Current Position: Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (since September 2009)
Credit: 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). Obama has promised to make the position a high-wattage gig at the epicenter of his policy goals, which 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.
Sunstein is experienced in Washington and in academia. After graduating from Harvard Law School in 1978, he clerked for Supreme Court justice Thurgood Marshall and worked for the Office of Legal Affairs. He landed a teaching job at the University of Chicago Law School in 1981 and moved to Harvard Law School in 2008. He has written many articles and books, including
Republic.com,
The Second Bill of Rights, and
Nudge: Improving Decisions about Health, Wealth, and Happiness.
At a Glance
Current Position: Administrator of the Office of Information and Regulatory Affairs-designate Office of Management and Budget (since Jan. 2009)
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: N/A
Email
Web site
Path to Power
Sunstein was born on September 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.
In 1981, Sunstein returned to academia as a University of Chicago professor. There he wrote numerous papers on the importance of judicial minimalism and on the intersections between law and democracy.
He returned to Harvard as a law professor in 2008, reportedly because of his romance with
Samantha Power, an Obama adviser and Pulitzer Prize winner. Former Harvard Law School dean
Elena Kagan, now Obama’s solicitor general, called Sunstein “the pre-eminent legal scholar of our time,” when she hired him. At Harvard, Sunstein studied the ways laws can affect climate change and occupational safety.
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.
Obama tapped Sunstein to head OIRA in April 2009, and he was confirmed in September 2009. Though the position was not particularly influential under President George W. Bush, Obama pledged to revamp the nation's regulatory structure, especially in the areas of housing and finance. Sunstein is his top advocate on these issues.
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. Last year, he released a book called Nudge, in which he outlined the 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 program instead of into it, they increase participation from 65 percent to almost 98 percent.
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 will bring 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. 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 us 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 would not 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.
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
Austan Goolsbee, a White House economics adviser; Assistant Treasury Secretary nominee
Alan B. Krueger,
Larry Summers, and OMB head
Peter Orszag.
A group of scientists did a study that showed Sunstein is the “Kevin Bacon” of law, because he has coauthored 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 United States, according to the Obama administration.
