August 21, 2025 • 53 mins
Jon Hartley and Cass Sunstein discuss the current state as of 2025 of behavioral economics and ideas presented in Nudge (such as government nudge units), administrative law and regulation (cost-benefit analysis and regulatory budgets), Constitutional Law and separation of powers, political philosophy and liberalism.
Recorded on August 12, 2025.
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(00:00):
[MUSIC]
>> Jon Hartley (00:09):
This is the Capitalism and Freedom in the 21st Century podcast,
an official podcast with HooverInstitution Economic Policy Working Group
where we talk about economics,markets, and public policy.
I'm Jon Hartley, your host today.
My guest is Cass Sunstein,
who's one of the most cited legalscholars of the 20th and 21st centuries.
He's a longtime professor at the HarvardLaw School, where He's been since 2008 and
previously was at the Universityof Chicago law School since 1981.
(00:31):
Cass also served as the administratorof OIRA, which is the Office of
Information Regulatory affairsduring the Obama administration.
He's also a prolific author of over 50books, including Nudge with Richard Thaler
and Noise A Flaw in Human Judgment withDaniel Kahneman and Oliver Siboney.
He's also the author of several famouslaw textbooks on constitutional law and
(00:54):
administrative law.
Welcome, Cass.
>> Cass Sunstein (00:57):
Thank you.
Great pleasure to be here.
>> Jon Hartley (00:59):
So I want to just start by getting into your early life.
Where did you grow up andhow did you get interested in law and
behavioral economics?
>> Cass Sunstein (01:07):
I grew up in Wabin, Massachusetts and
I was a literature major in college.
I got interested in law really my senioryear in college, where I thought being
a graduate student in English literaturewould be extremely interesting, but
maybe too passive.
And law, I thought you could have lotsof flexibility and be more in the world.
(01:28):
That's what my young self thought.
When I came to the University ofChicago a few years later in teaching,
I was surrounded by rationalchoice types with Gary Becker and
George Stigler leading the charge andRichard Posner and
Bill Landis at the law school being theformidable giants who were surrounded me.
(01:50):
I felt like I was 3 foot tall andthey were all 9ft tall.
I was a little persontrying to understand.
They were so high in the clouds Icould barely hear their voices,
though they were booming.
But I was a literature major andI thought that their conception of
humanity was not the same as whatI had learned from James Joyce and
(02:12):
William Shakespeare andWilliam Butler Yates and John Keats.
And so I was skeptical,kind of cluelessly skeptical.
I learned something about behavioraleconomics from Jan Elster,
who was a Norwegian political scientistphilosopher who came to the University of
Chicago.
He introduced me to notions aboutpre commitment strategies and
(02:35):
about adaptive preferences.
That kind of was an inroadinto the behavioral stuff.
And I started writing material thatdrew on Thaler and Kahneman Tversky,
and it was, I think, primitive,was law professor primitive.
But Thaler came to the Universityof Chicago at a time
(02:56):
when I was immersed in behavioralstuff and that kind of Accelerated.
We became great friends.
That's kind of accelerated myfocus on behavioral economics and
its relationship to law.
>> Jon Hartley (03:09):
Fantastic, so I want to sort of, I guess, for
the moment just focus onbehavioral economics.
We'll get to law andpolitical philosophy later.
So you co-authored the seminal book,Nudge, cast on scene in 2008.
I remember it as a pretty, I think,seminal moment for behavioral economics.
(03:32):
And it really, I think, increasedthe popularity of behavioral economics.
I mean, at the same time you sort of hadthe global financial crisis was sort of
around the same time.
But I just remember, you know,that really the, you know, late 2000s and.
And 2010s was a very, very a populartime for behavioral economics.
He also wrote a book more recently, Noise,with Daniel Kahneman and Oliver Sibony.
(03:57):
Daniel Kahneman beingthe famous Kahneman Tversky.
I'm curious what you think aboutthe state of behavioral economics is now
following what I think has beenjust as sort of, I see it, I think,
maybe a more challenging time forbehavioral economics.
We've had some recent controversies,a lot of controversy,
(04:21):
particularly in the field of psychology.
A massive fraction of studiesthere aren't replicable.
I think there's been some very famousscandals within the behavioral
economics world, think Dan Arielli,Francesca Gino, Francesca.
You've been in several of theirpapers have been retracted,
(04:43):
following the uncovering fromthe folks at Data Colada.
And to me, I mean, it seems likebehavioral economics maybe peaked
around the times ofthe Richard Thaler Nobel and
the Robert Shiller Nobelin sort of the mid 2010s.
And maybe it's been on a bit of a decline.
I mean, would you agree with that?
Tell me why either that's wrong or
(05:04):
where you think the state of behavioraleconomics is as we see it today in 2025.
>> Cass Sunstein (05:10):
Okay, thanks for that.
I'll tell you a story and
then we'll maybe talk aboutsomething in the vicinity of data.
So the story is I had dinner not longago with a behavioral economist.
And he said it's terrible.
And I said what's terrible?
And he said it's so terrible.
And I said what do you mean it's soterrible?
(05:31):
And he said the demand forpeople doing behavioral economics
is higher than it's everbeen by far that people in
the private sector,Silicon Valley and Saudi Arabia,
in Germany, in France andItaly, are looking for
people in the private sector whoare trained in behavioral economics.
(05:58):
Governments are keener than ever thatwe're seeing interest in hiring behavioral
economists from people who are runningbehavioral insights teams or nudge units.
The demand is off the charts andit's higher than ever.
And I said, why is it terrible?
That sounds amazing.
(06:18):
He said, there aren't enough people.
So the, the people are holding themselvesout as behavioral economists or
behavioral scientists to get jobs,but they're not trained.
The field is flourishing with such,you know, kind of exuberance on the part
of the people who are interested in it,and there just aren't enough people ready.
(06:40):
And he said, you've got to getpeople at Harvard ready to go help
people who are thinking about smoking,secession or road safety or
how to get people to pay fineswhen they're not paying fines,
how to get people to take up programs,how to deal with occupational licensing.
(07:01):
So on the practitioner side,from government and
the private sector,behavioral economics is incalculably
better off than it was even six,seven years ago.
On the academic side, the same is true.
If you look at the leadingeconomics journals,
(07:21):
if there isn't at least one behavioraleconomics paper in the current issue,
it's surprising if there isn't onethe year before or the year after.
I'm sorry, the issue before orthe issue after a year is too much.
There are too many papers in behavioraleconomics in the American Economic Review,
in the Economic Journal, andthe Quarterly Journal of Economics.
(07:45):
And some of it is kind of normalscience where loss aversion is used to
explain something, andloss aversion is identified in a context
that we didn't see somethingmight be appearing on default.
Default rules and their power.
Benjamin Enki is doing work on complexity,which I find extremely interesting,
(08:07):
and the role of complexity.
There's a lot of workon cognitive scarcity.
This is something that I'm keenlyinterested in from Malathan and Shafir,
their work on scarcity andthat has implications for
when behavioral findings will beespecially present and when they might
fall apart because people are focusing onsomething and so they're not going to show
(08:31):
loss aversion because if they do, they'regoing to lose a lot of money in a hurry.
So that's very vivid.
John List, of course,
has done a ton of phenomenal papers inthe domain of behavioral economics.
And if we don't see a good John Listpaper in any four month period,
that's a surprising four month period.
(08:53):
There's keen interestin both economics and
in other domains in manipulation andhow to think about it.
Sometimes it goes by specificnames like dark patterns, or
sometimes there's a specification ofthe exploitation of a behavioral bias.
(09:13):
This also connects with work onalgorithms and machine learning.
So behavioral economics right nowis both on the practice side and on
the theoretical side in a better position,I'd say, by far, than it's ever been.
There isn't explosive insight,period that we saw with early Kahneman and
(09:34):
Tversky or Thaler, butwe see much more in terms of insights and
much more specificity andnew insights coming that are often firmer,
they might be consistent with, butfirmer than anything we've observed
before just because the techniquesare better on replication.
(09:59):
Thaler has a new edition ofthe Winner's Curse coming out,
I think in September 2025.
And all of the findingsreplicate every single one.
So that's, I think his expositionchallenge in this amazing
new edition of the Winner's Curseis not to be kind of crowing at
(10:21):
the replication of the core findings,but they all replicate.
And to say they replicate is one thingto say the magnitude or the conditions
under which, et cetera, like you canmake the endowment effect go down or
disappear if people are really sad, as Irecall, you don't see an endowment effect,
(10:43):
but the central findings of thatdefining book all replicate.
So within the field,by which I mean both practitioners and
people are doing real academic work.
I'm thinking of Alex Moss, whom I don'tknow, but whose work is very, very good.
The fraud of Gino is a littlelike you're playing baseball and
(11:09):
there's some player who took steroids.
I mean,baseball still pretty good sport and
shouldn't take steroids andthe fraud has hurt horrific.
I, I don't even understand it.
I should say I don't understand the stateof mind suggests my limits as a behavioral
scientist that I don't,I don't see how one could do that.
(11:31):
But that's clear with Gino and,and, but if you look at the,
the extent of the field, fraud ishorrific, but very limited in number.
The replication challenge, as I'd, as I'dcall it, I wouldn't call it a crisis.
What's happening in Gaza is a crisis.
(11:51):
Climate change, in my view, is a crisis.
The replication challenge,that's a better word than crisis,
is if things don't replicate, that'sbasically an opportunity for learning.
And the core findings replicate.
We're seeing more, you know, more materialthat tells us more about when default
rules will be powerful and exactly why youcould say that a default rule won't be
(12:16):
powerful if people hate the thing they'redefaulted into and they have freedom.
Findings don't replicate.
And that's, that's an advance to know thatit's very important to keep at it to see,
you know, is what are the boundaryconditions for the availability heuristic.
