Administrative Law, OIRA, and Politics: A Conversation with Professor Cass Sunstein

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. From 2009 to 2012, he was the Administrator of the White House Office of Information and Regulatory Affairs (OIRA). After that, he served on the President’s Review Board on Intelligence and Communications Technologies and the Pentagon’s Defense Innovation Board. Professor Sunstein has testified before congressional committees on many subjects and advised officials at the United Nations, the European Commission, the World Bank, and many nations on law and public policy issues.

Professor Sunstein is the author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008).

The interview below was conducted in Fall 2022. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review: I understand you graduated from Harvard College and then Harvard Law School. Could you elaborate on your background and what motivated you to become a lawyer? How did your legal field change throughout your career?

Cass Sunstein: Yes, so I was an English major at Harvard. Come my senior year, I didn’t know whether to go to English Graduate School or instead to go to law school. After English Graduate School, you could become a professor; after law school, you could be any number of things. I liked the idea that a legal career was full of options. I also thought the law was a world of mystery, importance, rights, and institutions. All that seemed almost irresistible, so that’s why I went to law school.

HULR: You worked as a clerk for Supreme Court Justice Thurgood Marshall after law school. What were some interesting takeaways or fascinating stories from that experience?

CS: The thing I remember most about Marshall—in terms of his approach to the law—was that every case involved human beings for him. Many judges and law clerks were focused on paper and arguments and not necessarily on the people, whereas for Marshall, by contrast, it was always people. He would have clarity about the human beings behind the legal arguments and what might not be apparent from the papers. So, there were many cases where he’d have a sense of what was going on in the case that none of the other clerks and the other justices would have. It was inspiring and sometimes surreal to see his capacity to know the specifics of the problem and to direct us to determine whether what he thought was going on was actually happening. That is what I learned most from him: to think about the human beings behind sometimes abstract arguments.

In terms of stories, I only changed his mind once, and that was a pretty pathetic record of failure. It was a tribute to his clarity and conviction. The one time I’ll never forget was when we had a very long argument about a case—a very technical case. He and I argued for probably three hours in front of my co-law clerks. Of course, he won the argument and decided to vote for the majority in the case. 

Then, when the opinions came around and it was time for him to make his final vote, he looked me straight in the eye and said, “Which way do you think I should go?” 

And I said, “Well, you remember, judge, that we argued about it at some length, and you’re with the majority.” 

Justice Marshall then looked at my co-clerks and said, “Is that what I asked him?” 

I was very touched that he was saying he wanted my opinion, but he wasn’t going to make me feel it was a sentimental moment. He signaled to my co-clerks that he had asked me which way he should go. He wasn’t going to turn to me and say, “I value your opinion.” That would be too sentimental.

So, I said to him, “Judge, I thought the dissent was right, and I still think that.” 

He said, “Okay, bring me the briefs, and I’ll look at the case again and rethink it.” 

That afternoon, about 3 hours later, he circulated a memorandum to the rest of the court saying that he had changed his mind and was now with the dissent. That was, of course, an honor, but what was unforgettable was his really asking me what I thought. He was always like that, even though I say this was the only time I changed his mind.

HULR: What was the state of regulation in the United States before you led the Office of Information and Regulatory Affairs (OIRA), and what were your most significant accomplishments during your time there?

CS: The state of regulation was a product of decisions of many presidents going back for generations. Obama came in right after the second President Bush. For the Obama administration, there was a thought that the Bush administration hadn’t done enough about climate change, the environment, some civil rights issues, health issues, occupational safety, food safety, and more. Overall, there was a lot more to be done. I would say that everything that I got to be involved with was a part of a team—a very large team working under the president. So, I feel that my accomplishments were from the work of a team—not of any one person. If anyone gets the credit, it’s President Obama.

I got to participate in the creation of a structure for assessing regulations through Executive Order 13563. It puts the word human dignity in the framework for thinking about regulation and puts a high premium on the best available evidence. It emphasizes scientific integrity. It also calls for a process by which you assess existing regulations to see if they’re working, should be simplified, scaled back, or eliminated. I was honored to be a part of Executive Order 13563. 

