmith Book Award, Harvard University, 1994, for Democracy and the Problem of Free Speech; Henderson Prize, Harvard Law Schools, 2002, for Free Markets and Social Justice; graduate teaching award, 2003; Henry M. Phillips Prize, American Philosophical Society, 2007; Holberg Prize, government of Norway, 2018.
WRITINGS
Contributor to books, including Punitive Damages: How Juries Decide, University of Chicago Press, 2001. Contributor of articles and reviews to law journals, national magazines, and newspapers, including the New Republic. Associate editor, Ethics, 1986-88; contributing editor, American Prospect, 1989—, and New Republic, 1999—. Editorial board member, Studies in American Political Development, 1989—, Journal of Political Philosophy, 1991—, and Constitutional Political Economy, 1991—; former editorial board member, Harvard Lampoon. Past executive editor, Harvard Civil Rights-Civil Liberties Law Review. Contributor to blogs.
SIDELIGHTS
Formerly the administrator of the U.S. Office of Information and Regulatory Affairs, Cass R. Sunstein is a law professor and prolific author and editor of books concerning the law, particularly the U.S. Constitution. Sunstein once told CA: “I write first drafts quickly and am willing to rewrite and rewrite. I usually write on legal topics, because I teach law, and usually when there is some problem in existing law that might be solved, or at least made less serious. My coedited book on cloning was written mostly for fun.” In an interview for the Harvard Crimson with Jamison A. Hill, Sunstein was asked what he saw as the most pressing legal issue of the day. “One very pressing constitutional question is the authority of the president to act on his own,” Sunstein answered. “Under what circumstances can the president act unilaterally? We don’t know the answer to this.” Hill also asked Sunstein if there was something he would like to ask the Founding Fathers. Sunstein replied: “I’d ask them if they wanted their original understanding of their phrases [to] bind posterity—if they think their original interpretation should bind people 100 and 200 years later. That is one of the great questions of constitutional law and it would be very fascinating to have a discussion with founders about that question.”
In The Partial Constitution, the author “probes deeply the importance of constitutional interpretation for the quality of political discourse in our democracy,” according to Commonweal contributor Edward McGlynn Gaffney, Jr. Gaffney went on to note that Sunstein “challenges all serious citizens to reflect about the critical connection between the limits that our Constitution places on governmental power and the quality of our own participation in our democracy.” In the Yale Law Journal, Gregory E. Maggs pointed out that the author discusses the Supreme Court in detail and “believes that the Court favors the status quo because it thinks that the status quo is neutral. According to Sunstein, however, this view is wrong.” Maggs went on to note that, in his opinion, “the aim of his book … is to relax inhibitions against political actions altering the status quo.”
In Democracy and the Problem of Free Speech the author explores the First Amendment and calls for its reassessment and reform. Sunstein recounts the development of First Amendment law and then presents his theories on how First Amendment rights should be construed, such as the idea that there are lower and higher levels of protection for certain types of speech. For example, he believes that advertising has less protection of free speech than political and other forms of speech important to the government and politics. J.M. Balkin, writing in the Yale Law Review, commented that the author “emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation.”
According to Booklist contributor David Rouse, Sunstein “undogmatically analyzes … the complex relationships between market forces, social justice, liberty, and freedom” in his book Free Markets and Social Justice. The author discusses such ideas as the notion of laissez-faire in the marketplace and explores markets as complex institutions that are integrally related to the social and political morals of the times. Writing in the American Political Science Review, a reviewer commented that the author’s “general approach … encourages the supposition that democracy is good in terms of human purposes it serves and that sometimes regulation and restraint is what is required for democracy’s defense.”
Clones and Clones: Facts and Fantasies about Human Cloning, which was edited by Sunstein and Martha C. Nussbaum, is a collection of essays, short fiction, and poetry on the topic of cloning. The pieces are separated into the categories of science, commentary, ethics and religion, law and public policy, and fiction and fantasy. “This book establishes a platform from which the general reader may move into specific areas of concern on the controversial subject of cloning,” wrote a Publishers Weekly contributor. In a review in the Hastings Center Report, Mary Midgely called the writings “clear, lively, and thought-provoking.”
Sunstein’s 1999 book, The Cost of Rights: Why Liberty Depends on Taxes, written with Stephen Holmes, delves into the idea that individual freedoms and rights do not come free but require government action that, in turn, requires money. “The coauthors challenge liberal, conservative, and libertarian conventional wisdom,” noted Mary Carroll in Booklist, “insisting that all rights are positive and can be enforced by government only insofar as citizens pay enough taxes to fund enforcement.” A Publishers Weekly contributor called the book “interesting and well argued.”
In One Case at a Time: Judicial Minimalism on the Supreme Court, Sunstein presents his case for supporting the Supreme Court’s longtime caution in dealing with constitutional law by focusing on individual cases and largely ignoring larger, fundamental issues of society. Writing in Perspectives on Political Science, Peter Schotten noted that the author “maintains that the Court should rule as narrowly as possible, confining each decision to the immediate case at hand.” The reviewer went on to comment that Sunstein argues that “judicial minimalism enhances democracy by allowing the nation’s big, controversial issues to be decided by the democratic process.” In a review in the Washington Monthly, Abner Mikva wrote that the author’s “analysis seems to honor those justices who do the least to rock the boat.”
Sunstein takes a look at how the computer-age society gets much of its news online in his book Republic.com. The author argues here that getting their news this way leads people to get one-sided news and opinions that generally bolster their own viewpoints. Writing in the Washington Monthly, Paul M. Barrett commented that “Sunstein persuasively warns that the Internet’s capacity to serve up only what users order in advance could debilitate the clash of ideas critical to informed self-government.”
In the book’s updated edition, Republic.com 2.0, Sunstein elaborates on his case for the downside of the information revolution. Sunstein writes that Internet users have helped to polarize the political discourse in the United States, as they tend to seek out only voices similar to their own. Though Sunstein acknowledges the power of the Internet in engaging people in the political process, he also warns against the type of self-confirming information consumerism it is capable of purveying. Reviewing the book in Publishers Weekly, a contributor felt that “Sunstein waxes pessimistic about today’s ‘nightmare’ of limitless news and information options” and called Republic.com 2.0 a “perceptive volume.” Likewise, Virginia Quarterly Review Web site contributor Charles Mathewes concluded that the book “remains the most effective public work depicting this debate and urging on us this proper vision of a reasonable freedom.” London Times reviewer Jon Garvie observed of Republic.com 2.0 that “elucidation of the ideas and ideals of free speech alone make this book worthwhile.”
Sunstein collaborated with Richard A. Epstein to edit a series of essays looking at the role the Supreme Court played in the post-election issues following the 2000 presidential election. In a review of The Vote: Bush, Gore and the Supreme Court, Harry Charles noted in the Library Journal that the authors “have done their homework.” A Publishers Weekly contributor wrote that some of the articles show “subtle brilliance.”
Sunstein further presents his theories about constitutional government in Designing Democracy: What Constitutions Do. “Over a wide body of work, Cass Sunstein has been developing a democracy-based constitutionalism,” observed David Estlund in Ethics. “This book revises and extends several of his central ideas and adds several new ones.” Estlund went on to note that “the book is rich with observations, ideas, and aspirations.” In a review in the American Prospect, Garrett Epps commented that, “at its best,” the book is “very good indeed.”
Why Societies Need Dissent stresses that dissent is essential to a free and safe society and that conformity is a basic drive that often leads to disaster. “It’s a survey of social science research about group conformity, aimed at showing why the pressures exerted by groups often lead to bad or ill-informed decision making,” as Emily Bazelon described it in the Washington Monthly. “As counterpoint, Sunstein demonstrates the value of naysayers.” In her review in the Library Journal, Janet Ingraham Dwyer noted that “motivated students and lay readers will gain an understanding of the dynamics underlying conformity and dissent.”
The author takes on health, safety, and environmental regulations in his book Risk and Reason: Safety, Law, and the Environment. Arguing that most of these laws are misguided and ineffectual, Sunstein also presents his case that many decisions made concerning these issues are made on an unethical basis.
In The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever, Sunstein presents his case for the validity of establishing constitutional rights for people in terms of “affirmative rights” that promise basic social and economic rights, such as the right for education, housing, food, and other basics of life. William Forbath, writing in the American Prospect, commented that the book “is part history, part theory, and part survey of social-rights jurisprudence around the globe.”
Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America presents Sunstein’s case that legal fundamentalists are a threat to many of the rights we now take for granted because of their belief in interpreting the Constitution exactly as it was originally perceived by America’s founders. A Kirkus Reviews contributor called the book “enlightening and in some places fascinating.” Another reviewer for Publishers Weekly noted that the author “trenchantly presents” his arguments.
Sunstein’s 2004 work Infotopia: How Many Minds Produce Knowledge deals with the gathering and aggregating of information as found on the Internet and its possible benefits and harms. Writing in Citizen Economists, Greg Beatty commented this is the book to read “if you’re interested in how organizations and societies process knowledge or how what one individual knows diffuses through a larger social matrix.” Noting the resonance of Sunstein’s title with “utopia,” Beatty observed: “There’s more of a trace of the hope that through collective understanding, we might shape a perfect society.” In the book Sunstein delineates what a society might be like in which information aggregation occurred in an ideal manner; he also present several real scenarios in which it fails.
In Worst-Case Scenarios, published in 2007, Sunstein elucidates risk management. As Times Higher Education Web site contributor Bill Durodie commented, Sunstein tries “to steer us on a course between the opposing perils of inaction and overreaction in the face of potentially catastrophic risks.” Writing for the Web site of the University of Maryland’s College of Behavioral & Social Sciences, Mark Rush described Worst-Case Scenarios as an “intriguing and thoughtful … analysis of how rationally to weigh the costs, benefits, and probability of potential disasters (large and small scale) and how normative considerations enter into those calculations.” Noting that humans tend either to overreact to critical situations (as in the U.S. response to the 9/11 attacks) or to ignore such situations (as with the threat of global warming), Sunstein advises using cost-benefit analysis and future discounting techniques in making difficult public decisions. For Rush, Worst-Case Scenarios is “a thought-provoking read by a thoughtful scholar.”
The year 2008 marked a watershed for Sunstein. He was wooed away from the University of Chicago to the Harvard Law School, and the dean of that school, Elena Kagan, told Boston Globe contributor Peter Schworm: “Cass Sunstein is the preeminent legal scholar of our time, the most wide-ranging, the most prolific, the most cited, and the most influential.” Such influence was in evidence when President-elect Barack Obama chose Sunstein to administer his Office of Information and Regulatory Affairs within the Office of Management and Budget, where Sunstein would have wide-ranging powers to review and oversee safety, environmental, and health-care issues. Additionally in 2008, Sunstein was married for the second time. His wife, Samantha Power, is a Pulitzer Prize-winning journalist and a professor of public policy at Harvard.
The year 2008 also proved fruitful for Sunstein’s writing, seeing publication of both Why Groups Go to Extremes and Nudge: Improving Decisions about Health, Wealth, and Happiness. In the second work, written with Richard Thaler, Sunstein promotes the idea of “choice architecture,” by which individuals can be led to make better personal decisions via government and business programs that do not lessen their freedom of choice. One example of such choice architecture is the 401(k) programs that businesses encourage employees to join. Describing Nudge in the AARP Bulletin Today, Krista Walton noted that it “explain[s] factors that influence decision making—subconscious biases, confusing wording, simple human fallibility—and how they can lead to devastating consequences. The current economic crisis comes to mind.” The authors demonstrate in their book that people do not always make the choices that are in their best interests. They examine sources from the law, economics, and social and behavioral sciences to see how people can make better selections and still have the freedom of choice. “By implementing a few simple new ideas, people can be nudged toward better retirement planning and health care choices,” Walton wrote, noting the arguments Sunstein and Thaler put forward.
Writing in Newsweek, Daniel McGinn similarly observed that the authors “argue that by tinkering with the default choices and information given when people make decisions—like whether to invest in a 401(k)—society will benefit. That’s true for the environment, too.” John Sparks, reviewing Nudge in Newsweek, felt that “there’s plenty of substance here.” Similarly, New York Observer contributor Emily Bobrow thought that Nudge “helps us understand our weaknesses, and suggests savvy ways to counter them.” Further praise came from the online City Journal reviewer Laura Vanderkam, who called Nudge “an engaging book with a fascinating thesis.” New York Times Book Review contributor Benjamin M. Friedman likewise termed Nudge “an engaging and insightful tour.”
In 2009, Sunstein addressed the increasing polarization of the public in his book Going to Extremes: How Like Minds Unite and Divide. He sets out to explore why ordinary individuals are drawn toward extreme viewpoints and behaviors. He finds the answer in the interaction of like-minded people. Sunstein supports his theory with numerous historical cases and experiments demonstrating that people’s beliefs are intensified when they talk to others of similar beliefs. Using such empirical evidence, he applies his theory to the development of ethnic extremism, terrorist movements, and even economic problems in addition to political affiliation.
A Publishers Weekly critic noted: “The book is not ideological and displays a keen interest in diverse areas.” “Sunstein’s discussion of the effect of geographic isolation on oppositional movements is brilliant, and the application of ‘ethnification’ in explaining the escalation of ethnic conflicts is thought-provoking,” remarked Junpeng Li in International Social Science Review. “This reviewer’s only quibble is that Sunstein moves through topics too quickly. … As a consequence, the book’s depth is sacrificed for the sake of width to a degree. Nevertheless, this book is a gem when judged on its own merits and deserves to be widely read.” Nolan McCarty, reviewing the book in Political Science Quarterly, wrote that “while one could wish for more-concrete advice for overcoming widening social and political divides, the book’s central lessons should be heeded by anyone concerned about the quality of American democracy.”
Sunstein turns his attention to the new role of information technologies and social media in democracy in On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done, published in 2009. He argues that rather than creating a safe place for public discourse, social media has created a megaphone for bombastic individuals inclined to spread mistruths and blast reductionist opinions disguised as fact. A Publishers Weekly critic felt that “Sunstein’s alarmism seems unfounded … and the book feels like a padded-out magazine article.” Foreign Affairs contributor Michael Ignatieff, on the other hand, wrote that “Sunstein’s On Rumors raises fundamental questions about the troublingly ambiguous impact of social media on the marketplace of democratic ideas.”
Sunstein shares insights gained from his tenure as administrator of the U.S. Office of Information and Regulatory Affairs in Simpler: The Future of Government. He writes about how the office can be used to streamline government and improve quality of life. In both his work at the agency and for the book, he advocates fewer regulations and more common sense and transparency. Critics praised Simpler. “Sunstein’s firsthand knowledge and distinct humor give his account a real dynamism,” remarked a Kirkus Reviews contributor. “Sunstein grounds his ideas in a lucid, engaging treatment of behavioral economics,” noted a Publishers Weekly critic. “The result is a forthright, compelling vision.”
In Why Nudge? The Politics of Libertarian Paternalism, Sunstein further defends the techniques of indirect government influence on public decision making that he described in his earlier book, Nudge. The new volume is based on a series of lectures Sunstein delivered at Yale University in 2012. Here he employs behavioral economics and legal theory to examine the legitimate means by which government can affect high-profile public issues, such as obesity, smoking, distracted driving, health care, and food safety. Sunstein describes a fine line between government paternalism and government overreach, noting that government can and should play a role in helping people avoid making choices that are not in their own best interests. Such choices are often made, Sunstein argues, because individuals lack full knowledge of the issue and therefore do not see long-term effects or are too optimistic about potential negative effects of certain behaviors. The author asserts that what he calls “choice architecture,” or structures imposed by the government that affect citizens’ choices, is going to happen in any case. For example, not automatically enrolling a person in a pension plan is actually just as much a decision as enrolling them. Therefore governments should ensure that such architecture is intended to help rather than harm.
Reviewing Why Nudge? in the Financial Times Online, David Brown noted: “If you believe governments ought transparently to help us overcome our urges, then you can at least admire Sunstein’s thoroughness. If you think government has no right meddling in your life, and you should be free to get fat, smoke and retire poor—he wants you to read this book.” Writing in the Psychreport.com, Jeremy Waldron also had praise for the book, commenting: “ Why Nudge? is a fine book. It treats critics of the ‘soft paternalism’ of nudges with great respect, it is non-dogmatic, and it is nuanced and sophisticated in its arguments. … It is an excellent next book to read. And in a pinch, for those of us too busy making decisions that the world will not make for us to read so many books, it provides a faithful snapshot of the earlier books so that its main arguments are self-contained.” Atlantic Monthly contributor David Cole noted that Sunstein repeats some of the arguments from his earlier Nudge in Why Nudge?, but that the author also goes beyond his previous book in his challenge to John Stuart Mill’s famous argument against paternalism as voiced in On Liberty. Cole remarked: “Mill argued that paternalism was unwarranted in large part because individuals know better than others do what will serve their interests. For that reason, unless an individual’s actions harm someone else, Mill maintained, the state should stay out of her business. This ‘harm principle’ is one of the foundations of modern liberalism. Mill’s case against paternalism is undermined, Sunstein says, by man’s propensity to err and sabotage his own interests. If we know that people make predictable mistakes, then paternalistic interventions designed to mitigate those mistakes may increase people’s welfare overall. Even when our actions harm no one else, government intervention may therefore be justified.” Kirkus Reviews critic termed Why Nudge? a “provocative challenge to the fixed mindsets of left and right alike.” Similarly, Choice reviewer E.J. Eisenach felt that Sunstein “mounts a lively and accessible philosophical defense of liberal paternalism.”
Sunstein gathers eleven controversial articles in Conspiracy Theories and Other Dangerous Ideas. These articles, published in journals such as Harvard Law Review, Journal of Legal Studies, and Stanford Law & Policy Review, deal with contentious issues from climate change to same-sex marriage, and from conspiracy theories to animal rights.
Though some critics on the right have branded Sunstein a dangerous or radical thinker, a Kirkus Reviews critic noted of this collection: “Even when the author addresses putatively liberal causes—climate change or the establishment of ‘a new progressivism’—he writes nothing that could be construed as dangerous.” The critic went on to comment that to call Sunstein’s writings or ideas “dangerous” says “more about the bankrupt state of our current civic dialogue than it does about the author and his ideas.” Similarly, a Publishers Weekly contributor noted that “Sunstein will infuriate partisans on both sides with his evenhandedness.” The contributor further termed this gathering of essays a “stimulating exposition of the virtues—and dynamism—of moderation.”
In Valuing Life: Humanizing the Regulatory State, Sunstein draws on his years from 2009 to 2012 as the White House Office of Information and Regulatory Affairs (OIRA) to argue that it is possible to humanize regulations and lives can be save by doing so. He describes how OIRA operates and the regulations it oversees, including highway safety, health care, homeland security, immigration, energy, environmental protection, and education. Cost-benefit analysis needs to be improved in such decision making, Sunstein contends, and he provides case studies to back up this argument.
Reviewing Valuing Life in Library Journal, Jennifer M. Miller felt that it “benefits from Sunstein’s recent and significant experience, and his vision for new directions in public policy.” R. Heineman, writing in Choice, similarly noted that the author offers “both clear explanations and concrete examples of how the behavioral orientation in economics can contribute to the world of cost/benefit policy formulation.” Further praise came from a Publishers Weekly contributor who termed it a “lucid book that sheds light on how the government reasons, and how it ought to reason, about the regulations that shape our everyday lives.”
In Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, Sunstein examines the different approaches various Supreme Court judges take to decide cases. He divides these approaches into the four categories listed in his subtitle. Thus, hero judges go for decisions that make large changes; soldiers follow historic precedent; minimalists go for small, incremental change; and mutes do not deal with major issues. Sunstein notes that cases such as Bush v. Gore and Brown v. Board of Education fit the first category of heroes.
“Sunstein has performed a public service by enabling a better comprehension of how these judgments are reached,” noted a Publishers Weekly reviewer. A Kirkus Reviews critic, however, felt that Constitutional Personae would have a limited readership: “While accessible to general readers with some familiarity with leading cases and justices of the past century, this discussion will be of interest largely to law students, attorneys, and SCOTUS junkies.”
(open new)Sunstein examines the creation of George Lucas’s celebrated series in The World According to Star Wars. “For any student who wants to write a term paper on Star Wars, this book could serve as a rich resource,” noted a Kirkus Reviews critic. Sally Bryant, contributor to Xpress Reviews, described the book as “very accessible.”
In Impeachment: A Citizen’s Guide, Sunstein offers readers information about impeachment throughout American history, including the founder fathers’ thoughts on the topic and actual impeachments that have occurred since the country was created. A Publishers Weekly reviewer described the book as “an essential guide to understanding impeachment’s function within the ‘constitutional system as a whole.'”
#Republic: Divided Democracy in the Age of Social Media finds Sunstein discussing how the algorithms on social media platforms are fostering extremism. Referring to Sunstein, George Brock, writer in New Statesman, noted: “The heart of his argument lies in the cumulative, collective effect of what individuals do online. Networking, shopping, dating and activism are all transformed by the engine of opportunity that is the internet. But those new links and choices produce a malign side effect: ‘filter bubbles’, inside which like-minded people shut themselves off from opinions that might challenge their assumptions. Insulation pushes groups towards more extreme opinions.” In an interview with Kelly McEvers, contributor to the National Public Radio show, All Things Considered, Sunstein explained: “If you’re listening to people who just agree with you or reading news sources that fit with your own preconceptions, it’s not as if you just stay where you are. You tend to end up more extreme, which makes us get kind of blocked as a society, which isn’t good for democracy and which makes it possible for people to see people who disagree with them not as fellow citizens, but as enemies.” “#Republic is full of constructive suggestions. It should be required reading for anyone who is concerned with the future of democracy–in Silicon Valley and beyond,” asserted a reviewer in the Economist. Choice writer, D. Schultz, called the book “highly recommended.”
In Can It Happen Here?: Authoritarianism in American, Sunstein includes seventeen essays in which he examines the Trump presidency, suggesting that it is veering toward dictatorship. Andrew Sullivan, contributor to the New York Times Book Review, described the volume as “elegant.” A Publishers Weekly critic called it “uneven, but the best of the entries rouse the reader to think carefully and deeply about the prospects for American authoritarianism.” Pierre Lemieux, writer in Regulation, suggested: “Despite its failings and establishment biases, Can It Happen Here? presents interesting theories about the possible roads and obstacles to tyranny. Some of the chapters are remarkable. And even the book’s failures and biases can teach something. It is by eliminating error that we approach the truth.”
Sunstein offers pronouncements on the topics of ethics and influence in On Freedom. “On Freedom is a stimulating read that should nudge libertarians to stop and think harder about nudging,” suggested Randy E. Barnett in Reason. A Publishers Weekly critic commented: “This slip of a book can be quickly read, but puts forth important concepts.”
Conformity: The Power of Social Influences finds Sunstein again exploring the ways people are influenced by others on social media, and he also looks into real life connections and their effect on beliefs. A writer in the Harvard Law Review described the volume as “accessibly written.” “Eminently relevant, Sunstein’s clarifying discussion is a must-read,” asserted Kenneth Otani in Booklist.
In Too Much Information: Understanding What You Don’t Want to Know, Sunstein discusses the pros and cons of transparency. Clay Shirky, critic in the New York Times Book Review, remarked: “Though it presents itself as a new solution to a host of current problems, Too Much Information ends up presenting a host of new problems to one current solution: transparency.” A contributor to Kirkus Reviews called it “an accessible treatise on the need to ensure that information improves citizens’ well-being.” “This slim book raises such essential questions, though it makes only modest headway in the quest for answers,” suggested Rebecca Tuhus-Dubrow in TLS: Times Literary Supplement. A Publishers Weekly reviewer commented: “This balanced and well-informed take illuminates an obscure but significant corner of government policy making.”
Sunstein collaborates with Adrian Vermeule on Law & Leviathan: Redeeming the Administrative State, a book on the administrative state. “Law & Leviathan offers an insightful perspective on the 20th century’s accommodation between law’s morality and the administrative state. Time will tell whether the accommodation it describes is more past than prologue,” suggested Jonathan H. Adler in Regulation.
In This Is Not Normal: The Politics of Everyday Expectations, Sunstein suggests that the subversion of norms, as demonstrated by Donald Trump, can have dangerous consequences. Writing in TLS: Times Literary Supplement, Lawrence Douglas offered a mixed assessment of the book, stating: “While Sunstein is admirably alert to the fragilities of liberal democracy, This Is Not Normal lacks focus. Indeed, despite its misleading packaging, it is simply a collection of the author’s recent published essays.” A Kirkus Reviews critic called it “a provocative examination of social constructs and those who would alternately undo or improve them.”
Liars: Falsehoods and Free Speech in an Age of Deception finds Sunstein musing on the First Amendment’s implications for those who lie. “Policy makers and legal scholars will value this astute analysis,” predicted a contributor to Publishers Weekly.
Sunstein, Daniel Kahneman, and Olivier Sibony are the authors of Noise: A Flaw in Human Judgment, a volume in which decision making is examined. A contributor to the American Journal of Psychology suggested: “This book is not … another list of biases, fallacies, and other disasters of human judgment. Instead, there is a compelling inner logic, moving from analysis and diagnosis to intervention and application.” In a lengthy assessment of the volume in the New York Times Book Review, Steven Brill commented: “Noise is about how our most important institutions can make decisions that are more fair, more accurate and more credible. That its prescriptions will not achieve perfect fairness and credibility, while creating pitfalls of their own, is no reason to turn away from this welcome handbook for making life’s lottery a lot more coherent.”
In How to Interpret the Constitution, Sunstein offers opinions on how to derive meaning from America’s foundational document. A writer in Kirkus Reviews described the book as “one of the most significant works about constitutional interpretation in recent years.” Carson Holloway, contributor to the National Review, commented: “It is the duty of intelligent and public-spirited citizens to seek a way out of this polarization, to find, if possible, some common ground regarding constitutional interpretation. Cass Sunstein’s new book, How to Interpret the Constitution, can be understood as a contribution to this important effort.” “Sunstein carries the novice reader across this difficult terrain without simplifying the subject. … This book is an education,” asserted a reviewer in Foreign Affairs.
Sunstein moves to lighter topics, explaining how timing and chance contribute to fame in How to Become Famous: Lost Einsteins, Forgotten Superstars, and How the Beatles Came to Be. A Kirkus Reviews critic suggested: “Sunstein weaves research and storytelling into a book that contains not only provocative insights, but a lot of fun.” “Sunstein’s argument that circumstance rather than talent drives fame is well observed,” remarked a reviewer in Publishers Weekly.
Look Again: The Power of Noticing What Was Always There finds Sunstein discussing the concept of habituation. In the book, he explains what habituation means, offers examples of it, and shares how it can be both a positive and a negative thing, depending on circumstance. In an interview with a contributor to the McKinsey & Company website, Sunstein explained: “Habituation is a killer of creativity and innovation. It’s a guarantee of steady dullness. In business, creative people find ways to dishabituate so they can go back to their situation with fresh eyes.” However, Sunstein added: “If we didn’t habituate, then our brains would be so distracted by everything that we couldn’t focus on what we need to focus on. So while habituation is a problem, it’s also a solution. All creatures are very reactive to change and relatively unresponsive to stability. And that’s evolutionarily a good thing. In many ways, it’s also a good thing in human life.”(close new)
BIOCRIT
PERIODICALS
Accounting Review, April, 2002, Richard B. Dusenbury, review of Behavioral Law and Economics, p. 475.
American Journal of Psychology, fall, 2022, “Twilight of Human Judgment,” review of Noise: A Flaw in Human Judgment, p. 347.
American Lawyer, May, 2000, review of Behavioral Law and Economics, p. 57.
