Cass Sunstein

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,[24] despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts,[25] as well as providing strongly maintained theoretical support for the death penalty.[26] Conservative libertarian legal scholar Richard A. Epstein described Sunstein as "one of the more conservative players in the Obama administration."[27]

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.

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.[28]

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."[29]

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.[30] In 2006, the Supreme Court found the tribunals illegal in Hamdan v. Rumsfeld in a 5–3 vote.

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."[31] 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."[32] He is concerned by the present "situation in which like-minded people speak or listen mostly to one another,"[33] 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."[34] 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."[32]

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."[35] "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."[36]

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.

Sunstein has argued, "We should celebrate tax day."[37] 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.[37]

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.[37]

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."[29] Sunstein addressed the Senate on 11 July 1996 advising against the Defense of Marriage Act.[38]

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",[39] 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."[39] 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."[39] 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[40][41] who argue that it would violate prohibitions on government propaganda aimed at domestic citizens.[42] Sunstein and Vermeule's proposed infiltrations have also been met by sharply critical scholarly responses.[43][44][45][46][47]

In 2016, Sunstein wrote of the Disney film franchise Star Wars that "Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down," comparing the importance of the films to the Bible, Santa Claus, and Mickey Mouse.[48] The publication was reviewed in Time magazine, where it was described as "the ultimate primer for guiding a Star Wars padawan to the level of Jedi Knight."[49]

"Star Wars," he writes, "is a grain of sand; it contains a whole world." This, he argues, is evident even if one "can't tell an Ackbar from [...] a Snoke." As he develops his thesis, he takes this argument further, arguing that the "hidden message and the real magic of Star Wars" is "its rousing tribute to human freedom."[50] In an interview with The A.V. Club, Sunstein stated that he felt "over the moon about Star Wars." The film franchise, in his view, "casts light not just on the saga of our time, but also on everything about our culture," and includes many "puzzles" for the curious. Despite his overall positive view of Lucas' oeuvre and the impact of the franchise on society, Sunstein had some criticism for the prequel films, and likened that to society at large:

The sky is always falling or the sky is always bright. In some ways, this is really morning in America and we don’t see it. People are living longer, the economy is doing pretty well. On the other hand, there are some ways of thinking in the current situation that make it look not so good, including our Star Wars prequels

Sunstein compared Star Wars to his work for the Obama administration, saying that his approach to regulatory reform was very similar to Lucas' constrained approach to the movies as "episodes."[51]

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 9788460983507.

• 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 9788496859616.

• 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 9786073162067.

• 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 9780691175515. OCLC 958799819.
• Sunstein, Cass R. (2017). Human Agency and Behavioral Economics: Nudging Fast and Slow. Palgrave Advances in Behavioral Economics. ISBN 9783319558066. OCLC 1049592088.
• Sunstein, Cass R. (2017). Impeachment: A Citizen's Guide. Harvard University Press. ISBN 9780674983793.
• Sunstein, Cass R. (2018-03-06). Can It Happen Here?: Authoritarianism in America. HarperCollins. ISBN 9780062696212.
• Sunstein, Cass R. (2018). The Cost-Benefit Revolution. MIT Press. ISBN 978-0262038140.
• Sunstein, Cass R. (2019). On Freedom. Princeton University Press. ISBN 9780691191157.
• Sunstein, Cass R. (2019). How Change Happens. MIT Press. ISBN 978-0262039574.
• Sunstein, Cass R. (2019). Conformity: The Power of Social Influences. NYU Press. ISBN 978-1479867837.

• Sunstein, Cass R. (January 1989). "Introduction: Notes on feminist political thought". Ethics. 99 (2): 219–28. doi:10.1086/293063. JSTOR 2381432. S2CID 145528659.
• Sunstein, Cass R.; Vermeule, Adrian (June 2009). "Conspiracy theories: Causes and cures". Journal of Political Philosophy. 17 (2): 202–27. doi:10.1111/j.1467-9760.2008.00325.x.