(12:37):
Stock trader probably isn't going to bevulnerable to the availability heuristic
where they're going tolose a lot of money.
>> Jon Hartley (12:44):
So this is kind of, I guess, how I see the maybe evolution,
like behavioral economics.
You had like 20, 30 years ago,you had Kahneman, Tversky, Thaler,
they were sort of challengingtraditional models.
They get into data,find some anomaly or some bias.
Aha, yes.
Some new behavioral biases are discovered.
And then you also had in the sort of two,maybe 2000,
(13:06):
2010s, a lot of work on behavioralfinance and factors and
things like momentum or herding,Jeremy Stein's hurting theory paper.
You also had these things likeErnest Fear's theory about fairness around
that time.
I think how it's evolved over time isnow I think researchers are trying
(13:28):
to find more of a unifying theorythat connects these facts.
So things like I would say the complexitywork, I would maybe put under that.
I guess maybe more on the empirical side.
I don't know if it's fair to say that,you know, RCTs and experiments,
(13:49):
I think it's fair to say thatthey've certainly been the backbone,
a backbone of behavioral economics.
I'm not sure if it's necessarilyfair to say that every RCT or
experiment is behavioral economics.
I think some might disagree.
And I think some of thesedefinitions are very loose.
But, you know, I think one challengethere is, you know, scaling.
And I don't know, I've seen a lot ofwork that in my mind, like information
(14:12):
provisions that maybe don't havesignificant results in that space.
But I'm just curious, like,I think one that behavioral economics,
with things like default rules andinformation provision experiments,
can't really hold a candle in terms ofmagnitude of the effects of these things.
Is that right or wrong or.
Obviously, behavioral economics is kindof meant to be the sort of third way,
(14:33):
like idea into something very new.
I'm just curious what you think aboutscaling in behavioral economics ideas and
implementation.
>> Cass Sunstein (14:43):
Okay, so suppose we did an RCT and
I put on my front lawn a signthat said don't smoke.
And we had a population who drove past myfront lawn and a population that didn't.
And let's.
Suppose it's a big size and it's.
Let's just go with the ideait's randomized and
(15:07):
the diminution in smoking was zero.
That this would be a test ofa pretty pathetic nudge and
whether it worked to diminishsmoking in New England.
And I predict thatthe effect would be zero.
Or we could design ina cafeteria in Palo Alto or
(15:29):
in Cambridge,an intervention where there was
a notice contains meat withrespect to meat products,
which would be to nudgepeople not to eat meat.
And I have no predictionabout the effect of that.
But I wouldn't be surprisedif the effect of the nudge
(15:52):
was small orzero if we had a randomized trial.
So the number of nudges is.
Is so large, just like, like the numberof criminal punishments is so large and
the number of medical interventions is solarge that if you took a class and
called them criminal punishmentsthroughout, let's say,
(16:16):
western history and the effect size ofthe punishment was really small and
some populations are zero,that wouldn't be amazing.
And if it turned out thatacross a category of medicines,
the effect in diminish,diminishing fatality or
illness was really little, andthat wouldn't be surprising if the.
(16:41):
I hope medicine's much better now.
But if you look at medicine overthe course of human history,
you probably get a medianeffect size of zero.
So I think the metaanalyses of the effect of
anything is imperfectly informative.
(17:01):
So I would predict, and
we have reason to think that defaultrules are the most powerful nudge.
And there's a paper that's a metaanalysis by Elkie Weber and
others which shows the average ormedian effect, I Forget which, it's 26%.
That's very large.
But even that I want tobe very careful with.
(17:21):
There's a paper by Todd Rogers andanother that finds
a shift opt in to opt outcreates over 90% increase in
participation in use ofan educational technology.
And there are default rules thatsometimes have very limited effect.
(17:42):
And there are things we'd want to have.
We want to use data like this to build upa theory of when a nudge has an effect.
The question does the averagenudge have an effect?
It's kind of a crazy question.
It's a little like the question,
does the average increase incivil penalties have an effect?
(18:07):
We need to know what'sthe increase from and to.
And what kind of civil penalty is it anddo people even know about it and
what's the affected population?
So then we'd build up an account.
I'd love it if we'd have more precisionthan we now do about which nudges
have what kind of effect.
As a first approximation,architectural nudges have a larger
(18:30):
effect than educative nudgeslike labeling or reminders.
But even the category of labels andreminders, it's,
it's too broad and too coarse.
If you have a label that says witha smiley face, this has GMOs.
I, I predict that will have verylittle effect in diminishing
(18:54):
people's consumption of GMOs.
If you have something that is a graphicwording for cigarettes, it wouldn't
be at all surprising if that hada significant impact on smoking secession.
>> Jon Hartley (19:09):
So I guess, you know, we had this.
I Think one of the biggest things thatcame out of all the interest in it
was created and I think maybe mostfamously in the United Kingdom,
I think this might have been duringthe David Cameron government that,
you know, the idea was, you know, youwould create a team within a government
that would essentially advise onbehavioral matters related to policy.
(19:35):
I think also around the same time, you andRichard Thaler were also big advocates
of this idea of libertarian paternalism,this idea of having choice architects.
The idea of incorporatingbehavioral findings into policy,
I think was a very new thing at the time.
This was around maybe 2010 or so.
(19:56):
I'm curious,what's the legacy of those groups like
the original Behavioral Insights Team orNudge or so called Nudge Unit in the uk?
I think it's been spun up,
but there's now groups in many countriesthat are helping to advise governments.
I mean, what have been sort of madethe largest contributions from nudges
in that space with advising andworking with governments?
>> Cass Sunstein (20:18):
It's a great question and
it would be worthy of a longacademic article or book.
And there are pieces thattry to catalog those things.
I'll give a couple of examples.
In the United States, there's a programcalled Direct Certification for
school Meals where if you're poor andthe school knows you're poor and
(20:39):
you're a kid, you're directly certified,meaning you don't have to apply.
And at one count, something like 10million children were benefiting
from nutritious free lunches andbreakfasts to which they were entitled.
And the Direct certification program wassomething in which they participated.
(21:01):
So that's millions of kidsgetting to participate in school
meal programs by virtue ofthe shift from opt in to opt out.
Another one that is not a productof any particular nudge unit,
but which is a product of behavioraleconomics research, is green by default.
(21:27):
So we're seeing people whoare automatically enrolled.
This is a big program in Switzerland,as I recall.
It's big in Germany.
It's big in Southern California,
where people are automaticallyenrolled in green energy.
They can opt out, go into coal ifthey want, but that has very large
effects in reducing pollution,including greenhouse gas emissions.
(21:50):
And in some places it leadsto higher electricity bills.
But people aren't opting out.
So that's kind of a big legacy item.
In the United States, people are,whenever they buy a car,
it has a camera in it thatwhere you can see behind.
(22:10):
And this was a rule Igot to be involved in.
It's not, it's.
It has a nudge component that is you'renudged to look at the camera and
to avoid smashing into a small kid ora dog or
something physical andstrong that'll batter your car.
So it has a strong behavioralnudge feature in it.
(22:32):
The mandate itself of the cameras andthe cars is a mandate, not a nudge.
But it was very much, I can attest,
behaviorally informed by thinking aboutlimited attention on the part of drivers.
And there are people, including verylittle people, not because they didn't
grow, but because they're childrenwho are not dead because of that.
(22:55):
And that's a, you know,very significant policy intervention.
Dick Thaler would refer to automaticenrollment and retirement plans.
And that's kind of the most visible,I confess, because I never want to retire.
And the idea of retirement gets my system,
one that is the intuitiveautomatic system in the brain.
(23:20):
Sad I I the retirement one isn'tthe one that comes first to mine for
me, but is true that automatic enrollmentin retirement plans is a big deal,
but there are 1001 uses of automaticity.
The OECD now has a big projecton sludge sludge audits,
(23:42):
reducing administrativeburdens of various sorts.
Now, you can think of sludge as a problemeven if you have no interest in or
enthusiasm for behavioral economics.
But the fact is that sludge route ofbehavioral economics, the concept and the.
Concern about the adverse effectsof administrative burdens on, like,
(24:05):
entrepreneurs or innovators, or
on people who want to buildthings like build housing, or
on people who are seeking access toemployment or other opportunities.
Sludge is devastating, often because ofbehavioral characteristics of our species.
>> Jon Hartley (24:27):
I guess.
Speaking of nudge units andregulatory policy,
I sort of want to segueinto your time at oira.
So during the Obama administration,you led oira,
which is the Obama administration's,I guess,
chief regulatory rulemakingsort of oversight function.
(24:49):
And during this time, I think youcertainly were described as a pioneer and
someone who'd held the role.
Some folks, like, I think Richard Epstein,said that because you're one of the more
conservative folks inthe Obama administration.
But one of the ideas that you champion,I think,
was this idea of a regulatory budget.
(25:11):
And some people were calling thisregulatory money ball, I think,
at one point.
And I think it's something that really,actually was truly adopted in the first
Trump administration and that theyreally followed this idea that every new
rule that it created, for every new rulethey create, they would delete a rule.
>> Cass Sunstein (25:31):
Okay, so the idea that I was very enthusiastic about and
certainly didn't originate wasin his cost benefit analysis.
So the idea of carefulanalysis of the costs and
benefits of regulatory options,including alternatives to the proposal
that is being offered to the Americanpeople, seems to me essential.
(25:56):
And you can, and many economists do,like cost benefit analysis,
who have no interest inbehavioral economics.
The idea of cost benefit analysisoutruns behavioral economics,
was pioneered by people who were notparticularly keen necessarily on
behavioral economics ordidn't know what it was.
But I like behavioral economics becauseit is a corrective to behavioral
(26:21):
biases which people in government,either because they're human or
because they're responsive to peopleoutside government, are subject to.