American Political Science Review, March, 1998, review of Free Markets and Social Justice, p. 213.
American Prospect, December 17, 2001, Garrett Epps, review of Designing Democracy: What Constitutions Do, p. 42; September, 2004, William Forbath, review of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever, p. 37.
Atlantic Monthly, May, 2014, David Cole, review of Conspiracy Theories and Other Dangerous Ideas, p. 36.
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QUOTED: "Habituation is a killer of creativity and innovation. It’s a guarantee of steady dullness. In business, creative people find ways to dishabituate so they can go back to their situation with fresh eyes."
"If we didn’t habituate, then our brains would be so distracted by everything that we couldn’t focus on what we need to focus on. So while habituation is a problem, it’s also a solution. All creatures are very reactive to change and relatively unresponsive to stability. And that’s evolutionarily a good thing. In many ways, it’s also a good thing in human life."
Author Talks: Cass Sunstein on the perils of habituation
April 15, 2024 | Interview
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When we become too comfortable in our jobs and relationships, we can miss huge opportunities to grow and change. Harvard University professor Cass Sunstein explores this dynamic—and suggests ways to keep the sparkle in our lives.
In this edition of Author Talks, McKinsey Global Publishing’s Roberta Fusaro chats with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School. They discuss Sunstein’s book Look Again: The Power of Noticing What Was Always There (Atria/One Signal Publishers, February 2024), cowritten with neuroscientist and professor Tali Sharot. It explores people’s propensity to habituate to both the good and the bad things in their lives and how that tendency can affect everything: personal relationships, careers, mental health, and how society functions. An edited version of the conversation follows.
Why this book, and why now?
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The subject of habituation is maybe the most fundamental of all to our species. That is, people get used to things—habituate to them—and stop noticing them. Then, if they go away from one of those things, they come back, and they think, “Oh my gosh, that was my life”— and that might have an exclamation point or a question mark next to it, either one. There’s really no book on habituation, notwithstanding its fundamental character. You can find amazing papers in academic journals, often with footnotes, but there’s no book on habituation.
We’re in the midst of these years where some things in our lives are completely wonderful and fantastic. They might involve a beach, a home, or, for many, prosperity. Some countries are doing a lot better than they were before. Some people are doing a lot better than they were before. The wonders might include a neighborhood, a friend, and the internet. We don’t notice and celebrate them, and that’s a loss for each of us. If we have a good job, it might be a job that our grandparents would have been astounded to see even existed. We have that, and we just take it as part of life.
Also, these days, there are some things that aren’t so great. They might be corruption, crime, authoritarianism, domestic violence. You can take your pick. People habituate to those also. They don’t struggle to stop the negative thing, because it’s like life’s furniture.
Sometimes life’s furniture, which we don’t really notice much, is spectacular. It’s a loss that we don’t notice. And sometimes it’s really kind of crummy. It’s peeling, and we sit down on it, and it hurts us. We don’t notice the pain as much as we should.
What is happening in our brains when we habituate?
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Let’s say we take 20 people and engage them in an experiment where they’re going to spend a day in a laboratory. They’re told they’re going to have an opportunity to make some money if they cooperate with their partner. They’re told, “This is a cooperation exercise, and if you’re part of a good team, you’ll make some money.” Then let’s suppose half of the participants are told, “Actually, we told you it’s about cooperation, but it’s got a little wrinkle in it. If you lie to your teammate, you’ll make more money. You’ll make more money if you don’t cooperate but lie.”
Normal people are being given an incentive to lie. The question is, what’s going to happen? If we look at people’s brain waves, it turns out, somewhat shockingly, that people will lie to make money under these conditions. A lot of people are going to lie. Now, it’s not a horrific lie. They’re not lying about criminality. They’re just misleading a teammate who’s a stranger. But they will lie.
The striking thing isn’t so much the lying. It’s that the amygdala, which is in the brain and roughly associated with strong emotions, is on fire at first. The amygdala is saying, “Oh my gosh, I’m lying. This is terrible.” That activity is highly visible to the experimenters. As the lies continue, however, the amygdala starts to quiet itself. As the day goes on, the amygdala gets less and less active. By the end of the day, the amygdala isn’t even noticing that the person in whose brain it sits is lying.
Basically when we’re engaged in conduct that makes us feel ashamed or guilty or horrible, if we do it a lot, our brain is going to stop registering—either as much or at all—that we’re doing something shameful or horrible. This is also true if there’s something joyful and fantastic happening—you’re falling in love, you’re ending up on a beach, you’ve gone to some new job that’s amazing, or you’ve found a colleague who’s just terrific to work with. After a while, the brain is registering this much less. And possibly, the emotional centers of the brain are registering it not at all.
When we’re engaged in conduct that makes us feel ashamed or guilty or horrible, if we do it a lot, our brain is going to stop registering—either as much or at all—that we’re doing something shameful or horrible.
What are the disadvantages of habituation when it comes to personal relationships?
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Habituation in friendship and romance is a buzzkill. If you have a friend who’s an amazing friend, it may be that you cherish them and like being with them. But you don’t think a whole lot about their amazingness. I’m reminded I have a great friend in Chicago, whom I talk to periodically. The fact that he is such a fantastic person is something I don’t think about enough. But when I first got to know him, I thought, “Wow, how lucky that he’s in my university.”
We all have this thing with our colleagues. We don’t think to ourselves or say often enough, “It’s fantastic that we get to have this friendship.” People get used to family members in the same way.
Now let’s get a little adult. I was at a wedding not terribly long ago, and I happened to be sitting next to an expert on romance and sex. We started talking about marriage because we were at a wedding and this is what she does. I had known a little bit about her work but not a whole lot. She indicated that, in general, the early days of a romance are full of erotic energy. Then, after a while, even if both people are incredibly attractive in any way, married couples tend to be a little stultified. Habituation in the bedroom means that there isn’t any surprise or mystery. The basic problem is fire needs air.
And it’s not only about the bedroom; it’s about life generally. It’s about creativity in business. There’s a kind of chemistry that’s very important to innovation or to commitment. You can see this sometimes with someone who’s a boss, who you think, “I get to work for that person!” That’s the first week. By the third week it’s “That’s the person I work for?!”
Talk more about the link between habituation and, say, creativity and innovation in business.
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Habituation is a killer of creativity and innovation. It’s a guarantee of steady dullness. In business, creative people find ways to dishabituate—by reading something that’s very different, by talking to someone who has very different perspectives, or just by taking a break and immersing themselves in something different—so they can go back to their situation with fresh eyes.
Habituation is a killer of creativity and innovation. It’s a guarantee of steady dullness. In business, creative people find ways to dishabituate so they can go back to their situation with fresh eyes.
Often, we’ll see someone—it might be Steve Jobs, it might be Thomas Edison—who just looks at something from a distance or brings to bear something from some other territory. Then we end up with a lightbulb or an iPhone.
What’s the link between habituation and the so-called midlife crisis?
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Here’s the hypothesis about what happens to produce a midlife crisis—in the form of depression for some. It’s that people habituate to everything in their lives such that nothing is exciting or thrilling or joyful. Everything is a dull background noise, and that’s depressing.
If you’re 20, there may be tremendous struggles, but there’s endless opportunity and possibility. Once the kids leave the house and you’re, let’s say, 60 or 70, then there’s a new chapter. What are you going to do? That might be a little scary and disconcerting, but it’s also dishabituating.
Once you’re in a space where you have your partner, your kids, your job, your city, it’s lacking the kind of variety and openness that human beings crave and need. It’s a little like that episode of the old Twilight Zone show in which there was a character, a ne’er-do-well, who ended up in this place where there’s an angel. The angel gave our hero, the small-time crook, everything he wanted all the time.
The small-time crook eventually started to lose his mind because anything he wanted, he got. He turned to his benefactor angel and said, “I can’t take it anymore. I want to be in the other place.” The angel looked at him and said, “Mr. Valentine, this is the other place.” For people who are doing well in midlife, they’re in their own version of the other place.
What steps can individuals take to surprise themselves or to break out of old habits?
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Let’s start with a little data. When people go on vacations, the data suggest that the high point is 43 hours in. At 43 hours into a vacation, people are really having a great time. It’s all downhill from there. It’s less great.
At first, you’re planning, you’re packing, it’s fantastic, and it’s great, but you’re not there yet. At 43 hours in, you’re there, you’re settled, and you’re still amazed by the place. At that point, though, it starts being the place where you’re on vacation—a little less amazing, really good, but not as phenomenal as it was at the beginning.
That data point is suggestive about how to dishabituate, which is to try to move things in the direction where everything is like that 43rd hour of vacation. Now how can you do that?
There are three things that people care about. First, they care about happiness. They want to be smiling rather than scowling. Second, people care about meaning or purpose. If you have a life that’s full of smiles and laughter, but it seems kind of pointless, people will get a little bored and feel a little less thrilled after a week. They’ll think, “Well, what’s it all about?” Third, recent data show that people also care about psychological richness—understood as variety of life. They want something different on Thursday from what they experienced on Monday. People really need that, and you can engineer that.
At work, with the aid of your employer, you may venture into new enterprises, taking on tasks that are different from those you’ve taken on before. That sounds a little simple, but it can be completely thrilling for people. Once they go back to their former work, they still retain a sense of adventure and novelty. They often produce insights that are unexpected and wouldn’t have occurred if not for the fact that they did something different for a while.
I see this in the US government, where I’ve worked periodically, when people are detailed to other places. Someone who works for the Environmental Protection Agency [EPA] may be detailed to the White House. Then they come back to the EPA full of energy and new insights and a sense that “this job at the EPA is a really cool job, and I understood that less when I didn’t have breaks from it.” The idea of rotating into different roles is a really good idea, even if the role into which people rotate is one they don’t like it as much as the job that they rotated from.
Part of the energy of the book comes from an unlikely place. The actor Julia Roberts was interviewed in the New York Times in the early stages of working on this project. The interviewer asked, “What, for you, is a perfect day?”
Ms. Roberts spoke about preparing meals for her children and husband, watching TV, and picking up her children at sports practice. Then she stopped herself and said, “I know this is really boring.”
She added that her career often takes her away from her family. So when she returns home, “It’s surrounded by pixie dust. It ‘resparkles.’” And the notion of resparkling seems profound.
I am currently in Concord, Massachusetts, where the American Revolution started. Outside it’s sunny and pretty. There’s a street that is easy to drive on, and there are really nice people at the local store.
I confess I haven’t thought about all that I’ve just described, except in the context of resparkling. And for any of us, even if we’re under circumstances that aren’t ideal, there are probably ten things that are great that could use a little pixie dust.
What surprised you most as you were researching and writing this book?
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One thing that surprised us as authors was the idea that it’s often good to break up great tasks and motor through the terrible ones. This is totally counterintuitive. If people are having a good experience with music, let’s say, or a massage, the idea of breaking it up sounds terrible. We want to just keep enjoying what we’re doing. But the research suggests that if you break it up, it gets better.
This is asymmetrical for bad tasks—such as cleaning up a big mess—where the idea of breaking it up into three stages sounds very appealing. But if you motor through and do it in one long stretch, you’ll habituate to it, and it won’t be so terrible. Whereas if you revisit the same bad task three times, the terribleness of cleaning up the mess is going to reassert itself each time you restart. So break up the good and motor through the bad.
How can organizations help with habituation?
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The phenomenon of habituation has yet to receive the kind of attention that it deserves, given how fundamental it is to human life. If you’re in an organization that depends on innovation, you need people to be innovative—and we know from experiments that there are little things that organizations can do to facilitate that.
For instance, if people sit, they’re less creative than if they stand up and walk around a little bit. That’s a very simple task. If you’re stuck, maybe stand up and walk around a little bit, interact with someone new. The high jumper, Dick Fosbury, who’s a hero of the book, invented the Fosbury Flop, which was a completely different way of high jumping when he started doing it. He did it partly because he wasn’t so great at jumping the normal way but partly because he had some capital in his head, which he could tap to try to think of something new.
Every one of us has some capital in our head. The question is how to tap it. For an organization to have something like a “dishabituation project”—let’s just call it that—for six months is likely to pay big dividends.
When I worked in the Obama administration, I saw that inserting new people in positions would often spur thoughts that no one had had for months. They were not routinized. The parts of one’s brain that are activated if one is in a new setting were activated for them. So they would have several ideas. Perhaps two-thirds of those ideas were not good ideas. Yet if you get one-third that you can actually implement to help economic growth or to reduce unemployment, that’s great.
Can habituation sometimes be a good thing?
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If we didn’t habituate, then our brains would be so distracted by everything that we couldn’t focus on what we need to focus on. So while habituation is a problem, it’s also a solution. All creatures are very reactive to change and relatively unresponsive to stability. And that’s evolutionarily a good thing. In many ways, it’s also a good thing in human life.
If you’re doing fine and not burning up or freezing, and no lion is eating you, to be very indifferent to things is fine because everything around you is fine. But if you hear a sudden roar, then to be extremely reactive and maybe to run is smart because that roar is unfamiliar, and it’s threatening.
If people didn’t habituate, they wouldn’t know what to focus on. I’d be looking at, let’s say, the laptop in front of me or the wall in the distance with such amazement and focus and attention. And if a lion did attack, or if something else really needed my focus, I wouldn’t have enough bandwidth to attend to it.
Does all change have to be big, or can incremental changes help us dishabituate?
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There are data suggesting that with respect to big, bold changes and greater-than-incremental changes, if you’re thinking seriously about whether to make the change, you probably should. If you’re seriously thinking of changing your job or developing a new hobby or doing something big, such as going to another city, the data suggest that you probably should—not definitely, but probably.
If you’re not thinking about it, don’t quit your job, and don’t go to a new city. But people tend to err in the direction of sticking with the status quo a bit more than they should. That’s partly because they’ve habituated to where they are, and the idea of dishabituating is scary.
But what about the bad things in the new place? They’ll get used to those. The bad things won’t be so terrible, and the good things will be less thrilling after a while than they were at the beginning. But giving more change a chance is probably a good idea.
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Cass Sunstein on how the propensity to habituate can affect everything.
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Cass Sunstein is the Robert Walmsley University Professor at Harvard Law School. Roberta Fusaro is an editorial director in McKinsey’s Boston office.
Cass Sunstein
Senior Advisor
Boston
Cass Sunstein is a senior advisor at Boston Consulting Group. He is currently the Robert Walmsley University Professor at Harvard Law School, a member and former Chair of the World Health Organization Technical Advisory Group on Behavioural Insights and Sciences for Health, as well as an Advisor to the Behavioural Insights Team in the United Kingdom.
As a senior advisor at BCG, Mr. Sunstein will be a key leader in the continued growth and expansion of the firm’s Behavior Science Lab (BehSciLab).
Mr. Sunstein has advised officials at the United Nations, the European Commission, and the World Bank, and many nations on issues of law and public policy. He was Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012, part of the President’s Review Board on Intelligence and Communications Technologies, and on the Pentagon’s Defense Innovation Board.
In addition, Mr. Sunstein has held the post of Samuel Rubin Visiting Professor of Law at Columbia Law School. In 2018, Mr. Sunstein received the Holberg Prize from the government of Norway, often described as the equivalent of the Nobel Prize for law and the humanities.
Cass is the Robert Walmsley University Professor at Harvard University, where he is on the law school faculty and an affiliate in the department of economics. He is also currently serving in the Biden Administration as senior counselor at the Department of Homeland Security. Cass was recently appointed as Distinguished Academic Visitor at Cambridge University, and he is serving as well on the Technical Advisory Group on Behavioral Insights and Public Health at the World Health Organization. From 2009 to 2012, he was administrator of the White House Office of Information and Regulatory Affairs. Cass has testified before congressional committees on many subjects, and he has been involved in constitution-making and law reform activities in a number of nations. In 2018, he was awarded Norway’s Holberg Prize, which is often described as the Nobel Prize for the humanities, law, and philosophy. His many books include Nudge (with Richard H. Thaler) and The World According to Star Wars.
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From Wikipedia, the free encyclopedia
Cass Sunstein
Sunstein in 2008
Administrator of the Office of Information and Regulatory Affairs
In office
September 10, 2009 – August 21, 2012
President Barack Obama
Preceded by Kevin Neyland (acting)
Succeeded by Boris Bershteyn (acting)
Personal details
Born Cass Robert Sunstein
September 21, 1954 (age 69)
Concord, Massachusetts, U.S.
Political party Democratic
Spouses
Lisa Ruddick (divorced)
Samantha Power (m. 2008)
Children 3
Education Harvard University (BA, JD)
Title Robert Walmsley University Professor
Awards Holberg Prize (2018)
Academic work
Discipline Constitutional law
Institutions Harvard University
University of Chicago
Notable works The World According to Star Wars (2016)
Nudge (2008)
Notable ideas Nudging
Cass Robert Sunstein[1] (born September 21, 1954) is an American legal scholar known for his work in constitutional law, administrative law, environmental law, and behavioral economics. He is also The New York Times best-selling author of The World According to Star Wars (2016) and Nudge (2008). He was the administrator of the White House Office of Information and Regulatory Affairs in the Obama administration from 2009 to 2012.[2]
As a professor at the University of Chicago Law School for 27 years, he wrote influential works on regulatory and constitutional law, among other topics.[3] Since leaving the White House, Sunstein has been the Robert Walmsley University Professor at Harvard Law School.[4] In 2014, studies of legal publications found Sunstein to be the most frequently cited American legal scholar by a wide margin.[5][6]
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Early life and education
Sunstein was born on September 21, 1954, in Waban, Massachusetts, to Marian (née Goodrich), a teacher, and Cass Richard Sunstein, a builder, both Jewish.[1][7][8] He graduated in 1972 from Middlesex School. He has said that as a teenager, he was briefly infatuated with the works of Ayn Rand, "[b]ut after about six weeks of enchantment, her books started to make me sick. Contemptuous toward most of humanity, merciless about human frailty, and constantly hammering on the moral evils of redistribution, they produced a sense of claustrophobia."[9][non-primary source needed]
Sunstein graduated magna cum laude with a Bachelor of Arts from Harvard College in 1975. At Harvard, he was a member of the varsity squash team and an editor of the Harvard Lampoon. In 1978, he graduated magna cum laude with a Juris Doctor from Harvard Law School, where he was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and was a member of the winning team of the Ames Moot Court Competition.
Career
After law school, Sunstein first clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court from 1978 to 1979, then for Justice Thurgood Marshall of the U.S. Supreme Court from 1979 to 1980.[10]
After his clerkships, Sunstein spent one year as an attorney-advisor in the U.S. Department of Justice's Office of Legal Counsel. In 1981, he became 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. In 2009, Sunstein was described by fellow Chicago professor Douglas G. Baird as a "Chicago person through and through".[11]
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 has taught courses in constitutional law, administrative law, and environmental law, as well as the required first-year course "Elements of the Law", which was 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:[12]
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.[12]
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).[13] That news generated controversy among progressive legal scholars[14] and environmentalists.[15] 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[16] 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 over weigh 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.[citation needed]
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.[17][18][19] The "Nudge" idea has also been criticized. 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 behavior changes.[20]
Contributing to the anthology Our American Story (2019), Sunstein addressed the possibility of a shared American narrative. He cited the concepts of self-government and equal dignity of human beings, but focused in particular on stories: "an emphasis on what happened before and after the firing shots in Concord and the courageous response of the embattled farmers maintains continuity with the historical facts and offers us something on which we can build."[21]
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.[22]
He is a member of the American Academy of Arts and Sciences (elected 1992), the American Law Institute (since 1990), and the American Philosophical Society (elected 2010).[23] He received an Honorary Doctorate from Copenhagen Business School.[24]
In February 2020, he wrote an article for Bloomberg titled "The Cognitive Bias That Makes Us Panic About Coronavirus".[25] In it he claimed that "A lot more people are more scared than they have any reason to be" and that "Most people in North America and Europe do not need to worry much about the risk of contracting the disease. That's true even for people who are traveling to nations such as Italy that have seen outbreaks of the disease." He attributed the excessive perceived risk to probability neglect. At time of publication, there have been 68 confirmed COVID-19 cases in the U.S., including one death, and approximately 1000 new daily cases worldwide, over 300 of which in Europe.[26]
Sunstein joined the Department of Homeland Security in February 2021 as an advisor to the Biden administration on immigration policy.[27]
Together with Daniel Kahneman and Olivier Sibony, Sunstein co-authored Noise: A Flaw in Human Judgment, which was published in May 2021. Drawing not least upon legal examples, it treats of unwanted variability in human judgments of the same problem, for instance when court judges recommend vastly different sentences for the same crimes. The book looks both at what 'noise in human judgment' is, how it can be detected and how it can be reduced.
Since 2021, Sunstein has co-taught a class on the United States Supreme Court at Harvard alongside retired Justice Stephen Breyer. [28]
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,[29] despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts,[30] as well as providing strongly maintained theoretical support for the death penalty.[31] Conservative libertarian legal scholar Richard A. Epstein described Sunstein as "one of the more conservative players in the Obama administration."[32]
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.
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. [citation needed]
According to Sunstein, 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. "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.[33]
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 peoples' decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect".[34]
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.[35] In 2006, the Supreme Court found the tribunals illegal in Hamdan v. Rumsfeld in a 5–3 vote.
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."[36] 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."[37] He is concerned by the present "situation in which like-minded people speak or listen mostly to one another,"[38] 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."[39] 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."[37]
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."[40] "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."[41]
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-companion 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 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."[42] 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.[42]
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, 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.[42]
Marriage
In Nudge: Improving Decisions About Health, Wealth, and Happiness, 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".[34] Sunstein addressed the Senate on July 11, 1996, advising against the Defense of Marriage Act.[43]
"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 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",[44] 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."[44] 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". The authors declare that there are five hypothetical responses a government can take toward conspiracy theories: "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. (3) Government might itself engage in counterspeech, marshaling arguments to discredit conspiracy theories. (4) Government might formally hire credible private parties to engage in counterspeech. (5) Government might engage in informal communication with such parties, encouraging them to help." However, the authors advocate that each "instrument has a distinctive set of potential effects, or costs and benefits, and each will have a place under imaginable conditions. However, our main policy idea is that government should engage in cognitive infiltration of the groups that produce conspiracy theories, which involves a mix of (3), (4) and (5)."
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."[44] 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[45][46] who argue that it would violate prohibitions on government propaganda aimed at domestic citizens.[47] Sunstein and Vermeule's proposed infiltrations have also been met by sharply critical scholarly responses.[48][49][50][51][52]
Personal life
In the 1980s and early 1990s, Sunstein was married to Lisa Ruddick, whom he met when both were undergraduates at Harvard.[53] She is associate professor emerita of English at the University of Chicago, specializing in British modernism.[54] Their marriage ended in divorce. Their daughter Ellyn is a journalist and photographer.[55] Thereafter, Sunstein dated Martha Nussbaum for almost a decade.[56] Nussbaum is a philosopher, classicist, and professor of law at the University of Chicago.[57]
On July 4, 2008, Sunstein married Samantha Power, a diplomat and government official who would serve as United States ambassador to the United Nations, whom he met when they both worked as campaign advisors to Barack Obama.[58] The wedding took place in the Church of Mary Immaculate, in Lohar, Waterville, Ireland.[59] They have two children: a son, Declan Power Sunstein (April 24, 2009).[60] and a daughter, Rían Power Sunstein (June 1, 2012).
Sunstein is an avid amateur squash player who has played against professionals in PSA tournaments[61] and in 2017 was ranked 449th in the world by the Professional Squash Association.[62]
Honors
In July 2017, Sunstein was elected a Corresponding Fellow of the British Academy (FBA), the United Kingdom's national academy for the humanities and social sciences.[63]
In 2018 he was awarded the Holberg Prize for having "reshaped our understanding of the relationship between the modern regulatory state and constitutional law. He is widely regarded as the leading scholar of administrative law in the U.S., and he is by far the most cited legal scholar in the United States and probably the world."[64]
Publications
Books
1990–1999
Sunstein, Cass R. (1990). Feminism and Political Theory. Chicago, Illinois: The University of Chicago Press. ISBN 978-0-226-78008-5.
Sunstein, Cass R.; Stone, Geoffrey R.; Epstein, Richard A. (1992). The Bill of Rights and the Modern State. Chicago, Illinois: University of Chicago Press. ISBN 978-0-226-77532-6.
Sunstein, Cass R. (1993). After the Rights Revolution: Reconceiving the Regulatory State. Harvard: Harvard University Press. ISBN 978-0-674-00909-7.
Sunstein, Cass R. (1993). The Partial Constitution. Harvard: Harvard University Press. ISBN 978-0-674-65478-5.
Sunstein, Cass R. (1995). Democracy and the problem of free speech. New York: The Free Press. ISBN 978-0-02-874000-3.
Sunstein, Cass R. (1996). Legal Reasoning and Political Conflict. Oxford: Oxford University Press. ISBN 978-0-19-511804-9.
Sunstein, Cass R. (1997). Free Markets and Social Justice. Oxford: Oxford University Press. ISBN 978-0-19-510273-4.
Sunstein, Cass R.; Nussbaum, Martha C. (1999). Clones and Clones: Facts and Fantasies about Human Cloning. New York London: W.W. Norton. ISBN 978-0-393-32001-5.
Sunstein, Cass R. (1999). One Case at a Time: Judicial Minimalism on the Supreme Court. Harvard: Harvard University Press. ISBN 978-0-674-00579-2.
2000–2009
Sunstein, Cass R.; Holmes, Stephen (2000). The Cost of Rights: Why Liberty Depends on Taxes. New York London: W. W. Norton. ISBN 978-0-393-04670-0.
Sunstein, Cass R. (2000). Behavioral Law and Economics. Cambridge: Cambridge University Press. ISBN 978-0-521-66743-2.
Sunstein, Cass R.; Epstein, Richard A. (2001). The Vote: Bush, Gore & the Supreme Court. Chicago: University of Chicago Press. ISBN 978-0-226-21307-1.
Sunstein, Cass R. (2001). Designing Democracy: What Constitutions Do. Oxford: Oxford University Press. ISBN 978-0-19-514542-7.
Sunstein, Cass R. (2001). Republic.com. Princeton: Princeton University Press. ISBN 978-0-691-07025-4.
Sunstein, Cass R.; Hastie, Reid; Payne, John W.; Schkade, David; Viscusi, W. Kip (2002). Punitive Damages: How Juries Decide. Chicago, Illinois: University of Chicago Press. ISBN 978-0-226-78015-3.
Sunstein, Cass R. (2002). The Cost-Benefit State: The Future of Regulatory Protection. Chicago, Illinois: American Bar Association. ISBN 978-1-59031-054-0.
Sunstein, Cass R. (2002). Risk and reason: Safety, law, and the environment. Cambridge: Cambridge University Press. ISBN 978-0-521-01625-4.
Translation: Sunstein, Cass R. (2006). Riesgo y razón. Seguridad, ley y medioambiente (in Spanish). Buenos Aires Madrid: Katz Editores. ISBN 978-84-609-8350-7.
Sunstein, Cass R. (2003). Why Societies Need Dissent. Harvard: Harvard University Press. ISBN 978-0-674-01268-4.
Sunstein, Cass R.; Nussbaum, Martha (2004). Animal Rights: Current Debates and New Directions. Oxford New York: Oxford University Press. ISBN 978-0-19-530510-4.
Sunstein, Cass R. (2005). The Laws of Fear: Beyond the Precautionary Principle. Cambridge: Cambridge University Press. ISBN 978-0-521-61512-9. (based on the Seeley Lectures 2004 at Cambridge University)
Translation: Sunstein, Cass R. (2009). Leyes de miedo: Más allá del principio de precaución (in Spanish). Buenos Aires Madrid: Katz Editores. ISBN 978-84-96859-61-6.
