Cass Robert Sunstein (born September 21, 1954) is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who was the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration from 2009 to 2012. For 27 years, Sunstein taught at the University of Chicago Law School. Sunstein is the Robert Walmsley University Professor at Harvard Law School.
Studies of legal publications between 2009 and 2014 have found Sunstein to be the most frequently cited American legal scholar by a wide margin, followed by Erwin Chemerinsky and Richard A. Epstein.
Sunstein was born on September 21, 1954 in Concord, Massachusetts to Marian (née Goodrich), a teacher, and Cass Richard Sunstein, a builder, both Jewish. He graduated in 1972 from Middlesex School and in 1975 with a B.A. from Harvard College, where he was a member of the varsity squash team and the Harvard Lampoon. In 1978, Sunstein received a J.D. magna cum laude from Harvard Law School, where he was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and part of a winning team of the Ames Moot Court Competition. He served as a law clerk first for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court (1978–1979) and later for Justice Thurgood Marshall of the United States Supreme Court (1979–1980).
Sunstein worked in the Office of Legal Counsel in the Justice Department as an attorney-advisor (1980–1981) and then took a job as an assistant professor of law at the University of Chicago Law School (1981–1983), where he also became an assistant professor in the Department of Political Science (1983–1985). In 1985, Sunstein was made a full professor of both political science and law; in 1988, he was named the Karl N. Llewellyn Professor of Jurisprudence in the Law School and Department of Political Science. The university honored him in 1993 with its „distinguished service“ accolade, permanently changing his title to Karl N. Llewellyn Distinguished Service Professor of Jurisprudence in the Law School and Department of Political Science.
Sunstein was the Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986 and a visiting professor at Harvard Law School in the spring 1987, winter 2005, and spring 2007 terms. He teaches courses in constitutional law, administrative law, and environmental law, as well as the required first-year course „Elements of the Law“, which is an introduction to legal reasoning, legal theory, and the interdisciplinary study of law, including law and economics. In the fall of 2008, he joined the faculty of Harvard Law School and began serving as the director of its Program on Risk Regulation:
The Program on Risk Regulation will focus on how law and policy deal with the central hazards of the 21st century. Anticipated areas of study include terrorism, climate change, occupational safety, infectious diseases, natural disasters, and other low-probability, high-consequence events. Sunstein plans to rely on significant student involvement in the work of this new program.
On January 7, 2009, the Wall Street Journal reported that Sunstein would be named to head the White House Office of Information and Regulatory Affairs (OIRA). That news generated controversy among progressive legal scholars and environmentalists. Sunstein’s confirmation was long blocked because of controversy over allegations about his political and academic views. On September 9, 2009, the Senate voted for cloture on Sunstein’s nomination as Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget. The motion passed in a 63–35 vote. The Senate confirmed Sunstein on September 10, 2009 in a 57–40 vote.
In his research on risk regulation, Sunstein is known for developing, together with Timur Kuran, the concept of availability cascades, wherein popular discussion of an idea is self-feeding and causes individuals to 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. He recanted many of the views expressed in the book before his confirmation as administrator of the Office of Information and Regulatory Affairs in order to receive Senate confirmation. Asked by Rudy Takala if Sunstein’s views nonetheless persisted in the Obama administration, U.S. Federal Communications Commission Commissioner Michael O’Rielly eluded the question, answering, „Everybody needs a nudge, right?“
Sunstein co-authored Nudge: Improving Decisions about Health, Wealth, and Happiness (Yale University Press, 2008) with economist Richard Thaler of the University of Chicago. Nudge discusses how public and private organizations can help people make better choices in their daily lives. Thaler and Sunstein argue that
People often make poor choices – and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself.
The ideas in the book proved popular with politicians such as U.S. President Barack Obama, British Prime Minister David Cameron, and the British Conservative Party in general. The „Nudge“ idea has been criticised. Dr Tammy Boyce, from public health foundation The King’s Fund, has said:
We need to move away from short-term, politically motivated initiatives such as the ’nudging people‘ idea, which are not based on any good evidence and don’t help people make long-term behavior changes.
Sunstein is a contributing editor to The New Republic and The American Prospect and is a frequent witness before congressional committees. He played an active role in opposing the impeachment of Bill Clinton in 1998.
In recent years, Sunstein has been a guest writer on The Volokh Conspiracy blog as well as the blogs of law professors Lawrence Lessig (Harvard) and Jack Balkin (Yale). He is considered so prolific a writer that in 2007, an article in the legal publication The Green Bag coined the concept of a „Sunstein number“ reflecting degrees of separation between various legal authors and Sunstein, paralleling the Erdős numbers sometimes assigned to mathematician authors.
He is a member of the American Academy of Arts and Sciences (elected 1992) and the American Law Institute (since 1990).