So you might think, I heard of a casein which a risk came to fruition.
There ought to be a law,let's regulate that.
But it may be that the casewas an outlier, very rare, and
(26:42):
that the costs of regulatingoutrun the benefits.
So cost benefit analysis as a foundationfor every environmental rule,
every highway safety rule, every foodsafety rule, I really like that idea.
There may be cases where it'schallenging to quantify,
(27:03):
but the economic Constitution ofthe United States, I say, should and
does have cost benefitanalysis at its heart.
Let's distinguish thatfrom a regulatory budget.
The idea of having a ceiling onthe cost of regulation in a year,
I don't like that idea because if.
And so the regulatory budget ideais one to which I'M opposed.
(27:26):
I get it, but I don't like it.
The reason is if you have a regulation ina year, let's say, that costs $5 billion,
and then you have three others that cost$8 billion, now we're up to $13 billion
in cost, and then you have four others andthe cost is starting to get really high.
That might be horrific depending onwhat you get in return for them.
(27:49):
If you get in return forthem $100 million, it's a catastrophe.
You shouldn.
But if you get in return for them $100billion in benefits, then go for it.
So cost benefit analysis, hooray.
Regulatory budget.
(28:10):
A kind of sympathetic and
respectful boo reaction.
Cost benefit analysis right nowisn't riding as high as I would like
to in the US Government, andthe reason isn't running as high as
I would like is that the Bidenadministration didn't, let's just say,
(28:34):
put cost benefit analysis at thefoundation of its regulatory policymaking.
It had environmental and
other goals that I hope were broadlycompatible with cost benefit balancing.
But it wasn't, because cost benefitanalysis was in the driver's seat.
And in the Trump administration,the deregulatory efforts,
(28:59):
some of which I applaud,some of which I don't like so much,
the deregulatory efforts seem tobe founded on a policy commitment
that is not grounded in empiricalanalysis of costs and benefits.
So the regulatory budget idea I'm not for.
(29:19):
I don't like the idea ofone regulation in, 10 out.
I think that's random and a gimmick.
If you have a year where youhave three regulations out and
500 in, that might be a good year,depending on their content.
If you have a year with threeregulations in and 500 out,
(29:40):
that might also be a good year,depending on their content.
What we want is careful cost benefitassessment of existing regulations.
And we did that in the Obamaadministration, at least for starters.
I would applaud the current administrationif it did careful assessment of
existing regulations in terms of costbenefit analysis in deciding whether
(30:04):
to get rid of them.
And you'd get rid of a lot of them if youdid cost benefit analysis of whether they
made sense.
So there's a happy alternativeuniverse which I hope will arrive at,
in which the regulatory statereally is a cost benefit state.
>> Jon Hartley (30:23):
I think one of the other things you were an advocate of in
the first or in the Obama administration,correct me if I'm wrong,
was occupational licensing deregulation,
meaning that workers can take theirlicense from one state to another.
Don't have to take additional new exams.
You know, say a nail technician inMaryland can also work in Virginia and
(30:48):
doesn't have to getan entirely new license.
This is a huge challenge forpeople that move a lot.
So, you know, spouses of folks in themilitary that are moving quite frequently
and if, you know,they're a licensed worker,
they often have to get relicensed,which is a huge tax and huge burden.
Here's what you think aboutall the progress on that.
>> Cass Sunstein (31:09):
I'm upbeat.
I think it's good.
So occupational licensing, you're right,
is something that I was veryconcerned about in government.
And the fact is it'sa drain on economic growth,
on entrepreneurship, andon individual opportunity.
So there's an old liberal idea.
(31:29):
By liberal, I don't mean left of center.
I mean the liberal politicaltradition of careers open to talents.
That's the idea.
And libertarians tend to like it.
Many progressives like it, too.
And careers open to talents.
It's a beautiful idea.
It was a little bit boring,maybe in the 1980s because it seemed.
(31:52):
Yeah, of course.
What else have you got?
But it's not boring now.
Where careers open totalents isn't something that.
Is a lived reality for too many people.
So the idea,if you're licensed in Arkansas,
you get to do the samething in Mississippi.
A presumption in favor of thatseems to me a really good idea.
(32:14):
Unless there are uniqueconditions in Mississippi
such that the Arkansas licensedoesn't warrant that license, or
unless there's something wrong with theseoriginal states licensing policies.
Now this could be an opening throughwhich you could drive a truck.
But I,
(32:34):
I want to start by saying there's a strongpresumption in favor of reciprocity.
>> Jon Hartley (32:39):
It's fascinating.
It's amazing to see how much strides thathave been made in occupational licensing.
It's an area that I, I work in and sort oftracking these trends across states and,
and across countries and, and I meanthe US in general, at least from some of
the work that I've done in a forthcomingpaper with Morris Kleiner, is that the US
(33:01):
actually has some of the most stringentoccupational licensing regulations.
At least if you were to measure thefraction of workers that have a license
compared to many other countries is very,very high compared to say, Europe.
So it's interesting that you wouldthink sometimes that we have a very
(33:21):
dynamic economy in the US but there areall these sorts of barriers that exist.
Not saying that we don't needsome licensing for doctors and
certain professions are important, butto what degree do hair braiders and
nail techs have to be licensed andso forth?
Dog walkers and so forth.
(33:43):
It's certainly an interesting topic that'smade a lot of headway in recent years.
Some people might say it's stillsmall compared to other macro things,
But I'm with you in that I think it,it's more important than people realize.
I think maybe about 25,30% of the workforce has a license or so,
and it's really substantial and
it's used toward those people whoare generally in lower incomes.
(34:05):
And so it's really, I think,one of those policy ideas, you know,
occupational license deregulation thatcan actually improve opportunity for
lower income individuals andhelp improve their productivity.
So I'm with you there.
I want to sort of segueinto legal philosophy.
You spent a lot of time,
time in your career teaching lawclasses across a variety of fields.
(34:30):
You, I think, spent a lot of timeworking on administrative law.
I just was curious, how would youdescribe your judicial philosophy?
I kind of understand you'rea judicial minimalist.
You're sort of an advocate formaybe more executive and administrative
decision making or more intelligentadministrative decision making.
You're a fan of Experts, broadly speaking.
(34:50):
And you recently wrote a book,Law and Leviathan Redeeming
the Administrative State with yourHarvard Law colleague Adrian Vermeil.
Tell us more all aboutyour judicial philosophy.
>> Cass Sunstein (35:01):
Okay, so there are a couple things I like.
If there's the idea ata highest level of abstraction,
the idea is deliberative democracy.
So a deliberative democracyis something associated
with the German philosopherJurgen Habermas.
John Rawls has endorsed it.
James Madison was a deliberativedemocrat in economics.
(35:25):
Amartya Sen is an enthusiast fordeliberative democracy at Stanford.
James Fishkin is a fan ofdeliberative democracy.
And the basic idea here.
We'll get to the judges in a moment.
Is that a well functioning constitutionalorder combines accountability and
(35:46):
responsiveness.
That's the democracy part of deliberativedemocracy, with a commitment to reason
giving and deliberation among peoplewho are trying to figure things out.
That's the deliberative partof deliberative democracy.
So we don't havea government by referendum.
(36:09):
The right to instruct was rejected bythe Constitution's founders on the ground
that it would destroythe point of the meeting.
They're supposed to deliberate with oneanother and figure out what's best.
So deliberative democracy will naturallylead, lead to some enthusiasm for
technical expertise.
If you're trying to figure outhow to handle road safety,
(36:31):
intuition won't be enough.
The deliberative part requiresa commitment to getting really empirical.
And I see the administrative state atits best, not as it always exists by
any means, as continuous with the foundingcommitment to a deliberative democracy.
(36:51):
Okay, in terms of the judges,we want a judicial role
that's alert to the ambitionto a deliberative democracy.
And we want courts respectful of theprocesses of deliberative democracy and
we want them attuned to ensuringthat it doesn't misfire.
(37:15):
So the most important thingthe Administrative Procedure act does,
maybe is to authorize courtsto strike down agency action.
That's arbitrary.
So if an agency says that we'regoing to deem the social cost
of carbon to be 500 becausethat's really big and
(37:36):
the climate crisis is upon us,that's arbitrary.
That's not reason giving.
If you say we're going to deem the socialcost of carbon to be zero because
we think climate change is not real,that's almost certainly arbitrary.
I think the almost is justI'm being very careful here.
(37:57):
We have to figure outwhat the grounding is for
the administrative statedoing one thing or another.
So arbitrariness as A verybad thing is consistent
with the aspiration toa deliberative democracy.
A democracy that's not deliberativemight be arbitrary, but
(38:20):
that's a form, I say,of authoritarianism, which runs afoul of
the founding era's ambitions to havea deliberative democracy, which.
Okay, then there's the rule of law.
So the book Law and Leviathan isabout what the rule of law entails.
(38:40):
And here the idea is that the rule oflaw has an internal morality where,
and this is Hayek is an inspiration,at least in my mind, for
this, that if you have a rule inthe world that isn't on the books,
that's not the rule of law.
So if.If in reality the enforcement officers
(39:02):
are acting inconsistentlywith the rules on the books,
that violates the internalmorality of law.
If the law is changing sorapidly that people can't plan,
that's inconsistent with the rule of law.
If there's retroactivity, so
people do things that are fineby legal requirements in 2025,
(39:22):
but then in 2027 they're punished that itruns afoul of the ban on retroactivity.
If people can't understand what the lawis, if it's too vague or confusing,
that's inconsistent with the.
The rule of law, the morality of law.
Now, if you have no redistribution orlots of redistribution,
(39:43):
that might be good or bad, butit has nothing to do with the rule of law.
At least it doesn't until wespecify what the legal sources.
But you can do lots of stuffconsistently with the rule of law.
Still, the rule of law is.