Sunstein, Cass R. (2005). Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America. New York: Basic Books. ISBN 978-0-465-08327-5.
Sunstein, Cass R. (2006). The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever. New York: Basic Books. ISBN 978-0-465-08333-6.
Sunstein, Cass R. (2006). Infotopia: How Many Minds Produce Knowledge. Oxford: Oxford University Press. ISBN 978-0-19-534067-9.
Sunstein, Cass R.; Schkade, David; Ellman, Lisa; Sawicki, Andres (2006). Are Judges Political? An Empirical Investigation of the Federal Judiciary. Washington, D.C.: Brookings Institution Press. ISBN 978-0-8157-8234-6.
Sunstein, Cass R. (2007). Republic.com 2.0. Princeton: Princeton University Press. ISBN 978-0-691-13356-0.
Sunstein, Cass R. (2007). Worst-Case Scenarios. Harvard: Harvard University Press. ISBN 978-0-674-03251-4.
Sunstein, Cass R.; Thaler, Richard (2008). Nudge: Improving Decisions about Health, Wealth, and Happiness. New Haven, Connecticut: Yale University Press. ISBN 978-0-14-311526-7.
Translation: Un pequeño empujón (in Spanish). Barcelona: Taurus. 2009. ISBN 978-607-31-6206-7.
Sunstein, Cass R. (2009). Going to Extremes: How Like Minds Unite and Divide. Oxford: Oxford University Press. ISBN 978-0-19-975412-0.
Sunstein, Cass R. (2009). On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done. Princeton: Princeton University Press. ISBN 978-0-691-16250-8.
2010 onwards
Sunstein, Cass R. (2010). Law and Happiness. Chicago, Illinois: The University of Chicago Press. ISBN 978-0-226-67600-5.
Sunstein, Cass R.; Breyer, Stephen G.; Stewart, Richard B.; Vermeule, Adrian; Herz, Michael (2011). Administrative Law and Regulatory Policy: Problems, Text, and Cases (7th ed.). New York: Wolters Kluwer Law & Business. ISBN 978-0-7355-8744-1.
Sunstein, Cass R. (2013). Simpler: The Future of Government. New York: Simon & Schuster. ISBN 978-1-4767-2659-5.
Sunstein, Cass R.; Stone, Geoffrey R.; Seidman, Louis M.; Tushnet, Mark V.; Karlan, Pamela S. (2013). Constitutional Law (7th ed.). New York: Wolters Kluwer Law & Business. ISBN 978-1-4548-1757-4.
Sunstein, Cass R. (2014). Valuing Life: Humanizing the Regulatory State. Chicago, Illinois: The University of Chicago Press. ISBN 978-0-226-78017-7.
Sunstein, Cass R.; Hastie, Reid (2014). Wiser: Getting Beyond Groupthink to Make Groups Smarter. Harvard: Harvard Business Review Press. ISBN 978-1-4221-2299-0.
Sunstein, Cass R. (2014). Why Nudge?: The Politics of Libertarian Paternalism (The Storrs Lectures Series). Yale University Press. ISBN 978-0-300-19786-0.
Sunstein, Cass R. (2016). The World According to Star Wars. New York: Dey Street Books. ISBN 978-0-06-248422-2.
Sunstein, Cass R. (2016). The Ethics of Influence: Government in the Age of Behavioral Science. New York: Cambridge University Press. ISBN 978-1-10-714070-7.
Sunstein, Cass R. (2017). #Republic : divided democracy in the age of social media. Princeton University Press. ISBN 978-0-691-17551-5. OCLC 958799819.
Sunstein, Cass R. (2017). Human Agency and Behavioral Economics: Nudging Fast and Slow. Palgrave Advances in Behavioral Economics. ISBN 978-3-319-55806-6. OCLC 1049592088.
Sunstein, Cass R. (2017). Impeachment: A Citizen's Guide. Harvard University Press. ISBN 978-0-674-98379-3.
Sunstein, Cass R. (2018). Can It Happen Here?: Authoritarianism in America. HarperCollins. ISBN 978-0-06-269621-2.
Sunstein, Cass R. (2018). The Cost-Benefit Revolution. MIT Press. ISBN 978-0-262-03814-0.
Sunstein, Cass R. (2019). On Freedom. Princeton University Press. ISBN 978-0-691-19115-7.
Sunstein, Cass R. (2019). How Change Happens. MIT Press. ISBN 978-0-262-03957-4.
Sunstein, Cass R. (2019). Conformity: The Power of Social Influences. NYU Press. ISBN 978-1-4798-6783-7.
Kahneman, Daniel; Sibony, Olivier; Sunstein, Cass R. (2021). Noise: A Flaw in Human Judgment. William Collins. ISBN 978-0-00-830899-5.
Sunstein, Cass R. (2021). This Is Not Normal: The Politics of Everyday Expectations. Yale University Press. ISBN 978-0-300-25350-4.
Sunstein, Cass R. (2021). Liars: Falsehoods and Free Speech in an Age of Deception. Oxford University Press. ISBN 978-0-19-754511-9.
Sunstein, Cass R.; Dhami, Sanjit (2022). Bounded Rationality: Heuristics, Judgment, and Public Policy. MIT Press. ISBN 978-0-26-254370-5.
Sharot, Tali; Sunstein, Cass R. (February 27, 2024). Look Again The Power of Noticing What Was Always There. Atria/One Signal. ISBN 978-1-6680-0820-1.
Cass R. Sunstein
Robert Walmsley University Professor
Cass R. Sunstein
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Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President’s Review Board on Intelligence and Communications Technologies and on the Pentagon’s Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom.
Mr. Sunstein is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013), The Ethics of Influence (2015), #Republic (2017), Impeachment: A Citizen’s Guide (2017), The Cost-Benefit Revolution (2018), On Freedom (2019), Conformity (2019), How Change Happens (2019), and Too Much Information (2020). He is now working on a variety of projects involving the regulatory state, “sludge” (defined to include paperwork and similar burdens), fake news, and freedom of speech.
QUOTED: "if you're listening to people who just agree with you or reading news sources that fit with your own preconceptions, it's not as if you just stay where you are. You tend to end up more extreme, which makes us get kind of blocked as a society, which isn't good for democracy and which makes it possible for people to see people who disagree with them not as fellow citizens, but as enemies."
'#Republic' Author Describes How Social Media Hurts Democracy
FEBRUARY 20, 20174:40 PM ET
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NPR's Kelly McEvers speaks to Cass Sunstein about his new book, #Republic: Divided Democracy in the Age of Social Media. He says democracy needs people to come across a variety of viewpoints, and much of social media limits that exposure.
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ARI SHAPIRO, HOST:
Social media can be an echo chamber. Facebook and Twitter feeds often show us posts by people who think pretty much the same way we do - red feed for conservatives, blue feed for liberals. On this week's All Tech Considered, my co-host Kelly McEvers talked with someone who's thought a lot about echo chambers and whether something could be done to change them.
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KELLY MCEVERS, BYLINE: Harvard law professor Cass Sunstein has written a lot about why societies need dissent. That was the title of one of his earlier books. His new book is "#Republic: Divided Democracy In The Age Of Social Media." He says these echo chambers we live in actually hurt democracy. Cass Sunstein, welcome to the show.
CASS SUNSTEIN: Thank you so much.
MCEVERS: Since the election, I mean, we've done a lot of reporting on this - right? - how the news is being filtered, how people are only reading stories that, you know, match their ideas. But how does this hurt democracy, in your opinion?
SUNSTEIN: Well, there are a couple of things that happened then. None of them is good. One is that if you're listening to people who just agree with you or reading news sources that fit with your own preconceptions, it's not as if you just stay where you are. You tend to end up more extreme, which makes us get kind of blocked as a society, which isn't good for democracy and which makes it possible for people to see people who disagree with them not as fellow citizens, but as enemies who are crazy people or dupes. And that can make problem solving very, very challenging.
MCEVERS: Just after the election, Facebook CEO Mark Zuckerberg said it was, quote, "pretty crazy" to think that fake news on Facebook had any influence on the election. He said, quote, "voters make decisions based on their lived experience." What do you think about that?
SUNSTEIN: Well, with respect to fake news, the data is that it has not had a massive effect on elections. So I think the data is supportive of his conclusion there. In so far as Facebook is disparaging, the concern that it's contributing to a system of division and polarization and extremism and echo chambering, that's not great. We ought to see Facebook thinking - how can we be part of a solution rather than what we now are with respect to polarization? That is part of the problem.
MCEVERS: You know, the question is - what can be done to combat this? What can be can be done to sort of stop that extreme - that extremism?
SUNSTEIN: Yes. Well, there are lots of things that can be done in our individual lives and also on the part of those who provide information. So there's nothing inevitable in an algorithm that says, you know, this is your type of content. Here you go. If you have an algorithm that exposes you to opposing viewpoints or topics you never would have put there - and that can change your life in a good way.
MCEVERS: I'm imagining, like, a serendipity bar where you sort of move it - you know, like the brightness control on your phone - like, you move it right or left. You're like - I want more serendipity in my algorithm or less.
SUNSTEIN: Completely love that - serendipity button or an opposing viewpoint button.
MCEVERS: Or a slider, yeah
SUNSTEIN: A slider - definitely. What we have, in a way, now on the social media is a serendipity bar which is dialed down to black, black, black. And it isn't easy to dial it up till it's actually used, so providers can completely do that.
MCEVERS: But it's not in their interest to do that, right? I mean, they want - I mean, I was reading in your book, like, you know, some - a memo - a Facebook memo - where they were talking about the desire to keep people, you know, reading an article for, you know, the maximum amount of time. And to do that, you give them something they want.
SUNSTEIN: Well, we're early days, really, still for Facebook and social media. And so my expectation is that Facebook and Twitter will do some experimenting on this count. It is true that kind of a quick reaction is provide people with content that they will look at. And that might be the information cocoon effect. But lots of Americans have not just a desire to see, you know, what they already think, but a desire to see some stuff that'll be challenging or eye-opening.
MCEVERS: What should we, as social media users, do? I mean, is the, you know, sort of immediate suggestion that, like, liberals should follow more conservatives and vice versa?
SUNSTEIN: I think - no question - that if you're left of center, have a little plan in the next two weeks to follow some smart people who are right of center. And if you're right of center, and you tend to ridicule or contempt for people on the left, follow some liberals. Find some who have at least a little bit of credibility for you. Or make a determined judgment whether you're left or right. See what you can get from the other side. And this is, you know, individual lives, but as the framers of the constitution knew, a republic is built up of innumerable individual decisions. And whether we get a well-functioning system or not depends on, you know, countless individual acts.
MCEVERS: Cass Sunstein's new book is "#Republic: Divided Democracy In The Age Of Social Media." Thank you.
SUNSTEIN: Thank you so much.
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QUOTED: "Sunstein weaves research and storytelling into a book that contains not only provocative insights, but a lot of fun."
Sunstein, Cass R. HOW TO BECOME FAMOUS Harvard Business Review Press (NonFiction None) $30.00 5, 21 ISBN: 9781647825362
Great success requires talent, resilience, and a large dose of serendipity, according to this intriguing investigation.
Sunstein, a professor at Harvard Law School and author of numerous books on law and related subjects, admits early on that the title is something of a cheat. The author doesn't intend his latest book to be a how-to manual; instead, he delivers a fascinating crash course on why some people--or bands or movies or works of art--become famous. Sunstein is wary of books that look for common attributes among people who have done well (especially in business) and then conclude that a particular characteristic is the reason. This is confusing correlation with causation, he notes, and ignores individuals who have that attribute but do not reach the pinnacle. Sunstein argues for a wider frame of reference, looking at numerous cases such as the Beatles, Muhammed Ali, Bob Dylan, and Stan Lee, although he admits that his list is largely a collection of personal favorites. Simply being very good at what you do is not enough, and the author cites cases of people who had remarkable talent but were unable to reach peak success. There is a great deal of luck involved, and it extends to having the right skin color, the right parents, and a mentor or champion and being in the right place at the right time, as well as untold other elements. True, famous people might have been able to take advantage of the good fortune that came their way, but that ability is itself a complex variable. Some readers may want a firmer conclusion, but the author is not one for easy answers. Ultimately, the text is an engaging study of the lottery that is life.
Sunstein weaves research and storytelling into a book that contains not only provocative insights, but a lot of fun.
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"Sunstein, Cass R.: HOW TO BECOME FAMOUS." Kirkus Reviews, 1 May 2024, p. NA. Gale General OneFile, link.gale.com/apps/doc/A791877074/ITOF?u=schlager&sid=bookmark-ITOF&xid=fdaa963f. Accessed 9 May 2024.
QUOTED: "Sunstein's argument that circumstance rather than talent drives fame is well observed."
How to Become Famous: Lost Einsteins, Forgotten Superstars, and How the Beatles Came to Be
Cass R. Sunstein. Harvard Business Review, $30 (256p) ISBN 978-1-64782-536-2
This probing analysis from Sunstein (Decisions About Decisions) explores serendipity's role in determining why some thinkers, artists, and athletes hit the big time while others languish in obscurity. For instance, Sunstein recounts how after Muhammad Ali's bicycle was stolen when he was 12, the future champion reported the theft to a police officer who happened to run a boxing gym and recommended Ali try out the sport. Talent matters, but it's not sufficient to explain why some artists become famous, Sunstein argues, reporting that though 19th-century Scottish novelist Mary Brunton enjoyed greater acclaim in her lifetime than her contemporary Jane Austen, the former had no children whereas the latter's descendants were ceaseless champions of Austen's oeuvre and succeeded in posthumously boosting her profile. Elsewhere, Sunstein suggests that one of the factors that fueled Beatlemania in the 1960s was group polarization, which describes the tendency of individuals to become more enthusiastic in their opinions when around like-minded people. Sunstein's argument that circumstance rather than talent drives fame is well observed, though the plethora of case studies feels like overkill as Sunstein struggles to find new ways to elaborate on his thesis in the book's final stretch. It's a stimulating if overlong study of the vagaries of fame. Photos. Agent: Rebecca Nagel, Wylie Agency. (May)
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"How to Become Famous: Lost Einsteins, Forgotten Superstars, and How the Beatles Came to Be." Publishers Weekly, vol. 271, no. 9, 4 Mar. 2024, p. 40. Gale General OneFile, link.gale.com/apps/doc/A786742138/ITOF?u=schlager&sid=bookmark-ITOF&xid=6555630d. Accessed 9 May 2024.
QUOTED: "one of the most significant works about constitutional interpretation in recent years."
Sunstein, Cass R. HOW TO INTERPRET THE CONSTITUTION Princeton Univ. (NonFiction None) $22.95 8, 15 ISBN: 9780691252049
An incisive rethinking of the U.S. Constitution.
Sunstein, the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School, begins by pointing out the irrefutable fact that "the Constitution does not contain the instructions for its own interpretation." Thus, "no approach to constitutional interpretation is required or self-justifying." On those grounds, he briskly swats away every jurisprudentially, philosophically, and historically justified interpretive scheme--"anti-originalist" as well as "originalist," of the left as well as the right--that has been advanced since the 19th century. All schools and schemes of interpretation fall before his generous-spirited ax strokes. In their place, he argues, there can be only one acceptable, humane approach to judicial interpretation: the search among jurists for a " 'reflective equilibrum' in which [jurists'] judgments, at multiple levels of generality, are brought into alignment with each other" in order to achieve the most democratically acceptable and fairest outcome achievable at the time. "There is no alternative to the search for reflective equilibrium," writes the author, because "no theory makes sense for every imaginable world." Though disarmingly and intentionally "simple and straightforward," as well as open-hearted, common-sensical, and succinct, Sunstein's text, given its grave and demanding subject, requires readers' attentiveness. Despite the author's fair-mindedness, it's clear that his main targets are the originalist and traditionalist arguments that have recently captured the radical right and are overturning decades of settled constitutional law. Is Sunstein's interpretive scheme strong enough to halt the further advance of originalist and traditionalist thinking on the Supreme Court? Probably not. But it's a brave, muscular, and compelling roadblock now standing in the way of originalist ideologues. This book should be in the hands of every law student, constitutional lawyer, judge, and Supreme Court justice.
One of the most significant works about constitutional interpretation in recent years.
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"Sunstein, Cass R.: HOW TO INTERPRET THE CONSTITUTION." Kirkus Reviews, 1 May 2023, p. NA. Gale General OneFile, link.gale.com/apps/doc/A747342309/ITOF?u=schlager&sid=bookmark-ITOF&xid=c83179b7. Accessed 9 May 2024.
QUOTED: "it is the duty of intelligent and public-spirited citizens to seek a way out of this polarization, to find, if possible, some common ground regarding constitutional interpretation. Cass Sunstein's new book, How to Interpret the Constitution, can be understood as a contribution to this important effort."
How to Interpret the Constitution, by Cass R. Sunstein (Princeton University Press, 208 pp., $22.95)
We live in an age of extreme political polarization. That polarization runs so deep that we are even divided over how to interpret the Constitution. Conservatives insist that originalism--which seeks the meaning of the Constitution as it was understood when it was written--is the only legitimate approach. Liberals reject originalism as rule by the dead hand of the past and contend that judges should instead seek the meaning of a "living constitution," one that keeps pace with contemporary conditions and values. Worse, the two sides accuse each other of arguing in bad faith--and subverting the genuine rule of law--by using their preferred method of constitutional interpretation as mere rhetorical cover for simply getting the political outcomes that they want.
It need hardly be said that such polarization is alarming. The country is divided enough without being divided over how to interpret our fundamental law, which ought to be one of our strongest bonds of political unity. Accordingly, it is the duty of intelligent and public-spirited citizens to seek a way out of this polarization, to find, if possible, some common ground regarding constitutional interpretation.
Cass Sunstein's new book, How to Interpret the Constitution, can be understood as a contribution to this important effort. Sunstein, a professor at Harvard Law School, tries to establish a framework in which citizens can disagree reasonably and constructively about theories of constitutional interpretation. The first step toward reasonable disagreement is for all sides to acknowledge that none of them is "right" in any absolute sense. According to Sunstein, none of the contending theories can claim to be the only correct or permissible one. Therefore, he suggests, the only way to judge them is by a kind of moral pragmatism. We must ask about each theory of interpretation whether it, on the whole, makes our system of constitutional law "better" rather than "worse."
Sunstein develops this argument by drawing on the work of political theorist John Rawls. We all bring certain "fixed points"--convictions about which cases must have been correctly decided or what principles must be vindicated--to our thinking about constitutional law. We must accordingly evaluate the competing theories of interpretation against these fixed points. For example, a modern American liberal might well regard Obergefell v. Hodges (2015)--the case that established a constitutional right to same-sex marriage--as a fixed point. Such a liberal would accordingly be inclined to reject any theory of interpretation that could not recognize the legitimacy of the Obergefell decision. Of course, the liberal, like anybody else, will have many other "fixed points" that must be consulted in seeking a theory of interpretation. Therefore, we must also try to achieve a Rawlsian "reflective equilibrium," or a state in which our various judgments are in "alignment." In other words, consulting our various fixed points, we must seek a theory of constitutional interpretation that is as coherent as we can make it and that, overall, makes our constitutional system "better" instead of "worse."
Establishing these rules of engagement is Sunstein's primary purpose. But he also takes the opportunity to present his own fixed points and his own preferred approach to constitutional interpretation. Not surprisingly, Sunstein's fixed points largely overlap with the moral and political convictions of a liberal who came of age in the late 20th century and who wishes to keep up with and affirm the "progressive" developments of the early 21st century. For him, the landmark liberal Supreme Court rulings of the last several decades are to be preserved, and any theory of interpretation that threatens them is suspect. In addition, Sunstein holds that a good theory of interpretation will recognize that the meaning of the Constitution can change over time because of changes in social values. Sunstein endorses this idea because it opens the door to future progressive developments in American constitutionalism--such as the discovery of new rights that will have to be incorporated into our fundamental law.
Sunstein's book has two strengths. First, he provides a lucid and largely evenhanded account of the various theories of constitutional interpretation that contend for primacy in our discourse. We are introduced to originalism in its various forms, to "traditionalism" (informed by the thought of Edmund Burke), to Thayerism (based on James Bradley Thayer's arguments for judicial restraint), to the democracy-promoting jurisprudence of John Hart Ely, to the "moral reading" of the Constitution defended by Ronald Dworkin, to the incrementalism of common-law constitutionalism, and to the more recent "common-good constitutionalism" popularized by Adrian Vermeule. This overview is valuable, especially for the nonexpert audience to which Sunstein's book is addressed. Second, Sunstein's approach is in some ways well adapted to lessen the polarization with which we are faced. He writes in a non-polemical and even amiable tone, admitting the strengths and weaknesses of the various alternatives, striving to be fair even to the ones he disapproves.
How to Interpret the Constitution, however, fails in its main purposes. In order to defend his pragmatic approach to judging among the competing theories, Sunstein must try to refute the principled arguments in favor of originalism--arguments that originalism is the "right" or "correct" approach to constitutional interpretation. One of these arguments holds that originalism is essential to a real interpretation of any text. After all, if we are trying to interpret, say, Hamlet, we will try to find out what Shakespeare meant by the terms he chose to use in that work. Sunstein, however, denies that there is such a thing as a true nature of interpretation, or such a thing that interpretation simply "is."
His denials are unconvincing. He acknowledges that originalism is how we tend to approach ordinary communication. We want to know what the speaker meant by the words used. He further admits that seeking the original meaning of a communication makes sense in the context of a "hierarchical organization." When given instructions by a superior, we try to understand what that superior intended us to do. Sunstein insists that legal interpretation is different. He is right, of course, but not in a way that helps his argument. He overlooks the fact that law itself is a form of communication within a hierarchical organization. Law has authority because the lawmaker has authority. This is another way of saying that the lawmaker has a right to be obeyed, which is inseparable from the interpreter's duty to find out what the lawmaker originally meant by the command in question.
Another principled argument for originalism holds that it is part of "our law," or is simply the American way of constitutional interpretation. Sunstein dismisses this claim, citing numerous Supreme Court precedents from the last several decades that are admittedly not based on an originalist reading of the Constitution. Originalists, of course, know all about these rulings, regard some of them as errors, and contend that the originalist movement seeks to recover the authentic, older tradition of constitutional interpretation from which liberal justices began to depart in the last couple of generations. In response to this potential counter-argument, Sunstein says that while his book "is not the place" to do it, he believes that "we could find countless cases starting in the 1790s that are not originalist, which means that we are dealing with well over two hundred years of practice." To this the informed originalist will be tempted to reply: "Well, Professor Sunstein, could you cite just a few of these Founding-era non-originalist rulings? Or even just one?" Sunstein makes no effort to back up his remarkable claim. The serious reader will be amazed that the author tried to get away with this evasion, but it is necessary to his bemusing project of trying to give an account of American constitutional interpretation that is based on following John Rawls while ignoring John Marshall.
Sunstein's pragmatic, consequentialist critique of originalism is no more persuasive. He suggests a variety of frightening, regressive outcomes that originalism might yield in the fields of civil rights and civil liberties. Even if we grant, for the sake of argument, that originalism could not justify the liberal precedents that Sunstein cherishes as "fixed points," it does not follow that America would today be an illiberal hellscape if originalism had prevailed all along, since in America public policy is not made primarily by the Supreme Court. Is it likely that the nation that enacted the 1964 Civil Rights Act would have persisted in segregating its public schools? Is it likely that the nation that passed the 19th Amendment would have continued to exclude women from the professions? Is it likely that, in a nation that embraced sexual liberation, state governments would have continued to enforce bans on contraception? The answer to these questions is obvious. Like many liberal intellectuals, Sunstein claims to be a proponent of democracy while at the same time seriously doubting the ability of the voters to govern in a sensible and humane manner without close judicial supervision.
In addition, Sunstein's approach to choosing among the competing theories of interpretation is subject to grave problems. If judges are not bound by the original meaning of the Constitution, if they are free to choose whatever theory of interpretation comports with their own opinion about what would make our system "better," then why wouldn't that same freedom exist for other actors in relation to other legal documents? May judges choose a theory of interpretation that they think makes the system "better" when they interpret statutes, or contracts, or wills? May lower-court judges exercise this freedom when they are called upon to interpret the rulings of the Supreme Court? May executive-branch officials pursue this path with, say, court orders, instead of trying to figure out what the court actually meant by them? These questions will occur to any thoughtful reader, and Sunstein makes no serious effort to address them.
Although Sunstein treats originalism with a certain respect, he clearly views its ascendancy today as a threat to his own "fixed points." Accordingly, he is strenuous in his attempts to rule out its principled claims, boldly asserting more than once that his own pragmatic approach is "the only game in town." His arguments, however, fall apart on careful examination; and their failure points indirectly but inexorably to the conclusion he wishes to avoid. For those who are interested in fidelity to the Constitution, originalism is "the only game in town."
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Holloway, Carson. "Fundamentally Divided." National Review, vol. 75, no. 22, Jan. 2024, pp. 59+. Gale General OneFile, link.gale.com/apps/doc/A775003480/ITOF?u=schlager&sid=bookmark-ITOF&xid=de7cdafa. Accessed 9 May 2024.
QUOTED: "Sunstein carries the novice reader across this difficult terrain without simplifying the subject. ... This book is an education."
How to Interpret the Constitution
BY CASS R. SUNSTEIN. Princeton University Press, 2023, 208 pp.
Sunstein has produced an extraordinary work that manages to be challenging but accessible to both specialists and nonlawyers. Its core idea is that because the U.S. Constitution offers no instructions for its own interpretation, citizens and judges must choose among many possible theories of interpretation (for instance, traditionalism, originalism, and common-good constitutionalism) to discover its meaning beyond the bare bones of the text. The only way to choose, he argues, is to depart from the text to define certain "provisional fixed points," that is, moral and political judgments that are "both clear and firm" and then ask whether the application of a particular theory would preserve the most important of these fixed points. For instance, at this stage in the country's evolution, a theory that allowed the government to discriminate on the basis of race or sex would not be acceptable and could be dropped from consideration. A theory must also be jettisoned if it flies in the face of the realities of life in the United States measured from the highest level of generality down to specific cases. Further, because the United States is a deliberative democracy, popular preference is not sufficient grounds for choosing one theory over another: it must be justified by reasons. Sunstein carries the novice reader across this difficult terrain without simplifying the subject and manages to let his own passionate views shine through without shortchanging others. The book is an education.
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Copyright: COPYRIGHT 2024 Council on Foreign Relations, Inc.
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"How to Interpret the Constitution." Foreign Affairs, vol. 103, no. 1, Jan.-Feb. 2024, p. 188. Gale General OneFile, link.gale.com/apps/doc/A777524063/ITOF?u=schlager&sid=bookmark-ITOF&xid=0ab09ee9. Accessed 9 May 2024.
QUOTED: "This book is not ... another list of biases, fallacies, and other disasters of human judgment. Instead, there is a compelling inner logic, moving from analysis and diagnosis to intervention and application."
Noise: A Flaw in Human Judgment
By Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein. New York: Little, Brown Spark, 2021.454 pp. Hardcover, S32.
The river is 5 feet deep, on average.
