Cass R. Sunstein

Bio: Cass R. Sunstein is an academic researcher from Harvard University. The author has contributed to research in topics: Supreme court & Constitution. The author has an hindex of 117, co-authored 787 publications receiving 57639 citations. Previous affiliations of Cass R. Sunstein include Brigham Young University & Indiana University.

The Bill of Rights in the modern state

Abstract: Although the Bill of Rights has existed for two hundred years, the last half century has seen dramatic changes in its meaning and scope. The essays collected in this volume represent the full range of views and interpretations of what these first ten amendments to the U. S. Constitution mean today as guarantors of individual rights. The contributors to this volume are among the most prominent constitutional scholars in the country. Most of the essays are grouped in pairs, each of which offers conflicting positions on current constitutional controversies, including property rights, freedom of religion, freedom of speech, levels of generality in constitutional interpreation, and unemumerated rights. The contributors are: Bruce Ackerman, Mary E. Becker, Ronald Dworkin, Frank H. Easterbrook, Richard A. Epstein, Charles Fried, Mary Ann Glendon, Philip B. Kurland, Frank J. Michaelman, Michael W. McConnell, Richard A. Posner, Kathleen M. Sullivan, John Paul Stevens, David A. Strauss, and Cass R. Sunstein. "A thoughtful and well coordinated set of exchanges between leading modern constitutional theorists about the most significant issues related to the Bill of Rights and the Welfare State. These issues are debated through penetrating essays by opposing theorists who get to the heart of these issues and provide significant answers to their debate opponents' points." Thomas R. Van Dervort, "Southeastern Political Review" "

Climate Change Justice

Abstract: Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change are poor. This argument from distributive justice is complemented by an argument from corrective justice: The existing "stock" of greenhouse gas emissions owes a great deal to the past actions of the United States, and many people think that the United States should do a great deal to reduce a problem for which it is largely responsible. But there are serious difficulties with both of these arguments. Redistribution from the United States to poor people in poor nations might well be desirable, but if so, expenditures on greenhouse gas reductions are a crude means of producing that redistribution: It would be much better to give cash payments directly to people who are now poor. The argument from corrective justice runs into the standard problems that arise when collectivities, such as nations, are treated as moral agents: Many people who have not acted wrongfully end up being forced to provide a remedy to many people who have not been victimized. The conclusion is that while a suitably designed climate change agreement is in the interest of the world, a widely held view is wrong: Arguments from distributive and corrective justice fail to provide strong justifications for imposing special obligations for greenhouse gas reductions on the United States. These arguments have general implications for thinking about both distributive justice and corrective justice arguments in the context of international law and international agreements.

On Not Revisiting Official Discount Rates: Institutional Inertia and the Social Cost of Carbon

Abstract: Within the federal government, official decisions are a product of both substantive judgments and institutional constraints. With respect to discounting, current practice is governed by OMB Circular A-4 and the 2010 and 2013 technical support documents of the Interagency Working Group on the Social Cost of Carbon. Reconsideration of existing judgments must be subjected to a demanding and time-consuming process of internal review (and potentially to external review as well). Institutional constraints, including the need to obtain consensus, can impose obstacles to efforts to rethink existing practices, especially in an area like discounting, which is at once technical and highly controversial.