Central and a foundational part ofthe restrictions, as they should exist and
(40:05):
frequently do exist on the operationof the administrative state.
In terms of the Supreme Court's role,
I like the idea of the judgesavoiding very ambitious theories and
avoiding very ambitious, broad rulings.
So there's some people on the left andsome people on the right get
(40:27):
excited about maximalist rulingswhere the court, you know,
strikes down a bunch of things oradopts a theory of liberty or equality,
and bam, our country is now beingordered to do all sorts of stuff.
I'm skeptical of that.
The idea of judges beingtheoretically humble and
(40:48):
ruling in ways that are agnostic aboutwhat liberty and equality really means.
They don't have expertise on that.
And it's a pluralistic society, after all.
So being theoretically modest and
also ruling narrowly on the case,these are presumptions.
These aren't edicts.
(41:10):
But ruling narrowly rather than broadly,I.
I like that.
So here I stand withChief Justice Roberts, who says,
if it's not necessary to decidean issue in order to resolve a case,
it's necessary not to decide an issuewhen we're resolving a case.
So that's a plea for a form of minimalism,which, whether or not it's good in art,
(41:32):
is usually pretty good forthe Supreme Court of the United States.
>> Jon Hartley (41:37):
I'm curious, I guess, on the topic of both the courts and
deliberate democracy.
I'm curious how you thinkabout our current system and
how much it has maybe strayedfrom how the founders maybe
envisioned the sort of originalMadisonian form of government.
And maybe, you know,you think it's important that for
(42:00):
it to have changed since then.
I mean,we now live in a world that's very,
very different fromthe time of the Founders.
Certainly from a nationalsecurity perspective,
we have nuclear weapons and so forth.
But I'm just curious, you know,there's this, I would say, criticism
of the current sort of state of affairs orthe current regime in saying that,
well, you know, Congress doesn'tmake laws and tries to avoid.
(42:25):
To deliberate.
Now they don't want to decidethese big issues that it's
really their responsibility to decide.
And then what ends up happeningis they give a lot of power to
the administrative state that decidesa lot of things, or the presidency,
the executive that decidesa lot of things, and
then they do things, and then sort of itgoes between the executive and the courts,
(42:49):
and the courts kind of are being forcedto weigh in on these things that.
That perhaps Congressshould be weighing in on.
I'm curious what your thinking isabout the, the current regime and
how the current powers, you know,three branches of government work
together compared to sort ofMadison's original vision.
And, and how do you think it should be,how you think it should function?
>> Cass Sunstein (43:12):
It's great.
It's complicated.
So let's take two stabs at it.
There's a grand narrative out there whichyour question can be taken to press,
which is that we've seensuccessive breaches of Article 1,
Article 2 andArticle 3 of the Constitution.
(43:34):
Article 1 insofar as Congress grantsbroad discretionary authority to
the executive andadministrative entities, violation or
breach of Article 2 insofar as we seeindependent agencies exercising authority
outside of the presidency, that's onthe run in current constitutional law.
So the idea of independentagencies is no longer secure.
(43:57):
It might be gone pretty soon,but it's been around since 1935.
And then there's a third breach of Article3 where a lot of adjudication is done by
the executive agencies.
You're putting a Spotlight on Article 1.
I don't think the grandnarrative is right, but I think.
But I'll get to something kind ofadjacent to it that I think is right.
(44:20):
If you look at the founding period,
a lot of discretionary authority was givento the executive and to agencies and
the constitutional concerns wereeither absent or very occasional.
So the breadth of grants of authorityto the executive pursuant to open
ended words like reasonable is prettyeye opening in the founding period.
(44:45):
It's not like Congress made allthe decisions and so, okay, and
said to the executive,okay, do what we just said.
Instead Congress said do what's reasonableor appropriate, things like that.
So there's real continuity betweenthe first, second Congress and
first and second Congress and what wenow observe, the idea that independent
(45:06):
agencies are constitutional affront orbarnacle, that's also hard to defend.
Independent agencies were aroundin the founding period and
it looks like most people then thoughtthat was constitutionally fine.
The adjudication issue isa little more complicated and
the magnitude of adjudication done bythe administrative state now is very
(45:29):
plausibly out of accord withconstitutional expectations.
Okay, there's all that.
It's clearly the case that the breadth andand
ex magnitude of executive branchauthority was not expected.
And I think it's less because there'sdiscretion than the number of
(45:53):
domains in which discretion is exercised.
And the power that discretionis exercised with respect to
way outruns the founding period.
So if you think of the EPA orthe Department of Transportation or
the Social Security Administration or
the Federal Communications Commission,or the Federal Trade Commission.
(46:16):
My gosh, they're doing all sortsof stuff that at the founding,
the national governmentwasn't expected to do.
The Department of Labor.
So whether this is an affrontof the Constitution is, I think,
not at all clear.
Because what part of the Constitutiondoes it violate is a very fair question.
(46:37):
It's not clear it violates anypart of the Constitution, but
it's very different fromwhat was anticipated.
Now, this is a large question.
No modern industrialized societylooks like the founding era or
40 years after the foundingera government.
(46:59):
So we're not seeing that in Canada orFrance or Italy or Germany.
Not that any of those is perfect.
But the idea that we would have a smallnational government akin to that of,
let's say, 1830, that seems cray cray.
I think.
So that's cool person talk for crazy.
(47:21):
I'm trying to be a cool person.
So failing, evidently.
But the, the,the mission of trying to discipline
the administrative state byreference to the rule of law and
to cost benefit analysis,including elimination of
administrative burdens andbarriers and sludge.
(47:44):
That's a really honorable mission.
>> Jon Hartley (47:48):
That's fascinating.
I guess you just maybe broadly.
Thank you.Here, just about political philosophy and
liberalism, you've written quite a bit.
Bit about political philosophy as well,in particular about liberalism.
In 2023, you wrote a New York Timesessay titled why I Am a Liberal.
(48:12):
Does the term liberalmean a whole lot anymore?
I'm just curious.
There's everything from economicliberals to social liberals.
Many who I would say are firmly inone camp and firmly not in the other,
which traditionally I'd say would be a keydistinction between maybe Republicans and
(48:33):
Democrats, at least fromthe 1980s through maybe 2016.
I'd say it would probablygo back even further,
maybe even pre the time of Buckley andothers in maybe the 50s.
Now, Locke also talks about a lotabout moralism in book four of
(48:53):
the essay concerning human understanding.
And certainly I think it's fair to saythat the founders believe that morals
writing about nature's God andthe laws of nature and then declaration.
So I think there's some today,namely the post liberals,
that might characterizethem as libertarians,
(49:18):
you know, in social liberals.
But, you know, I think that'ssomewhat historical and untrue.
And I mean, they also werein favor of tariffs as well.
So, you know, I think calling them fulleconomic libertarians I think wouldn't be
true either.
Now, they certainly believedin property rights.
That was something that was foundational.
(49:39):
And they certainly believed in, you know,fighting the excesses of government.
You know, they're fighting, you know,
very small taxes by comparedto the taxes today.
And that in part the American Revolution.
Obviously, you know, economic liberalism,property rights has been responsible,
(50:00):
in my opinion, forenormous amounts of economic growth.
And maybe there's someunintended consequences of that.
But I'm curious, what does it meanto be a liberal today as you see it?
And are there limits onliberalism as you see it, if any?
>> Cass Sunstein (50:17):
Okay, so a liberal today believes in freedom and
pluralism and the rule of law.
That's a triumvirate, a holy trinity.
Freedom, pluralism and the rule of law.
Ronald Reagan was a liberal.
Barry Goldwater was a liberal.
(50:38):
Barack Obama is a liberal.
Franklin Delano Roosevelt was a liberal.
So this is a big tent.
Hayek was emphatically a liberal,no question about that.
John Stuart Mill,also Robert Nozick for sure.
John Rawls, definitely Susan Okun,
(51:00):
Stanford's political scientist,no question at all.
So I have a book coming out in just acouple weeks called Liberalism in Defense
of Freedom and, andI almost called it Big Tent Liberalism.
Now, the disagreements between Susan Okun,for example, and John Rawls are fierce.
(51:23):
The disagreements betweenRobert Nozick on the one hand,
and Joseph Raz, a philosopher whowas a liberal, died not long ago.
Those are also fierce.
But pluralism, freedom, and the ruleof law are a shared set of convictions.
I think it's.
It's like, really important forthose who are part of the liberal
(51:48):
tradition to stand up and say so,even if they disagree, you know,
very fiercely with people who are alsopart of the liberal tradition.
So I feel, right now,I'm not a libertarian, but
I feel libertarians are my brothers andsisters.
I worked in the Reagan administrationas the Department of Justice.
(52:10):
I had some serious,serious disagreements with
President Reagan, but, you know, my.
My intellectual sibling andcommitment to liberalism.
So this might not have seemed asimportant 30 years ago as it is now,
but given what's happening in Russia andChina,
(52:33):
in various parts of the world,given the illiberal left,
which is sometimes not that excitedabout freedom of speech on campus or
elsewhere, not just the Marxist left, but
the illiberal left,given the illiberal right in Hungary, for
example, where the idea is a democracy,that's illiberal,
(52:57):
I think it's an oxymoron, butwe understand what the sentence means.
To put a spotlight on freedom,pluralism, and
the rule of law as composingthe liberal tradition
is a big step forward, andit may be, you know, of.
(53:21):
Of great importance in the next 50 years.
>> Jon Hartley (53:25):
Well, Cass, I really want to thank you for coming on.
This has been an amazing conversation,and you've had such a prolific career.
It's a true honor to have you.
>> Cass Sunstein (53:33):
On, an honor to be able to talk to you.
Thank you.