--Last words of a 6-ft-tall man before drowning, paraphrased after Howard Marks
With Noise, Kahneman, Sibony. and Sunstein (KSS) have produced a book of practical relevance lor business organizations, the law, and the rest of us. This book is not, as I first feared it might be, another list of biases, fallacies, and other disasters of human judgment. Instead, there is a compelling inner logic, moving from analysis and diagnosis to intervention and application. With this structure, Noise has the feel of an engineering text or a manual for practice. The first two sections are rather atheoretical. Indeed, how can one have a good theory of randomness if noise is what is left after all the systematic, and theoretically explicable, components of variation have been removed? Whether anything can even be truly random is a question on which mathematicians disagree (Promel, 2005). KSS's approach is to move methodically through the mechanics of psychometric analysis and variance partitioning to isolate noise, that is, randomness we are unable to explain. They then show how, even if it cannot be explained, this residue can be tamed with the aid of audits, rules, and repeated judgments. Et voila, less noise and better judgments! The narrative becomes livelier in the third section, where KSS illustrate the dangers of noise pollution with examples from the legal environment and the world of business strategy. A psychological factor of concern is the widespread underestimation of the magnitude of noise and the common resistance to reducing it with the cold fingers of science and bureaucracy (Moore, 2020). KSS take these kinds of resistance seriously and acknowledge their partial validity. They do not propose a grand resolution, which may not be achievable in principle anyway. Human judgment, with its biases and errors, will continue to be with us, but perhaps it can be civilized. So, in the end, Noise is a significant book because it goes beyond diagnosing what is deplorable in human judgment; it also offers guidelines for what to do about it. In this review, I highlight some of Noise's main points and then explore some of the adaptive uses of noise, which KSS acknowledge but do not emphasize.
The Shooter Takes Aim
To set the stage, KSS discuss target practice. A shooter aims at a target and produces a cloud of bullet holes around the bull's eye with a slight overall displacement to the right. The bull's eye is the true value, 7: the difference between the average of the holes and T is the bias, b: and the remaining dispersion is the error, e, or noise proper. The holes, or judgments, can be modeled as f = T+ b + e, and the mean squared error (MSE) between f and Torn be decomposed into the MSE of b and the MSE of e. To make this scenario one-dimensional and numerical, suppose T= 10 and the judgments are 8,10,12,14, and 16. The total MSE = 12, which is the sum of MSE b = 4 and MSE e = 8. Averaging the individual estimates eliminates noise and brings the bias into focus. Accuracy is improved even if the distribution of f does not bracket T. If absolute differences between f and Tare used, accuracy will not improve without bracketing, but it will not deteriorate either (Larrick, Mamies, & Soil, 2012). Hence, when there is a T that is in principle knowable, there is no excuse for not producing multiple aggregablejudgments. Many humanjudgments are one-time affairs, but the wisdom of the crowd has taught us that even individual judges can benefit from estimating a quantity or an intensity repeatedly and then taking the average of their own judgments (Herzog & Hertwig, 2009; Krueger & Chen, 2014). This works if Tis not only an algebraic element in the modeling of f but also a causal force that pulls f toward itself. In other words, aggregated judgments are better than individual judgments as long as at least one of the individual judgments contains a bit of valid information.
Most statistical modeling of this sort begins with the assumption ofindependence, which means that what KSS call occasion noise is a random distribution off, where no r can be predicted from any other. not even from the one that just preceded it. The assumption of independence is often violated in the real world.Judges remember their last estimates, and they might either double down and repeat them or deliberately produce estimates that are vastly different from the earlier ones. In the former case, these judges might be praised for their noiseless efforts, or they might be faulted for tumbling down their own judgmental cascade (Krueger & Massey, 2009). In the latter case, judges might be faulted for the extra noise they are creating, or they might be lauded for creating partially independent estimates, which help the discovery of T after aggregation. Only an audit. preferably one with access to truly independent estimates or T itself, can settle this issue. The deliberate reduction or amplification of noise may thus be beneficial or detrimental depending on circumstances. To know which it is, additional efforts are needed.
The Loss of T
The true value Tin any judgment task plays a paradoxical role in psychological science. If 7 is known, we can model judgment and study the components of its lack in accuracy. In the shooter vignette, we know where the bull's eye is; we just want to see how well we can hit it. Here, noise is the expression of a trembling hand. In estimation tasks, noise is the expression of a trembling mind. If Tis unknown. the battle against noise can proceed as before, but the size of the bias remains unknown. Noise reduction yields improvements but no indication of how much improvement there is relative to the remaining error due to bias. KSS note that often we face objective ignorance, because there are limits to what can be known.
When T is unknown or unknowable, human values often fill the void. Reviewing evidence from medicine, organizations, and the law, KSS document dramatic, even scandalous volumes of noise in the judgments made by presumed respect experts, that is, credentialed people who arc supposed be able to make accurate and reliable judgments. Again, however, these judges' overconfidence, illusions of validity, and the overblown respect paid to them by an awed audience obscure many of their inaccuracies. KSS apply dieir methods of noise reduction in this context as well.Judges themselves can be modeled statistically (Goldberg, 1970). Simple, even improper linear models perform better than the judges and their trembling minds (Dawes, 1979). Judgments can be audited for noise with die help of other judges or observers and with the use of rankings and comparisons with odier, even hypothetical cases. Beyond simple spreadsheet models loom algorithms capable of deep learning and pattern detection. If nothing else, these algorithms raise the specter of a twilight of human judgment. Yet KSS reassure readers not to worry too much. Accurately forecasting the limits of such algorithms is itself a hard problem. One is tempted to consult a panel of experts and aggregate their predictions.
The loss of T is particularly apparent, and troublesome, in the domain of judicial decision making. What is the proper sentence for second-degree murder? KSS note the horrendous between- and even within-judge noise in such decisions and the ongoing battle over binding sentencing requirements. When Tis missing, the issue is not accuracy but procedural justice and fairness. The Achilles heel of the noise reduction argument is that great reliability can come with great injustice. Religiously inspired justice may be highly consistent but draconian. Would one want to live in a society where a convicted murderer gets an unpredictable sentence of either a 5-year prison term or a beheading, or would one prefer a society where every convicted murderer is beheaded? When estimates of Tare averaged, shrinking noise indicates growing accuracy. However, when diverse value judgments are averaged, a political dimension asserts itself. When a majority view is invested with power, the dissenters have grounds to complain that dieir values are being spurned and their interests ignored. In an earlier book, Sunstein (2005) discussed the value of dissent for a healthy society. When dissent reduces to noise, however, it runs the risk not only of not being heard but also of admitting adverse material consequences. KSS are aware of these dangers, but being squarely focused on the war on noise, their exploration of these issues is rather tentative.
To make the case for the reduction ofjudgment noise by mechanical and statistical means is to vote for a greater bureaucratization of life. It is a commitment to one horn of Weber's dilemma. Weber (1922/1968) saw bureaucracy as a key to modernity. At its best, a bureaucracy provides a set of rational processes and applies them fairly. At its worst, a bureaucracy subjects a population to a yoke of arbitrary demands. But even at its best, a bureaucracy creates what Weber called an iron cage. It limits, by design, the human freedom to err.
I will not attempt to defend the freedom to err on scientific grounds because I do not know how to separate the facts from the values, but I will point to some heuristic advantages. The first argument we have already seen. Often, we need to create more estimates, accept the errors they bring, and then take advantage of averaging. Merely repeating the first estimate yields a false consistency. If Dom bets on heads and I bet on tails when flipping a coin, one of us must be wrong. However, it is also clear that one of us will win. If we both bet on heads, either we are both wrong or we are forced to split the purse. The second argument is foraging, an activity nature demands of creatures so they can survive when food gets scarce in the familiar patch. To find new fertile ground, animals have to engage in noisy exploration (Stephens, Brown, & Ydenberg, 2007). For the third argument, I lean on Messrs. Dostoevsky and Cockcroft. Dostoevsky repeatedly--although exact references escape me--expressed a rcactant attitude (Brehm, 1966) to behaving predictably. Even if it could be shown that behavior X yields the greatest rewards, he asserted, he would choose behavior Y. To Dostoevsky. the escape from being predictable was the refuge of freedom. George Cockcroft, under the pen name Luke Rinehart, wrote The Dice Man (1971), a talc of a man who did what the dice told him. The Dice Man's contribution was to select options and to assign a probability to each: after that, he rolled the dice and obeyed their verdict (Krueger, 2010). Bizarre as this strategy may sound, it makes a provocative point. Cockcroft satirized the psychotherapeutic fads of his day, where sufferers were assured that they carried true values, desires, motives, and capabilities within themselves and that theirjob was to discover and act on them. They had to find out who they truly were and what they truly wanted. In other words, they were challenged to discover their Ts. Cockcroft thought this was oppressive nonsense (for a recent critique of the deep mind hypothesis, see Chater, 2018, reviewed by Massaro, 2019). Cockcroft proposed that a richer life can be lived if multiple 7s are brought forth and acted upon. What looks like error, on this view, is spicy variety.
Three Random Remarks
Let us close with three critical notes on this generally impressive book. First, KSS favor rankings over absolute ratings, mainly because rankings force the judge to take an outside view by making interstimulus comparisons. The use of rankings abandons the standard psychometric equation of f = T + b + e. Unreliability may survive in the form of low correlations between sets of rankings, but the errors associated with individual ranks are no longer independent. Any information about the underlying range of scores is lost. If retest reliability coefficients are low, one suspects a restricted range. In the performance evaluation domain, for example, rankings ensure that 20% of the cases will fall into the lowest quintile irrespective of the overall level of accomplishment. Being suppressed by a rigid bureaucratic algorithm, these cases (i.e., people) have cause to complain.
Second, the call for repeated judgments and interstimulus comparisons sounds like a tribute to repeated-measures research designs. It is thus not without irony that Kahneman and colleagues have for decades favored single-shot, between-subject research designs to document the poverty of human judgment. Would the story of human cognition be more hopeful than the one told in Thhiking, Fast and Slow (Kahneman, 2011) if the human subjects had been given better opportunities to de-noise themselves (cf. Schulze & Hertwig, 2021)?
Third, what may be said for human thinking once the mechanical processes of error reduction have been deployed? If averaging is not thinking because a dead mechanism can achieve the result, and if noise is irreducible randomness, what is left? KSS offer no theory of cognition. In their hands, human thought is rather like the god of the gaps in apophatic theology: a master of a shrinking domain. The question of what mechanical models are missing has been asked for generations. Roger Penrose (1994), for example, argued that Godel's incompleteness theorem entailed that human minds can never be fully modeled as machines. It may be disappointing to note that something is missing without being able to show what it is that is missing. It is even more disappointing, however, to pretend that the story is complete.
Joachim I. Krueger
Department of Cognitive, Linguistic & Psychological Sciences
Brown University
190 Thayer St.
Providence, RI 02912
Email: Joachim_Krueger@Brown.edu
REFERENCES
Brehm,J. W. (1966). A theory of psychological reactance. Academic Press.
Chater, N. (2018). The mind is flat: The remarkable shallowness of the improvising brain. Yale University Press.
Dawes, R. M. (1979). The robust beauty of improper linear models in decision making. American Psychologist, 34, 571-582.
Goldberg, L. R. (1970). Man versus model of man: A rationale, plus some evidence, for a method of improving on clinical inferences. Psychological Bulletin, 73, 422-432.
Herzog, S. M., & Hertwig, R. (2009). The wisdom of many in one mind: Improving individual judgments with dialectical bootstrapping. Psychological Science, 20, 231-237.
Kalmeman, D. (2011). Thinking, fast and slow. Farrar, Straus & Giroux.
Krueger,J. I. (2010). Beyond free will and determinism: Take a chance with the Dice Man. Psychology Today Online. https://www.psychologytoday.com/us/blog/one-among-many/201009/beyond-free-will-and-determinism
Krueger, J. I., & Chen, L.J. (2014). The first cut is the deepest: Effects of social projection and dialectical bootstrapping on judgmental accuracy. Social Cognition, 32, 315-335.
Krueger, J. I., & Massey, A. L. (2009). A rational reconstruction of misbehavior. Social Cognition, 27, 785-810.
Larrick, R. P., Mannes, A. E., & Soil, J. B. (2012). The social psychology of the wisdom of crowds. In J. I. Krueger (Ed.), Social judgment and decision making (pp. 227242). Psychology Press.
Massaro, D. (2019). The richness of flatness. American Journal of Psychology, 132, 378-382.
Moore, D. A. (2020). Perfectly confident. HarperCollins.
Penrose, R. (1994). Shadows of the mind: A search for the missing science of consciousness. Oxford University Press.
Promel, H.J. (2005). Complete disorder is impossible: The mathematical work of Walter Deuber. Combinatorics, Probability and Computing, 14,3-16.
Rinehart, L. (1971). The Dice Man. Overlook Press.
Schulze, C, & Hertwig, R. (2021). A description-experience gap in statistical intuitions: Of smart babies, risk-savvy chimps, intuitive statisticians, and stupid grown-ups. Cognition, 210. https://doi.org/10.1016/jxognition.2020.104580
Stephens, D. W., Brown, J. S., & Ydenberg, R. C. (2007). Foraging: Behavior and ecology. University of Chicago Press.
Sunstein, C. R. (2005). Why societies need dissent. Harvard University Press.
Weber, M. (1968). Economy and society. Bedminster Press. (Originally published in German, 1922)
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"TWILIGHT OF HUMAN JUDGMENT." American Journal of Psychology, vol. 135, no. 30, fall 2022, pp. 347+. Gale General OneFile, link.gale.com/apps/doc/A757714082/ITOF?u=schlager&sid=bookmark-ITOF&xid=aa251c24. Accessed 9 May 2024.
Daniel Kahneman, Olivier Sibony and Cass R. Sunstein: Noise: a flaw in human judgment Little, Brown Spark, 2021
Teams of friends visit a shooting range. All the shots of team B are below and to the left of the bullseye. The shots of team C are scattered all over the target. Team B demonstrates bias. Team C illustrates noise.
With this metaphor, Daniel Kahneman, Olivier Sibony, and Cass Sunstein (KSS) begin their new, much anticipated, book. Kahneman's Thinking Fast and Slow and Sunstein's Nudge (written with Richard Thaler) have both been bestsellers. Perhaps the authors should have rested on their laurels.
The central argument of Noise is that the metaphor of the target at the shooting range has wide application. The world is one of bullseyes waiting to be hit. Decision problems have correct answers, but fallible humans do not find them. Their actions suffer from bias and noise.
Thus, Noise is a logical extension of Kahneman's approach to behavioural economics. That subject began in the 1950s as a critique--led by the French Nobel Prize winner Maurice Allais--of economists' models of rational behaviour. Under the leadership of Kahneman and his late colleague Amos Tversky, behavioural economics became a critique of people for failing to conform to the axioms which had been deemed to define "rationality". If the models did not describe the world, the deficiencies lay not in the models but in the world, and it is to the model not the world to which we must conform.
The precepts of the new school of behavioural economics were supported by the results of multiple experiments in which students earned a few dollars by participating in experiments conducted in the basements of prestigious universities. The students failed to give the answers predicted by the models that the professors had taught them; the professors, in turn, generated publications by discovering this failure. That failure was, of course, the fault of the students. Even the cream of American youth suffered from 'biases'.
Now we learn that their bias is aggravated by noise. Worse still, it is not only students whose decisions are 'noisy'. Judges, insurance underwriters, teachers, doctors, and recruiters--all of their decisions are blighted by noise. How, one might wonder, can such inadequate beings have reached the moon, built cities, and flown around the world? To pose that question takes us to the heart of the matter--the bullseye, perhaps. At the shooting range, we know immediately whether we have hit the target. In the real world, few problems have identifiably correct answers--and mostly, we do not know what the correct answer was even after firing our gun. We didn't fail to reach the moon before 1969 because earlier generations had aimed at it and missed. Reaching the moon was the result of an extended process of accumulating scientific and engineering knowledge, much of it through small-scale trial and error.
The limitations of the metaphor of the bullseye emerge in the two signature examples employed by KSS--judicial decision-making and insurance underwriting. There is no right answer to the question 'what prison term should be imposed on convicted criminal XT The goals of sentencing are multiple--deterrence, retribution, reform, and denying X the opportunity to offend again. Different societies, the same society at different times, and--yes--different judges will attach different weights to each of these factors.
The resulting divergences are not simply ones of taste--I prefer raspberry jam, while you like strawberry. Value pluralism--the fundamental incommensurability of competing values described by Isaiah Berlin--necessarily entails different and wholly legitimate balances of judgement more profound than differences of preference. The existence of such divergences does not demonstrate that Judge A made a mistake in imposing on X a sentence different from the one Judge B might have determined. Nor is there reason to attach any special weight to the average sentence of all judges who might have determined the case of X. Despite a rather strange but lengthy passage, KSS appear not to recognise that the mean minimises the error in noisy judgements only because they have chosen to define error as the mean square error of deviations from the mean.
Of course, it is intolerable forjudges to be more severe before lunch than after it, although the story of harsh, hungry judges did not survive further scrutiny (Weinshall-Margel and Shapard 2011). Most judges are careful, conscientious people who have achieved office by persuading their peers that their views are worthy of respect. Judges receive training and exchange views and experiences, and senior members of the judiciary participate in the construction of sentencing guidelines. This does not mean they reach the 'right' answer in any particular case, although everywhere there is provision for reviewing answers that are egregiously wrong. The common law of Anglo-American jurisdictions, which emphasises precedent while accommodating evolution, is an exemplar of what the anthropologist Joe Henrich (2016) has described as 'the secret of our success'--the collective intelligence which is the product of accumulated social learning. We no longer burn witches because of a developed moral sensitivity that regard it as wrong to burn any offenders, whatever their crime, and a better scientific understanding that teaches us that social evils are not the result of witchcraft. We think our morals are better and we know that our science is better. And the outcome--different judgements--is not a "flaw", but a mark of progress.
And so, there are two reasons why judges will not be replaced by algorithms. KSS quote thoughtful outgoing Supreme Court Justice Stephen Breyer on the difficulty of setting sentencing guidelines other than on the basis of past judgements (Rosen 1994): 'Why didn't the commission sit down and really go and rationalise this thing and not just take history? The short answer to that is that we couldn't. We couldn't because there are such good arguments all over the place pointing in opposite directions.' (The reader might wonder whether this is also true for central bankers.)
Thus, there is no agreement, and no reason why there should be agreement, on the content of the sentencing algorithm. It is plainly useful forjudges to know what other judges have done in similar circumstances, but also necessary to modify and develop the historic consensus in the light of fresh experience, changing social norms, and the particular circumstances of a case. A strictly algorithmic judge, deprived of discretion, would still be implementing the law of Hammurabi.
The second weakness of the judicial algorithm is that the robotically delivered verdict of an impersonal computer does not accord with general conceptions of justice. Our society's respect for human dignity requires that everyone is treated as an individual. In the words of the American legal scholar Laurence Tribe (1971), 'tolerating a system in which perhaps one innocent man in a hundred is erroneously convicted despite each jury's attempt to make as few mistakes as possible is in this respect vastly different from instructing a jury to aim at a 1 % rate (or even a 0.1 % rate) of mistaken convictions'. When the covid pandemic prompted England's examining boards to replace human assessment with algorithms, the noise of an angry public forced the Education Secretary to abandon the scheme within days of the announcement of the results and effectively ended his political career.
While sentencing offenders is a public sector monopoly, insurance is provided by private companies in a competitive market, and the dynamics of the evolution of collective intelligence reflect that difference. We do not know the 'correct' premium for any idiosyncratic risk, even at the maturity of the policy. Different underwriters will arrive at different judgements. Customers will shop around so that there is a potential 'winner's curse'--the business you get is likely to be the business you have underpriced. Thus, even if you thought you knew all the relevant outcomes and their probabilities, you would be unwise to base your premium on that information alone. You need to understand your competitors and your clients, as well as the range of insurable events. It is not an accident that insurers and other financial markets are clustered--'the room' at Lloyds is at the centre of the City of London's insurance market and there is similar physical proximity and information exchange in reinsurance centres such as Munich and Zurich.
Good underwriters outperform bad underwriters, and insurance companies that select, train, and promote good underwriters outperform their competitors. In this way, market pressures contribute to the development of the collective intelligence in risk assessment that has grown over the centuries since English gentlemen gathered in Thomas Lloyd's coffee house to gamble on the fate of ships.
And social learning and markets will continue to advance such collective intelligence--unless KSS arrive with their noise audits, checklists, and algorithms. The major financial crisis of our times occurred, in part, because bankers and their regulators wrongly believed that the judgement of experienced bankers should be replaced by scientific risk models derived from historic data, which had been rendered irrelevant by the banking practices that the models had supposedly validated.
Much of what KSS describe as 'decision hygiene'--structure your assessments, seek different independent views--is sensible if hardly path-breaking. But just as much as behavioural economics fails to recognise that what are described as 'biases' are often adaptive responses to radical uncertainty, KSS fail to recognise that the differences in subjective judgements of complex situations--'noise'--are not only inevitable, but are desirable means of advancing our collective knowledge and intelligence. The Darwinian insight that an element of randomness is the means by which evolution allows people and cultures to adapt to changing, complex environments illuminates almost every aspect of life. Perhaps noise is not 'a flaw in human judgement', but is 'the secret of our success'.
https://doi.org/10.1057/s11369-022-00251-w
Published online: 7 February 2022
References
Henrich, Joseph. 2016. The Secret of Our Success: How Culture Is Driving Human Evolution, Domesticating Our Species, and Making Us Smarter. Princeton: Princeton University Press.
Rosen, Jeffrey. 1994. Breyer Restraint. The New Republic July 11.
Tribe, Lawrence H. 1971. Trial by Mathematics: Precision and Ritual in the Legal Process. Harvard Law Review 84 (8): 1329-1393.
Weinshall-Margel, Keren and Shapard, John. 2011. Overlooked factors in the analysis of parole decisions. Proceedings of the National Academy of Sciences of the United States of America 108 (42): E833
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John Kay (1)
[mail] John Kay johnkay@johnkay.com
(1) St John's College, University of Oxford, Oxford, UK
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Kay, John. "Daniel Kahneman, Olivier Sibony and Cass R. Sunstein: Noise: a flaw in human judgment." Business Economics, vol. 57, no. 2, Apr. 2022, pp. 86+. Gale General OneFile, dx.doi.org/10.1057/s11369-022-00251-w. Accessed 9 May 2024.
NOISE
A flaw in human judgement
DANIEL KAHNEMAN, OLIVIER SIBONY AND CASS R. SUNSTEIN
454pp. William Collins. 25 [pounds sterling].
Two teams fire shots at two targets. One team's shots are clustered to the left of the bullseye; the other's are scattered at random nowhere near it. The first team's shooting can be said to be biased (perhaps their gun has a faulty sight), but the second team's problem is different. The distribution of their rounds is "noisy": they are simply not very good shots.
The psychologist Daniel Kahneman has built a Nobel prizewinning career on illustrating that, in terms of our judgement and decision-making, humans can't hit the side of a barn with a handful of gravel. Thinking, Fast and Slow (2012) was an engaging summary of his life's work to date. For Noise, he has teamed up with Olivier Sibony, a professor of strategy and business policy, and the legal scholar Cass R. Sunstein, the author or co-author of more than 1.6 books per year since 1990, including the bestselling Nudge: Improving decisions about health, wealth, and happiness (2008).
Perhaps the most egregious example of noisy decisions is criminal sentencing. Punishment depends on the judge's overall leniency, extraneous factors such as mood (do your best to be sentenced after lunch), and any interaction between the judge and the case in question (does the defendant look like the judge's daughter?). There is no such thing as a "correct" sentence for a given crime, but a good approximation would be the average sentence expected--sufficient noisy unbiased shots will in a statistical sense define the bullseye. The judges, though, must make their decisions independently. If they are allowed to confer, social conformity will come into play and bias will be amplified--people in meetings tend, among other perils, to agree with the person who speaks first.
The authors discuss a panoply of endeavours afflicted by noise, including business, medicine and forensics, with the aim of helping us make consistent clear-eyed decisions. Although no one told the blurb-writers, they also acknowledge that Noise is not news. Judge Marvin Frankel identified the sentencing problem in 1973, and the hazards of group decision-making are covered at Psychology A-Level. So why 400 pages on the matter now? Perhaps there really has been a disaster in communication which this book will help to rectify; or perhaps people simply value a sense of agency above justice, efficiency or being right. Either way, self-help sells. Kahneman et al contend that "good decision making must be based on objective and accurate predictive judgements that are completely unaffected by hopes and fears, or by preferences and values". The kindest course of action is probably to wish them luck.
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Raymond, Josh. "NOISE A flaw in human judgement." TLS. Times Literary Supplement, no. 6175, 6 Aug. 2021, p. 24. Gale General OneFile, link.gale.com/apps/doc/A672006136/ITOF?u=schlager&sid=bookmark-ITOF&xid=e6f6fd4f. Accessed 9 May 2024.
NOISE IS UNWANTED variation in judgments that should be identical, which leads to inaccurate and unfair decisions. It is all around people all the time, though individuals fail to notice it. To get a sense of how it happens, perform a "noise audit" right now: open your phone's stopwatch app and practice counting ten seconds. Now, with your eyes closed, count several times, hitting the lap button each time you believe ten seconds have elapsed.
Your answers weren't perfect but noisy: slightly above or below the ten-second mark. And if they were consistently wrong in one direction, then there is bias too, which is a different form of error (you counted too quickly or slowly).
The problem of bias in decisions is well known and there are strategies that people can adopt to minimise it. For example, customers may be "anchored" on the first price they are presented with in a transaction, so they learn to consciously discard it before they negotiate. But noise is different precisely because it is less apparent. "It becomes visible only when we think statistically about an ensemble of similar judgments. Indeed, it then becomes hard to miss," Daniel Kahneman, Olivier Sibony and Cass Sunstein write in their new book.
The divergences are stark. In a courthouse in Miami, one judge would grant refugees asylum in 88% of cases while another would do so 5% of the time. A large study of radiologists found that the false-positive rate ranged from 1% to 64%, meaning that two-thirds of the time, a radiologist said a mammogram showed cancer when it was not cancerous. Doctors are more likely to prescribe opioids at the end of a long day. Judges made harsher decisions leading up to their breaks and on hotter days. An insurance firm's underwriters assessed premiums that varied by 55%, a difference that was five times greater than its management had imagined.
Not only do individuals differ with their peers, they often fail to agree with themselves. Wine experts tasting the same samples for a second time scored fewer than one in five identically. Four out of five fingerprint examiners altered their original identification decision when presented with contextual information that should not have been a factor in matching prints. In one medical study, assessing angiograms, physicians disagreed with their earlier judgments more than half the time.
Noise is sometimes good. When different investors size up a trade or book reviewers reach different assessments, the diversity of opinion is beneficial. But more commonly it creates problems. In law noise means unfairness. In business it can be costly.
Yet it can be reduced. The authors' remedies include a "noise audit" to measure the degree of disagreement on the same cases, to quantify the variation that is usually invisible. They also call for better "decision hygiene" such as designating an observer for group decisions, to prevent common biases and noisy judgments. For example, they can ensure that participants in a team reach independent assessments before coming together as a group to aggregate their decisions.
Another solution is to dispense with people altogether. Statistical models, pre-determined rules and algorithms in many cases are more accurate than human judgment. The authors welcome artificial intelligence to make many decisions in society, but acknowledge that people are predisposed to resisting their answers, for lack of the personal, emotional quality in decision-making--even if it leads to inferior, or at least variable, decisions.
The trio speaks with credibility. Mr Kahneman is a Nobel laureate whose ideas on bias in human reasoning have reshaped economics and society; Mr Sunstein is a polymath scholar at Harvard and occasional government official putting his ideas into policy; Mr Sibony is a former McKinsey partner who teaches decision science at a French business school. Yet despite the book's title, the authors struggled to extract the signal from the noise, so to speak, needing some 400 pages to make their case. A tighter argument would have enhanced the ideas they present.
Noise.
By Daniel Kahneman, Olivier Sibony and Cass Sunstein.
