Books May 2014

Our Nudge in Chief

How, and why, Cass Sunstein believes laws and public policies should help save us from our irrational impulses
Nadav Kander/Trunk Archive

The radio talk-show host Glenn Beck has named Cass Sunstein, a professor at Harvard Law School, “the most dangerous man in America.” Given the number of men currently serving life sentences or sitting on death row for serial murder or terrorist acts, not to mention the fugitives on the FBI’s most-wanted list, this is quite a charge. In his own defense, Sunstein, undoubtedly the most prolific legal scholar in the United States, has collected 11 of his most controversial articles—on subjects as diverse as conspiracy theories, climate change, same-sex marriage, animal rights, and “new progressivism”—in one volume, Conspiracy Theories and Other Dangerous Ideas. The first sign that these writings might not be so dangerous is their provenance. They originally appeared in such journals as the Stanford Law & Policy Review, The Journal of Political Philosophy, the Harvard Law Review, and The Journal of Legal Studies. Then again, one is drawn from a book titled The Behavioral Foundations of Public Policy.

What could have inspired Beck’s assessment? Sunstein served in the Obama administration, but he’s not especially liberal. In Conspiracy Theories, he defends free markets and criticizes “command and control” planning. He favors soft government interventions like warnings and default rules, which leave people freedom of choice, over outright bans on dangerous behavior. He questions minimum-wage laws and argues that the United States has no particular obligation to enter into climate-change agreements that might impose domestic burdens even if such moves were to benefit the rest of the world. He does call for a social safety net for the poor, protections against animal cruelty, and, disturbingly, government subterfuge to counteract conspiracy theories. But if this is the most dangerous man in America, we can drastically reduce our homeland-security spending right now.

In fact, Sunstein often seems to go out of his way to avoid controversy. He is careful, deliberative, and painstaking. He favors “minimalism,” by which he means taking small steps and resolving disputes narrowly. He distrusts bold measures and central planning because he worries about unintended consequences. And he is virtually always ready to identify counterarguments, not simply to knock them down but to credit them for raising important caveats and concerns. These are all good qualities in a lawyer and a law professor, to be sure, but it’s a good bet that he won’t be leading a revolution anytime soon. In 2012, Sunstein stepped down from a government position that might best be called “chief bureaucrat.” As the man in charge of the Office of Information and Regulatory Affairs, he reviewed, and in many cases rejected, regulations and rules proposed by the nation’s administrative agencies. This is not a post from which one could pose much danger. Nor, the last time I checked, is a Harvard Law School professorship.

Cass Sunstein, until 2012 the administrator of the Office of Information and Regulatory Affairs, confers with the president and his adviser Valerie Jarrett. (White House Photo/Alamy)

Sunstein’s current overarching project is the opposite of revolutionary. He seeks to tame our impulses and intuitions, to counteract the irrational and emotional errors we often make, in order to help us reach better decisions through deliberation and rational thinking. (Of course, to a fiery talk-show host, that may be precisely what makes him so dangerous.)

For roughly the past 15 years, Sunstein has sought to apply the lessons of behavioral economists to difficult legal and policy questions. Their findings have shown what most of us already suspected—that the “rational actor” upon whom classical economics is based is a myth. In reality, people’s decisions are determined not by careful comparison shopping and cold, calculated reason, but by emotions, fears, unwarranted confidence, aversion to loss, acute susceptibility to peer influences, and all sorts of other cognitive biases. In Conspiracy Theories, as well as another new book, Why Nudge?, Sunstein maintains that such insights can assist us in resolving a variety of social problems.

Drawing on Daniel Kahneman’s Thinking, Fast and Slow, Sunstein explains that our brains essentially have two “cognitive systems”—helpfully called System 1 and System 2. System 1, in Sunstein’s words, is “emotional and intuitive. When it hears a loud noise, it is inclined to run,” and it won’t say no to temptation: “It certainly eats a delicious brownie.” System 2, by contrast, “is deliberative. It calculates. When it hears a loud noise, it assesses whether the noise is a cause for concern … It sees a delicious brownie and makes a judgment about whether, all things considered, it should eat it.”

The goal of much of Sunstein’s work is to identify ways to counteract the impulsive influences of System 1 when they lead us astray. If people are inclined to overlook the consequences of certain behaviors, for example, he suggests that the government require warnings and disclosures—such as fuel-economy labels on cars and calorie information on restaurant menus. Because irrational tendencies to focus on the short term and to procrastinate dissuade us from saving for retirement, Sunstein advocates default rules, such as automatically enrolling workers in retirement plans, leaving them the choice of opting out. He calls such measures “soft paternalism,” to be distinguished from the “hard paternalism” of flat bans or mandates, which do not leave people free to decide for themselves.

Presented by

David Cole teaches constitutional law, criminal justice, and national security at Georgetown University Law Center.

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