>> Jon Hartley (53:37):
This is the Capitalism and Freedom the 21st Century podcast,
an official podcast of the HooverInstitution Economic Policy Working Group,
where we talk about economics,markets, and public policy.
I'm John Hurley, your host.
Thanks so much for joining us.
[MUSIC]
>> Jon Hartley (00:09):
This is the Capitalism and Freedom in the 21st Century podcast,
an official podcast with HooverInstitution Economic Policy Working Group
where we talk about economics,markets, and public policy.
I'm Jon Hartley, your host today.
My guest is Cass Sunstein,
who's one of the most cited legalscholars of the 20th and 21st centuries.
He's a longtime professor at the HarvardLaw School, where He's been since 2008 and
previously was at the Universityof Chicago law School since 1981.
(00:31):
Cass also served as the administratorof OIRA, which is the Office of
Information Regulatory affairsduring the Obama administration.
He's also a prolific author of over 50books, including Nudge with Richard Thaler
and Noise A Flaw in Human Judgment withDaniel Kahneman and Oliver Siboney.
He's also the author of several famouslaw textbooks on constitutional law and
(00:54):
administrative law.
Welcome, Cass.
>> Cass Sunstein (00:57):
Thank you.
Great pleasure to be here.
>> Jon Hartley (00:59):
So I want to just start by getting into your early life.
Where did you grow up andhow did you get interested in law and
behavioral economics?
>> Cass Sunstein (01:07):
I grew up in Wabin, Massachusetts and
I was a literature major in college.
I got interested in law really my senioryear in college, where I thought being
a graduate student in English literaturewould be extremely interesting, but
maybe too passive.
And law, I thought you could have lotsof flexibility and be more in the world.
(01:28):
That's what my young self thought.
When I came to the University ofChicago a few years later in teaching,
I was surrounded by rationalchoice types with Gary Becker and
George Stigler leading the charge andRichard Posner and
Bill Landis at the law school being theformidable giants who were surrounded me.
(01:50):
I felt like I was 3 foot tall andthey were all 9ft tall.
I was a little persontrying to understand.
They were so high in the clouds Icould barely hear their voices,
though they were booming.
But I was a literature major andI thought that their conception of
humanity was not the same as whatI had learned from James Joyce and
(02:12):
William Shakespeare andWilliam Butler Yates and John Keats.
And so I was skeptical,kind of cluelessly skeptical.
I learned something about behavioraleconomics from Jan Elster,
who was a Norwegian political scientistphilosopher who came to the University of
Chicago.
He introduced me to notions aboutpre commitment strategies and
(02:35):
about adaptive preferences.
That kind of was an inroadinto the behavioral stuff.
And I started writing material thatdrew on Thaler and Kahneman Tversky,
and it was, I think, primitive,was law professor primitive.
But Thaler came to the Universityof Chicago at a time
(02:56):
when I was immersed in behavioralstuff and that kind of Accelerated.
We became great friends.
That's kind of accelerated myfocus on behavioral economics and
its relationship to law.
>> Jon Hartley (03:09):
Fantastic, so I want to sort of, I guess, for
the moment just focus onbehavioral economics.
We'll get to law andpolitical philosophy later.
So you co-authored the seminal book,Nudge, cast on scene in 2008.
I remember it as a pretty, I think,seminal moment for behavioral economics.
(03:32):
And it really, I think, increasedthe popularity of behavioral economics.
I mean, at the same time you sort of hadthe global financial crisis was sort of
around the same time.
But I just remember, you know,that really the, you know, late 2000s and.
And 2010s was a very, very a populartime for behavioral economics.
He also wrote a book more recently, Noise,with Daniel Kahneman and Oliver Sibony.
(03:57):
Daniel Kahneman beingthe famous Kahneman Tversky.
I'm curious what you think aboutthe state of behavioral economics is now
following what I think has beenjust as sort of, I see it, I think,
maybe a more challenging time forbehavioral economics.
We've had some recent controversies,a lot of controversy,
(04:21):
particularly in the field of psychology.
A massive fraction of studiesthere aren't replicable.
I think there's been some very famousscandals within the behavioral
economics world, think Dan Arielli,Francesca Gino, Francesca.
You've been in several of theirpapers have been retracted,
(04:43):
following the uncovering fromthe folks at Data Colada.
And to me, I mean, it seems likebehavioral economics maybe peaked
around the times ofthe Richard Thaler Nobel and
the Robert Shiller Nobelin sort of the mid 2010s.
And maybe it's been on a bit of a decline.
I mean, would you agree with that?
Tell me why either that's wrong or
(05:04):
where you think the state of behavioraleconomics is as we see it today in 2025.
>> Cass Sunstein (05:10):
Okay, thanks for that.
I'll tell you a story and
then we'll maybe talk aboutsomething in the vicinity of data.
So the story is I had dinner not longago with a behavioral economist.
And he said it's terrible.
And I said what's terrible?
And he said it's so terrible.
And I said what do you mean it's soterrible?
(05:31):
And he said the demand forpeople doing behavioral economics
is higher than it's everbeen by far that people in
the private sector,Silicon Valley and Saudi Arabia,
in Germany, in France andItaly, are looking for
people in the private sector whoare trained in behavioral economics.
(05:58):
Governments are keener than ever thatwe're seeing interest in hiring behavioral
economists from people who are runningbehavioral insights teams or nudge units.
The demand is off the charts andit's higher than ever.
And I said, why is it terrible?
That sounds amazing.
(06:18):
He said, there aren't enough people.
So the, the people are holding themselvesout as behavioral economists or
behavioral scientists to get jobs,but they're not trained.
The field is flourishing with such,you know, kind of exuberance on the part
of the people who are interested in it,and there just aren't enough people ready.
(06:40):
And he said, you've got to getpeople at Harvard ready to go help
people who are thinking about smoking,secession or road safety or
how to get people to pay fineswhen they're not paying fines,
how to get people to take up programs,how to deal with occupational licensing.
(07:01):
So on the practitioner side,from government and
the private sector,behavioral economics is incalculably
better off than it was even six,seven years ago.
On the academic side, the same is true.
If you look at the leadingeconomics journals,
(07:21):
if there isn't at least one behavioraleconomics paper in the current issue,
it's surprising if there isn't onethe year before or the year after.
I'm sorry, the issue before orthe issue after a year is too much.
There are too many papers in behavioraleconomics in the American Economic Review,
in the Economic Journal, andthe Quarterly Journal of Economics.
(07:45):
And some of it is kind of normalscience where loss aversion is used to
explain something, andloss aversion is identified in a context
that we didn't see somethingmight be appearing on default.
Default rules and their power.
Benjamin Enki is doing work on complexity,which I find extremely interesting,
(08:07):
and the role of complexity.
There's a lot of workon cognitive scarcity.
This is something that I'm keenlyinterested in from Malathan and Shafir,
their work on scarcity andthat has implications for
when behavioral findings will beespecially present and when they might
fall apart because people are focusing onsomething and so they're not going to show
(08:31):
loss aversion because if they do, they'regoing to lose a lot of money in a hurry.
So that's very vivid.
John List, of course,
has done a ton of phenomenal papers inthe domain of behavioral economics.
And if we don't see a good John Listpaper in any four month period,
that's a surprising four month period.
(08:53):
There's keen interestin both economics and
in other domains in manipulation andhow to think about it.
Sometimes it goes by specificnames like dark patterns, or
sometimes there's a specification ofthe exploitation of a behavioral bias.
(09:13):
This also connects with work onalgorithms and machine learning.
So behavioral economics right nowis both on the practice side and on
the theoretical side in a better position,I'd say, by far, than it's ever been.
There isn't explosive insight,period that we saw with early Kahneman and
(09:34):
Tversky or Thaler, butwe see much more in terms of insights and
much more specificity andnew insights coming that are often firmer,
they might be consistent with, butfirmer than anything we've observed
before just because the techniquesare better on replication.
(09:59):
Thaler has a new edition ofthe Winner's Curse coming out,
I think in September 2025.
And all of the findingsreplicate every single one.
So that's, I think his expositionchallenge in this amazing
new edition of the Winner's Curseis not to be kind of crowing at
(10:21):
the replication of the core findings,but they all replicate.
And to say they replicate is one thingto say the magnitude or the conditions
under which, et cetera, like you canmake the endowment effect go down or
disappear if people are really sad, as Irecall, you don't see an endowment effect,
(10:43):
but the central findings of thatdefining book all replicate.
So within the field,by which I mean both practitioners and
people are doing real academic work.
I'm thinking of Alex Moss, whom I don'tknow, but whose work is very, very good.
The fraud of Gino is a littlelike you're playing baseball and
(11:09):
there's some player who took steroids.
I mean,baseball still pretty good sport and
shouldn't take steroids andthe fraud has hurt horrific.
I, I don't even understand it.
I should say I don't understand the stateof mind suggests my limits as a behavioral
scientist that I don't,I don't see how one could do that.
(11:31):
But that's clear with Gino and,and, but if you look at the,
the extent of the field, fraud ishorrific, but very limited in number.
The replication challenge, as I'd, as I'dcall it, I wouldn't call it a crisis.
What's happening in Gaza is a crisis.
(11:51):
Climate change, in my view, is a crisis.
The replication challenge,that's a better word than crisis,
is if things don't replicate, that'sbasically an opportunity for learning.
And the core findings replicate.
We're seeing more, you know, more materialthat tells us more about when default
rules will be powerful and exactly why youcould say that a default rule won't be
(12:16):
powerful if people hate the thing they'redefaulted into and they have freedom.
Findings don't replicate.
And that's, that's an advance to know thatit's very important to keep at it to see,
you know, is what are the boundaryconditions for the availability heuristic.
(12:37):
Stock trader probably isn't going to bevulnerable to the availability heuristic
where they're going tolose a lot of money.
