Reviewing Cass Sunstein
posted by Frank Pasquale
The Boston Review recently published a review of the new Cass Sunstein book, Simpler. Sunstein has been a leading advocate of “libertarian paternalism:” a program of soft “nudges” designed to change “choice architecture” to promote better behavior. Law professor William H. Simon is unimpressed:
The biggest current liability for liberals is that many people have lost faith in the capacity of government to solve the problems they care about. Perhaps the most prominent of these problems are unemployment, economic inequality, the deterioration of the natural environment, and national security. The behaviorist toolkit [of Sunstein] is not much help here. Sunstein’s account of the future of government has nothing to say about unemployment, inequality, or national security, and its contribution to environmental protection is limited to consumer labeling of cars and appliances. . . .
Minor, indirect efforts to influence choices, such as Mayor Michael Bloomberg’s restriction on soda servings, often generate noisy debate about whether their trivial restraints on liberty can be justified. . . . Yet massive and directly coercive programs are rarely attacked as infringements of liberty and are often taken for granted. Social Security is the standout example, but there are many others, including Medicare, unemployment insurance, workplace safety, securities regulation, and defective-product regulation. All these programs rest in substantial part on hard paternalist rationales.
What were the practical effects of Sunsteinian analysis on governance over the past few years? My colleague Rena Steinzor offered this view (on behalf of the Center for Progressive Reform) on his departure:
Sunstein has continued the Bush Administration’s tradition of using the [Office of Information and Regulatory Affairs] to block needed health and safety protections disliked by big business and political contributors. Worse, the narrative that Sunstein helped craft about the impact of regulations on American life — that regulatory safeguards are fundamentally suspect — was discordant with the rest of the President’s agenda. . . . Allowing OIRA to serve on behalf of the White House as the last refuge for disgruntled polluters, Wall Street speculators, and producers of tainted food will not prevent the inevitable next wave of health and safety disasters, killing and injuring refinery workers, miners, children who labor in the fields, and the environment of the Gulf coast.
Georgetown Professor Lisa Heinzerling is also critical, arguing that Sunstein’s agenda in Simpler is “legally suspect, overly secretive, and politically unaccountable.” While Sunstein as an “ambivalent regulator” expertly parried the objections of Glenn Beck to his nomination, some leading experts on administrative law remain unimpressed with his legacy.