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"Noise pollution; Decision-making." The Economist, 5 June 2021, p. 72(US). Gale General OneFile, link.gale.com/apps/doc/A663958476/ITOF?u=schlager&sid=bookmark-ITOF&xid=8f7c811b. Accessed 9 May 2024.
QUOTED: "Noise is about how our most important institutions can make decisions that are more fair, more accurate and more credible. That its prescriptions will not achieve perfect fairness and credibility, while creating pitfalls of their own, is no reason to turn away from this welcome handbook for making life's lottery a lot more coherent."
NOISEA Flaw in Human JudgmentBy Daniel Kahneman, Olivier Sibony and Cass R. Sunstein
A study of 1.5 million cases found that when judges are passing down sentences on days following a loss by the local city's football team, they tend to be tougher than on days following a win. The study was consistent with a steady stream of anecdotal reports beginning in the 1970s that showed sentencing decisions for the same crime varied dramatically -- indeed scandalously -- for individual judges and also depending on which judge drew a particular case.
A study at an oncology center found that the diagnostic accuracy of melanomas was only 64 percent, meaning that doctors misdiagnosed melanomas in one of every three lesions.
When two psychiatrists conducted independent reviews of 426 patients in state hospitals, they came to the equivalent of a tossup: agreement 50 percent of the time on what kind of mental illness was present.
When a large insurance company, concerned about quality control, asked its underwriters, who determine premium rates based on risk assessments, to come up with estimates for the same group of sample cases, their suggested premiums varied by an eye-popping median of 55 percent, meaning that one adjuster might have set a premium at $9,500 while a colleague set it at $16,700.
Doctors are more likely to order cancer screenings for patients they see early in the morning than late in the afternoon.
If employers rely on only one job interview to pick a candidate from among a similarly qualified group, the chances that this candidate will indeed perform better than the others are about 56 percent to 61 percent. That's ''somewhat better than flipping a coin, for sure,'' the authors of ''Noise'' write, ''but hardly a fail-safe way to make important decisions.''
In a study of the effectiveness of putting calorie counts on menu items, consumers were more likely to make lower-calorie choices if the labels were placed to the left of the food item rather than the right.
''When calories are on the left, consumers receive that information first and evidently think 'a lot of calories!' or 'not so many calories!' before they see the item,'' Daniel Kahneman, Olivier Sibony and Cass R. Sunstein explain in this tour de force of scholarship and clear writing. ''By contrast, when people see the food item first, they apparently think 'delicious!' or 'not so great!' before they see the calorie label. Here again, their initial reaction greatly affects their choices.'' This hypothesis is supported, the authors write in a typically clever aside, by the ''finding that for Hebrew speakers, who read right to left, the calorie label has a significantly larger impact if it is on the right rather than the left.''
These inconsistencies are all about noise, which Kahneman, Sibony and Sunstein define as ''unwanted variability in judgments.''
Sometimes we treasure variability -- in artistic tastes, political views or picking friends. But in many situations, we seek consistency: medicine, criminal justice, child custody decisions, economic forecasts, hiring, college admissions, fingerprint analysis or business choices about whether to greenlight a movie or consummate a merger.
Consistency equals fairness. If bias can be eliminated and sensible processes put in place, we should be able to arrive at the ''right'' result. Lack of consistency too often produces the wrong results because it's often no better, the authors write, than the random judgments of ''a dart-throwing chimpanzee.'' And, of course, unexplained inconsistency undermines credibility and the systems in which those judgements are made.
As the authors explain in their introduction, a team of target shooters whose shots always fall to the right of the bull's-eye is exhibiting a bias, as is a judge who always sentences Black people more harshly. That's bad, but at least they are consistent, which means the biases can be identified and corrected. But another team whose shots are scattered in different directions away from the target is shooting noisily, and that's harder to correct. A third team whose shots all go to the left of the bull's-eye but are scattered high and low is both biased and noisy.
Despite its prominence in so many realms of human judgment, the authors note that ''noise is rarely recognized,'' let alone counteracted. Which is why the parade of noise examples that the authors provide are so compelling, and why gathering the examples in one place to demonstrate the cost of noise and then suggesting noise reduction techniques, or ''decision hygiene,'' makes this book so important. We are living in a moment of rampant polarization and distrust in the fundamental institutions that underpin civil society. Eradicating the noise that leads to random, unfair decisions will help us regain trust in one another.
''Noise'' seems certain to make a mark by calling attention to the problem and providing a tangible guide to reducing it. Despite the authors' intimidating academic credentials, they take pains to explain, even with welcome redundancy, their various categories of noise, the experiments and formulas that they introduce, as well as their conclusions and solutions.
Some decision hygiene is relatively easy. ''Occasion noise'' -- the problem of a judge handing out stiffer sentences depending on whether a favorite sports team won or lost or whether it's before or after lunch (yes, studies have found that, too) -- can, like bias, be recognized during a ''noise audit'' and presumably dealt with. ''System noise,'' in which insurance adjusters, doctors, project planners or business strategists assess the same facts with that unfortunate variability, requires a more energetic decision hygiene.
However, as the authors point out, the steps of decision hygiene -- like those of common hygiene, such as washing hands -- ''can be tedious. Their benefits are not directly visible; you might never know what problem they prevented from occurring.''
One example of effective decision hygiene has to do with the Apgar score, which looks at the overall health of newborns. Doctors score the baby on five criteria ranging from appearance of its skin to its heart rate, with scores of zero to two for each category. If the scores, once added up, arrive at a seven or higher, the baby is considered to be in good health.
''The Apgar score exemplifies how guidelines work and why they reduce noise,'' the authors explain. ''Unlike rules or algorithms, guidelines do not eliminate the need for judgment: The decision is not a straightforward computation. Disagreement remains possible on each of the components and hence on the final conclusion. Yet guidelines succeed in reducing noise because they decompose a complex decision into a number of easier subjudgments on predefined dimensions.''
Another compelling example of ''decomposing'' a decision involves a case study of a corporate merger decision. Rather than the bankers and executive team giving the company's board the usual pro or con presentation, the C.E.O. first tasked various senior executives to come up with their assessments on seven aspects of the merger, ranging from talent of the team to be acquired to the possible financial benefits. Importantly, there were separate teams working on each aspect, so that their judgment was not colored by positive or negative noise emanating from another verdict, falling into the trap of what the authors call ''excessive coherence.''
It's also for that reason that none of four people interviewing a job candidate should know what their colleagues' opinions are until they write down their own.
In other arenas, such as insurance underwriting, ''Noise'' does lean more toward establishing hard and fast rules and even using algorithms, which the authors assert should, in theory, ''eliminate noise entirely.'' However, they acknowledge that the way information gets entered into algorithms can itself be undermined by bias or noise.
The authors are sensitive to the costs of noise reduction, a point they illustrate in part with the story of the company that tangled itself up in an annual employee review process that included an overly complicated feedback questionnaire. Forty-six ratings on eleven dimensions for each rater and person being rated is just too much.
Similarly, the costs of eliminating noise have to be weighed. A fifth grader's essay will be more fairly and accurately graded if five teachers read it independently using five or 10 criteria and averaging their assessments, instead of one teacher reading it and providing an overall impression. So will a high school senior's college application. We can accept the noise in the fifth grader's essay grade much more easily than we can accept it when deciding a college applicant's fate.
Beyond bureaucracy and cost, there's a loss of dignity when people are treated like numbers instead of individuals. There's also the danger of forcing a rule -- think of Jack Welch, the former C.E.O. of General Electric, who made it a set practice to fire a percentage of his lowest performers each year, even if many were still performing well. Forced ranking in this context, or in the case of an elite military unit, makes no sense, and relative scales and relative judgments would have made for better decision hygiene. In other situations, the opposite approach can create problems: rating everyone individually with no comparisons, such as the loosey-goosey standards that allow over 98 percent of the federal civil servant work force to be judged ''fully successful.''
Thus, the authors cite the lawyer and author Philip Howard, who in books such as ''The Death of Common Sense'' has documented the dangers of bureaucracy, laws, rules and numerical ratings replacing human judgment in so many decisions.
Kahneman, Sibony and Sunstein also acknowledge the judicial backlash against federal sentencing guidelines passed in 1987 that were meant to reduce the massive inconsistencies. Many judges fervently believed that these federal guidelines -- and even more stringent ones legislated in many states -- sidelined them from making the human judgments they were put on the bench to make. That continuing backlash, and the fact that prosecutors and judges learned to game the new rules, has been a key force behind recent criminal justice reform efforts.
The authors' general argument, however, is that there is now so much noise that a major hygiene effort is in order across multiple disciplines. In too many arenas, they maintain persuasively, we've allowed too much noise at too high a cost.
The trick is finding the right balance, not looking for perfect fairness or accuracy, which will always be illusory. A rule that sets a birth date of Jan. 1 for entrance into kindergarten is going to be arbitrary and unfair to the child born at 11:59 the night before. (Although another rule will give her parents a bonus tax deduction for being born in that earlier year.) But it's a better way to choose who gets to start elementary school than interviewing every 4- to 6-year-old.
A digital body scan examined only by an algorithm might be an efficient way to check for melanoma, but I'd rather trust the terrific doctor who checks me every few months. Then again, I wouldn't mind if he checked his conclusion against the algorithm.
''Noise'' is about how our most important institutions can make decisions that are more fair, more accurate and more credible. That its prescriptions will not achieve perfect fairness and credibility, while creating pitfalls of their own, is no reason to turn away from this welcome handbook for making life's lottery a lot more coherent.
Steven Brill, author of ''Tailspin: The People and Forces Behind America's Fifty-Year Fall -- and Those Fighting to Reverse It,'' is the co-C.E.O. of NewsGuard, which rates the reliability and trustworthiness of news websites. NOISE A Flaw in Human Judgment By Daniel Kahneman, Olivier Sibony and Cass R. Sunstein 454 pp. Little, Brown & Company. $32.
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PHOTO: (PHOTOGRAPH BY Zak Tebbal FOR THE NEW YORK TIMES)
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Brill, Steven. "No Chance." The New York Times Book Review, 30 May 2021, p. 10(L). Gale General OneFile, link.gale.com/apps/doc/A663524744/ITOF?u=schlager&sid=bookmark-ITOF&xid=036c244a. Accessed 9 May 2024.
QUOTED: "While Sunstein is admirably alert to the fragilities of liberal democracy, This Is Not Normal lacks focus. Indeed, despite its misleading packaging, it is simply a collection of the author's recent published essays."
THIS IS NOT NORMAL
The politics of everyday expectations
CASS R. SUNSTEIN
208pp. Yale University Press. 20 [pounds sterling] (US $26).
DEMOCRACY RULES
JAN-WERNER MULLER
256pp. Allen Lane. 20 [pounds sterling].
Has America really returned to its pre-Donald Trump state, or is President Biden a temporary interlude of democratic revival in the nation's more irresistible slide towards authoritarianism? The question found nervous expression during the recent G7 meeting in the UK, as European allies openly wondered, Joe Biden's reassurances notwithstanding, whether the US is really "back".
The same question animates two timely books, This Is Not Normal: The politics of everyday expectations by Cass R. Sunstein and Democracy Rules by Jan-Werner Muller. Sunstein, who teaches at Harvard Law School, is one of the US's most prominent, and prolific, legal scholars; Muller, a German political theorist based at Princeton, has established himself as a subtle and wide-ranging thinker on matters of governance. Both books promise to make sense of the present political moment and its substantial dangers. And both, unsurprisingly, offer robust defences of democracy.
Contra Churchill, Sunstein insists that democracy represents not the "least bad form of government" but the very best. It is democracy, with its commitment to the equal dignity of all persons, that permits us to shape our own political destiny. While this claim seems unremarkable--citizens of Western nations generally take the virtues of liberal democracy to be self-evident and democratic rule to be the ideal norm--Sunstein wants to demonstrate how, under the right conditions, "what was unthinkable can become routine". For millions of Americans, the most shocking aspect of Trump's presidency was the way it exposed the fault lines in what was assumed to be a highly stable democratic order. Sunstein reminds us that we should not be surprised by these fragilities: all democracies have them. And all it takes is for authoritarians to exploit them, expanding people's sense of the normal. Until recently, it was unthinkable for a US president to defame journalists as enemies of the people and purveyors of fake news; yet an occupant of the White House with an itchy Twitter finger managed to change this in a trice. But the vulnerability of democracies to rapid unravelling is also a function of the people themselves, who tend to hide, or suppress, personal beliefs that dramatically depart from the norm. When democracy is the norm, people avoid disclosing their sympathies for authoritarian, xenophobic and racist values. Once a public figure authorizes the expression of such beliefs, the political climate can shift dramatically.
It is not authoritarians alone among public figures who represent a risk to liberal democracy. Threats, Sunstein insists, also come in the form of Manicheans --people who, in their strident championing of a singular truth, abandon liberal tolerance for a politics of public shaming and censure. Sunstein calls the most aggressive of these "lapidation entrepreneurs", his rather awkward coinage for those in the vanguard of cancel culture; people who "operate as a private police force, enforcing some intensely held moral or political commitment".
While Sunstein is admirably alert to the fragilities of liberal democracy, This Is Not Normal lacks focus. Indeed, despite its misleading packaging, it is simply a collection of the author's recent published essays, some of which--for example, a chapter on the cult of Ayn Rand--have no bearing on its putative topic. Even those chapters that deal head on with the vulnerability of democratic norms are often less than adequate. In his conclusion to his critique of the "lapidation entrepreneurs", for instance, Sunstein writes:
They may succeed in ruining a reputation or forcing
a resignation. When their cause is just, that may be
justified and important, even essential. But if social
change is the goal, the immense amount of time and
emotional energy expended on lapidation would
often be better spent elsewhere.
Yet, earlier in the chapter he defines these "entrepreneurs" as moral crusaders whose reactions are by definition "excessive or unjustified". How, then, can an action be at once "justified and important, even essential" and yet also simultaneously "excessive or unjustified"? Even shakier is Sunstein's discussion of the case of Nazi Germany, which leads him to conclude: "the ultimate safeguard against aspiring authoritarians ... lies in individual conscience--in decisions taken individually and almost unconsciously by the population at large". Does he seriously believe this? Acts of individual conscience did very little to halt the rise of Hitler, or to end his regime. That took the combined military force of three powerful nations.
More engaging and substantial is Democracy Rules. Like Sunstein, Muller aggressively defends democracy as the form of government "best able to avoid domination and to give people a chance to experience a decent life in common". And he is sharp in pointing out the dangers posed by populist authoritarians, leaders who claim to represent the "real people" but in fact work calculatedly to divide citizens into homogenous groups, casting their opponents as "not properly belong[ing] to the people in the first place".
In the face of the dangers that authoritarian populists pose to liberal democracy, Muller details the need to repair and renovate what he calls the "critical infrastructure of democracy"--those intermediary institutions, specifically the professional media and political parties, that filter and focus the subjects of democratic deliberation. Both intermediaries, Muller recognizes, find themselves in crisis. Trump made abundantly clear the power of a president to manipulate social media to spread his populist appeals. But Muller rightly resists technological determinism: the idea that the advent of the internet and social media spell the doom of democratic rule. Rather, he insists that regulatory decisions, and not technological leaps, have permitted cable "news" channels to proliferate and social media platforms to serve as the breeding grounds of conspiracy theories and hate. It isn't that regulation has failed to keep up with technology: it's that deliberate regulatory decisions have contributed to the toxic climate of social media.
Muller also challenges the notion that populists such as Trump have simply bypassed party elites, demonstrating their ultimate irrelevance as sources of political restraint. To the contrary, he pointedly notes, "In no Western country has a right-wing populist authoritarian party or politician come to power without the collaboration of established conservative elites". (Muller might have noted that much the same could be said about left-wing populist authoritarian parties, such as the PSUV in Venezuela.)
What, then, is to be done? Not all of Muller's proposals are as fully articulated as his diagnosis of democracy's ills, in part because of the very intractability of the problems. He considers the finance and regulation of parties and broadcasters as public utilities, but recognizes the dangers posed by placing these regulatory choices in the hands of the state that is, back in the hands of political partisans. He calls on journalists to make clear their value commitments and, when they do interpret events from a partisan perspective, to do so from a "clear commitment to democratic principles"--a call unlikely to shame Sean Hannity into a stance of responsibility.
Far more interesting is Muller's embrace of sortition devices, such as Oregon's Citizens' Initiative Review. In the Oregon system, two dozen citizens are chosen through a representative sampling to listen to arguments about a pending ballot measure; they then summarize the various pros and cons of the measure in accessible language, and these summaries are mailed to all households as part of an official voters' pamphlet. It is doubtful that such a device could meaningfully address the extreme polarization in our national politics, but it could meaningfully empower citizens to take the lead on the local level to detoxify the current political climate.
Still, the dangers remain, and Muller smartly ends his book with a discussion of civil disobedience and "militant democracy"--that is, acts taken by a democratic government to defend itself against parties bent on subverting the system. Muller is well aware of the dangers associated with both forms of resistance. When citizens embrace law-breaking as a means of political reform, and when a party in power turns to banning a subversive opposition, both run the risk of authorizing such extreme acts by those with less pure impulses. Yet Muller maintains that a democratic government and its citizenry need not stand idly by in the face of existential threats to democratic rule. When populists or authoritarians threaten to abrogate the basic rule of liberal democracy, and when they systematically deny the standing of particular citizens as free and equal members of the polity, resistance is not simply authorized by democratic principles: it is mandated.
Lawrence Douglas is the author, most recently, of Will He Go?: Trump and the looming election meltdown, 2020. He is a contributing opinion writer for the Guardian and teaches at Amherst College
Caption: Washington DC, January 9, 2021
Copyright: COPYRIGHT 2021 NI Syndication Limited
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Douglas, Lawrence. "Renovate, reform: The fragility of the democratic consensus." TLS. Times Literary Supplement, no. 6176, 13 Aug. 2021, p. 23. Gale General OneFile, link.gale.com/apps/doc/A674624887/ITOF?u=schlager&sid=bookmark-ITOF&xid=5d4626f6. Accessed 9 May 2024.
QUOTED: "a provocative examination of social constructs and those who would alternately undo or improve them."
Sunstein, Cass R. THIS IS NOT NORMAL Yale Univ. (NonFiction None) $26.00 2, 9 ISBN: 978-0-300-25350-4
An excursus in the realm of the normal and normative and how we define them.
Covid-19, Donald Trump, cyberwarfare: All these are signs that things are not “normal.” But what does normality constitute? Norms, writes Harvard Law School professor Sunstein, are generally if sometimes loosely agreed upon guidelines that govern our behavior. We agree, by consensus and often by law, that one should not smoke in church or call 911 to report a leaking spigot. But what happens when a norm iconoclast comes into the picture? Among other things, the elevation of Trump to national power “weakened the social norm against supporting anti-immigrant groups,” and it freed many Americans to spout the vilest of sentiments. “When norms begin to loosen, people start to say what they actually think,” Sunstein adds, and what they think can be quite awful. Norms can be positively constructed, though. The author notes that the arrival of the pandemic has put new practices in place that forgo handshaking and promote hand-washing instead. Authoritarians can be what Sunstein calls “norm entrepreneurs,” but then again, so can the democratically minded, leading to the common situation where one person’s norm is another person’s form of oppression. Sunstein takes a long look at institutions that are meant to uphold democratic norms. In an especially inspired moment, he rejects Winston Churchill’s notion that democracy is the worst form of government save for all the others and instead upholds it at least in part because the citizenry establishes normative behavior. By virtue of that fact, norms can come and go for better (civil rights for all) or worse (cancel culture), leading Sunstein to conclude, “An appreciation of the paradox—the simultaneous power and fragility of the normal—attests to one fact above all: human beings are astonishingly resilient.”
A provocative examination of social constructs and those who would alternately undo or improve them.
Copyright: COPYRIGHT 2021 Kirkus Media LLC
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"Sunstein, Cass R.: THIS IS NOT NORMAL." Kirkus Reviews, 1 Jan. 2021. Gale General OneFile, link.gale.com/apps/doc/A646950307/ITOF?u=schlager&sid=bookmark-ITOF&xid=47dd4c3f. Accessed 9 May 2024.
QUOTED: "Policy makers and legal scholars will value this astute analysis."
Cass Sunstein. Oxford Univ., $22.95 (192p) ISBN 978-0-19-754511-9
Harvard law professor Sunstein (Too Much Information) examines in this concise and well-informed account whether false speech should have any protections in a free society. Though he believes "the best response to falsehoods is usually to correct them rather than to punish or censor them," because doing so only serves to fuel their spread, Sunstein argues that there are some circumstances where regulation is appropriate. He grounds his position in an overview of American legal history, noting that the First Amendment's free speech protections were not generally applied to falsehoods until 2012, when the Supreme Court ruled that a federal law criminalizing false statements about receiving a military medal was unconstitutional. Sunstein also analyzes efforts by social media companies such as Facebook and Twitter to create guidelines for handling false posts, and wrestles with the question of who gets to be the arbiter of truth. Ultimately, he contends that issues such as vaccinating against Covid-19, Russian cyberattacks on the U.S., and climate change demand different legal standards when it comes to regulating "actual lies" vs. unintentional falsehoods. Policy makers and legal scholars will value this astute analysis of how to strike the proper balance between freedom and responsibility. (Mar.)
Copyright: COPYRIGHT 2021 PWxyz, LLC
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"Liars: Falsehoods and Free Speech in an Age of Deception." Publishers Weekly, vol. 268, no. 3, 18 Jan. 2021, p. 67. Gale General OneFile, link.gale.com/apps/doc/A650247401/ITOF?u=schlager&sid=bookmark-ITOF&xid=88ea628c. Accessed 9 May 2024.
Law and Leviathan: Redeeming the Administrative State, by Cass R. Sunstein and Adrian Vermeule (Belknap Press, 208 pp., $25.95)
Harvard Law professors Cass Sunstein and Adrian Vermeule have set themselves a daunting task for a slender volume: convince readers to stop worrying and learn to love the administrative state. "Our main project," the authors tell us, "has been to put contemporary administrative law in its best light." Unfortunately, Law and Leviathan fails to make the sale, in good part because it can never quite decide what it is selling.
The book's narrative coherence is not helped by having two authors with such divergent worldviews and styles. Sunstein, typically a conversational writer to the point of glibness, is a moderate-liberal utilitarian who ran the Obama administration's Office of Information and Regulatory Affairs. He co-wrote the nanny-statist 2008 book Nudge, which argued for using regulation to nag people into making better choices. Law and Leviathan admits up front that its authors disagree on the cost-benefit analysis that is the heart of Sunstein's thinking and the basis of much administrative decision-making. Vermeule, by contrast, is essentially an admitted right-wing theocrat, a devotee of integralist theory, which seeks to make Catholic doctrine the basis of all public policy. Unsurprisingly, given the contrast between Vermeule's ideas and the secular academic milieu in which he has made his career, he tends to write with indirection and coyness about the implications of his arguments. Law and Leviathan bears the hallmarks of that rhetorical camouflage.
What its authors share is an affection for administrative law and for the vast federal bureaucracy. What they both reject are originalist and textualist interpretations that seek to ground the legitimacy of law in text passed by the people at a particular time. The administrative state has frequently been criticized on grounds of both constitutional law and democratic theory. Sunstein and Vermeule reject the constitutional challenges to its legitimacy, but this book is not a legal brief for the constitutionality of any current practice. The authors cite scholars (including themselves) making the case for the constitutionality of administrative law elsewhere. They spend the entire opening chapter sneering at what they call the "New Coke" of constitutional assaults on the administrative state, but given that the book asserts rather than elaborates on the authors' reasons for rejecting those arguments, the chapter could easily have been condensed to a paragraph and some footnotes.
Nor do they seek to marshal empirical evidence or anecdote to demonstrate that the administrative state is effective, moral, or popular in practice. The book aims instead to occupy the space between legal scholarship and popular polemic. It vacillates between describing the law as it is and tracing the goals of the law as it ought to be. Law and Leviathan will be more satisfying for the reader seeking a descriptive account of the problems and doctrines of administrative law than for the reader seeking a normative prescription. The book is structured around Lon Fuller's framework for defining what law is--rules are understandable, rules are not retroactive, rules are administered as written, etc.--and it works through how administrative law has handled the challenge of living up to that standard. But the argument in favor of this state of things is rootless.
Consider the threshold question of democratic legitimacy. Sunstein and Vermeule, as anti-originalists with a legal-realist bent, not only disagree with originalist critiques; they freely admit that "it is not possible to describe all or even most principles of administrative law, as it has evolved, as rooted in the text or original understanding of" the Administrative Procedures Act. The same is true of the grounding of their preferred rules in the Constitution. In fact, they agree that the cynicism of legal realism--which tends to see all law as a pretext for people in power to do what they want--has grown hand in hand with the growth of the administrative state. That observation alone should give pause to anyone who sees administrative expansion as harmless to popular self-governance.
The problem arises when the authors try to justify their preferred rules: If such rules do not come from the enactments of the people, where do they come from? Their answer: "Ambitious doctrines with no clear legal basis are best understood as derived from an implicit commitment to the internal morality of administrative law." The reader should raise an eyebrow at "implicit." Sunstein and Vermeule note elsewhere in the book, when reading a judge's arguments that his rule is implicit in statutory text: "As is often the case, the word 'implicit' turns out to mean 'not.'"
The authors describe it as their "central claim" that, "at its best, American administrative law has its own internal morality, a reflection of the internal morality of law." But this is circular: The law is based on the law, which reflects what the people construing the law do when they say what it means. Of course, it is true that communities develop moral norms and moral intuitions from their collective experience, and conservatives see these traditions as valuable in themselves. But that raises the question: Whose experience and whose norms create this "internal morality"? Not the citizenry's in general. Not those of their elected representatives or the people subject to the power of administrative agencies. The folkways here are those of a narrow priesthood of judges and lawyers practicing in and adjudicating the field of administrative law. It is the rule of law as a law of rulers.
This is a particular problem for the administrative state in a populist age. Sunstein and Vermeule tell us to trust the body of administrative law--as it has evolved and may continue to evolve in the future--because we can trust the unspoken cultural norms of the people who make it. This seems a particularly curious stance for Vermeule, given the unlikelihood that American administrative law will ever be made by people who share his cultural assumptions. The role of human beings in the system also helps explain why the two leading judicial critics of the administrative state are Clarence Thomas and Neil Gorsuch. Thomas grew up with the experience of being governed by people with little regard for him. Gorsuch, by contrast, saw the reality of the administrative world up close when his mother ran the Environmental Protection Agency. For legal realists, Sunstein and Vermeule are oddly uninterested in the people--judges and administrators--whose behavior they study.
A central problem of law and legitimacy is constraint: not merely what the law allows, but what it prevents. Constraint is the heart of the structural critique of the administrative state, whether or not one frames it as a constitutional argument. Sunstein and Vermeule never really offer a clear guide to how anyone is supposed to tell when administrative power has overstepped its moral bounds. Theirs is the legal-realist tautology: We know an agency was wrong when we see courts stop it; we know courts were wrong when they abandon a doctrine. But this merely reinforces the sense that they are describing the unfixed norms of a community of people rather than the rules firmly rooted in popularly enacted legislation. If the defenders of a church wrote in this way, we would conclude that they saw no material difference between dogma and heresy.
Accountability to the governed gets little attention. How should the people respond if they do not like the answers given by "the internal morality of administrative law"? The authors are evasive. They frequently confuse executive discretion (for which political actors are visibly accountable) and administrative discretion to write rules and adjudicate cases. We are told that presidents can use the appointment power to control agencies, even those over which the president has limited or indirect powers of appointment and even more limited powers of removal. But much of the work of agencies takes place through permanent civil servants. As the presidency of Donald Trump illustrated, trying to exert presidential control via the appointment power all the way down the civil service of independent agencies and sub-agencies is like doing a jigsaw puzzle with a fishing rod.
