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Cass R. Sunstein

Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (since September 2009)

(University of Chicago)

Why He Matters

Sunstein may be President Barack Obama's regulation czar, but if he had it his way, the former Harvard law professor would write as few rules as possible. That's because Sunstein is a proponent of nudging people in the right direction instead of bluntly forcing them to do things, a philosophy, known as "libertarian paternalism."

He has a chance to test this approach as the head of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB). Described by some as the "cockpit for the modern administrative state," Obama has made the position a high-wattage gig at the epicenter of his policy goals. These include overhauling the financial markets, cutting carbon emissions and reforming health care. "A smarter approach to regulation is key to making government work better," an Obama transition official said in January 2009.

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Background

At a Glance

Career History: Professor, Harvard Law School (since 2008); Professor, University of Chicago Law School (1981 to 2008); Attorney-adviser, Office of the Legal Council (1980)
Birthday: September 21, 1954
Hometown: Concord, Mass.Alma Mater: Harvard College, B.A., 1975; Harvard Law School, J.D., 1978

Spouse: Samantha Power
Office: The White House
Web site

Path to Power

Sunstein was born on Sept. 21, 1954. He graduated from Harvard College in 1975 and Harvard Law School in 1978.

He then took a job with Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court. The next year, he landed a prestigious clerkship with Thurgood Marshall of the U.S. Supreme Court. After his term ended, Sunstein continued his Washington work as an attorney-adviser in the Office of the Legal Counsel in the White House .

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The Issues

Sunstein has written on an array of legal topics. But he is best known for his work on behavioral psychology and the law. In 2009, he released a book called "Nudge," in which he outlined ways the government can make life easier for people "by gentling nudging them in directions that will make their lives better."

People, Sunstein has said, are often unable to make the most beneficial selection, a circumstance he feels can be improved with "choice architecture" -- arranging a situation so that someone is encouraged but not forced toward a particular decision. This process, he hopes, can lead to better investments, improved health and a cleaner environment. In one of his most famous examples, Sunstein showed that when firms require their employees to opt out of a 401k retirement savings program instead of into it, they increase participation from 65 percent to almost 98 percent.

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Libertarian Paternalism

Central to Sunstein's theory is that people should have the freedom to make their own choices, even as the government encourages them to make the best ones. "The nation and the world are facing many unanticipated problems," he said in 2008. "Our goals are to improve our sense of what the law is now doing -- and to see how it might do better."

Sunstein writes that relatively small changes can have big results. For example, he believes that every person who receives a driver's license should be asked to choose whether or not he or she would like to donate their organs. He wants both choices to be presented, instead of the current opt-in approach used by many states. He would also like mortgage information presented more clearly so that consumers can quickly analyze different plans. He is also an advocate of a Greenhouse Gas Inventory, which would require contributors to disclose their emissions. Sunstein believes the costs of opting out should be as easy as a mouse click.

There are some situations where Sustein calls for a "push" instead of a nudge. These include situations where a child's life is at risk (vaccination laws); antipollution laws; and "shoves" that aren't that intrusive, such as laws requiring the wearing of seatbelts.

Sunstein says his philosophy brings Democrats and Republicans together. "Democrats want to use government power to make people's lives go better; Republicans respond that people know more than politicians do," he said in a 2008 New York Times interview. "We think that both might be able to agree that nudging can maintain free markets, and liberty, while also inclining people in good directions."

His views have critics on the left and the right. Will Wilkinson, a scholar at the libertarian Cato Institution, attacked Sunstein's idea as "an innovative but overhyped dud." He writes that Sunstein's proposals, while they begin as a choice, may ultimately manipulate individuals out of freedoms we would otherwise enjoy. "In the libertarian paternalist scheme, the rules will allow for an easy opt-out only so long as those writing the rules happen to care about preserving choice," he writes.

Cost-Benefit Analysis

Others worry that Sunstein's focus on cost-benefit analyses, long a tool of Republicans, will prevent progressive regulations from passing. "Every time the agencies come out with a regulation that's controversial, OIRA tries to stop it," Rena Steinzor, president of the Center for Progressive Reform, told The Washington Post. "And their main tool is cost-benefit analysis."

Critics say their fear is justified, and argue that Sunstein wouldn't have found a law regulating arsenic levels in water justified because of its high costs. Others question his commitment to the work of the Occupational Safety and Health Administration.

Taxing Carbon

One of Sunstein's areas of responsibility at OMB is expected to be climate change. "The rules that govern climate change are unquestionably the most important that Sunstein will have to deal with," Thomas McGarity, who teaches environmental law at the University of Texas, told the New York Times.

His biggest challenge will be figuring out how to put a price on the impact carbon is having on the environment.

The Network

Sunstein became friends with President Barack Obama when they both taught at the University of Chicago Law School. He is married to Samantha Power, a member of Obama's National Security Council .

He is part of an elite group of behavioral science academics including Coucil on Economic Advisers Chair Austan Goolsbee; former Assistant Treasury Secretary Alan B. Krueger , Larry Summers , and ex-OMB head Peter Orszag . A group of scientists did a study that showed Sunstein is the "Kevin Bacon" of law, because he has co-authored papers with a large number of scholars across fields and because his work is "highly cited and important." He is the most cited law professor on any faculty in the U.S., according to the Obama administration .

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