Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Friday, September 6, 2013

William Simon on Cass Sunstein

A very informative and thoughtful review of Professor Sunstein's most recent book; an excerpt:

The nudge approach is influenced by ideological strategy as well as by social science. Sunstein seems to think that for liberalism to reclaim the support it has lost in recent decades the key task is to find common ground with the libertarian right. Hence he emphasizes the liberty-respecting dimension of choice-architecture regulation. A good part of the book engages libertarian critiques of government respectfully, indeed timidly. Sunstein also shares the libertarian focus on the danger of excessive, as opposed to insufficient, regulation. At OIRA, he enthusiastically implemented President Obama’s directive that agencies seek to identify “unnecessary” regulations for repeal or cutback, acknowledging only as an afterthought that there might be some regulations that should be strengthened.

Although Sunstein seems unchast-ened by it, there is evidence in his book that the ideological strategy is a failure. Libertarians have not been placated. Thirty-four Republican Senators voted against Sunstein’s confirmation. In a series of television rants, Glenn Beck portrayed Sunstein as “the most dangerous man in America,” attacking nudges as an insidious form of covert control. The economist Edward Glaeser made the same argument with less hyperbole: fiddling with choice architecture is more dangerous than enacting mandatory rules because the interventions are less noticeable and hence less likely to trigger political opposition.

Sunstein’s strategy misconceives where liberals should be looking for allies and what they need to do to win them. They should be looking in the center, not on the fringe, and the key to winning centrist support for liberal economic programs is to demonstrate their capacity to deal effectively with public problems, not to increase their accommodation of individual choice. Most Americans are not strong libertarians in economic matters. They do not see the capacity to choose among health insurance plans or to buy tax-free cigarettes as matters of liberty in any sense akin to rights of free speech, due process, political participation, or (for some) gun possession. They see choice in the economic domain largely in utilitarian terms. If regimes that allow choice leave most people better off, they are good. But choice should be readily sacrificed when doing so leads to more efficient provision of services.

Consider that the situation in current public discourse is virtually the opposite of that portrayed by Glaeser. 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. Because libertarian rhetoric is a kind of background music in American culture, debates about paternalism have a certain entertainment value. 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. Yet when they are criticized, they are usually charged with ineffectiveness, not with infringing liberty. Even the right rarely attacks Social Security as paternalist anymore. Its complaints mainly assert that the program is inadequately funded and unlikely to deliver promised benefits. Social Security’s defenders spend most of their time showing that the program is sound or can be made so with modest reforms, not trying to make the program more palatable to libertarians.

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 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. Sunstein is right that government needs to be sensitive to the limits of its knowledge and understanding and that intervention needs to be more flexible and adaptive. But it seems unlikely that many major problems can be solved without more direct intervention and more collective decision-making than his strategy contemplates.

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