Sunstein and Vermeule regard statutory delegations of rulemaking and adjudicative authority as "democratic," but an agency such as the Securities and Exchange Commission continues to make new rules and adjudicate cases based on open-ended delegations in laws passed by the Congress elected in 1932. Antiquity is fine for the supermajority rules of the Constitution, but democratic legitimacy becomes more attenuated when power was delegated by passing majorities nearly a century ago in vaguely defined terms that have never been revisited. The judicial function is designed to be conservative rather than democratic: The courts read laws as written until they are repealed. But that is precisely why lawmaking should be done by the people's directly accountable representatives, and why the power to exercise continuing democratic oversight and accountability is essential to the legitimacy of executive power. This accountability is what so much of the administrative state now lacks. There is nobody for voters to blame, so they blame the whole system.
Sunstein and Vermeule offer some nods to "time-honored thinking about the rule of law" to justify their non-originalist justification for administrative law's "internal morality." But an originalist framework offers room for that: Many of our system's written rules incorporate the backdrop of the common-law tradition, and that tradition often forms part of the original understanding. Instead of calling on the system to be more rigorous in identifying where its rules come from, Law and Leviathan seems content to defend its rulers.
Copyright: COPYRIGHT 2021 National Review, Inc.
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McLaughlin, Dan. "Loving Leviathan." National Review, vol. 73, no. 4, 8 Mar. 2021, pp. 40+. Gale General OneFile, link.gale.com/apps/doc/A652590862/ITOF?u=schlager&sid=bookmark-ITOF&xid=efe44bfb. Accessed 9 May 2024.
QUOTED: "Law & Leviathan offers an insightful perspective on the 20th century's accommodation between law's morality and the administrative state. Time will tell whether the accommodation it describes is more past than prologue."
Law & Leviathan: Redeeming the Administrative State
By Cass R. Sunstein and Adrian Vermeule
208 pp.; Harvard
University Press, 2020
The administrative state is under siege, or so it may seem. In just the past three years, the U.S. Supreme Court has invalidated the structure of the Consumer Financial Protection Bureau, invalidated the appointment of administrative law judges at the Securities and Exchange Commission, and curtailed judicial deference to agency interpretations of their own regulations. More significantly, a majority of justices appear willing to limit Congress's ability to delegate broad policymaking authority to federal agencies, a move that could strike at the heart of the modern administrative state.
Numerous academics and even a few jurists have applauded these developments, hoping for a decades-overdue correction in federal administrative law. In 1952, Justice Robert Jackson warned that administrative agencies had "become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking." In decades since, commentators have challenged the administrative state's departures from rule-of-law principles, deprivations of due process, and challenges to the Founders' conception of limited government. Yet this is far from a consensus view, as others perceive such "anti-administrativism" as a more ominous trend and wish to rescue the administrative state from its critics before it is too late.
Harvard Law School professors Cass Sunstein and Adrian Vermeule are in the latter camp. In Law & Leviathan: Redeeming the Administrative State, they attempt a rescue. In the face of what they repeatedly describe as a "fundamental assault" on the premises of administrative law, Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book's title is sufficiently constrained by law to preserve its moral legitimacy.
Surrogate safeguards / Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of "surrogate safeguards" that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. Aligned with a set of principles articulated by the legal philosopher Lon Fuller in his 1964 book The Morality of Law, these safeguards embody an "internal morality" of administrative law that serves to "both empower and constrain the administrative state." By requiring agencies to follow their own rules, limiting retroactive rulemaking, and ensuring rules are clear, consistent, stable, and non-contradictory, these safeguards serve to "legitimate, rather than curtail, the administrative state"--and for our authors that is all to the good.
These surrogate safeguards do not derive from constitutional text, nor are they to be found in the 1946 Administrative Procedure Act (APA). Rather, Sunstein and Vermeule explain, they have developed within administrative law over the past 70 years as courts have confronted various challenges to agency action. These safeguards respond to "many of the concerns and objections of those who are deeply skeptical of the administrative state," but ultimately serve to vindicate, rather than undermine, the prerogatives of administrative law. Accordingly, our authors argue, these safeguards should be accepted as a sufficient response to concerns raised by the administrative state's critics--those anti-admimstrativists that Sunstein and Vermeule dismissively deem "the New Coke." This is a reference to the common-law judge Edward Coke, "a (putatively) heroic opponent of Stuart despotism" who has inspired some of the administrative state's contemporary critics.
At times, the authors seem to suggest that these surrogate safeguards are baked into administrative law itself. As they note, the APA represented something of an accommodation between constitutional formalism and the post-New Deal administrative state. As Justice Jackson famously observed in Wong Yang Sung v. McGrath (1950), the APA "settlejd] long-continued and hard-fought contentions" through "a formula upon which opposing social and political forces have come to rest." This "formula" did not give administrative agencies carte blanche, but it stretched prevailing understandings of due process and separation of powers just enough to provide sufficient flexibility and force to be effective. Like all compromises, this formula may have been unsatisfying--and it is neither explicated in the text of the APA nor wholly derivable from the Constitution's text--but it embodied a set of principles that "offer a powerful rejoinder to many, though certainly not all, of the objections to the administrative state."
Deference to agencies j While situating the origins of such surrogate safeguards in the APA-era, when pointing to examples our authors sometimes focus on more recent doctrinal developments, including some they themselves opposed. As a consequence, parts of their argument seem to be something of a rearguard action, meant to preserve as much of the administrative state--and agency discretion--as can be salvaged in an age in which devotees of the New Coke may seem ascendant. Nowhere is this clearer than in their treatment of Auer deference, under which courts are obligated to defer to an agency's reasonable interpretation of its own ambiguous regulation.
Auer deference takes its name from Auer v. Robbins, a 1997 decision in which Justice Antonin Scalia, writing for a unanimous Court, held that an agency's interpretation of its own regulation must be "controlling" unless it is "plainly erroneous or inconsistent with the regulation." Under Auer it did not matter how the interpretation was issued, so long as the interpretation represented the official and authoritative position of the agency. Nor, under Auer, did it matter whether the agency's interpretation was at odds with prior understandings of how the relevant regulatory standards might apply. In Auer itself the Court deferred to the interpretation offered in an agency amicus brief filed at the Court's request that adopted a non-intuitive (and perhaps politically motivated) interpretation of the Labor Department's rules concerning which supervisory employees (in this case, police officers) were eligible for overtime. Although the idea that courts should give weight to agency understandings of their own regulations was well-established, Auer embraced a more categorical rule of deference to agencies' interpretations of their own regulations than had been the norm.
Auer was an inviting target for anti-administrativists because the rule it created was so prone to abuse. Residual ambiguity is rather easy to find in federal regulations concerning complex and technical areas of administrative law. Accordingly, under Auer, regulated firms had little choice but to acquiesce to post-hoc agency interpretations of potentially ambiguous regulatory text. Provided they were reasonable--a low bar in federal court--such interpretations would likely prevail in any subsequent legal proceedings. This was so no matter the form in which the interpretation was expressed.
Under the Chevron doctrine as it has evolved, an agency seeking deference for its interpretation of an ambiguous statutory provision would need to conduct a rulemaking or otherwise act with the force of law to obtain this protection. Under Auer, however, obtaining deference for the interpretation of a regulation required nothing of the kind. A simple guidance document, "Dear Colleague" letter, or other casual missive would suffice, so long as the agency could convince a court that the underlying rule contained residual ambiguity and the interpretation represented the agency's "fair and considered judgment on the matter in question." Accordingly, Auer allowed agencies to adopt and revise regulatory interpretations with the stroke of a pen.
Many commentators viewed Auer as something of an outlier within administrative law, unmoored and unsupported by other deference doctrines. Even Scalia came to view it as an aberration, violating the fundamental separation-of-powers principle that "he who writes a law must not a judge its violation." Sunstein and Vermeule championed a different view, however. In a 2017 University of Chicago Law Review article, they celebrated "The Unbearable Rightness of AueS' and rejected any calls for its reform. They argued AueRs downsides were more than outweighed by the value of yielding to agency competence, expertise, and accountability. Given the alternative of instructing generalist judges to offer up controlling interpretations of agency rules, they concluded, "The balance cuts hard in the direction of Auer."
Sunstein and Vermeule saw nothing wrong with Auer deference as it stood, but the Supreme Court seems to have felt otherwise. When Auer came before the Court in 2019's Kisor v. Wilkie, a majority of the Court voted against overturning Auer outright, but not a single justice offered an unqualified endorsement of Auer deference as it then stood. While Justice Elena Kagan's opinion for the Court sought to explicate some of Auer's virtues, this portion of her opinion only garnered the assent of three other justices, one short of a Court majority. Meanwhile, opinions encompassing the entire Court embraced a suite of conditions and constraints to be appended to Auer in the future. If anything was "unbearable," it was allowing Auer to continue unrestrained.
As Sunstein and Vermeule remark with some understatement, "Justice Kagan took pains to note that she was merely restating and expanding upon limitations already present in the case law" (emphasis added). A less charitable interpretation would be that the Court had to emasculate Auer deference in order to save it. As Chief Justice John Roberts and Justice Brett Kavanaugh each noted in their separate opinions, there are likely to be few cases in which agencies prevail with the help of Kwor-constrained Auer that would not have prevailed had Auer been overruled outright.
Insofar as Kisor v. Wilkie embodies Fuller's principles that law should be transparent, consistent, and relatively stable, it is not clear it helps the authors' case. Kisor represents a fairly late-stage correction that the authors themselves had opposed. Whereas in 2017 Sunstein and Vermeule trumpeted the need to maintain Auer deference so as to preserve agency flexibility, in lazw & leviathan they acknowledge that, under Kisor, agency inconsistency "counts against the agency" as much as if Auer unabridged were no longer on the books. As a technical matter, Auer survives, as it was not overruled. As a practical matter, it is "hedge[d] round with Fullerian constraints" it previously lacked. Despite their earlier position, in Law & leviathan Sunstein and Vermeule consider this a "vindication of the internal morality of law."
Herein, perhaps, lies the heart of the authors' project: not a defense of administrative law as it could or should be, but a defense of as much of existing administrative law as can be maintained. In this sense, Law & Leviathan adopts a defensive crouch, seeking to preserve as much territory as possible as the administrative state's defenders seek higher and more secure ground from which to repel the forces of New Coke. In this light, the "surrogate safeguards" are as much a reserve line of defense for the modern administrative state as they are a principled accommodation of the anti-administrativists' critique. In the authors' ideal world, such safeguards might not be necessary, but their project here is explicitly about identifying and defending a compromise that may serve as a "non-ideal second best."
In Law's Abnegation: From Law's Empire to the Administrative State (2016), Vermeule argued that "the long arc of the law has been steadily toward deference." In this prior telling, courts had become ever more deferential to administrative agencies as the logic of the law worked itself toward greater consistency and coherence. The mere existence of Law & Leviathan suggests Vermeule's prior pronouncements may have been a bit premature. As Chief Justice Roberts' refusal to embrace Auer shows, one need not drink the anti-administrativist New Coke to think deference has gone too far. The law's internal pressures may now be pushing against abnegation.
Conclusion / In the end, Sunstein and Vermeule are likely correct that the administrative state is here to stay. Future court decisions are more likely to trim doctrine around the edges than they are to disembowel the administrative state. Accordingly, the task of modern administrative law will be to accommodate the actual needs of administration with constitutional constraints and liberal values to reach a "sort of equilibrium accommodation." In this endeavor, Fullerian principles may prove useful, particularly insofar as they "both channel and enable" administrative law in ways that are responsive to anti-administrativist concerns about separation of powers and due process of law. Yet, just as Kisor departed from our author's preferences, so too this new equilibrium may lie some distance from the location Law & Leviathan describes, let alone that which the authors may prefer.
Law & Leviathan offers an insightful perspective on the 20th century's accommodation between law's morality and the administrative state. Time will tell whether the accommodation it describes is more past than prologue.
JONATHAN H. ADLER is the Johan Verheij Memorial Professor of Law and director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law.
Copyright: COPYRIGHT 2021 Cato Institute
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Adler, Jonathan H. "A Rearguard Defense of the Administrative State." Regulation, vol. 44, no. 2, summer 2021, pp. 65+. Gale General OneFile, link.gale.com/apps/doc/A764193765/ITOF?u=schlager&sid=bookmark-ITOF&xid=2ebebeeb. Accessed 9 May 2024.
QUOTED: "Though it presents itself as a new solution to a host of current problems, Too Much Information ends up presenting a host of new problems to one current solution: transparency."
TOO MUCH INFORMATIONUnderstanding What You Don't Want to KnowBy Cass Sunstein
The announced thesis of Cass Sunstein's ''Too Much Information'' is simple: People should be given information only when it would significantly improve their lives. Arguing that the welfare of citizens should be the yardstick for deciding whether or not to disclose, Sunstein sets out to re-examine everything from mandatory food labels to rules about declaring the origins of ''conflict minerals'' to the government's broad authority to ask people for their data (a burden he calls ''sludge'').
The book represents a change of heart. Sunstein administered the Federal Office of Information and Regulatory Affairs for most of President Obama's first term. Then he was on the side of full disclosure, including forcing restaurants and movie theaters to let customers know exactly how many calories were in their food. That achievement prompted an email from a friend: ''CASS RUINED POPCORN.'' ''Too Much Information'' is an attempt to take that offhand remark seriously; if your measure is whether information helps or hurts people's lives, much current disclosure, including mandatory calorie counts in movie theaters, starts to look more complicated.
Sunstein launches his argument using data from a small survey he conducted. Among his respondents, preferences for more information varied widely: Knowing the date of their death appealed to a little over a quarter of those surveyed, knowing whether their partners were cheating appealed to over half, knowing if there is life on other planets appealed to nearly three-quarters. There was also great variation in reported willingness to pay for that information, with median bids ranging from $1 for credit card late-fee disclosure to $200 to know if heaven exists.
Willingness to pay is a key metric, allowing the balancing of otherwise hard-to-compare priorities. Learning that your favorite food is bad for you will upset you, but might prolong your life; present mood versus future utility has to be considered somehow. Unfortunately, Sunstein's own data on willingness to pay is more evocative than convincing. This is a bit stats-geeky, but the median answers versus average answers from his survey vary wildly, a variation that does not show up in nationally representative data later in the book. The lack of consensus among his respondents makes Sunstein's survey watery concrete for the foundation he is trying to pour.
This is a distraction but not a fatal one; the book actually delivers something stranger and more interesting than the announced thesis: a tour of human biases that end up creating ''behavioral market failures.''
These are things like our failure to notice missing information: A movie released with no reviews is probably terrible. Or how about blithely accepting advice from salespeople without considering that they will benefit from our spending more? The ''telltale heart effect'' leads businesses to clean up their various acts, even if customers have not changed their behavior. (Some restaurant hygiene labels seem to work this way.) The ''halo effect'' means that seeing kale salad on the menu can make people feel better about the chili cheese dog they actually order. And so on. The range and direction of these effects makes it impossible to conclude that behavioral market failures point in one particular direction.
While Sunstein's analysis of consumer psychology is illuminating, his examples are sometimes oversimplified. He rightly mocks the U.S.D.A.'s food pyramids and plates, without noting that their uninformative design -- lentils and bacon are both ''proteins'' -- is a result of agricultural lobbying. (Regulatory capture, the risk that agencies may feel more beholden to the industries they regulate than they do to the public interest, is never mentioned, curious for a book by a regulator.) Similarly, he speculates about the effects of disclosing the dangers of smoking to addicts, without noting that recent victories over smoking came from revealing the effects on bystanders, not smokers. And there is no mention of organizations like ProPublica or The Markup (or The Times, for that matter) that rely on public data to find hidden stories.
To want Sunstein to account for regulatory capture, secondary harms and data journalism, though, is to want more of what he is already offering. Though it presents itself as a new solution to a host of current problems, ''Too Much Information'' ends up presenting a host of new problems to one current solution: transparency. Among government reformers and progressive regulators (like Sunstein himself, a decade ago), increasing access to information has been regarded as an obvious goal since Watergate. The book doesn't replace that generational certainty with a new one, but it does make it impossible to continue regarding information disclosure as an uncomplicated good.
Clay Shirky is vice provost of educational technologies at New York University and the author of ''Here Comes Everybody.'' TOO MUCH INFORMATION Understanding What You Don't Want to Know By Cass Sunstein 226 pp. MIT. $27.95.
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Shirky, Clay. "Full Disclosure." The New York Times Book Review, 8 Nov. 2020, p. 37(L). Gale General OneFile, link.gale.com/apps/doc/A640885206/ITOF?u=schlager&sid=bookmark-ITOF&xid=040e5b1d. Accessed 9 May 2024.
QUOTED: "an accessible treatise on the need to ensure that information improves citizens’ well-being."
Sunstein, Cass R. TOO MUCH INFORMATION MIT Press (NonFiction None) $27.95 9, 1 ISBN: 978-0-262-04416-5
A former presidential adviser considers the complexities of information disclosure.
Sunstein, a legal scholar who, in the Obama White House, oversaw federal regulations that required disclosure about such matters as nutrition and workplace safety, opens his latest book by asking, “When should government require companies, employers, hospitals, and others to disclose information?” His short answer: whenever doing so makes people happier or helps them make decisions. But as he notes, “Whether it’s right to disclose bad news depends on the people and the situation. One size does not fit all.” In these essays, Sunstein addresses key questions policymakers should consider when deciding whether to disclose or request information. Topics include the reasons people might or might not want information (a friend joked that he “ruined popcorn” after the FDA finalized a regulation that movie theaters and restaurants had to disclose caloric content); the psychological factors to consider when designing disclosures, such as that some people don’t read them, especially when, as with software downloads, they’re long; and the value people place on social media, an essay in which he notes a paradox: “the use of Facebook makes people, on average, a bit less happy—more likely to be depressed, more likely to be anxious, less satisfied with their lives,” yet many people “would demand a lot of money to give it up.” Despite the use of jargon such as “hedonic loss” and “availability heuristics,” the narrative is clear and relatable. Sunstein even delivers a few zingers, as when he notes in the chapter on “sludge,” the term for the excessive paperwork people wade through to cancel magazine subscriptions or sign up for free school meals: “The Department of the Treasury, and the IRS in particular, win Olympic gold for sludge production.”
An accessible treatise on the need to ensure that information improves citizens’ well-being.
Copyright: COPYRIGHT 2020 Kirkus Media LLC
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"Sunstein, Cass R.: TOO MUCH INFORMATION." Kirkus Reviews, 1 July 2020, p. NA. Gale General OneFile, link.gale.com/apps/doc/A627920192/ITOF?u=schlager&sid=bookmark-ITOF&xid=714a8527. Accessed 9 May 2024.
QUOTED: "This slim book raises such essential questions, though it makes only modest headway in the quest for answers."
TOO MUCH INFORMATION
Understanding what you don't want to know
CASS R. SUNSTEIN
264pp. MIT Press. $27.95.
We tend to take for granted that being informed is preferable to being uninformed. But in Too Much Information: Understanding what you don't want to know, Cass Sunstein (a law professor who served as administrator of the Office of Information and Regulatory Affairs in the Obama administration) points out that in many cases information is neither necessary nor welcome. "It clutters the mind. It is boring. In addition, there is a great deal of information that people want not to receive." Focusing on his own wheelhouse--policy --Sunstein asks when governments should require companies and employers to disclose information to the public. He rejects the idea of a blanket "right to know", and proposes a different metric for making the determination: "When information would significantly improve people's lives.
This metric is far from straightforward, however. Sunstein recalls how one day he emailed a friend to tell her about a new US Food and Drug Administration regulation, which he had helped shape. It mandated disclosure of calorie counts at food establishments, including concession stands at cinemas. "I was enthusiastic ... possibly a bit proud", he says. His friend's response: "CASS RUINED POPCORN". Sunstein uses "ruining popcorn" as a recurring metaphor --to remind us that the emotional effects of information shouldn't be ignored. Nor should life improvement be measured in terms of positive emotions alone. Sunstein submits that the use of Facebook, for example, which researchers have linked to increased anxiety and depression, demonstrates that information (news, updates from friends) can be "valuable even if it has no instrumental value and even if its hedonic value is negative". People might seek knowledge to fulfill their obligations as citizens or because they believe it enriches their lives, even when the information is a downer.
Calorie counts embody some of the complexities at stake when legislating disclosure. Information won't deter some from ordering that 600-calorie snack (though it might sabotage their enjoyment); others will be guided and make healthier choices. A small number apparently think in terms of maximizing calories-per-dollar. It is easier to mandate disclosure than attempt to account for such psychological intricacies, so, ultimately, despite threats to gastronomical pleasure, Sunstein does not disavow the rules.
The more engaging parts of Too Much Information are more philosophical. Sunstein quotes John Stuart Mill's criticism of utilitarianism for its impoverished understanding of human motives. The ultimate good is not mere happiness; is there not also the "sense of honour, and personal dignity,--that feeling of personal exaltation and degradation which acts independently of other people's opinion, or even in defiance of it; the love of beauty, the passion of the artist"? In an environment where information is overabundant, we would probably all benefit from greater awareness of what we want--and don't want--to know. This slim book raises such essential questions, though it makes only modest headway in the quest for answers.
Copyright: COPYRIGHT 2020 NI Syndication Limited
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Tuhus-Dubrow, Rebecca. "TOO MUCH INFORMATION: Understanding what you don't want to know." TLS. Times Literary Supplement, no. 6136, 6 Nov. 2020, p. 25. Gale General OneFile, link.gale.com/apps/doc/A646304388/ITOF?u=schlager&sid=bookmark-ITOF&xid=5edb521f. Accessed 9 May 2024.
QUOTED: "This balanced and well-informed take illuminates an obscure but significant corner of government policy making."
Too Much Information: Understanding What You Don't Want to Know
Cass R. Sunstein, MIT, $27.95 (248p)
ISBN 978-0-262-04416-5
Harvard Law School professor Sunstein (Conformity) considers the legal, social, and psychological implications of government-mandated information disclosures in this nuanced account. Contending that nutrition labels, restaurant menu calorie counts, credit card bill late fees, and other mandated disclosures should be evaluated on whether they "increase human well-being," rather than simply provided as part of the public's "right to know," Sunstein parses the "hedonic value," or pleasure, people take in knowing--or not knowing--something, and the "instrumental value" people assign to information based on how they can use it. He compiles data on consumers' "willingness to pay" for tire safety rankings and the potential side effects of pain medication; contends that the positive and negative feelings associated with such disclosures should be given more weight than they currently are; and outlines potential benefits and limitations to a system of "personalized disclosure," in which the government mandates certain basic information, but makes further details available to those who want it through apps and other technologies. Readers with a background in the social sciences and moral philosophy will have an easier time engaging than generalists, though Sunstein writes in clear, accessible language throughout. This balanced and well-informed take illuminates an obscure but significant corner of government policy making. (Sept.)
Copyright: COPYRIGHT 2020 PWxyz, LLC
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"Too Much Information: Understanding What You Don't Want to Know." Publishers Weekly, vol. 267, no. 22, 1 June 2020, p. 52. Gale General OneFile, link.gale.com/apps/doc/A626295573/ITOF?u=schlager&sid=bookmark-ITOF&xid=999588be. Accessed 9 May 2024.
QUOTED: "accessibly written."
CONFORMITY. By Cass R. Sunstein. New York, N.Y.: New York University Press. 2019. Pp. xiii, 183. $19.95. The explosion of fake news, ideological echo chambers, and ever-increasing political polarization has placed a spotlight on the human tendency to follow the crowd. In fewer than 200 accessibly written pages, Professor Cass Sunstein employs a range of sociological studies and observations to illustrate how and why individuals conform to others' views, even at the expense of their private beliefs. After offering a descriptive account of what motivates (and mitigates) conformity, Sunstein discusses two variations on that theme: social cascades (the process by which ideas spread, sometimes causing societal shifts) and group polarization (when a group, after deliberation, moves toward a more extreme position in line with its collective tendencies). Striking legal examples are woven in throughout, including an examination of the cascade effect among courts of appeals (p. 42), and an exposition of polarization effects within juries and judicial panels (pp. 82, 124). Sunstein draws on these observations to propose dissent as a check on conformity's tendency to let "ill-considered judgments" slip by (p. 117). The book concludes by addressing several issues of contemporary relevance, including the political composition of courts and affirmative action. If a strong antidote to the potentially deleterious effects of social conformity is open disagreement, Sunstein prods, might we benefit from more heavily valuing diverse viewpoints in federal courts (p. 134) and classrooms (p. 146)? Conformity makes a strong case that we would.
Copyright: COPYRIGHT 2020 Harvard Law Review Association
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"CONFORMITY." Harvard Law Review, vol. 133, no. 3, Jan. 2020, p. 1141. Gale General OneFile, link.gale.com/apps/doc/A611498814/ITOF?u=schlager&sid=bookmark-ITOF&xid=448eec8a. Accessed 9 May 2024.
QUOTED: "Eminently relevant, Sunstein's clarifying discussion is a must-read."
Conformity: The Power of Social Influences.
By Cass R. Sunstein.
May 2019.176p. NYU, $19.95 (9781479867837). 340.115.
Legal scholar Sunstein (Can It Happen Here?, 2018) offers readers a crash course in the ways those around us influence our actions. A former administrator of the White House Office of Information and Regulatory Affairs, he points out the positive benefits of conformity while also exploring how following the crowd can easily take individuals down paths of extreme thinking. For example, "On Facebook and Twitter, we can see group polarization in action every hour, every minute, or every day." Like feuding families, online collectives can spend more time vilifying one another than in direct confrontation, exacerbating division and increasing potential cascades of misleading or inaccurate information. Diversity in thinking is essential, Sunstein explains, to the healthy functioning of any organized group. When the social benefits of conformity outweigh one's sense of responsibility to state the truth, problems inevitably follow. Drawing on scientific studies, Sunstein discusses the corrective effects of dissent for the common good and not simply out of contrarianism. Eminently relevant, Sunstein's clarifying discussion is a must-read.--Kenneth Otani
Copyright: COPYRIGHT 2019 American Library Association
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Otani, Kenneth. "Conformity: The Power of Social Influences." Booklist, vol. 115, no. 16, 15 Apr. 2019, p. 6. Gale General OneFile, link.gale.com/apps/doc/A585718871/ITOF?u=schlager&sid=bookmark-ITOF&xid=48dd7351. Accessed 9 May 2024.
QUOTED: "On Freedom is a stimulating read that should nudge libertarians to stop and think harder about nudging."
JUST AS A building has a structure that allows the people within it to pursue their own happiness without obstructing the movements of others, a free society has a structure defined by the natural rights of first possession, private property, freedom of contract, restitution, and self-defense. These rights--all of which can be loosely characterized as "property rights"--distinguish liberty from license. License is the freedom to do whatever you desire. Liberty is the freedom to do whatever you desire with what, according to these principles, is rightfully yours.
In the Hobbesian state of nature, liberty is conceived as the liberty do anything at all, including the freedom to use other people's bodies. So government is needed to limit this liberty to avoid life being solitary, nasty, and short. By contrast, the Lockean state of nature "has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions." Government, then, exists not to limit liberty but to protect it better than each of us can do on our own.
When speaking of freedom in the abstract, it is essential to know to which freedom one refers. The title of Cass Sunstein's small and provocative new book, On Freedom, is therefore ambiguous. Does he mean unrestricted freedom that must be shaped or limited by government? Or does he mean a liberty bounded by rights that government is tasked to secure?