Chevron Step Zero

Abstract: The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero—the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer’s case-by-case view has enjoyed significant victories. Two trilogies of cases—one explicitly directed to the Step Zero question, another implicitly so directed—suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron’s scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved. Over twenty years after its birth, the Supreme Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, Inc.1 shows no sign of losing its influence. On the contrary, the decision has become foundational, even a quasi-constitutional text—the undisputed starting point for any assessment of the allocation of authority between federal courts and administrative agencies. Ironically, Justice Stevens, the author of Chevron, had no broad ambitions for the decision; the Court did not mean to do anything dramatic.2 But shortly after it appeared, Chevron was quickly taken to establish a new * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. I am grateful to Douglas Lichtman, Richard Posner, Adrian Vermeule, and participants in the work-in-progress lunch at the University of Chicago Law School for valuable comments on a previous draft. Blake Roberts provided valuable research assistance. 1 467 U.S. 837 (1984). As a sign of Chevron’s influence, consider the fact that the decision was cited 2,414 times in its first decade (between 1984 and January 1, 1994), 2,584 times in its next six years (between January 1, 1994 and January 1, 2000), and 2,235 times in its next five years (between January 1, 2000 and January 28, 2005). LEXIS search, March, 2005. 2 See Robert Percival, Environmental Law in the Supreme Court: Highlights from the Marshall Papers, 23 ENVTL. L. REP. 10606, 10613 (1993). In fact it is possible, and fascinating, to trace a series of opinions in which Justice Stevens expressed reservations about the broad reading of Chevron, and attempted to domesticate the decision. See, e.g., Young v. Community Nutrition Institute, 476 U.S. 974, 985 (1986) (Stevens, J., dissenting); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Babbitt v. Sweet Home Chapter of approach to judicial review of agency interpretations of law,3 going so far as to establish a kind of counter-Marbury for the administrative state. It seemed to declare that in the face of ambiguity, it is emphatically the province and duty of the administrative department to say what the law is.4 Chevron also appeared to have imperialistic aspirations, cutting across countless areas of substantive law and the full range of procedures by which agencies might interpret statutory law. Some of those ambitions have been realized, for Chevron has had a fundamental impact on areas as disparate as taxation,5 labor law,6 environmental protection,7 immigration,8 foods and drugs,9 and highway safety.10 In all of these areas, and many more, Chevron has signaled a substantial increase in agency discretion to make policy through statutory interpretation. For this reason, Chevron might well be seen not only as a kind of counter-Marbury, but even more fundamentally as the administrative state’s very own McCulloch v. Maryland,11 permitting agencies to do as they wish so long as there is a reasonable connection between agency choices and congressional instructions. This grant of permission seemed to depend on a distinctive account of legal interpretation, one that sees resolution of statutory ambiguity as involving judgments of principle and policy, and insists that the executive, not the courts, should be making those judgments.12 Communities for a Great Oregon, 515 U.S. 687 (1995). See also Christensen v. Harris County, 529 U.S. 576, 595 n.2 (2000) (Stevens, J., dissenting) (endorsing “fully” Justice Breyer’s narrow reading of Chevron). 3 See, e.g., Kenneth Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. REG. 283 (1986); Richard Pierce, Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301 (1988). On the real-world consequences of Chevron, see Peter Schuck and E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 42 DUKE L.J. 984 (1989). Schuck and Elliott find a significant effect from Chevron, an increase in affirmance rates from 71% in the pre-Chevron year of 1984 to 81% in the post-Chevron year of 1985. Over more extended periods, studies are hard to conduct, because prospective litigants will adjust their mix of cases to the rules governing judicial review of agency action; when challenges are hard to sustain under doctrines of deference, fewer challenges will be brought. On the other hand, agencies and their lawyers may adjust their own practices to deference doctrines as well, and hence take legal risks that they would not assume if courts were less likely to defer. Relevant findings, exploring the importance of whether a panel is composed of Republican or Democratic appointees to the application of Chevron, can be found in Frank Cross and Emerson Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (finding that allRepublican panels are particularly willing to strike down agency action at the behest of an industry challenge, notwithstanding Chevron). 4 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the laws is.”). 5 Atlantic Mutual Ins. Co. v. Commissioner, 523 U.S. 382 (1998); Tate & Lyle v. Commissioner, 87 F.3d 99 (3d Cir. 1996). 6 See NLRB v. United Food Workers Union, 484 U.S. 112 (1987); Cavert Acquisition Co. v. NLRB, 83 F.3d 598 (3d Cir 1996). 7 See Chemical Manufacturers Association v. NRDC, 470 U.S. 116 (1985). 8 See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 9 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). 10 Geier v. American Honda Motor Co., 529 U.S. 861 (2000). 11 17 U.S. 316 (1819). 12 See infra notes 40-44.

Regulation As Delegation

Abstract: In diverse areas – from retirement savings, to fuel economy, to prescription drugs, to consumer credit, to food and beverage consumption – government makes personal decisions for us or helps us make what it sees as better decisions. In other words, government serves as our agent. Understood in light of Principal-Agent Theory (PAT) and Behavioral Principal-Agent Theory (BPAT), a great deal of modern regulation can be helpfully evaluated as a hypothetical delegation. Shifting from personal decisions to public goods problems, we introduce the idea of reverse delegation, with the government as principal and the individuals as agents.

