Cass Sunstein (born September 21, 1954) is the husband of Samantha Power. He is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law and law and behavioral economics. Sunstein has served as the Administrator of the Office of Information and Regulatory Affairs since April, 2009. For 27 years, Sunstein taught at the University of Chicago Law School, where he still teaches as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration. His position within the hierarchy of the administration has earned him the non-official title of 'Regulatory Czar' and he is considered by many to be the most dangerous man in America.
Sunstein was born on September 21, 1954 into a Jewish-American family.
From the 1980s until the early 1990s, Sunstein was married to Lisa Ruddick who he met at Harvard University. Following the birth of their daughter Ellyn, he began seeing Martha Nussbaum, a professor of law at the University of Chicago. On July 4, 2008, Sunstein married Samantha Power, a professor of public policy at Harvard and also a former colleague of Barack Obama at the University of Chicago. He also worked with her on Obama's presidential campaign.
Sunstein had a pet Rhodesian ridgeback, Perry. During the Clinton impeachment hearings, Sunstein grew tired of appearing on news programs, and agreed to appear on Greta Van Susteren's CNN program only if he could bring Perry on the show with him; she agreed. Perry died in the fall of 2008. The University Of Chicago Law School has created the Perry/Sunstein fund in Perry's memory, a scholarship fund for a student with an interest in animal welfare.
Sunstein graduated in 1972 from the Middlesex School in Concord, Massachusetts. He earned a Bachelor of Arts degree in 1975 from Harvard College, where he was a member of the varsity squash team and the Harvard Lampoon. In 1978, Sunstein received a J.D. magna cum laude from Harvard Law School, where he was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and part of a winning team of the Ames Moot Court Competition.
After graduation, Sunstein clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court (1978-1979) and then for Justice Thurgood Marshall of the U.S. Supreme Court (1979-1980). Then he worked as an attorney-advisor in the Office of the Legal Counsel of the U.S. Department of Justice from 1980 through 1981. He took a job as an assistant professor of law at the University of Chicago Law School (1981–1983), where he also became an assistant professor in the Department of Political Science (1983–1985). In 1985, Sunstein was made a full professor of both political science and law; in 1988, he was named the Karl N. Llewellyn Professor of Jurisprudence in the Law School and Department of Political Science. The university honored him in 1993 with its "distinguished service" accolade, permanently changing his title to Karl N. Llewellyn Distinguished Service Professor of Jurisprudence in the Law School and Department of Political Science.
Sunstein was the Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986 and a visiting professor at Harvard Law School in the spring 1987, winter 2005 and spring 2007 terms. He teaches courses in constitutional law, administrative law and environmental law, as well as law and economics. In the fall of 2008 he joined the faculty of Harvard Law School and began serving as the director of its Program on Risk Regulation.
He was a faculty member at the University of Chicago Law School for 27 years, from 1981 to 2008. Here Sunstein worked alongside Barack Obama for more than a decade He continues to teach there as the Harry Kalven Visiting Professor. Sunstein is currently the Felix Frankfurter Professor of Law at Harvard Law School, from where he is on leave while working in the Obama Administration. In 2008 Sunstein served as an advisor for Barack Obama’s presidential campaign.
Sunstein joined Obama’s campaign early on, calling the President a “visionary minimalist.” He was part of a team of 29 behaviorists who drafted memos on ways to increase voter turn-out, improve a candidate’s message and raise money. Among their suggestions were having campaigners repeat that ‘record turnout is expected’ and raffling off face time with Obama for donors.
In April 2009, Cass Sunstein was nominated by the Obama administration for the position of Administrator of the Office of Information and Regulatory Affairs in the White House Office of Management and Budget, which is an agency within the Executive Office of the President. The position of Administrator is nominated by the President and requires Senate confirmation.
Sunstein's confirmation had been long blocked because of controversy over allegations about his political and academic views. On September 9, 2009, the Senate voted for cloture on Sunstein's nomination as Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget. The motion passed in a 63–35 vote. The Senate confirmed Sunstein on September 10, 2009 in a 57–40 vote.
Role in Encouraging Filibuster of Bush Judicial Appointees
In January 2001, President George W. Bush was inaugurated. The election was not decisive, unfortunately, and President Bush won only after Florida's Supreme Court <a href="https://caselaw.findlaw.com/us-supreme-court/531/98.html">ruled in his favor</a> over his Democrat opponent and former Vice President, Al Gore, Jr. The American left, predictably, resisted the new president, believing the courts were rigged against their opponent.
In February 2001, leftist Yale law professor Bruce Ackerman fueled those fears. He wrote an article for the <a href="https://web.archive.org/web/20041224170504/http://www.prospect.org/web/page.ww?section=root&name=ViewPrint&articleId=5663">American Prospect</a> despairing over Bush's win in the contested election, making the huge stretch that because the new President was not "independently elected" (i.e. claiming Bush was 'elected' by the courts) Bush's court appointees would not reflect the electorate. Ackerman despaired:
"If such a president is allowed to fill the Court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place."
Therefore, Ackerman proposed that "[W]hen sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush."
And so, Democrats fought mightily against Bush judicial appointees. In May 2001, the <a href="https://www.nytimes.com/2001/05/01/us/washington-talk-democrats-readying-for-judicial-fight.html">New York Times </a>reported that "[F]orty-two of the Senate's 50 Democrats attended a private retreat this weekend in Farmington, Pa., where a principal topic was forging a unified party strategy to combat the White House on judicial nominees." (emphasis added)
In order to develop their strategy, "[T]he senators listened to a panel composed of Prof. Laurence Tribe of Harvard Law School, Prof. Cass Sunstein of the University of Chicago Law School and Marcia Greenberger, the co-director of the National Women's Law Center, on the need to scrutinize judicial nominees more closely than ever."