Sunstein is a progressive liberal. He genuinely cares about individual freedom. But like all progressives, he thinks "we" can do better than merely protecting the rights of individuals and letting the spontaneous order of human actions develop from there. The best and the brightest should intervene to improve outcomes.
Sunstein's distinctive contribution concerns the nature of that intervention. Most progressives, like Hobbes, believe that freedom must be constrained by force to "make the world a better place." Indeed, many seem to believe that anything that is not prohibited by the state should be mandated. Sunstein, instead, has long favored "nudging" over jailing and fining. On Freedom is an accessible introduction to how he approaches social problems--and a constructive challenge for libertarians.
The book disclaims any effort to "explore the differences between 'negative freedom' and 'positive freedom';... make a final judgment about Mill's Harm Principle; or investigate the claim that property rights, conferred by the state, can be essential to freedom, or an abridgment of freedom." In short, Sunstein attempts to discuss "freedom" abstracted from the essential concepts that are necessary to govern its exercise. That's a big problem, though it does not render the book without value.
Sunstein effectively challenges us to consider how individuals can be made better off, by their own lights, not by coercing them in ways that violate their rights but by structuring their environment in ways that lead them to make the choices that will end up pleasing them the most. His approach builds on the insight that most decisions are already structured by the ways that options are presented to us. From grocery store layouts with end-cap specials to websites featuring seductive links and advertisements, we are constantly and inevitably being nudged in a thousand different directions. We're free to resist these nudges, but we usually do not. So, Sunstein proposes, we might as well think about how best to nudge people to make good choices.
One revealing example he offers is the "food pyramid" designed by the federal Department of Agriculture (USDA). The idea was to nudge people to exercise their freedom to make healthier dietary choices, with the assistance of (mandatory) nutritional information on all packaged foodstuffs. Here is the pyramid as it appears in the book:
According to Sunstein, the problem with this pyramid is that it "is organized by five stripes. (Or is it seven?) What do they connote? At the bottom, you can see a lot of different foods. But it's a mess. Some of the foods appear to fall into several categories. Are some grains or vegetables?" For Sunstein, the obvious problem is that people "are unlikely to change their behavior if they do not know what to do." Thus, the government "consulted with a wide range of experts, with backgrounds in both nutrition and communication, to explore what kind of icon might be better." In 2011, they came up with this:
The plate "doesn't require anyone to do anything," Sunstein says. Instead, "it makes clear that if half your plate is fruits and vegetables, you'll be doing well, and if the rest of your plate is divided between rice and meat (or some other protein), you're likely to be having a healthy meal." What could go wrong?
But Sunstein starts his story in the middle, with the "new" food pyramid that was introduced in 2005. He neglects the original, promulgated by the USDA in 1992:
That pyramid recommended seven servings of good old carbs such as bread, pasta, and potatoes for every three servings of protein. It lumped fats, oils, and salts together with sugars. (The latter, we now know, is made by your body from all the bread and pasta you're eating.) Unsurprisingly, because it was issued by a government agency, the content was heavily influenced by food industry groups. Many nutritionists now blame it for fattening Americans like cattle, leading to chronic obesity, diabetes, and possibly even an explosion of dementia. Oops.
Of course, the new high-protein, low-carb recommendations might be as wrong as the old low-fat, high-carb diets. But let's say, for the sake of argument, that the new diet is right. (I'm now 30 pounds lighter because of it.) If so, generations of Americans--and the whole food industry--were "nudged" astray for decades to the detriment of their health.
What, Sunstein would respond, is the alternative? If choices are to be made, should they not be made with the best information currently at hand?
One obvious option is not to let a bigfoot like the Department of Agriculture do the nudging. Another would be to have more respect for spontaneous order, which in this case was the traditional American diet of meats, cheeses, and a side of veggies. Instead, we were urged toward a diet of partially hydrogenated fats as an alternative to supposedly unhealthy butter--"trans" fats that later were banned entirely.
"Let the market decide" is not necessarily a recipe for correct answers. But a decentralized order of freedom within the boundaries of our legally protected rights allows a diversity of choices from which better results can emerge "as if by an invisible hand." Knowledge can evolve instead of being stipulated by a Leviathan. Labeling is fine; consumers cannot identify for themselves what's put into processed food. But food recommendations--nudging--by enlightened experts empaneled by the government has been as likely to be wrong as to be right.
When I was a research fellow at the University of Chicago Law School, my office was next to Sunstein's, who was then in his first year of teaching. We became good friends. During one of our many conversations, I recall him asking what I would say if one of the greatest thinkers of the 20th century turned out to be Jiirgen Habermas and not Friedrich Hayek.
Since then, Sunstein has become a bigger fan of Hayek. In this book, he quotes the Austrian economist as saying that "the awareness of our irremediable ignorance of most of what is known to somebody [who is the chooser] is the chief basis of the argument for liberty." And yet, Sunstein asks, "Might people's freedom of choice fail to promote their own well-being" from the perspective of their own desires? "Every member of the human species knows that the answer is sometimes yes." So he proposes nudging people to make the choices that will better achieve their own goals.
I would like to see him seriously confront the problem of knowing how to nudge people to get what they want. He might then consider whether government experts, panels, and boards will always have the interests of the people, rather than those of powerful interest groups, in mind. On Freedom is a stimulating read that should nudge libertarians to stop and think harder about nudging. But it could use a little more Hayek and a little less Big Mother.
RANDY E. BARNETT is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution.
On Freedom, by Cass R. Sunstein, Princeton University Press, 136 pages, $12.95
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Barnett, Randy E. "The Problem With Nudging People to Happiness." Reason, vol. 51, no. 1, May 2019, pp. 64+. Gale General OneFile, link.gale.com/apps/doc/A582098099/ITOF?u=schlager&sid=bookmark-ITOF&xid=7af802f9. Accessed 9 May 2024.
QUOTED: "This slip of a book can be quickly read, but puts forth important concepts."
On Freedom
Cass R. Sunstein. Princeton Univ., $12.95 (136p)ISBN-978-0-691-19115-7
Law professor and behavioral scientist Sunstein (Nudge: Improving Decisions About Health, Wealth, and Happiness) offers a short treatise on the appropriate ethics for trying to influence behavior. He starts from two premises: that it is proper for institutions, health plans, government agencies, corporations, and so on to seek to influence individuals' behavior--to "nudge" individuals in a particular direction--and that they should only do so in a way that preserves people's freedom of choice. Some of the simpler nudges Sunstein covers are warnings about smoking, driving while texting, and eating unhealthily, but he also tackles complex situations that raise conundrums, such as those in which the free will of an individual has already been compromised by, for example, an addiction, willpower deficits, or other real-world obstacles. Sunstein considers a host of intriguing questions, perhaps most pointedly who should decide what behaviors are good for a person--that person or the "nudger." This slip of a book can be quickly read, but puts forth important concepts. Its ideas will stay with readers a longtime. (Feb.)
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"On Freedom." Publishers Weekly, vol. 265, no. 52, 17 Dec. 2018, p. 133. Gale General OneFile, link.gale.com/apps/doc/A567327432/ITOF?u=schlager&sid=bookmark-ITOF&xid=dd0ecfbc. Accessed 9 May 2024.
QUOTED: "elegant."
IMPEACHMENT A Citizen's Guide By Cass R. Sunstein 199 pp. Harvard University. Paper, $7.95.
CAN IT HAPPEN HERE? Authoritarianism in America Edited by Cass R. Sunstein 481 pp. Dey St./Morrow. Paper, $17.99.
It's really hard to impeach a president.
The founders included the provision, from the very start, as the weakest, ''break the glass in case of emergency'' mechanism for reining in an out-of-control executive. He was already subject to a four-year term, so he would remain answerable to the people, and to two other branches of government, which could box him in constitutionally. But the founders' fear of creeping monarchism -- the very reason for their revolution -- and their deep realism about human nature led them to a provision, rooted in English constitutional precedent, whereby a rogue president could be removed from office by the legislature during his term as well. At the same time, it's clear they also wanted a strong executive, not serving at the whim of Congress, or subject, like a prime minister, to a parliamentary vote of ''no confidence.'' He was an equal branch of government, with his own prerogatives, empowered, in Hamilton's words, to conduct his office with ''decision, activity, secrecy and dispatch.'' He stood very much on his own feet.
And so the impeachment power was both strong and weak. Strong as it hovered as the ultimate sanction for any president who might push his luck, but weak insofar as it was deliberately limited to the offense of subverting the Constitution itself or betraying the United States in foreign affairs: the famously grave and yet vague Anglo-American terminology of ''high crimes and misdemeanors,'' which included ''great and dangerous offenses.'' These were essentially serious political crimes, which was why they had to be dealt with in the political arena rather than the courts. They amounted to one core idea: If the president was to start acting like a king, he could be dispatched.
But if he was to start acting like an idiot, he could not be impeached. If he was psychologically disturbed but not mentally incapacitated, ditto. If he pursued ruinous policies, or faced enormous unpopularity, or said unspeakably reckless things, he could not be impeached. If he committed a whole slew of crimes in his personal capacity, he'd be answerable to public opinion and regular justice, but not subject to losing his job. If his judgment was unstable, his personal behavior appalling or if he were to make the United States a laughingstock in the opinion of mankind, the impeachment provision did not apply.
And even then, the bar for impeachment was very high, as Cass R. Sunstein's elegant new monograph, ''Impeachment: A Citizen's Guide,'' explains: Both House and Senate would have to be involved and in favor; and conviction would require a two-thirds majority in the Senate, ensuring that a clear national consensus was necessary if a president was to be judged to be gravely violating his oath of office, or betraying the country. This is why in well over two centuries the impeachment power has been invoked against sitting presidents only four times, and never actually pursued to conviction. The attempted impeachment of John Tyler in 1842 was rightly rejected by the House of Representatives by a margin of 127-83 (he was guilty of innovating the use of the veto on policy grounds alone), and the impeachment of Andrew Johnson in 1868(on the preposterous grounds that he had no right to appoint his own secretary of war) was turned back by a single vote in the Senate. The impeachment of William Jefferson Clinton in 1998 because of a civil sexual harassment suit squeaked through the House on partisan lines, 221-212, but failed in the Senate, with conviction on the least ludicrous obstruction of justice charge reaching only 50 votes out of a needed 67.
Richard Nixon resigned before a vote in the full House could be taken. Sunstein assesses his articles of impeachment thus: not impeachable for evading taxes (too personal a crime); probably impeachable for resisting a congressional subpoena (but a president could potentially make a legitimate, if dubious, claim about executive privilege); definitely impeachable for covering up an impeachable offense (abusing the powers of the F.B.I., the C.I.A. and the Department of Justice to conceal evidence of an attempt to subvert an election by burglarizing the Democratic National Committee).
Where does this leave us with respect to Donald Trump? Sunstein smartly doesn't answer the question directly -- instead teasing out various hypotheticals with some similarities to our current concerns. Here are a few: directing the Justice Department to prosecute someone for political reasons; pledging in advance to pardon anyone in law enforcement who commits a crime; using the F.B.I. or C.I.A. to get evidence of criminality against a political opponent; egregiously defaulting on his core presidential responsibilities; secretly bribing others in a direct quid pro quo or similarly receiving bribes; and secretly cooperating with a foreign power to promulgate false information against a political opponent. Sunstein thinks each of these is an impeachable offense -- as they almost certainly are.
With Trump, these analogies are tantalizingly close but probably not close enough. Firing an F.B.I. director for an investigation into a president's campaign, for example, is deeply suspicious, but technically kosher, since the F.B.I. director serves at the president's pleasure. Campaigning to ''lock her up'' and initiating a new Justice Department investigation into possible illegality by Hillary Clinton likewise could be described, in a pinch, as mere excessive campaign rhetoric or a genuine pursuit of justice. Spending hours watching cable television, refusing to read his daily intelligence briefing, disrupting negotiations with Congress by constantly shifting positions and dictating policy by declarative tweets are all clearly outside what the founders would regard as good executive leadership, but they are too subjective to be a reliable basis for impeachment. Pardoning Sheriff Joe Arpaio for violating the Constitution could be defended, however dubiously, as merely an act of compassion for an old man. Failing to abide by clear ethical rules by refusing to divest all business projects is an egregious outrage, but not provable bribery. Venting at an attorney general for recusing himself from a case in which he was involved (but not actually firing him) doesn't make the cut either.
What about passively cooperating with a foreign power to subvert an American election and then, after clear proof of such interference, refusing to counter that foreign power's intent to disrupt the next election too? If a president unwittingly benefited from a foreign foe's meddling (''no collusion!''), and he's merely guilty of failing to do enough to counter that power's continuing assault on the American democratic process, he's in the clear. But if he is actively neglecting a defense of this country's electoral integrity because he believes the Kremlin helped him win an election in the past, and will almost certainly help him and his party in the near future, then impeachment is a no-brainer. If he knew of the meddling at the time and encouraged it, ditto. In those cases, you have a combination of treason and defaulting on the core responsibilities of his office -- at the center of the founders' concerns (especially being too close to a foreign government). The trouble here is that we have, so far, no proof of anything but a willingness to collude with a foreign power's interference; and no clear evidence at all of the president's personal involvement with foreign actors.
Yet even if that evidence were incontrovertible (and that could still emerge in Mueller's investigation), impeachment remains a political decision. Which means that unless we experience some kind of unprecedented sea change in the pathological tribalism that now defines our politics, impeachment is a dead letter. What makes Trump immune is that he is not a president within the context of a healthy republican government. He is a cult leader of a movement that has taken over a political party -- and he specifically campaigned on a platform of one-man rule. This fact permeates ''Can It Happen Here? Authoritarianism in America,'' a collection of essays by a number of writers that has been edited by Sunstein, which concludes, if you read between the lines, that ''it'' already has.
No, Trump is not about to initiate a coup, or suspend elections or become a dictator. The more likely model for American authoritarianism is that of Recep Tayyip Erdogan in Turkey or the Fidesz party in Hungary. The dismemberment of a public discourse centered on objective truth is a key first step, fomented by unceasing dissemination of outright lies from the very top, metabolized by tribal social media, ever more extreme talk radio and what is essentially a state propaganda channel, Fox News. The neutering of the courts is the second step -- and Trump is well on his way to (constitutionally) establishing a federal judiciary whose most important feature will be reliable assent to executive power. Congress itself has far less approval than Trump; its inability to do anything but further bankrupt the country, enrich the oligarchy and sabotage many Americans' health care leaves an aching void filled by ... a president who repeatedly insists that ''I am the only one who matters.''
I don't think Trump has a conscious intent to vandalize liberal democracy -- he doesn't even understand what it is. Rather, his twisted, compulsive insecurity requires him to use his office to attack, delegitimize and weaken every democratic institution that may occasionally operate outside his own delusional narcissism. He cannot help this. His tweets are a function of spasms, not plots. But the wreckage after only one year is extraordinary. The F.B.I. is now widely discredited; the C.I.A. is held in contempt; judges, according to the president, are driven by prejudice and partisanship (when they disagree with him); the media produce fake news; Congress is useless (including both Republicans and Democrats); alliances are essentially rip-offs; the State Department -- along with the whole idea of a neutral Civil Service -- is unnecessary. And the possibility of reasoned deliberation at the heart of democratic life has been obliterated by the white-hot racial and cultural hatreds that Trump was able to exploit to get elected and that he constantly fuels.
The Democrats find themselves in opposition a little like Marco Rubio in the primaries. Take the high road and you are irrelevant; take the low road and you cannot compete with the biggest bully and liar on the block. The result is that an unimpeachable president is slowly constructing the kind of authoritarian state that America was actually founded to overthrow.
There is nothing in the Constitution's formal operation that can prevent this. Impeachment certainly cannot. As long as one major political party endorses it, and a solid plurality of Americans support such an authoritarian slide, it is unstoppable. The founders knew that without a virtuous citizenry, the Constitution was a mere piece of paper and, in Madison's words, ''no theoretical checks -- no form of government can render us secure.'' Franklin was blunter in forecasting the moment we are now in: He believed that the American experiment in self-government ''can only end in despotism, as other forms have done before it, when the people become so corrupted as to need despotic government, being incapable of any other.'' You can impeach a president, but you can't, alas, impeach the people. They voted for the kind of monarchy the American republic was designed, above all else, to resist; and they have gotten one.
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CAPTION(S):
PHOTOS: The Senate as a court of impeachment for the trial of Andrew Johnson. ; John Tyler (PHOTOGRAPHS BY LIBRARY OF CONGRESS); Hillary Rodham, center, a lawyer during the House impeachment inquiry into Watergate. (BR20); Bill Clinton after his acquittal by the Senate. (PHOTOGRAPHS BY DAVID HUME KENNERLY/GETTY IMAGES) (BR21)
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Sullivan, Andrew. "Can Donald Trump Be Impeached?" The New York Times Book Review, 18 Mar. 2018, p. 1(L). Gale General OneFile, link.gale.com/apps/doc/A531345806/ITOF?u=schlager&sid=bookmark-ITOF&xid=f3a4da6e. Accessed 9 May 2024.
QUOTED: "an essential guide to understanding impeachment's function within the 'constitutional system as a whole.'"
Impeachment: A Citizen's Guide
Cass R. Sunstein. Harvard Univ., $7.95 trade paper (210p) ISBN 978-0-674983-79-3
Constitutional-law scholar Sunstein (#Republic) is well positioned to provide this balanced and timely overview of the role of impeachment in American democracy. During the Clinton impeachment proceedings, he was asked by Congress to testify as to the meaning of the Constitution's reference to "high crimes and misdemeanors." Sunstein's account of this and other relevant personal experiences make his well-informed insights easy for the nonspecialist to digest. He reveals that for both Alexander Hamilton and Benjamin Franklin, having the ability to impeach the president was essential to establishing governments with the accountability lacking in monarchies. Sunstein goes over the relevant history, including the impeachments of Andrew Johnson and Bill Clinton, and discusses the related concept of removing a president for incapacity under the 25th Amendment (as a member of the Reagan Justice Department, he was called on for an expert opinion after the 1981 assassination attempt). The resulting book is an essential guide to understanding impeachment's function within the "constitutional system as a whole" and a persuasive argument that the impeachment clause places "the fate of the republic" in the hands of its citizenry. (Nov.)
Copyright: COPYRIGHT 2017 PWxyz, LLC
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"Impeachment: A Citizen's Guide." Publishers Weekly, vol. 264, no. 37, 11 Sept. 2017, p. 56. Gale General OneFile, link.gale.com/apps/doc/A505634936/ITOF?u=schlager&sid=bookmark-ITOF&xid=2cd35c78. Accessed 9 May 2024.
QUOTED: "uneven, but the best of the entries rouse the reader to think carefully and deeply about the prospects for American authoritarianism."
Can It Happen Here? Authoritarianism in America
Edited by Cass R. Sunstein. Dey Street, $17.99 trade paper (496p) ISBN 978-0-06269619-9
Playing off the title of Sinclair Lewis's 1935 novel about the rise of an authoritarian regime in the U.S., It Can't Happen Here, Sunstein (#Republic) gathers together 17 provocative, topical essays, prompted by fears that the Trump presidency could become a dictatorship. His contributors, a diverse group of social scientists, political scientists, and legal experts, ponder topics that include "constitutional rot," the use and misuse of government-declared states of emergency, and lessons from the country's founding. University of Chicago law professor Eric Posner contends that dictators succeed when they take on and defeat several institutions, including the press, courts, and party system; Trump, Posner argues, depends on such institutions, and for now at least is not enacting the dictator's handbook. University of Chicago law professors Tom Ginsburg and Aziz Huq cautiously remind readers that the U.S. Constitution excels at preventing coups or rapid deployment of emergency powers, but not at preventing autocrats from slowly dismantling democracy. Duke University political scientist Timur Kuran warns that in an era of cascading intolerance it is no easy task to find societal common ground. Like almost any essay collection, this one is uneven, but the best of the entries rouse the reader to think carefully and deeply about the prospects for American authoritarianism. Agent: Sarah Chalfant, the Wylie Agency. (Mar.)
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"Can It Happen Here? Authoritarianism in America." Publishers Weekly, vol. 265, no. 1, 1 Jan. 2018, p. 49. Gale General OneFile, link.gale.com/apps/doc/A522125009/ITOF?u=schlager&sid=bookmark-ITOF&xid=8d3e44a3. Accessed 9 May 2024.
QUOTED: "Despite its failings and establishment biases, Can It Happen Here? presents interesting theories about the possible roads and obstacles to tyranny. Some of the chapters are remarkable. And even the book's failures and biases can teach something. It is by eliminating error that we approach the truth."
Can It Happen Here? Authoritarianism in America
Edited by Cass Sunstein
496 pp.; Dey Street Books, 2018
Can it happen here?" ask 19 different contributors, most of them law professors, in this interesting book edited by Cass Sunstein. "It" is tyranny or, as they say more discretely, "dictatorship" or "autocracy," which is further laundered as "authoritarianism." This is a crucial question that must be answered squarely. The book gives many good but incomplete-and sometimes question-begging--answers.
Sunstein is a well-known law professor, now at Harvard University, who headed the White House Office of Information and Regulatory Affairs during Barack Obama's first term as president. A prolific author, he has also written in the field of behavioral economics, sometimes trying--and failing, according to some--to reconcile regulation with the idea of consumer sovereignty and economic efficiency. (See "Paternalism and Psychology," Summer 2006.) With economist Richard Thaler, he helped to originate the idea of government "nudging" individuals toward the presumed best choices without actually forcing them to choose. (See "A Less Oppressive Paternalism," Summer 2008.)
Prudent optimism / Some of the book's contributors are optimistic that the United States can avoid authoritarianism. University of Chicago law professor Eric Posner as well as Sunstein himself argue that fascism and dictatorship are very unlikely to happen here because of the United States' diversity, decentralized power, and legal and constitutional protections. But Sunstein includes a caveat: "If the American project is to be seriously jeopardized, it will almost certainly be because of a very serious security threat."
What quickly becomes apparent as one reads the book is that the authors are specifically concerned about rightwing fascism. None of the contributors defines fascism, but we understand that it is something like Mussolini's Italy. The danger of Donald Trump is frequently mentioned, but left-wing authoritarianism is not discussed.
Psychologist Karen Stenner and New York University business professor Jonathan Haidt argue that authoritarianism "is no momentary madness. It is a perpetual feature of human societies." In their estimate, one-third of individuals have an authoritarian personality. (Many will question the measure they use to determine this, related to a survey question about preferred child education.) They develop a model in which both "authoritarian personality" and "threats to social oneness" explain populism (of the right) and provide some empirical verification for this model in Trump's America, Marine LePen's France, and the United Kingdom's Brexit vote. They venture that some adjustments may be required to liberal democracy in order to avoid authoritarianism, such as avoiding too much diversity from immigration.
Their model doesn't consider whether a policy of "live and let live" would be better than more regulation. Perhaps authoritarians would be tamer if they were left alone?
"No, it can't happen here," writes George Mason University economist Tyler Cohen. "Not anytime soon." This would make him an optimist if it were not for the reason he gives. A takeover of the American government by fascists or any other radical group is impossible, he argues, because government "is so large and unwieldy": "Big government is useful precisely for (among other reasons) helping to keep government relatively small" (Cowen's emphasis). Fascists were able to take over Germany and South American countries for example, because their government; were small by today's standards.
This is an interesting theory, but it suggests that we can't fall under fascism because we already have it. In light of the Trump experiment, we may concede that, up to a certain point, the administrative state, however close we may think it is to soft fascism, is still better than the whims of a strongman. But other contributions in the book cast doubt on the theory that a heavily interventionist, apparently too-big-to-manage state cannot be co-opted by an authoritarian.
It could happen stealthily / Most of the book's contributors are pessimistic or cautious about the country's prospects of avoiding authoritarianism. If it happens here, it would probably happen slowly. University of Chicago law professor David Strauss writes: "There will have been no single, cataclysmic point at which democratic institutions were demolished. For the same reason, the steps towards authoritarianism will not always, or even usually, be obviously illegal." Like other contributors to the book, Strauss gives the impression that the state should do everything he thinks is good (like the New Deal) and nothing he believes is bad. Still, his article provides an interesting introduction to constitutional law.
Tumur Kuran, an economist and political scientist at Duke University, develops an interesting model of cascading intolerance that builds a road to serfdom different from the one that Friedrich Hayek foresaw. Trump, he says, is more a symptom than a cause. The problem is the clash between two "intolerant communities": "identitarians," who define individuals in terms of politically correct minority groups; and "nativists," who define individuals as part of the majority. Without a moderate middle and "a return to policies based on mutual respect and willingness to seek common ground," the system may reach a hatred-filled equilibrium or else produce a demagogue offering to one of the intolerant communities the means of crushing the other. The difficulty of collective action undermines the organization of a moderate middle.
One big step toward authoritarianism would be the proclamation of a state of emergency in the face of a real or fabricated security crisis. As noted by Yale law and political science professor Bruce Ackerman and by University of Chicago law professors Tom Ginsberg and Aziz Huk, the U.S. president's power to make war and declare a state of emergency, possibly followed by the mass arrest of individuals on government watchlists, is less constrained than in many Western countries.
Under the title of "How We Lost Constitutional Democracy," Ginsberg and Huk's chapter describes how the United States is vulnerable to "the most prevalent form of democratic backsliding: the slow and tortuous descent in partial autocracy." Except for the difficulty of amending it, the U.S. Constitution is not exceptional from the point of view of preventing democratic backsliding: it can be sidestepped, in some cases more easily than in other countries. Current or recent examples in other countries--Hungary, Poland, Turkey, Venezuela--show that each power grab may be legal in itself up to a certain point, but eventually no resistance to the strongman is feasible. They write, "We would, in short, do well to reject feel-good talk about American exceptionalism and embrace some of the founders' bracing and necessary trepidation about the future."
Many contributors to Can It Happen Here? use the term "democracy" to mean free elections and individual freedom. But we must realize that democracy itself can lead to authoritarianism. Ginsberg and Huk point out how populist leaders claim to embody "the authentic voice of the people." They quote Trump who, in a May 2016 campaign rally, expressed his fuzzy organicist conception of the volk: "The only thing that matters is the unification of the people--because other people don't mean anything." As "other people" are often (but not necessarily) foreigners, a national security crisis is an ideal opportunity to fuse the leader and his people.
One of the most important messages of the book: most people will realize that they are living under a dictatorship once it is already well entrenched.
It happened before / Columbia University political scientist Jon Elster provides a historical example of how, in a sophisticated country, an autocrat can grab power in a few steps, each of which is not decisive except for the last one. Within just one year in 1848, Louis Napoleon Bonaparte rose to dictatorship despite three distinct branching points where he could have been stopped legally. His political opponents, including Alexis de Tocqueville and the poet Alphonse Lamartine, failed to do so because of wishful thinking, lack or organization, and political ambition.
One strong point of the book is its discussion of how, as University of Chicago law professor Geoffrey Stone puts it, "It would be a grave mistake to think that 'it can't happen here.'" In some ways, it has already happened in America. These precedents cast a long shadow. Stone reviews the following events:
* Against the backdrop of an undeclared war with France, John Adams's Federalists adopted the Alien Act and the Sedition Act of 1798. Matthew Lyon, a congressman from Vermont, criticized Adams's "ridiculous pomp, foolish adulation, and selfish avarice," a charge deemed to bring the president into "disrepute." For that, Lyon was prosecuted and sentenced to prison.
* During the Civil War, Abraham Lincoln suspended habeas corpus and imposed martial law. Between 13,000 and 38,000 civilians were imprisoned, some for simply criticizing the war.