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping changes to the law or decisions that have broad-reaching effects. Some view him as liberal, despite Sunstein’s public support for George W. Bush’s judicial nominees Michael W. McConnell and John G. Roberts, as well as providing strongly maintained theoretical support for the death penalty.
Much of his work also brings behavioral economics to bear on law, suggesting that the „rational actor“ model will sometimes produce an inadequate understanding of how people will respond to legal intervention.
Sunstein has collaborated with academics who have training in behavioral economics, most notably Daniel Kahneman, Richard Thaler, and Christine M. Jolls, to show how the theoretical assumptions of law and economics should be modified by new empirical findings about how people actually behave.
The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to Sunstein. „There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him,“ argued Sunstein.
Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering people’s decisions in directions that will make their lives go better. With Thaler, he coined the term „choice architect.“
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.
In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes‘ conception of free speech as a marketplace „disserves the aspirations of those who wrote America’s founding document.“ The purpose of this reformulation would be to „reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views.“ He is concerned by the present „situation in which like-minded people speak or listen mostly to one another,“ and thinks that in „light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals.“ He proposes a „New Deal for speech [that] would draw on Justice Brandeis‘ insistence on the role of free speech in promoting political deliberation and citizenship.“
Some of Sunstein’s work has addressed the question of animal rights, as he co-authored a book dealing with the subject, has written papers on it, and was an invited speaker at „Facing Animals,“ an event at Harvard University described as „a groundbreaking panel on animals in ethics and the law.“ „Every reasonable person believes in animal rights,“ he says, continuing that „we might conclude that certain practices cannot be defended and should not be allowed to continue, if, in practice, mere regulation will inevitably be insufficient—and if, in practice, mere regulation will ensure that the level of animal suffering will remain very high.“
Sunstein’s views on animal rights generated controversy when Sen. Saxby Chambliss (R-Ga.) blocked his appointment to the Office of Information and Regulatory Affairs by Obama. Chambliss objected to the introduction of , a volume edited by Sunstein and his then-partner Martha Nussbaum. On 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.
Sunstein has argued, „We should celebrate tax day.“ Sunstein argues that since government (in the form of police, fire departments, insured banks, and courts) protects and preserves property and liberty, individuals should happily finance it with their tax dollars:
In what sense is the money in our pockets and bank accounts fully ‚ours‘? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live? Without taxes, there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and exercise their rights without placing any burden whatsoever on the public… There is no liberty without dependency.
Sunstein goes on to say:
If government could not intervene effectively, none of the individual rights to which Americans have become accustomed could be reliably protected. […] This is why the overused distinction between „negative“ and „positive“ rights makes little sense. Rights to private property, freedom of speech, immunity from police abuse, contractual liberty and free exercise of religion – just as much as rights to Social Security, Medicare and food stamps – are taxpayer-funded and government-managed social services designed to improve collective and individual well-being.
In a recent book, Sunstein proposes that government recognition of marriage be discontinued. „Under our proposal, the word marriage would no longer appear in any laws, and marriage licenses would no longer be offered or recognized by any level of government,“ argues Sunstein. He continues, „the only legal status states would confer on couples would be a civil union, which would be a domestic partnership agreement between any two people.“ He goes on further, „Governments would not be asked to endorse any particular relationships by conferring on them the term marriage,“ and refers to state-recognized marriage as an „official license scheme.“ Sunstein addressed the Senate on 11 July 1996 advising against the Defense of Marriage Act.
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“, where they suggest, among other tactics, „Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.“ They refer, several times, to groups that promote the view that the US Government was responsible or complicit in the September 11 attacks as „extremist groups.“
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.“ Sunstein and Vermeule argue that the practice of enlisting non-government officials, „might ensure that credible independent experts offer the rebuttal, rather than government officials themselves. There is a tradeoff between credibility and control, however. The price of credibility is that government cannot be seen to control the independent experts.“ This position has been criticized by some commentators who argue that it would violate prohibitions on government propaganda aimed at domestic citizens. Sunstein and Vermeule’s proposed infiltrations have also been met by sharply critical scholarly critiques.
In the 1980s and early 1990s, Sunstein was married to Lisa Ruddick, whom he met as an undergraduate at Harvard. She is now associate professor of English at the University of Chicago, specializing in British modernism. Later, his partner and co-author was Martha Nussbaum, philosopher, classicist, and professor of law at the University of Chicago.
On July 4, 2008, Sunstein married Samantha Power, professor of public policy at Harvard, now United States Ambassador to the United Nations, whom he met when they worked as campaign advisors to Barack Obama, their friend and his former colleague at the University of Chicago Law School.
The wedding took place in the Church of Mary Immaculate, Loher near Waterville, County Kerry in Power’s native Ireland on July 4, 2008. They have two children: a son, Declan Power Sunstein (April 24, 2009). and a daughter, Rían Power Sunstein (June 1, 2012).