Cass R. Sunstein

In this short book of 136 pages, Cass Sunstein makes the case that freedom is enhanced by the intentional restriction or gentle manipulation of free choice. Just as a GPS system guides you to the desired destination while preserving your freedom to take an alternate route, “nudges” can point you in the right behavioral direction while preserving your ability to choose otherwise.

A simple example is automatic enrollment in a 401K retirement savings program. This particular “nudge” is show more beneficial because it helps to overcome two common biases. The “present bias” makes it difficult for people to save for the future, and the “default option bias” makes it difficult for people to make changes to the status quo.

These two biases, acting together, prevent people from enrolling in retirement plans that are clearly beneficial, and so the “nudge” of automatic enrollment solves the problem. It enables people to make the right decision while still preserving their freedom to opt out. In this way, a nudge can be said to enhance freedom because, without a behavioral GPS system, people have difficulty navigating to their desired destinations in life.

All nudges work in this way, and in many cases the result is clearly beneficial. In the above example, if the person wants to save for the future, but has self-control problems in regard to spending, they will probably appreciate the automatic enrollment. In this case, the desired behavior is known by the chooser and the “choice architect” can easily identify the appropriate nudge.

But problems arise when the determination of the appropriate behavior is debatable. The ability of a “choice architect” to manipulate behavior to a desired end sounds a lot like coercion, and frankly, the idea of “choice architects” working for the government sounds like something out of a George Orwell novel.

However, as Sunstein explains, nudges are different from coercion because all nudges preserve freedom of choice. Any decision will already include a default option, whether it is consciously designed or not; in the example of 401K enrollment, non-automatic enrollment is nudging people to not save for the future. The nudge of automatic enrollment is simply presenting a more desirable default option from the perspective of informed choosers.

Informed choosers are choosers that are not influenced by nudges. They would enroll in 401K programs regardless of the default option, and so the appropriate nudge will align with these optimal choosers. And again, if you don’t like automatic enrollment in the 401K program, you can simply opt out.

On the other hand, the default option bias means that most people will not opt out, so in this way the choice architect does have quite a bit of influence depending on which behavior they’re trying to promote. This can get tricky depending on the situation.

If the chooser doesn’t have a clear preference, how does the choice architect decide which default option to present? For example, which is better, automatic enrollment in bronze medical plans, with low premiums and high deductibles, or gold medical plans, with high premiums and low deductibles?

How do you know which to choose? Do you go by the preferences of the chooser before or after the nudge, since some people have a different preference after being nudged? Or do you go by the option that promotes well-being in general?

One approach is to abide by the choices of informed choosers who are not affected by nudges either way, as described above. The default option is simply the option informed choosers would pick in any scenario. This approach seems reasonable, but only when the choices do not result in general harm. People, whether well-informed or not, sometimes exhibit behavioral biases that result in less than optimal behavior, and the point of nudges in the first place is to enhance outcomes.

For example, informed choosers might bypass healthy foods placed at the front location of a buffet for better tasting but unhealthy foods. In this case, it’s probably not a good idea to move the healthy foods to the back, especially if people will eat more healthy foods if they are placed up front. This is reinforced by the fact that many people will claim, after the meal, that they were glad they skipped the fried food and chose the salad instead. Their preferences before and after the meal changed, and it is their after-meal preferences that should be prioritized because this preference results in better health.

As you can see, nudges are not always straightforward, and careful consideration must be given when navigating the fine line between promoting beneficial behavior and coercion, and even when determining what the beneficial behavior is in the first place. Maybe eating better tasting foods is more important than marginal gains in health. Is it really moral for the choice architects to make this decision?

Despite the difficulties, in many cases it is clearly desirable to engineer choices in a way that nudges people towards better behavior, considering that you cannot avoid presenting a default option. Some real-life examples of beneficial nudges include the automatic enrollment in free lunch programs that provide millions of children with school lunch; automatic voter registration that could mean greater turn-out at the polls; graphic images of lung disease on cigarette containers to discourage smoking; and adding green arrows to the floor of a grocery store pointing to the produce section.

As for the book itself, it would have been nice to see more real-world examples rather than strictly hypotheticals, and the ideas could have probably been condensed into a long-form article rather than a book. But for a quick read it does a decent job of raising consciousness to the neglected problem of navigability in discussions of freedom. It raises the following difficult question: in what sense can someone claim to be free if they don’t know how to get to their desired destination, or if they cannot solve their problems of self-control?

Rather than allowing people to fend for themselves unguided, the use of nudges, employed carefully and thoughtfully, can go a long way in improving people’s lives while preserving freedom of choice. show less

Drawing on current thinking in psychology and behavioral economics, trends which have helped us to refine our understanding of human behavior and decision-making, Sunstein and Thaler lay out their conception of choice architectures. The way that information is presented matters. As human beings, we are not the fabled homo economicus, the autonomous, self-owning, rationally-deciding agents that have dominated thinking on these matters in the United States.