American Academy of Arts and Sciences
American Constitution Society
In 2005, the American Constitution Society (ACS) sponsored a conference at Yale Law School entitled "The Constitution in 2020," whose purpose was to give liberal/left lawyers and judges a forum wherein they could trade ideas on what they would like the U.S. Constitution to look like 15 years in the future and how they could influence it toward that end. Sunstein participated in this forum, where he put forth his ideas about a "Second Bill of Rights.” The Weekly Standard offered this assessment of the goals of the ACS forum:
- “The essence of the progressive constitutional project is to recognize ‘positive’ rights, not just ‘negative’ rights, so that citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits. The bottom line is that Congress would no longer have the discretion to decline to enact liberal policies. The triumph of the left would be constitutionally mandated.”
American Law Institute
The Constitution 2020 movement has plotted a strategy for how liberal lawyers and judges might bring such a constitutional regime into being.
The American Prospect
The New Republic
The Volokh Conspiracy
Legal and Judicial Philosophy
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand and avoid making sweeping changes to the law or decisions that have broad-reaching effects. He supported George W. Bush's judicial nominees Michael McConnell and John Roberts. Sunstein also provided strong theoretical support for the death penalty. Much of his work also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate understanding of how people will respond to legal intervention.
Contending that “the judiciary is already politicized," Sunstein says the notion that "judges are not policymakers" is a "myth." Judges’ “political commitments,” he states, “very much influence their votes." He states that "judges are subject to conformity pressures and like-minded judges go to extremes, in the sense that ideological predispositions are heightened when judges are sitting with others who were appointed by presidents of the same political party."
In recent years, Sunstein has collaborated with academics who have training in behavioral economics, most notably Daniel Kahneman, Richard Thaler and Christine Jolls, to show how the theoretical assumptions of law and economics should be modified by new empirical findings about how people actually behave.
According to Sunstein, the interpretation of federal law should be made not by judges, but by the beliefs and commitments of the U.S. President and those around him. Sunstein states:
- "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him."
Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering people's decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect."
Sunstein's 2004 book, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever, advocates the Second Bill of Rights proposed by Franklin D. Roosevelt. Among these rights are a right to an education, a right to a home, a right to health care and a right to protection against monopolies. Sunstein argues that the Second Bill of Rights has had a large international impact and should be revived in the United States even though it has never existed here.
He is considered so prolific a writer that in 2007, an article in the legal publication The Green Bag, coined the concept of a "Sunstein number" reflecting degrees of separation between various legal authors and Sunstein, paralleling the Erdős numbers sometimes assigned to mathematician authors.
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Sunstein has authored the following articles and books:
- Constitutional Law (Little, Brown & Co., 1st ed. 1986; 2nd ed., 1991; 3rd ed., 1995)
- After the Rights Revolution: Reconceiving the Regulatory State (Harvard University Press, 1990)
- Feminism and Political Theory (editor, University of Chicago Press, 1990)
- The Bill of Rights and the Modern State co-editor with Geoffey R. Stone and Richard A. Epstein (University of Chicago Press, 1992)
- Democracy and the Problem of Free Speech (The Free Press, 1993)
- The Partial Constitution (Harvard University Press, 1993)
- Legal Reasoning and Political Conflict (Oxford University Press, 1996)
- Free Markets and Social Justice (Oxford University Press, 1997)
- Clones and Clones: Facts and Fantasies About Human Cloning with Martha Nussbaum (W.W. Norton, 1998)
- Administrative Law and Regulatory Policy with Stephen Breyer, Richard B. Stewart and Matthew Spitzer (1999; new edition 2002)
- One Case At A Time: Judicial Minimalism on the Supreme Court (Harvard University Press, 1999)
- The Cost of Rights with Stephen Holmes (1999, W.W. Norton paperback, 2000)
- Behavioral Law and Economics (editor, Cambridge University Press, 2000)
- Constitutional Law 4th ed. with Stone, Seidman, and Tushnet (2001)
- Designing Democracy: What Constitutions Do (Oxford University Press, 2001)
- The Vote: Bush, Gore & the Supreme Court with Richard Epstein (University of Chicago Press, 2001)
- Free Markets and Social Justice (2002)
- Punitive Damages: How Juries Decide with Reid Hastie, John Payne and David Schkade (University of Chicago Press, 2002)
- Republic.com (Princeton University Press, 2002)
- Risk and Reason (Cambridge University Press, 2002)
- The Cost-Benefit State (American Bar Association, 2002)
- Why Societies Need Dissent (Harvard University Press, 2003)
- Animal Rights: Current Controversies and New Directions edited with Martha Nussbaum (Oxford University Press, 2004)
- Constitutional Law 5th ed. with G. Stone, L.M. Seidman, P. Karlan and M. Tushnet (Aspen, 2005)
- Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Basic Books, 2005)
- The Laws of Fear: Beyond the Precautionary Principle - based on the Seeley Lectures 2004 at Cambridge University, (Cambridge University Press, 2005)
- Are Judges Political? An Empirical Investigation of the Federal Judiciary with David Schkade, Lisa Ellman and Andres Sawicki (Brookings Institution Press, 2006)
- Infotopia: How Many Minds Produce Knowledge (Oxford University Press, 2006)
- The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever (Basic Books, 2006)
- Republic.com 2.0 (Princeton University Press, 2007)
- Worst-Case Scenarios (Harvard University Press, 2007)
- Nudge: Improving Decisions about Health, Wealth, and Happiness with Richard Thaler (Yale University Press, 2008)
- Going to Extremes: How Like Minds Unite and Divide (Oxford University Press, 2009)
- On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done (Macmillan Publishers, 2009)
- Law and Happiness (The University of Chicago Press, 2010)