>> Jon Hartley (12:44):
So this is kind of, I guess, how I see the maybe evolution,
like behavioral economics.
You had like 20, 30 years ago,you had Kahneman, Tversky, Thaler,
they were sort of challengingtraditional models.
They get into data,find some anomaly or some bias.
Aha, yes.
Some new behavioral biases are discovered.
And then you also had in the sort of two,maybe 2000,
(13:06):
2010s, a lot of work on behavioralfinance and factors and
things like momentum or herding,Jeremy Stein's hurting theory paper.
You also had these things likeErnest Fear's theory about fairness around
that time.
I think how it's evolved over time isnow I think researchers are trying
(13:28):
to find more of a unifying theorythat connects these facts.
So things like I would say the complexitywork, I would maybe put under that.
I guess maybe more on the empirical side.
I don't know if it's fair to say that,you know, RCTs and experiments,
(13:49):
I think it's fair to say thatthey've certainly been the backbone,
a backbone of behavioral economics.
I'm not sure if it's necessarilyfair to say that every RCT or
experiment is behavioral economics.
I think some might disagree.
And I think some of thesedefinitions are very loose.
But, you know, I think one challengethere is, you know, scaling.
And I don't know, I've seen a lot ofwork that in my mind, like information
(14:12):
provisions that maybe don't havesignificant results in that space.
But I'm just curious, like,I think one that behavioral economics,
with things like default rules andinformation provision experiments,
can't really hold a candle in terms ofmagnitude of the effects of these things.
Is that right or wrong or.
Obviously, behavioral economics is kindof meant to be the sort of third way,
(14:33):
like idea into something very new.
I'm just curious what you think aboutscaling in behavioral economics ideas and
implementation.
>> Cass Sunstein (14:43):
Okay, so suppose we did an RCT and
I put on my front lawn a signthat said don't smoke.
And we had a population who drove past myfront lawn and a population that didn't.
And let's.
Suppose it's a big size and it's.
Let's just go with the ideait's randomized and
(15:07):
the diminution in smoking was zero.
That this would be a test ofa pretty pathetic nudge and
whether it worked to diminishsmoking in New England.
And I predict thatthe effect would be zero.
Or we could design ina cafeteria in Palo Alto or
(15:29):
in Cambridge,an intervention where there was
a notice contains meat withrespect to meat products,
which would be to nudgepeople not to eat meat.
And I have no predictionabout the effect of that.
But I wouldn't be surprisedif the effect of the nudge
(15:52):
was small orzero if we had a randomized trial.
So the number of nudges is.
Is so large, just like, like the numberof criminal punishments is so large and
the number of medical interventions is solarge that if you took a class and
called them criminal punishmentsthroughout, let's say,
(16:16):
western history and the effect size ofthe punishment was really small and
some populations are zero,that wouldn't be amazing.
And if it turned out thatacross a category of medicines,
the effect in diminish,diminishing fatality or
illness was really little, andthat wouldn't be surprising if the.
(16:41):
I hope medicine's much better now.
But if you look at medicine overthe course of human history,
you probably get a medianeffect size of zero.
So I think the metaanalyses of the effect of
anything is imperfectly informative.
(17:01):
So I would predict, and
we have reason to think that defaultrules are the most powerful nudge.
And there's a paper that's a metaanalysis by Elkie Weber and
others which shows the average ormedian effect, I Forget which, it's 26%.
That's very large.
But even that I want tobe very careful with.
(17:21):
There's a paper by Todd Rogers andanother that finds
a shift opt in to opt outcreates over 90% increase in
participation in use ofan educational technology.
And there are default rules thatsometimes have very limited effect.
(17:42):
And there are things we'd want to have.
We want to use data like this to build upa theory of when a nudge has an effect.
The question does the averagenudge have an effect?
It's kind of a crazy question.
It's a little like the question,
does the average increase incivil penalties have an effect?
(18:07):
We need to know what'sthe increase from and to.
And what kind of civil penalty is it anddo people even know about it and
what's the affected population?
So then we'd build up an account.
I'd love it if we'd have more precisionthan we now do about which nudges
have what kind of effect.
As a first approximation,architectural nudges have a larger
(18:30):
effect than educative nudgeslike labeling or reminders.
But even the category of labels andreminders, it's,
it's too broad and too coarse.
If you have a label that says witha smiley face, this has GMOs.
I, I predict that will have verylittle effect in diminishing
(18:54):
people's consumption of GMOs.
If you have something that is a graphicwording for cigarettes, it wouldn't
be at all surprising if that hada significant impact on smoking secession.
>> Jon Hartley (19:09):
So I guess, you know, we had this.
I Think one of the biggest things thatcame out of all the interest in it
was created and I think maybe mostfamously in the United Kingdom,
I think this might have been duringthe David Cameron government that,
you know, the idea was, you know, youwould create a team within a government
that would essentially advise onbehavioral matters related to policy.
(19:35):
I think also around the same time, you andRichard Thaler were also big advocates
of this idea of libertarian paternalism,this idea of having choice architects.
The idea of incorporatingbehavioral findings into policy,
I think was a very new thing at the time.
This was around maybe 2010 or so.
(19:56):
I'm curious,what's the legacy of those groups like
the original Behavioral Insights Team orNudge or so called Nudge Unit in the uk?
I think it's been spun up,
but there's now groups in many countriesthat are helping to advise governments.
I mean, what have been sort of madethe largest contributions from nudges
in that space with advising andworking with governments?
>> Cass Sunstein (20:18):
It's a great question and
it would be worthy of a longacademic article or book.
And there are pieces thattry to catalog those things.
I'll give a couple of examples.
In the United States, there's a programcalled Direct Certification for
school Meals where if you're poor andthe school knows you're poor and
(20:39):
you're a kid, you're directly certified,meaning you don't have to apply.
And at one count, something like 10million children were benefiting
from nutritious free lunches andbreakfasts to which they were entitled.
And the Direct certification program wassomething in which they participated.
(21:01):
So that's millions of kidsgetting to participate in school
meal programs by virtue ofthe shift from opt in to opt out.
Another one that is not a productof any particular nudge unit,
but which is a product of behavioraleconomics research, is green by default.
(21:27):
So we're seeing people whoare automatically enrolled.
This is a big program in Switzerland,as I recall.
It's big in Germany.
It's big in Southern California,
where people are automaticallyenrolled in green energy.
They can opt out, go into coal ifthey want, but that has very large
effects in reducing pollution,including greenhouse gas emissions.
(21:50):
And in some places it leadsto higher electricity bills.
But people aren't opting out.
So that's kind of a big legacy item.
In the United States, people are,whenever they buy a car,
it has a camera in it thatwhere you can see behind.
(22:10):
And this was a rule Igot to be involved in.
It's not, it's.
It has a nudge component that is you'renudged to look at the camera and
to avoid smashing into a small kid ora dog or
something physical andstrong that'll batter your car.
So it has a strong behavioralnudge feature in it.
(22:32):
The mandate itself of the cameras andthe cars is a mandate, not a nudge.
But it was very much, I can attest,
behaviorally informed by thinking aboutlimited attention on the part of drivers.
And there are people, including verylittle people, not because they didn't
grow, but because they're childrenwho are not dead because of that.
(22:55):
And that's a, you know,very significant policy intervention.
Dick Thaler would refer to automaticenrollment and retirement plans.
And that's kind of the most visible,I confess, because I never want to retire.
And the idea of retirement gets my system,
one that is the intuitiveautomatic system in the brain.
(23:20):
Sad I I the retirement one isn'tthe one that comes first to mine for
me, but is true that automatic enrollmentin retirement plans is a big deal,
but there are 1001 uses of automaticity.
The OECD now has a big projecton sludge sludge audits,
(23:42):
reducing administrativeburdens of various sorts.
Now, you can think of sludge as a problemeven if you have no interest in or
enthusiasm for behavioral economics.
But the fact is that sludge route ofbehavioral economics, the concept and the.
Concern about the adverse effectsof administrative burdens on, like,
(24:05):
entrepreneurs or innovators, or
on people who want to buildthings like build housing, or
on people who are seeking access toemployment or other opportunities.
Sludge is devastating, often because ofbehavioral characteristics of our species.
>> Jon Hartley (24:27):
I guess.
Speaking of nudge units andregulatory policy,
I sort of want to segueinto your time at oira.
So during the Obama administration,you led oira,
which is the Obama administration's,I guess,
chief regulatory rulemakingsort of oversight function.
(24:49):
And during this time, I think youcertainly were described as a pioneer and
someone who'd held the role.
Some folks, like, I think Richard Epstein,said that because you're one of the more
conservative folks inthe Obama administration.
But one of the ideas that you champion,I think,
was this idea of a regulatory budget.
(25:11):
And some people were calling thisregulatory money ball, I think,
at one point.
And I think it's something that really,actually was truly adopted in the first
Trump administration and that theyreally followed this idea that every new
rule that it created, for every new rulethey create, they would delete a rule.
>> Cass Sunstein (25:31):
Okay, so the idea that I was very enthusiastic about and
certainly didn't originate wasin his cost benefit analysis.
So the idea of carefulanalysis of the costs and
benefits of regulatory options,including alternatives to the proposal
that is being offered to the Americanpeople, seems to me essential.
(25:56):
And you can, and many economists do,like cost benefit analysis,
who have no interest inbehavioral economics.
The idea of cost benefit analysisoutruns behavioral economics,
was pioneered by people who were notparticularly keen necessarily on
behavioral economics ordidn't know what it was.
But I like behavioral economics becauseit is a corrective to behavioral
(26:21):
biases which people in government,either because they're human or
because they're responsive to peopleoutside government, are subject to.
So you might think, I heard of a casein which a risk came to fruition.
There ought to be a law,let's regulate that.
But it may be that the casewas an outlier, very rare, and
(26:42):
that the costs of regulatingoutrun the benefits.