Choice architecture means that there show more is no such thing as a neutral default, and thus the responsibility for providing thoughtful, and perhaps (as becomes important) helpful, layouts is placed on those who do the designing. This matters in a bewildering range of domains, although the authors (rightly in my thinking) point out that cases where feedback is not readily forthcoming and in which the long-term consequences truly matter (such as dietary and financial decisions as well as matters affecting health and the environment) are demanding of the most attention.

Sunstein and Thaler espouse (what they argue to be) a benevolent form of interventionism which they label 'libertarian paternalism'. As self-proclaimed libertarians, they are nervous about heavy-handed interference in the form of bans and prohibitions, giving their preference to the soft-gloved approach of incentives and the eponymous 'nudges' made possible by choice architectures. This well-intended 'hands-off' intervention without interfering means to push people into making 'better' choices. However, 'better' remains, as ever, ill-defined and subject to arbitrary definition. Additionally there is a strong case to be made that intervention is intervention no matter how you label it; these methods are less overt, to be sure, but this same property could serve to better conceal their use in the toolkit of unsavory interests.

The remainder of the book runs through various proposals for using 'nudges' in public policy matters, and they do offer a range of ideas worth consideration (although some are questionable, connecting back to a recurrent theme that I will clarify shortly).

As an 'idea book' I would highly recommend giving Nudge a look. Sunstein and Thaler make a persuasive case for the nudge concept, right down to the science and their own political leanings. I have my own reservations about their argument and their perspective in making it (which seems to be largely accepting of, if not quite espousing, a status quo of which I find myself increasingly cynical), but I need not bog down the review with those issues.

As a read, I found the later chapters repetitive and I skimmed healthy chunks of them. Once the argument for the nudge is made in the first part of the book, the examples, while interesting, didn't seem quite as captivating (and this may be in part due to my own above-mentioned reservations rather than any true flaw, so this, too, should not be considered off-putting).

My concerns aside, the ideas here are largely sound, interesting, and, in fairness, I even agree with their broadest scope. The soft approach of 'nudging' seems preferable to more overt forms of intervention, and it's hard to disagree that this is an underused method of moving people toward better life-choices (we just have to sit down for a long think about what justifies our conceptions of 'better', although this is no new problem). show less

There are two undeniable facts about the US Constitution: (1) it does not contain the instructions for its own interpretation, and (2) it is written in an ambiguous way that nevertheless demands some interpretation. It is impossible, therefore, to engage in a “value-neutral” reading of the text; however you decide to interpret the Constitution inevitably changes its meaning, however slightly. And the consequences of this must be defended on some ground.

In How to Interpret the show more Constitution, Cass Sunstein seeks to explain the various interpretive frameworks that exist and to propose a simple criterion for preferring one over the other; namely, that “judges (and others) should choose the theory that would make the American constitutional order better rather than worse.”

Here’s an example to get us started. As Sunstein wrote:

In 1930 it would have been pretty radical, and maybe even preposterous, to say that the Constitution forbids racially segregated schools. As of this writing, it would be radical, and quite preposterous, to say that the Constitution does not forbid racially segregated schools.

The Constitution, in other words—prior to Brown v. Board of Education—had no “originalist” meaning that made segregation unconstitutional. So, if you adopt an “originalist” position, then congratulations: you can now proudly support the idea that segregation should be perfectly constitutional. You may have a difficult time defending this idea to others, but hey, it’s better to be consistent, right?

The point is that, as Sunstein wrote, “the effects of changes in men’s feelings for what is right and just is equally relevant” in determining how to interpret the Constitution. And if we want to simplify things, and break things down according to a single criterion, then that criterion should be “making the constitutional order better rather than worse” in terms of the effects decisions have on actual people’s lives according to evolving moral standards. And if a theory tells us that segregation is constitutionally acceptable, then that theory should be promptly discarded—original public meaning be damned.

Using this logic, the Supreme Court got it right in its decision requiring states to recognize same-sex marriage. Consider this passage from the decision:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Unfortunately, this is not the only way to think about Constitutional law. Sunstein presents the various interpretive theories—including the various forms of originalism, moral readings, democracy-reinforcing readings, common-law constitutionalism, and common-good constitutionalism—and notes, correctly, that, since the Constitution mentions no theoretical preference, it is largely at the discretion of lawyers and judges to interpret the broad and often vague language of the Constitution in whatever manner they like.