Pattern Recognition and Machine Learning

Abstract: Probability Distributions.- Linear Models for Regression.- Linear Models for Classification.- Neural Networks.- Kernel Methods.- Sparse Kernel Machines.- Graphical Models.- Mixture Models and EM.- Approximate Inference.- Sampling Methods.- Continuous Latent Variables.- Sequential Data.- Combining Models.

The behaviour change wheel: a new method for characterising and designing behaviour change interventions.

Abstract: Improving the design and implementation of evidence-based practice depends on successful behaviour change interventions. This requires an appropriate method for characterising interventions and linking them to an analysis of the targeted behaviour. There exists a plethora of frameworks of behaviour change interventions, but it is not clear how well they serve this purpose. This paper evaluates these frameworks, and develops and evaluates a new framework aimed at overcoming their limitations. A systematic search of electronic databases and consultation with behaviour change experts were used to identify frameworks of behaviour change interventions. These were evaluated according to three criteria: comprehensiveness, coherence, and a clear link to an overarching model of behaviour. A new framework was developed to meet these criteria. The reliability with which it could be applied was examined in two domains of behaviour change: tobacco control and obesity. Nineteen frameworks were identified covering nine intervention functions and seven policy categories that could enable those interventions. None of the frameworks reviewed covered the full range of intervention functions or policies, and only a minority met the criteria of coherence or linkage to a model of behaviour. At the centre of a proposed new framework is a 'behaviour system' involving three essential conditions: capability, opportunity, and motivation (what we term the 'COM-B system'). This forms the hub of a 'behaviour change wheel' (BCW) around which are positioned the nine intervention functions aimed at addressing deficits in one or more of these conditions; around this are placed seven categories of policy that could enable those interventions to occur. The BCW was used reliably to characterise interventions within the English Department of Health's 2010 tobacco control strategy and the National Institute of Health and Clinical Excellence's guidance on reducing obesity. Interventions and policies to change behaviour can be usefully characterised by means of a BCW comprising: a 'behaviour system' at the hub, encircled by intervention functions and then by policy categories. Research is needed to establish how far the BCW can lead to more efficient design of effective interventions.

International Norm Dynamics and Political Change

Abstract: Norms have never been absent from the study of international politics, but the sweeping “ideational turn” in the 1980s and 1990s brought them back as a central theoretical concern in the field. Much theorizing about norms has focused on how they create social structure, standards of appropriateness, and stability in international politics. Recent empirical research on norms, in contrast, has examined their role in creating political change, but change processes have been less well-theorized. We induce from this research a variety of theoretical arguments and testable hypotheses about the role of norms in political change. We argue that norms evolve in a three-stage “life cycle” of emergence, “norm cascades,” and internalization, and that each stage is governed by different motives, mechanisms, and behavioral logics. We also highlight the rational and strategic nature of many social construction processes and argue that theoretical progress will only be made by placing attention on the connections between norms and rationality rather than by opposing the two.

Risk as Feelings

Abstract: Virtually all current theories of choice under risk or uncertainty are cognitive and consequentialist. They assume that people assess the desirability and likelihood of possible outcomes of choice alternatives and integrate this information through some type of expectation-based calculus to arrive at decision. The authors propose an alternative theoretical perspective, the risk-as-feelings hypothesis, that highlights the role of affect experienced at the moment of decision making. Drawing on research from clinical, physiological, and other subfield of psychology, they show that emotional reactions to risky situations often drive behavior. The risk-as-feelings hypothesis is shown to explain a wide range of phenomena that have resisted interpretation in cognitive-consequentialist terms.

A perspective on judgment and choice: Mapping bounded rationality.

Abstract: Early studies of intuitive judgment and decision making conducted with the late Amos Tversky are reviewed in the context of two related concepts: an analysis of accessibility, the ease with which thoughts come to mind; a distinction between effortless intuition and deliberate reasoning. Intuitive thoughts, like percepts, are highly accessible. Determinants and consequences of accessibility help explain the central results of prospect theory, framing effects, the heuristic process of attribute substitution, and the characteristic biases that result from the substitution of nonextensional for extensional attributes. Variations in the accessibility of rules explain the occasional corrections of intuitive judgments. The study of biases is compatible with a view of intuitive thinking and decision making as generally skilled and successful.