So cost benefit analysis as a foundationfor every environmental rule,
every highway safety rule, every foodsafety rule, I really like that idea.
There may be cases where it'schallenging to quantify,
(27:03):
but the economic Constitution ofthe United States, I say, should and
does have cost benefitanalysis at its heart.
Let's distinguish thatfrom a regulatory budget.
The idea of having a ceiling onthe cost of regulation in a year,
I don't like that idea because if.
And so the regulatory budget ideais one to which I'M opposed.
(27:26):
I get it, but I don't like it.
The reason is if you have a regulation ina year, let's say, that costs $5 billion,
and then you have three others that cost$8 billion, now we're up to $13 billion
in cost, and then you have four others andthe cost is starting to get really high.
That might be horrific depending onwhat you get in return for them.
(27:49):
If you get in return forthem $100 million, it's a catastrophe.
You shouldn.
But if you get in return for them $100billion in benefits, then go for it.
So cost benefit analysis, hooray.
Regulatory budget.
(28:10):
A kind of sympathetic and
respectful boo reaction.
Cost benefit analysis right nowisn't riding as high as I would like
to in the US Government, andthe reason isn't running as high as
I would like is that the Bidenadministration didn't, let's just say,
(28:34):
put cost benefit analysis at thefoundation of its regulatory policymaking.
It had environmental and
other goals that I hope were broadlycompatible with cost benefit balancing.
But it wasn't, because cost benefitanalysis was in the driver's seat.
And in the Trump administration,the deregulatory efforts,
(28:59):
some of which I applaud,some of which I don't like so much,
the deregulatory efforts seem tobe founded on a policy commitment
that is not grounded in empiricalanalysis of costs and benefits.
So the regulatory budget idea I'm not for.
(29:19):
I don't like the idea ofone regulation in, 10 out.
I think that's random and a gimmick.
If you have a year where youhave three regulations out and
500 in, that might be a good year,depending on their content.
If you have a year with threeregulations in and 500 out,
(29:40):
that might also be a good year,depending on their content.
What we want is careful cost benefitassessment of existing regulations.
And we did that in the Obamaadministration, at least for starters.
I would applaud the current administrationif it did careful assessment of
existing regulations in terms of costbenefit analysis in deciding whether
(30:04):
to get rid of them.
And you'd get rid of a lot of them if youdid cost benefit analysis of whether they
made sense.
So there's a happy alternativeuniverse which I hope will arrive at,
in which the regulatory statereally is a cost benefit state.
>> Jon Hartley (30:23):
I think one of the other things you were an advocate of in
the first or in the Obama administration,correct me if I'm wrong,
was occupational licensing deregulation,
meaning that workers can take theirlicense from one state to another.
Don't have to take additional new exams.
You know, say a nail technician inMaryland can also work in Virginia and
(30:48):
doesn't have to getan entirely new license.
This is a huge challenge forpeople that move a lot.
So, you know, spouses of folks in themilitary that are moving quite frequently
and if, you know,they're a licensed worker,
they often have to get relicensed,which is a huge tax and huge burden.
Here's what you think aboutall the progress on that.
>> Cass Sunstein (31:09):
I'm upbeat.
I think it's good.
So occupational licensing, you're right,
is something that I was veryconcerned about in government.
And the fact is it'sa drain on economic growth,
on entrepreneurship, andon individual opportunity.
So there's an old liberal idea.
(31:29):
By liberal, I don't mean left of center.
I mean the liberal politicaltradition of careers open to talents.
That's the idea.
And libertarians tend to like it.
Many progressives like it, too.
And careers open to talents.
It's a beautiful idea.
It was a little bit boring,maybe in the 1980s because it seemed.
(31:52):
Yeah, of course.
What else have you got?
But it's not boring now.
Where careers open totalents isn't something that.
Is a lived reality for too many people.
So the idea,if you're licensed in Arkansas,
you get to do the samething in Mississippi.
A presumption in favor of thatseems to me a really good idea.
(32:14):
Unless there are uniqueconditions in Mississippi
such that the Arkansas licensedoesn't warrant that license, or
unless there's something wrong with theseoriginal states licensing policies.
Now this could be an opening throughwhich you could drive a truck.
But I,
(32:34):
I want to start by saying there's a strongpresumption in favor of reciprocity.
>> Jon Hartley (32:39):
It's fascinating.
It's amazing to see how much strides thathave been made in occupational licensing.
It's an area that I, I work in and sort oftracking these trends across states and,
and across countries and, and I meanthe US in general, at least from some of
the work that I've done in a forthcomingpaper with Morris Kleiner, is that the US
(33:01):
actually has some of the most stringentoccupational licensing regulations.
At least if you were to measure thefraction of workers that have a license
compared to many other countries is very,very high compared to say, Europe.
So it's interesting that you wouldthink sometimes that we have a very
(33:21):
dynamic economy in the US but there areall these sorts of barriers that exist.
Not saying that we don't needsome licensing for doctors and
certain professions are important, butto what degree do hair braiders and
nail techs have to be licensed andso forth?
Dog walkers and so forth.
(33:43):
It's certainly an interesting topic that'smade a lot of headway in recent years.
Some people might say it's stillsmall compared to other macro things,
But I'm with you in that I think it,it's more important than people realize.
I think maybe about 25,30% of the workforce has a license or so,
and it's really substantial and
it's used toward those people whoare generally in lower incomes.
(34:05):
And so it's really, I think,one of those policy ideas, you know,
occupational license deregulation thatcan actually improve opportunity for
lower income individuals andhelp improve their productivity.
So I'm with you there.
I want to sort of segueinto legal philosophy.
You spent a lot of time,
time in your career teaching lawclasses across a variety of fields.
(34:30):
You, I think, spent a lot of timeworking on administrative law.
I just was curious, how would youdescribe your judicial philosophy?
I kind of understand you'rea judicial minimalist.
You're sort of an advocate formaybe more executive and administrative
decision making or more intelligentadministrative decision making.
You're a fan of Experts, broadly speaking.
(34:50):
And you recently wrote a book,Law and Leviathan Redeeming
the Administrative State with yourHarvard Law colleague Adrian Vermeil.
Tell us more all aboutyour judicial philosophy.
>> Cass Sunstein (35:01):
Okay, so there are a couple things I like.
If there's the idea ata highest level of abstraction,
the idea is deliberative democracy.
So a deliberative democracyis something associated
with the German philosopherJurgen Habermas.
John Rawls has endorsed it.
James Madison was a deliberativedemocrat in economics.
(35:25):
Amartya Sen is an enthusiast fordeliberative democracy at Stanford.
James Fishkin is a fan ofdeliberative democracy.
And the basic idea here.
We'll get to the judges in a moment.
Is that a well functioning constitutionalorder combines accountability and
(35:46):
responsiveness.
That's the democracy part of deliberativedemocracy, with a commitment to reason
giving and deliberation among peoplewho are trying to figure things out.
That's the deliberative partof deliberative democracy.
So we don't havea government by referendum.
(36:09):
The right to instruct was rejected bythe Constitution's founders on the ground
that it would destroythe point of the meeting.
They're supposed to deliberate with oneanother and figure out what's best.
So deliberative democracy will naturallylead, lead to some enthusiasm for
technical expertise.
If you're trying to figure outhow to handle road safety,
(36:31):
intuition won't be enough.
The deliberative part requiresa commitment to getting really empirical.
And I see the administrative state atits best, not as it always exists by
any means, as continuous with the foundingcommitment to a deliberative democracy.
(36:51):
Okay, in terms of the judges,we want a judicial role
that's alert to the ambitionto a deliberative democracy.
And we want courts respectful of theprocesses of deliberative democracy and
we want them attuned to ensuringthat it doesn't misfire.
(37:15):
So the most important thingthe Administrative Procedure act does,
maybe is to authorize courtsto strike down agency action.
That's arbitrary.
So if an agency says that we'regoing to deem the social cost
of carbon to be 500 becausethat's really big and
(37:36):
the climate crisis is upon us,that's arbitrary.
That's not reason giving.
If you say we're going to deem the socialcost of carbon to be zero because
we think climate change is not real,that's almost certainly arbitrary.
I think the almost is justI'm being very careful here.
(37:57):
We have to figure outwhat the grounding is for
the administrative statedoing one thing or another.
So arbitrariness as A verybad thing is consistent
with the aspiration toa deliberative democracy.
A democracy that's not deliberativemight be arbitrary, but
(38:20):
that's a form, I say,of authoritarianism, which runs afoul of
the founding era's ambitions to havea deliberative democracy, which.
Okay, then there's the rule of law.
So the book Law and Leviathan isabout what the rule of law entails.
(38:40):
And here the idea is that the rule oflaw has an internal morality where,
and this is Hayek is an inspiration,at least in my mind, for
this, that if you have a rule inthe world that isn't on the books,
that's not the rule of law.
So if.If in reality the enforcement officers
(39:02):
are acting inconsistentlywith the rules on the books,
that violates the internalmorality of law.
If the law is changing sorapidly that people can't plan,
that's inconsistent with the rule of law.
If there's retroactivity, so
people do things that are fineby legal requirements in 2025,
(39:22):
but then in 2027 they're punished that itruns afoul of the ban on retroactivity.
If people can't understand what the lawis, if it's too vague or confusing,
that's inconsistent with the.
The rule of law, the morality of law.
Now, if you have no redistribution orlots of redistribution,
(39:43):
that might be good or bad, butit has nothing to do with the rule of law.
At least it doesn't until wespecify what the legal sources.
But you can do lots of stuffconsistently with the rule of law.
Still, the rule of law is.
Central and a foundational part ofthe restrictions, as they should exist and
(40:05):
frequently do exist on the operationof the administrative state.
