The Legal Olympian

From: Harvard Magazine

Cass Sunstein and the modern regulatory state

by Lincoln Caplan

Cass Sunstein ’75, J.D. ’78, has been regarded as one of the country’s most influential and adventurous legal scholars for a generation. His scholarly articles have been cited more often than those of any of his peers ever since he was a young professor. At 60, now Walmsley University Professor at Harvard Law School, he publishes significant books as often as many productive academics publish scholarly articles—three of them last year. In each, Sunstein comes across as a brainy and cheerful technocrat, practiced at thinking about the consequences of rules, regulations, and policies, with attention to the linkages between particular means and ends. Drawing on insights from cognitive psychology as well as behavioral economics, he is especially focused on mastering how people make significant choices that promote or undercut their own well-being and that of society, so government and other institutions can reinforce the good and correct for the bad in shaping policy.

The first book, Valuing Life: Humanizing the Regulatory State, answers a question about him posed by Eric Posner, a professor of law, a friend of Sunstein’s, and a former colleague at the University of Chicago: “What happens when the world’s leading academic expert on regulation is plunked into the real world of government?”

In “the cockpit of the regulatory state,” as Sunstein describes the White House Office of Information and Regulatory Affairs, which he led from 2009 to 2012, he oversaw the process of approving regulations for everything from food and financial services to healthcare and national security. As the law requires, he was also responsible for ensuring that a regulation’s benefits generally exceed its costs. By doing so, his office helped the Obama administration achieve net benefits of about $150 billion in its first term—more than double what the Bush and Clinton administrations achieved in theirs. He especially tried to humanize cost-benefit analysis, by focusing on the human consequences of regulations—including what can’t be quantified.

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