Cass Sunstein on what law professors don’t get about government
By Zach Rausnitz
Outsiders underestimate how valuable the notice-and-comment piece of the rulemaking process is for government agencies, Cass Sunstein, the former head of the Office of Information and Regulatory Affairs in the Obama administration, said April 5.
Among law professors, “it’s long been thought that the process of notice and comment is basically kabuki theater,” said Sunstein, himself a law professor for decades before heading up OIRA and who has since returned to academia. “That administrative-law sophisticated wisdom, it couldn’t be further from the truth,” he said at a Brookings Institution event.
In one case, a commenter responded to a proposed rule, “You think it’s clear. We have no idea what these words mean,” Sunstein recalled. Other commenters have expertise that regulators wouldn’t otherwise know about, he said.
He also elaborated on the problem of obscure and confusing language, saying it pervades regulations and other public communications because government officials are so familiar with the matters at hand that they don’t realize how they sound to the public. Complex language is sometimes destructive, he added, as when poor students don’t apply for financial aid if the language used in the forms is unintelligible.
Simplicity can be costly too, though. Sunstein noted that simplifying a complex process requires a lot of internal work, and that an overly simple regulation can be exploited or evaded more easily.
He also said that when he entered government, he made a point of not imposing his academic ideas on his agency’s employees. Referring to his book Nudge, about how the way that options are presented affects the choices people make, he said, “If an academic comes in and says, ‘It’s nudge time,’ they might say, ‘It’s go back to Harvard time.'”
For more: – go to the Brookings event webpage (audio available)