But here’s one thing you cannot do: pretend that adopting an “originalist” stance absolves you from the moral responsibility of defending your decisions, as if they were inevitable, and then deny the fact that all interpretations are unavoidably value-laden. It would be better if we all dropped the charade and said what we’re really after when we “interpret” a constitutional provision one way or another.

The danger here clearly seems to be with originalism, as its proponents fail to offer any moral justifications for their decisions, which, in a deliberative democracy, is anathema. Therefore, we might expect a more passionate and thorough critique of this misguided theory. Instead, Sunstein offers a more round-about critique under the questionable guise of objectivity, and the reader is left to piece things together themselves, at least for the first half of the book. (For a more forceful and substantive critique of originalism, read Erwin Chemerinsky’s masterpiece Worse Than Nothing: The Dangerous Fallacy of Originalism).

And so, you’re three chapters in and halfway through the book before Sunstein tells you what he really thinks; namely, that the best theory of interpretation is a form of Rawlsian reflective equilibrium that forces you to abandon theories that produce morally reprehensible results (big surprise, this means originalism). It’s not that I think Sunstein is wrong (in fact, I think he’s right), it’s just that it takes him a lot of words to get there (straining the reader’s patience along the way).

But it makes a lot of sense; if a theory of interpretation results in blatant discrimination, for example, you’d think it would be rather obvious that the theory should be discarded. It’s actually a shame that it takes a book-length explanation to make the case as to why this is preferable (but unfortunately, it probably does).

The originalist, of course, can still counter that they are perfectly fine with the fact that originalism sometimes produces morally reprehensible results (like the implicit support of segregation) because it is not the job of the courts to monitor the country’s collective moral standing; that’s the job, say the originalists, of Congress, and of a democracy’s elected representatives.

But this seems to be a rather weak and evasive response. If the Constitution does not impose any interpretive theory on us (it doesn’t), and we are then free to select our own theory, then why in the world would we want to choose a theory that produces obviously immoral results, that we can all more-or-less agree on, in specific cases? This is Sunstein’s primary argument, and it's hard to argue against.

In fact, the whole “it’s not my job or problem” attitude among conservative politicians and judges grows tiresome; imagine going to a job interview and saying, “this job doesn’t seem all that valuable, and I’ll look the other way if terrible things happen on my watch.” Well, you probably wouldn’t get hired, and yet we continue to elect politicians that openly express their hatred for the government and then appoint judges that openly express their contempt for any form of judicial oversight (even as they engage in judicial activism by, for example, granting corporations “free speech” rights).

This is, frankly, madness. And Sunstein does a decent job, in his own meandering way, of exposing it. But again, I think Chemerinsky’s book does a far better job.

Here’s a final consideration: Sunstein doesn't mention this, but to my mind, the entire originalism/nonoriginalism debate obscures the real issue, and conceals the real fault line we should be focused on.

Because the Constitution is written ambiguously, we can always interpret it either broadly or narrowly. For example, the First Amendment grants us rights to free speech, which we could interpret as protecting pretty much all speech, including hate speech, libel, and false advertising (broad application), or, alternatively, as protecting free speech except in carefully defined circumstances, like the inciting of violence (a more narrow application). The relevant concern here is not “original intent” or even “democracy-reinforcement” but rather the granting of the appropriate scope of rights—by expanding or contracting them—that is consistent with evolving moral standards of justice. (And since the founders wrote the Constitution in what appears to be an intentionally vague way, it seems like this is more likely what they envisioned.)

Thought of in this way, our theory passes the gold standard test of Brown v. Board of Education. We can say that Brown was ruled correctly because the “equal protection clause” of the Fourteenth Amendment was correctly expanded, or more broadly applied. Whereas originalism, by contrast, tells us Brown was decided incorrectly, and that segregation should be constitutional, our idea that the equal protection clause should be applied more broadly than the founders conceived not only correctly decides Brown, but can also be used to correctly decide future cases of discrimination. And if it’s ever taken too far, we can then talk about narrowing its scope—without ever having to speculate about the intentions of individuals who have been dead for hundreds of years. Is this not preferable?

In other words, when we interpret the Constitution, or decide a case, we must decide how broad or narrow our interpretation or decision is, who is impacted, and whether or not the results seem generally fair. Originalists (and all justices) are basically doing this anyway, but by focusing on the broad/narrow divide, and the inevitable trade-offs involved, at least they’ll be doing it transparently, without hiding behind the fallacy of “originalism.” Currently, the Supreme Court is slowly eroding our rights, which they don’t even have to justify other than by referencing some nebulous idea of “original public meaning,” which should entirely piss you off. show less

A powerful analysis of why lies and falsehoods spread so rapidly now, and how we can reform our laws and policies regarding speech to alleviate the problem.

Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines show more cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech.

To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself. show less