In terms of the Supreme Court's role,
I like the idea of the judgesavoiding very ambitious theories and
avoiding very ambitious, broad rulings.
So there's some people on the left andsome people on the right get
(40:27):
excited about maximalist rulingswhere the court, you know,
strikes down a bunch of things oradopts a theory of liberty or equality,
and bam, our country is now beingordered to do all sorts of stuff.
I'm skeptical of that.
The idea of judges beingtheoretically humble and
(40:48):
ruling in ways that are agnostic aboutwhat liberty and equality really means.
They don't have expertise on that.
And it's a pluralistic society, after all.
So being theoretically modest and
also ruling narrowly on the case,these are presumptions.
These aren't edicts.
(41:10):
But ruling narrowly rather than broadly,I.
I like that.
So here I stand withChief Justice Roberts, who says,
if it's not necessary to decidean issue in order to resolve a case,
it's necessary not to decide an issuewhen we're resolving a case.
So that's a plea for a form of minimalism,which, whether or not it's good in art,
(41:32):
is usually pretty good forthe Supreme Court of the United States.
>> Jon Hartley (41:37):
I'm curious, I guess, on the topic of both the courts and
deliberate democracy.
I'm curious how you thinkabout our current system and
how much it has maybe strayedfrom how the founders maybe
envisioned the sort of originalMadisonian form of government.
And maybe, you know,you think it's important that for
(42:00):
it to have changed since then.
I mean,we now live in a world that's very,
very different fromthe time of the Founders.
Certainly from a nationalsecurity perspective,
we have nuclear weapons and so forth.
But I'm just curious, you know,there's this, I would say, criticism
of the current sort of state of affairs orthe current regime in saying that,
well, you know, Congress doesn'tmake laws and tries to avoid.
(42:25):
To deliberate.
Now they don't want to decidethese big issues that it's
really their responsibility to decide.
And then what ends up happeningis they give a lot of power to
the administrative state that decidesa lot of things, or the presidency,
the executive that decidesa lot of things, and
then they do things, and then sort of itgoes between the executive and the courts,
(42:49):
and the courts kind of are being forcedto weigh in on these things that.
That perhaps Congressshould be weighing in on.
I'm curious what your thinking isabout the, the current regime and
how the current powers, you know,three branches of government work
together compared to sort ofMadison's original vision.
And, and how do you think it should be,how you think it should function?
>> Cass Sunstein (43:12):
It's great.
It's complicated.
So let's take two stabs at it.
There's a grand narrative out there whichyour question can be taken to press,
which is that we've seensuccessive breaches of Article 1,
Article 2 andArticle 3 of the Constitution.
(43:34):
Article 1 insofar as Congress grantsbroad discretionary authority to
the executive andadministrative entities, violation or
breach of Article 2 insofar as we seeindependent agencies exercising authority
outside of the presidency, that's onthe run in current constitutional law.
So the idea of independentagencies is no longer secure.
(43:57):
It might be gone pretty soon,but it's been around since 1935.
And then there's a third breach of Article3 where a lot of adjudication is done by
the executive agencies.
You're putting a Spotlight on Article 1.
I don't think the grandnarrative is right, but I think.
But I'll get to something kind ofadjacent to it that I think is right.
(44:20):
If you look at the founding period,
a lot of discretionary authority was givento the executive and to agencies and
the constitutional concerns wereeither absent or very occasional.
So the breadth of grants of authorityto the executive pursuant to open
ended words like reasonable is prettyeye opening in the founding period.
(44:45):
It's not like Congress made allthe decisions and so, okay, and
said to the executive,okay, do what we just said.
Instead Congress said do what's reasonableor appropriate, things like that.
So there's real continuity betweenthe first, second Congress and
first and second Congress and what wenow observe, the idea that independent
(45:06):
agencies are constitutional affront orbarnacle, that's also hard to defend.
Independent agencies were aroundin the founding period and
it looks like most people then thoughtthat was constitutionally fine.
The adjudication issue isa little more complicated and
the magnitude of adjudication done bythe administrative state now is very
(45:29):
plausibly out of accord withconstitutional expectations.
Okay, there's all that.
It's clearly the case that the breadth andand
ex magnitude of executive branchauthority was not expected.
And I think it's less because there'sdiscretion than the number of
(45:53):
domains in which discretion is exercised.
And the power that discretionis exercised with respect to
way outruns the founding period.
So if you think of the EPA orthe Department of Transportation or
the Social Security Administration or
the Federal Communications Commission,or the Federal Trade Commission.
(46:16):
My gosh, they're doing all sortsof stuff that at the founding,
the national governmentwasn't expected to do.
The Department of Labor.
So whether this is an affrontof the Constitution is, I think,
not at all clear.
Because what part of the Constitutiondoes it violate is a very fair question.
(46:37):
It's not clear it violates anypart of the Constitution, but
it's very different fromwhat was anticipated.
Now, this is a large question.
No modern industrialized societylooks like the founding era or
40 years after the foundingera government.
(46:59):
So we're not seeing that in Canada orFrance or Italy or Germany.
Not that any of those is perfect.
But the idea that we would have a smallnational government akin to that of,
let's say, 1830, that seems cray cray.
I think.
So that's cool person talk for crazy.
(47:21):
I'm trying to be a cool person.
So failing, evidently.
But the, the,the mission of trying to discipline
the administrative state byreference to the rule of law and
to cost benefit analysis,including elimination of
administrative burdens andbarriers and sludge.
(47:44):
That's a really honorable mission.
>> Jon Hartley (47:48):
That's fascinating.
I guess you just maybe broadly.
Thank you.Here, just about political philosophy and
liberalism, you've written quite a bit.
Bit about political philosophy as well,in particular about liberalism.
In 2023, you wrote a New York Timesessay titled why I Am a Liberal.
(48:12):
Does the term liberalmean a whole lot anymore?
I'm just curious.
There's everything from economicliberals to social liberals.
Many who I would say are firmly inone camp and firmly not in the other,
which traditionally I'd say would be a keydistinction between maybe Republicans and
(48:33):
Democrats, at least fromthe 1980s through maybe 2016.
I'd say it would probablygo back even further,
maybe even pre the time of Buckley andothers in maybe the 50s.
Now, Locke also talks about a lotabout moralism in book four of
(48:53):
the essay concerning human understanding.
And certainly I think it's fair to saythat the founders believe that morals
writing about nature's God andthe laws of nature and then declaration.
So I think there's some today,namely the post liberals,
that might characterizethem as libertarians,
(49:18):
you know, in social liberals.
But, you know, I think that'ssomewhat historical and untrue.
And I mean, they also werein favor of tariffs as well.
So, you know, I think calling them fulleconomic libertarians I think wouldn't be
true either.
Now, they certainly believedin property rights.
That was something that was foundational.
(49:39):
And they certainly believed in, you know,fighting the excesses of government.
You know, they're fighting, you know,
very small taxes by comparedto the taxes today.
And that in part the American Revolution.
Obviously, you know, economic liberalism,property rights has been responsible,
(50:00):
in my opinion, forenormous amounts of economic growth.
And maybe there's someunintended consequences of that.
But I'm curious, what does it meanto be a liberal today as you see it?
And are there limits onliberalism as you see it, if any?
>> Cass Sunstein (50:17):
Okay, so a liberal today believes in freedom and
pluralism and the rule of law.
That's a triumvirate, a holy trinity.
Freedom, pluralism and the rule of law.
Ronald Reagan was a liberal.
Barry Goldwater was a liberal.
(50:38):
Barack Obama is a liberal.
Franklin Delano Roosevelt was a liberal.
So this is a big tent.
Hayek was emphatically a liberal,no question about that.
John Stuart Mill,also Robert Nozick for sure.
John Rawls, definitely Susan Okun,
(51:00):
Stanford's political scientist,no question at all.
So I have a book coming out in just acouple weeks called Liberalism in Defense
of Freedom and, andI almost called it Big Tent Liberalism.
Now, the disagreements between Susan Okun,for example, and John Rawls are fierce.
(51:23):
The disagreements betweenRobert Nozick on the one hand,
and Joseph Raz, a philosopher whowas a liberal, died not long ago.
Those are also fierce.
But pluralism, freedom, and the ruleof law are a shared set of convictions.
I think it's.
It's like, really important forthose who are part of the liberal
(51:48):
tradition to stand up and say so,even if they disagree, you know,
very fiercely with people who are alsopart of the liberal tradition.
So I feel, right now,I'm not a libertarian, but
I feel libertarians are my brothers andsisters.
I worked in the Reagan administrationas the Department of Justice.
(52:10):
I had some serious,serious disagreements with
President Reagan, but, you know, my.
My intellectual sibling andcommitment to liberalism.
So this might not have seemed asimportant 30 years ago as it is now,
but given what's happening in Russia andChina,
(52:33):
in various parts of the world,given the illiberal left,
which is sometimes not that excitedabout freedom of speech on campus or
elsewhere, not just the Marxist left, but
the illiberal left,given the illiberal right in Hungary, for
example, where the idea is a democracy,that's illiberal,
(52:57):
I think it's an oxymoron, butwe understand what the sentence means.
To put a spotlight on freedom,pluralism, and
the rule of law as composingthe liberal tradition
is a big step forward, andit may be, you know, of.
(53:21):
Of great importance in the next 50 years.
>> Jon Hartley (53:25):
Well, Cass, I really want to thank you for coming on.
This has been an amazing conversation,and you've had such a prolific career.
It's a true honor to have you.
>> Cass Sunstein (53:33):
On, an honor to be able to talk to you.
Thank you.
>> Jon Hartley (53:37):
This is the Capitalism and Freedom the 21st Century podcast,
an official podcast of the HooverInstitution Economic Policy Working Group,
where we talk about economics,markets, and public policy.
I'm John Hurley, your host.
Thanks so much for joining us.
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