* During World War I, "aggressive federal prosecutors and compliant federal judges soon transformed the [Espionage] Act [of 1917] into a full-scale prohibition of seditious utterance." The Justice Department prosecuted more than 2,000 individuals under the act.
* The Sedition Act of 1918 was even more restrictive of free speech. During the Red Scare of 1919-1920, "more than five thousand people were arrested on suspicion of radicalism," including "Eugene V. Debs, who had received almost a million votes as the Socialist Party candidate for president in 1916."
* During World War II, against the advice of the Justice Department, Franklin D. Roosevelt ordered the internment of 120,000 men, women, and children of Japanese descent, of which 70,000 were American citizens.
* During the McCarthyism period, the leaders of the American Communist Party were prosecuted. The Supreme Court approved, with only one justice dissenting.
Throughout American history, Stone writes, the government has often been busy stifling dissent. During the Vietnam War, however, individual rights were better protected. At last, the Supreme Court stood firm in defense of the First Amendment. But that did not prevent National Guardsmen from firing into a crowd of student protestors at Kent State University one month after California governor Ronald Reagan was reported saying about campus militants, "If it takes a bloodbath, let's get it over with." Nobody is perfect, but politics has a way of making most people worse.
Fascism came to America under other forms. Slavery was fascism, but it could also be seen as socialism. Is there a real difference between the two systems? Slavery defender Hugh Fitzhugh argued that "slavery is a form, and the very best form, of socialism." (See "A Coherent Authoritarian," Winter 2015-2016.) Strangely enough, Can It Happen Here? nowhere mentions the eugenic tyranny that gripped America in the Progressive Era and eventually led to the involuntary sterilization of 30,000 persons. (See "Progressivism's Tainted Label," Summer 2016.)
Hope and weak links / One of the contributors, Harvard law professor Martha Minow, analyzed the Japanese internment episode in more detail, asking whether mass detentions without process could happen again in the United States. A Japanese-American, Fred Korematsu, challenged his internment order in court. He took his case all the way to the Supreme Court, where he lost in 1944. Despite the subsequent rehabilitation of Korematsu, to whom Bill Clinton awarded the Presidential Medal of Freedom in 1988, the Supreme Court had never overturned this infamous decision. Minow expressed the fear that Korematsu v. United States could be used as a precedent, including in public health scares.
That was true until very recently. Minow published her chapter before the 2018 decision in Trump v. Hawaii, where the Court finally and forcefully repudiated Korematsu. Wrote Chief Justice John Roberts in the majority opinion, "Korematsu was gravely wrong the day it was decided," and "has been overruled in the court of history." That's a point for the more optimistic contributors to Can It Happen Here? It is not a little ironic that what led the Court to revisit and repudiate Korematsu was Trump's travel ban--though the Court did ultimately allow a watered-down version of the ban to take effect.
A ray of light is not the sun. Some of the legal scholars who contribute to Sunstein's book show a naivety that does not bode well for the future. Yale law professor John Balkin is correct when he writes that "Trump is merely a symptom ... of a serious problem with our political and constitutional system." The 45th president is "straight out of central casting for demagogues: unruly uncouth, mendacious, dishonest, and cunning." But Balkin's article is in large part a succession of cliches typical of the sort of establishment thinking that dutifully prepared the terrain for Trump: for example, the government is at the service of the "[political] donor class" and has been unable "to reconcile globalization with democracy," the implication being that the former must yield to the latter and the individual to the collective.
New York University law professor Stephen Holmes also offers a disappointing chapter. He makes some interesting points against gerrymandered elections and polarized primaries, the danger of temporary democratic majorities, "competitive overpromising' (Holmes' emphasis) by politicians, the opaque security state, and the power of government to control dissent by using government agencies. But his grist is buried under the shaft of bad economics and pure cliches or contrivances such as "the weakening of the welfare state," "the puppets of global finance," economic insecurity, the disappearance of the citizen-soldier and its power to bully the rich, and so forth. Add a few meaningless or confused mantras such as "memory loss at the collective level" and "society's sense of future possibility." For good measure, Holmes evokes "a society where a loaded firearm is just another household appliance." Unwittingly, he demonstrates one reason why one-third of the American electorate voted for Trump.
Holmes exemplifies the statist elite suddenly surprised that the vast power they advocated for, and granted to, the state is being used by politicians not of their own tribe. They don't realize that tyranny, not nirvana, is what happens when people put all their hopes in government, as Anthony de Jasay argues (notably in his 1985 book The State). How can these elites complain so much about government's actions and yet not question its power? They had taken over the government and were pushing their brand of soft fascism when Trump displaced them.
Government power / It is remarkable that virtually none of the contributors to Can It Happen Here? mentions government power as a major reason for the danger of authoritarianism. What about reducing that power, regardless of whether it is the Democrats or the Republicans who would hold it? Chain Leviathan! Most of the contributors, on the contrary, seem to love government power, provided it is used to impose their own preferences. (I interpret Tyler Cohen's argument about why authoritarianism can't happen in America as the mere empirical hypothesis that the more power government gets, the less it can use that power in arbitrary ways.)
It is true that government power may result from people's authoritarian tendencies. But statecraft, if such a thing can be beneficial, should include preventing these tendencies from expressing themselves in police and military actions. If the state is justified, it must be to temper, not amplify, mob clamors.
Despite its failings and establishment biases, Can It Happen Here? presents interesting theories about the possible roads and obstacles to tyranny. Some of the chapters are remarkable. And even the book's failures and biases can teach something. It is by eliminating error that we approach the truth.
PIERRE LEMIEUX is an economist affiliated with the Department of Management Sciences of the Universite du Quebec en Outaouais. His latest book is What's Wrong with Protectionism (Rowman & Littlefield, 2018).
Copyright: COPYRIGHT 2018 Cato Institute
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Lemieux, Pierre. "You Didn't See It Coming." Regulation, vol. 41, no. 4, winter 2018, pp. 54+. Gale General OneFile, link.gale.com/apps/doc/A570438152/ITOF?u=schlager&sid=bookmark-ITOF&xid=23143228. Accessed 9 May 2024.
Byline: Carlos Lozada
The List: A Week-by-Week Reckoning of Trump's First Year
By Amy Siskind
Bloomsbury. 509 pp. $28
---
Can It Happen Here?: Authoritarianism in America
By Cass Sunstein (ed.)
Dey St. 481 pp. $17.99
---
It's a journalistic conceit of the Trump era - every day feels like a week, every week like a month, every month like a year, and so on until a four-year term feels like a lifetime. "What A Year This Month Has Been," declared HuffPost on Jan. 31, in a typical sample of the genre. Good thing February only had 28 weeks this year.
President Trump comes at you fast, and the whiplash of firings, tweets, shake-ups, indictments and alternative facts can be a lot to take. That's why Amy Siskind's "The List" is such an unusual and essential book. It's hard to read it straight through, except that's the whole point.
Immediately after Trump's election, Siskind began a weekly online compilation of all the deeds by the incoming administration - the "Trump regime," she calls it - that were, in the parlance of the resistance to which she dedicates her book, "not normal." Every norm broken, every conflict of interest flaunted, every institution degraded, every truth casually disregarded: Siskind wants us to remember them all. She fears the risks of forgetting, of just letting things slide.
The first week's list (Nov. 13-20, 2016) had nine items. The second week had 18. The third featured 26, including Trump's tweets about "millions" voting illegally and the continued chants of "lock her up" at a Trump rally in Cincinnati. Soon, each week's list swelled to more than 100 items. "The List," in book form, attempts a compressed history of Year 1, a year that Siskind contends undercut America's freedoms and values bit by bit, thus requiring "a trail map for us to follow back to normalcy and democracy - a journey, sadly, I suspect will take years if not decades to travel."
Siskind is not subtle about her mission. When the tagline for your website is "This is how democracy ends," virtually everything you see is scandalous. She overreaches at times, yet there is power in the accumulation, repetition and relentlessness of "The List." As Noah Feldman writes in "Can It Happen Here?," a new essay collection edited by his Harvard Law School colleague Cass Sunstein, "Civil society actors are the first and most public to say dramatically that democratic structures are in danger ... [they] think of themselves as sentinels." And the role of the sentinel, Feldman explains, requires "some aggressive outrage," even a "paranoic bent."
Siskind is up to the task.
Even for dedicated news junkies, it is remarkable how much we can forget, in the shock of the moment, about the previous shock of the moment. Reading "The List," I realized I'd forgotten that Trump went out of his way to give the announcement of his Supreme Court nominee a reality-television, who-will-he-pick vibe (Week 12). I'd forgotten about the insidious incompetence of a $2 trillion double-counting error in Trump's 2018 budget proposal (Week 28). I'd forgotten that Trump chose his son Eric's wedding planner to oversee federal housing programs in New York (Week 31). And I'd forgotten about Kellyanne Conway's invocation (Week 12) of the Bowling Green Massacre (Week Never).
But "The List" also forces its readers to reconsider things they remember too well and to wonder why. The dismissal of White House communications director Anthony Scaramucci, for instance, gets one sentence in this book, and that is really what it deserves. "[John] Kelly asserted his authority as chief of staff on Monday, firing Scaramucci immediately," Siskind writes, and her spare phrasing injects perspective into an event that consumed the Washington press for days.
There are moments when Siskind encompasses too much, when her comprehensiveness veers toward indiscriminate. It doesn't much matter, for instance, that GQ labeled Trump "the laziest president in American history" or that CNN's Fareed Zakaria worried aloud that the United States was "becoming irrelevant" on the international scene. "The List" is effective when it catalogs fact, not opinion.
A few weeks into her effort, Siskind begins prefacing the weekly rundowns with her own analytic summaries, which are some of the least enlightening portions of the book. "Trump has lost control of the narrative," we learn in Week 20. The following week, he still "struggled to take back the narrative." Twenty-one weeks later, the president remained "unable to control the narrative." (Reminder: "The narrative" is a made-up thing.) Every other week is described as the "most alarming" or "worst" or "most heartbreaking" of the Trump era. And Siskind attributes assorted Trump-related reversals - such as the fall of Fox News icon Bill O'Reilly or the early legislative struggles of Trump's health-care proposals - to the anti-Trump resistance, without much explanation.
"The List" is most useful in its ruthless deployment of repetition and specificity. For weeks on end, Siskind reminds readers that Trump had accused President Barack Obama, without evidence, of wiretapping Trump Tower. "Five weeks have passed. ... Six weeks have passed. ... Seven weeks have passed ..." since the initial charge, and Siskind delights in presenting virtually the same sentence each time. She charts the slow-motion fiasco that is Jared Kushner's security clearance and financial disclosures. She dwells on the president's habitual disdain for vital information, including daily intelligence reports and State Department briefings prior to conversations with foreign leaders - the sort of thing that might tell you if, say, the United States has a trade deficit or surplus with Canada. She highlights Trump's efforts to claim credit for what he did not achieve (particularly job growth before he took office) and deflect responsibility for what he did, as when he blames the generals for the deadly Niger ambush in October. She registers the administration's unending high-level vacancies, making clear how they often occur in departments and agencies for which Trump has little interest or excess suspicion. She scours news reports for every time White House aides seek to enlist law enforcement or intelligence agencies in the campaign to discredit Robert S. Mueller's investigation, a probe that Trump, even in the final week on Siskind's list, dismisses as an "artificial Democratic hit job."
And, most of all, Siskind lists the endless ethical breaches and financial conflicts of interest that trail this White House, the family that dominates it, and the top aides and Cabinet members beholden to it. It's one thing to know; it's another to read about them over and over and over.
Siskind argues that her list reveals a concerted effort to destabilize the U.S. political system. "It turns out authoritarians do follow a fairly predictable game plan - even if new to us and our fragile democracy," she writes in the introduction. Whether homegrown authoritarianism is possible is the subject of Sunstein's volume, "Can It Happen Here?," which, for some reason, Sunstein insists "is not a book about Donald Trump, not by any means," even though it is. (He said the same about his 2017 book, "Impeachment: A Citizen's Guide." Go figure.)
Several of the contributors - mainly law professors, with some diplomats, economists and psychologists tossed in - agree that American politics is susceptible to creeping authoritarianism and provide the intellectual underpinning to Siskind's minutiae. Duke University economist Timur Kuran considers two "intolerant communities" in American society, the "identitarians" and the "nativists," that derive meaning and purpose from their respective grievances and thus empower demagogues who promise to free one side from the purported outrages of the other. Few contributors fear a sudden and outright descent into autocracy. "It is a death by a thousand cuts, rather than the clean slice of the coup maker," University of Chicago law professors Tom Ginsburg and Aziz Huq write. "Because it can be masked with a veneer of legality, it can be cloaked with plausible deniability. It is always possible to justify each incremental step." Which is why Siskind is recording every one.
I hope Siskind writes "The List, Vol. II," and a third and fourth as well. I would read them all. There is strength in the immutability of the exercise, a counter to government by alternative facts. But I'm not sure that simply detailing Trump's tumult and transgressions will necessarily help lead us back toward normality, not when chaos is less a hindrance to the Trump presidency than its fulfillment.
"Many people think that the sense of upheaval that Trump has created in American politics means that he cannot keep going this way for long, and that his presidency is about to crack apart at any moment," Yale law professor Jack Balkin writes. "This is a mistake. Polarization and upheaval are good for him. Crisis is his brand."
Copyright: COPYRIGHT 2018 The Washington Post
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Lozada, Carlos. "Book World: Week by week, watching norms erode." Washington Post, 16 Mar. 2018. Gale General OneFile, link.gale.com/apps/doc/A531236796/ITOF?u=schlager&sid=bookmark-ITOF&xid=5d406f2e. Accessed 9 May 2024.
QUOTED: "The heart of his argument lies in the cumulative, collective effect of what individuals do online. Networking, shopping, dating and activism are all transformed by the engine of opportunity that is the internet. But those new links and choices produce a malign side effect: "filter bubbles", inside which like-minded people shut themselves off from opinions that might challenge their assumptions. Insulation pushes groups towards more extreme opinions."
#Republic: Divided Democracy in the Age of Social Media
Cass R Sunstein
Princeton University Press, 328pp. 24.95 [pounds sterling]
Cass Sunstein, one of the leading public intellectuals in the United States and a former Obama administration official, has worried and written for more than 15 years about the effects of the internet and digital communications on democracy. This book, his third on the subject, tackles social media.
The heart of his argument lies in the cumulative, collective effect of what individuals do online. Networking, shopping, dating and activism are all transformed by the engine of opportunity that is the internet. But those new links and choices produce a malign side effect: "filter bubbles", inside which like-minded people shut themselves off from opinions that might challenge their assumptions. Insulation pushes groups towards more extreme opinions.
Sunstein's organising principle is the difference between consumer and political sovereignty. The former promotes individual choice despite its possible consequences; the latter takes into account the needs of society as a whole. His inspiration is Jane Jacobs, the historian of US cities who celebrated, in poetic language, the benign and enriching effect on democracy of random encounters between citizens on pavements and in parks. How do we now reverse or dilute the polarisation driven by Facebook and Twitter?
The solutions Sunstein proposes for this very difficult problem are oddly tentative: websites stocked with challenging ideas and deliberative debates, voluntary self-regulation and "serendipity buttons". He rightly stresses transparency: we know far too little about the algorithms that sift news for our attention on the networks. Facebook has talked about trying to show news that is "engaging" and "interesting", without ever engaging in detailed public discussion of what these words mean. The disclosure requirements for social networks "require consideration", Sunstein writes, without saying whether Facebook might have to be required legally to explain precisely how it routes news to almost two billion users.
Sunstein's most interesting arguments are myth-busters. He questions the "wisdom of crowds", while refraining from pointing out directly that the single strongest argument against this idea is the inequality of opinions. Not all opinions are equally valuable. He warily suggests what only a very few American voices have so far dared to say: that the First Amendment to the constitution, which guarantees a free press, should not be treated--as the courts have recently tended to do--as an equally strong protection for the freedom of all speech.
Sunstein is nostalgic for the media system and regulation of the past. I spent years working for a daily "general-interest" newspaper (the Times) and regret the decline of those outlets as much as he does, yet there is no reversing the technological and economic changes that have undermined them. It might have been a mistake to deregulate television in the United States, and killing the "fairness doctrine" might have had unforeseen effects, but that does not deal with the dilemmas thrown up by WhatsApp or Weibo, the Chinese version of Twitter.
Users of these platforms face the problem of managing abundance. Writers such as Sunstein imply that people who lock themselves in filter bubbles are deplorably unable to break out of their informational isolation. But we all now live in bubbles that we design to make sense of the torrent of information flowing through our phones. Better-designed, heterogeneous bubbles include the unexpected and the challenging.
Yet the problem lies deeper than the quality of your bubble. Polarised societies can no longer agree on how to recognise the truth. Filter bubbles play a part, but so do a preference for emotion over reason, attacks on scientific fact from religion, decades of public emphasis on self-fulfilment, and a belief that political elites are stagnant and corrupt. Like many journalists, Sunstein treats the problem of a malfunctioning communications system as a supply-side matter: the information being generated and distributed ought to be better.
In the case of fake news, that is indisputable. But there is also a demand-side problem, one that hinges on the motives of those consuming information. If, inside their bubbles, people are not curious about alternative opinions, are indifferent to critical thinking and prefer stoking their dislike of, say, Hillary Clinton--will they have even the slightest interest in venturing outside their comfort zone? Do we have a right to ignore the views of others, or an obligation to square up to them? Millions of Americans believe that one of the most important guarantees in their constitution is the right to be left alone--and that includes being left alone by the New York Times.
Sunstein does not venture far into this territory. He only hints that if we worry about what people know, we must also worry about what kinds of societies we build. Globalisation has reshaped communities, dismantling some and building others online, but the net effect has been to reduce deliberation and increase a tendency to press the "Like" button, or loathe opponents you can't see or hear. The ability to debate civilly and well may depend on complex social chemistry and many ingredients --elite expertise, education, critical thinking, culture, law--but we need to be thinking about the best recipes.
George Brock is a professor of journalism at City, University of London. He is the author of "Out of Print: Newspapers, Journalism and the Business of News in the Digital Age" (Kogan Page)
Copyright: COPYRIGHT 2017 New Statesman, Ltd.
http://www.newstatesman.com/
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Brock, George. "Boy in the filter bubble." New Statesman, vol. 146, no. 5372, 23 June 2017, p. 47. Gale General OneFile, link.gale.com/apps/doc/A499720314/ITOF?u=schlager&sid=bookmark-ITOF&xid=54769755. Accessed 9 May 2024.
QUOTED: "#Republic is full of constructive suggestions. It should be required reading for anyone who is concerned with the future of democracy--in Silicon Valley and beyond."
#Republic: Divided Democracy in the Age of Social Media. By Cass Sunstein. Princeton University Press; 310 pages.
LAST June Facebook announced a change to its newsfeed. Henceforth it would rejig the way stories were ranked to ensure that people saw "the stories they find most meaningful". But what does "most meaningful" actually mean? Posts from family and friends, apparently, as well as those users you frequently "like". Your newsfeed should be "subjective, personal and unique", Facebook went on, promising to work on building tools to give users "the most personalised experience".
Cass Sunstein, a law professor at Harvard University and Barack Obama's former regulation tsar, is one of Facebook's dissatisfied customers. "Facebook can do better," he writes in "#Republic", his new book about democracy in the age of social media. Mr Sunstein is disturbed by some aspects of ultra-customised information, yet he shows himself a master of restraint in his criticism. He clearly wants to influence Mark Zuckerberg and other tech titans without alienating them. Although Mr Zuckerberg dropped out of Harvard, perhaps he can still pick up the occasional book by a Harvard professor--along with his new honorary degree.
In some ways, "#Republic" is a kind of Democracy 101, a review of the basic requirements for those who may have skipped the course. These requirements include, among other things, that citizens be exposed to a wide range of ideas and perspectives--even, and especially, those they would not choose to see or hear. Unplanned, chance encounters--with a protest as one wanders down the street, or a competing argument aired on the evening news--help guard against "fragmentation, polarisation and extremism". They ensure that people are not hearing only an echo of their own voice. They reduce the likelihood that people will be stirred to extremes, such as terrorism. And they promote shared information and experiences, making it easier to solve problems and govern in a heterogeneous society.
This is the positive side of the free- speech principle, Mr Sunstein writes. It means not only forbidding censorship, but also creating a culture where people engage with the views of fellow citizens.
In the digital age social media function as the public forums where ideas are exchanged. But when people filter what they see--and providers race towards ever greater "personalisation" in the name of consumer choice--democracy is endangered. People live in separate worlds. Even hashtags, meant to help users find information on a certain topic, lead them to different bubbles. Democrats use #ACA and #blacklivesmatter; Republicans use #Obamacare and #alllivesmatter. Partyism might be said to exceed racism in America, Mr Sunstein argues. Whereas in 1960 only 5% of Republicans and 4% of Democrats said they would be "displeased" if their child married outside their political party, by 2010, those numbers had reached 49% and 33%, a far higher percentage than those who would be "displeased" if their child married outside their race.
Mr Sunstein wants an "architecture of serendipity" to combat these forces: that is, media that promote chance encounters and democratic deliberation like the public forums of old. Facebook might design "serendipity buttons", he suggests, allowing users to click for opposing viewpoints or unfiltered perspectives. Conservative news sites could feature links to liberal sites and vice versa, alerting people to material beyond their usual sources. A site like deliberativedemocracy.com--the domain is not yet taken--could offer a space for people of divergent views to discuss issues. Democracies should take their cue from Learned Hand, an American judge who said the spirit of liberty is that "spirit which is not too sure that it is right".
It is not just up to Mr Zuckerberg, then, to foster a culture of curiosity and openness. Citizens must demand it, Mr Sunstein argues, and they must seek out those serendipitous encounters. "#Republic" is full of constructive suggestions. It should be required reading for anyone who is concerned with the future of democracy--in Silicon Valley and beyond.
#Republic: Divided Democracy in the Age of Social Media.
By Cass Sunstein.
Copyright: COPYRIGHT 2017 Economist Intelligence Unit N.A. Incorporated
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"In praise of serendipity; Social media." The Economist, vol. 422, no. 9031, 11 Mar. 2017, p. 79(US). Gale General OneFile, link.gale.com/apps/doc/A485543829/ITOF?u=schlager&sid=bookmark-ITOF&xid=4b903a12. Accessed 9 May 2024.
QUOTED: "highly recommended."
Sunstein, Cass R. #Republic: divided democracy in the age of social media. Princeton, 2017. 310p index ISBN 9780691175515 cloth, $29.95; ISBN 9781400884711 ebook, contact publisher for price
(CC) 54-5396
HM851
CIP
People increasingly live in their own bubbles. As the 2016 US elections revealed, American's two major political parties have their own truths and alternative facts. The country is divided by geography, by the news sources that are consumed, and by social media. It seems that more and more people want to confront only their version of reality, unwilling to be challenged by diverse and opposing viewpoints. How this came about and its implications for democracy are the subject of this book. Sunstein describes the emergence of the social media "daily me," a world presenting to each person a unidimensional and an uncritical world reinforcing individual biases. It is a world fed by new communication technologies that treat individuals as consumers with preferences to be satisfied. Sunstein argues that this not good for a democracy in which citizens need to engage diverse views and get along with others. The book offers reasons this is necessary in a democracy and prescriptions regarding how to nudge citizens to respond to a broader variety of opinions. Good for collections on democracy, the media, and First Amendment law. Summing Up: *** Highly recommended. General readers through faculty.--D. Schultz, Hamline University
Copyright: COPYRIGHT 2017 American Library Association CHOICE
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Schultz, D. "Sunstein, Cass R.: #Republic: divided democracy in the age of social media." CHOICE: Current Reviews for Academic Libraries, vol. 54, no. 11, July 2017, pp. 1707+. Gale General OneFile, link.gale.com/apps/doc/A498846329/ITOF?u=schlager&sid=bookmark-ITOF&xid=a93b8ddf. Accessed 9 May 2024.
QUOTED: "For any student who wants to write a term paper on Star Wars, this book could serve as a rich resource."
Sunstein, Cass R. THE WORLD ACCORDING TO STAR WARS Dey Street/HarperCollins (Adult Nonfiction) $21.99 5, 31 ISBN: 978-0-06-248422-2
An exploration of how Star Wars "illuminates childhood, the complicated relationship between good and evil, rebellions, political change, and constitutional law."Sunstein (Conspiracy Theories and Other Dangerous Ideas, 2014, etc.) is a Harvard law professor and has served as an adviser to President Barack Obama; he is also a Star Wars fanatic. The author offers close readings of the movies, script decisions, their novelizations, and the fan fiction inspired by them, and he inflates it all to mythmaking worthy of Joseph Campbell's scrutiny. "In all of human history, there's never been a phenomenon like Star Wars," writes Sunstein. "Fueled by social media, the whole series has a cult-like following, except that the cult is so large that it transcends the term. It's humanity, just about." Even for those few who lie outside that "just about," this analysis engages with its broader themes about fathers and sons, timeliness and timelessness, destiny and free will, tradition and rebellion, God(s) and mankind. Though the author shows some academic rigor he largely avoids scholarly jargon except for the occasional "Let's try to unpack it." Sunstein is plainly writing for those who are equally invested in Star Wars and who want to learn more about how the franchise came about, why no one envisioned the scope and scale of its success, why it spoke specifically to its times and has continued to resonate, and how it encompasses spiritual, political, and psychological dimensions. What began as something of a homage to Flash Gordon has become, in the author's eyes, a text through which we can decode all the issues of the modern world. "Here are thirteen ways of looking at Star Wars," he writes. "Most of them have plausible sources in the movies. A few of them are nuts but still smart--which makes them especially interesting." Certainly odd but also smart and interesting. For any student who wants to write a term paper on Star Wars, this book could serve as a rich resource.
Copyright: COPYRIGHT 2016 Kirkus Media LLC
http://www.kirkusreviews.com/
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"Sunstein, Cass R.: THE WORLD ACCORDING TO STAR WARS." Kirkus Reviews, 1 Apr. 2016. Gale General OneFile, link.gale.com/apps/doc/A447747738/ITOF?u=schlager&sid=bookmark-ITOF&xid=b1d1e2d3. Accessed 9 May 2024.
QUOTED: "very accessible."
Sunstein, Cass R. The World According to Star Wars. Dey Street: HarperCollins. May 2016. 240p. notes. ISBN 9780062484222. $21.99; ebk. ISBN 9780062484246. FILM
Author, political adviser, and law professor (Robert Walmsley Univ. Prof., Harvard Univ.) Sunstein's very accessible new title talks about the history of Star Wars, including how director/creator George Lucas conceived of the idea and what his inspirations were. It's fascinating to read the author's theories of how the series became the phenomenon that it is today, because it was not perceived as a blockbuster when the first movies were released. The book also delves into the various themes of Star Wars--fathers and sons, the hero's journey, rebellion, and freedom of choice. Of course, the mythology invites speculation as well. What is the force? Is Star Wars political? Are there religious themes in the films? Is there feminism? The magic of the movies lies in how they connect different generations, and that love is joyfully celebrated here.
Verdict Recommended for those who love reading about Star Wars, George Lucas, sf movies, and stories about the entertainment industry.--Sally Bryant, Pepperdine Univ. Lib., Malibu, CA
Copyright: COPYRIGHT 2016 Library Journals, LLC
http://www.libraryjournal.com/lj/reviews/xpress/884170-289/xpress_reviews-first_look_at_new.html.csp
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Bryant, Sally. "Sunstein, Cass R. The World According to Star Wars." Xpress Reviews, 29 Apr. 2016. Gale General OneFile, link.gale.com/apps/doc/A454486153/ITOF?u=schlager&sid=bookmark-ITOF&xid=9ba6e226. Accessed 9 May 2024.