Best Selling Books by Cass R. Sunstein

This is the 2013 case supplement to accompany Constitutional Law by Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan. Summary of Contents Table of Cases Table of Authorities I. The Constitution and the Supreme Court II. Federalism at Work: Congress and the National Economy III. The Scope of Congress's Powers: Taxing and Spending, War Powers, Individual Rights, and State Autonomy IV. The Distribution of National Powers V. Equality and the Constitution VI. Implied Fundamental Rights VII. Freedom of Expression VIII. The Constitution and Religion IX. State Action, Baselines, and the Problem of State Power

"In law and politics, some people are trimmers. They attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of "trimming heuristic" and thus conclude that the middle course is best; and preservers, who attempt to preserve what is deepest in and most essential to competing reasonable positions, which they are willing to scrutinize and evaluate. It is true that in some cases, trimming leads to bad results in both politics and law, including bad interpretations of the Constitution. It is also true that trimmers face difficult questions about how to ascertain the relevant extremes and that trimmers can be manipulated by those who are in a position to characterize or to shift those extremes. Nonetheless, trimming is an honorable approach to some difficult questions in both law and politics, and in many domains, it is more attractive than the alternatives. In constitutional law, there are illuminating conflicts among those who believe in trimming, minimalism, rights fundamentalism, and democratic primacy."

Consumers, employees, students, and others are often subjected to “sludge”: excessive or unjustified frictions, such as paperwork burdens, that cost time or money; that may make life difficult to navigate; that may be frustrating, stigmatizing, or humiliating; and that might end up depriving people of access to important goods, opportunities, and services. Because of behavioral biases and cognitive scarcity, sludge can have much more harmful effects than private and public institutions anticipate. To protect consumers, investors, employees, and others, firms, universities, and government agencies should regularly conduct Sludge Audits to catalogue the costs of sludge, and to decide when and how to reduce it. Sludge often has costs far in excess of benefits, and it can have hurt the most vulnerable members of society.

In The Rhetoric of Reaction, published in 1991, Albert Hirschman identified three standard objections to reform proposals: perversity, futility, and jeopardy. In Hirschman's account, these objections define reactionary rhetoric. As Hirschman had it, a proposal would be “perverse” if it would aggravate the very problem it is meant to solve; it would be “futile” if it would achieve nothing (e.g., not even dent the problem); it would produce “jeopardy” if it would endanger some other goal, value, or hard-won achievement (such as liberty or economic growth). The rhetoric of reaction comes from both left and right, though in Hirschman's account, it is a special favorite of the right. Hirschman urged that in light of the rote and even mechanical character of the rhetoric of reaction, some apparently “original and brilliant insights” end up looking “rather less impressive, and sometimes even comical.” In many ways, ours is an Era of Reactionary Rhetoric. The perversity, futility, and jeopardy theses have often been invoked to challenge reforms, including nudges, in such areas as environmental protection, gun control, road safety, COVID-19, food safety, climate change, occupational safety, and civil rights. While the three theses are sometimes supported by the evidence, they are often a form of motivated reasoning -- evidence-free speculations, thus confirming Hirschman's suggestion that the rhetoric of reaction has “a certain elementary sophistication and paradoxical quality that carry conviction for those who are in search of instant insights and utter certainties.” The long-term challenge is to avoid perversity, futility, and jeopardy - both by meeting the rhetoric of reaction and (more fundamentally) by devising reform proposals that cannot plausibly be subject to reactionary objections.

Behavioral economists have shown that consumers may disregard the long-term, display unrealistic optimism, ignore shrouded attributes, procrastinate, make mistaken judgments about probability, and suffer from “internalities,” which occur when people make decisions that hurt their future selves. Moreover, choice architecture, understood as the social background, is always present, and it can have major consequences for both consumption decisions and environmental outcomes. Small changes in the underlying architecture may have a large impact on consumer behavior, potentially even larger than that of significant economic incentives. Such changes may involve disclosure, warnings, default rules, increased salience, and use of social norms. In the domain of environmental protection, non-price interventions, preserving freedom of choice, have considerable potential.

Excessive borrowing, no less than insufficient savings, might be a product of bounded rationality. Identifiable psychological mechanisms are likely to contribute to excessive borrowing; these include myopia, procrastination, optimism bias, 'miswanting, ' and what might be called cumulative cost neglect. Suppose that excessive borrowing is a significant problem for some or many; if so, how might the law respond? The first option involves weak paternalism, through debiasing and other strategies that leave people free to choose as they wish. Another option is strong paternalism, which forecloses choice. Because of private heterogeneity and the risk of government error, regulators should have a firm presumption against strong paternalism, and hence the initial line of defense against excessive borrowing consists of information campaigns, debiasing, and default rules. On imaginable empirical findings, however, there may be a plausible argument for strong paternalism in the form of restrictions on various practices, perhaps including 'teaser rates' and late fees. The two larger themes, applicable in many contexts, involve the importance of an ex post perspective on the consequences of consumer choices and the virtues and limits of weak forms of paternalism, including debiasing and libertarian paternalism.

For over two decades, federal agencies have been required to analyze the benefits and costs of significant regulatory actions and to show that the benefits justify the costs. But the regulatory state continues to suffer from significant problems, including poor priority-setting, unintended adverse side-effects, and, on occasion, high costs for low benefits. In many cases, agencies do not offer an adequate account of either costs or benefits, and hence the commitment to cost-benefit balancing is not implemented in practice. A major current task is to ensure a deeper and wider commitment to cost-benefit analysis, properly understood. We explain how this task might be accomplished and offer a proposed executive order that would move regulation in better directions. In the course of the discussion, we explore a number of pertinent issues, including the actual record of the last two decades, the precautionary principle, the value of prompt letters the role of distributional factors, and the need to incorporate independent agencies within the system of cost-benefit balancing.