We also did a number of things on climate change, including regulations to make cars more fuel-efficient, make appliances more energy efficient, and make power plants less productive of greenhouse gas emissions. There’s also regulation reducing prison rape, which was an honor to be part of. I was very grateful to contribute to the fact that cars now have rearview cameras in them, so you do not crash as much and drive more safely. We had regulations that help poor children get school meals that they have a legal right to—lunches and breakfast. A recent count suggests that 15 million children in the US are getting school meals partly because of a regulation that we put in place, including homeless children. That regulation meant a great deal to me. 

If you look at the net benefits of regulations under President Obama in years when I was fortunate enough to be there, the net benefits were around a historical high. That’s an honor to participate in because the net benefits mean the benefits minus costs. The benefits include lives saved, serious accidents avoided, illnesses avoided, and economic savings for consumers and investors. To see that the likely effects of those regulations were very positive was something the president was very committed to ensuring. To see that that actually happened is a privilege.

HULR: How did you begin working on behavioral economics and regulation as a lawyer? 

CS: Even in law school, I was fascinated by administrative law. Administrative law is the legal restrictions on administrative agencies—what can they do and what can’t they do. I found that so interesting. It didn’t have quite the drama of constitutional law, but it is a newer area, so it felt like pretty open territory.

When I was a law student, now former Supreme Court Justice Breyer —with whom I’m now teaching—was finishing a case book called “Administrative Law and Regulatory Policy.” I was a research assistant on that case book. The case book really was a pioneering effort to integrate thinking about regulatory policy with administrative law. You have these restrictions on the Environmental Protection Agency, but what is the Environmental Protection Agency for, what is it doing, and how can it do its job better? When Justice Breyer was a professor, he really got those questions into the mainstream of legal education.

Then, when I worked in the Department of Justice, President Reagan’s Executive Order 12291 created the process that gave rise to OIRA in its current form. As a young lawyer in the Justice Department, I was the person who staffed the legal assessment of Executive Order 12291. I was intrigued by it because there was now a centralized process to try to improve regulation, which placed a high premium on attention to costs and benefits. I wondered if that was a good idea and how we would know. I found that extremely interesting as a twenty-something lawyer.

Then, when I became a law professor, my first choice for teaching was administrative law, which was at the intersection of what I worked on as a research assistant with then-Professor Breyer and what I worked on as an attorney advisor in the Department of Justice.

HULR: You’ve served in various roles in academia and politics. What do you think about the relationship between academia and politics? Have you found politicians to be receptive to academics?

CS: President Obama was a professor, so he is part of the universe of academics turned public officials. President Obama would have considerable respect for an academic who might have something to add to the executive branch of government. He was uniquely positioned to be interested in academic work.

Politicians in the executive branch, and certainly the ones I’ve worked with in Congress, also like ideas if they’re practical and can solve a problem. So, if there’s a theoretical idea with an equation, that might not be so interesting unless it’s relevant to something the politician is trying to fix. However, if an academic has an idea about how to solve the retirement crisis—meaning there are a lot of people who are going to be retired who do not have enough savings—that would be appreciated. Or if there’s an academic who has an idea about immigration, climate change, or highway safety, a politician would be interested in that as long as it is practical. If the idea is built on assumptions that don’t hold in our world or if it’s theoretically abstruse, it might not be interesting yet.

There are usually academics in the Council of Economic Advisors (CEA) and Office of Science and Technology Policy, both White House offices. As we speak, the head of the CEA is an economist from Princeton. Politicians frequently consult academics. However, some academics are more useful to politicians than others. If you have an academic working on something that will only have practical application a decade from now, that would not be the number one interest of a politician.

HULR: What have been the most impactful or rewarding moments of your career so far?

CS: I can say that working on behavioral economics has been an inspiration and joy for me. When I started as a professor at the University of Chicago Law School, the “cool kids” all believed that human beings are rational actors. That was true in the law school and the Economics department. So, if we were thinking about any area of law, we would assume people were rational self-interested profit maximizers. Then, the machinery would start worrying about what the law should look like.

I thought, maybe because I was an English major, that the rationality assumption was not correct. I didn’t have the tools to explain why. I just had a knowledge of works of literature, novels, and poems, which wasn’t enough to reassess the law. It was enough to question rationality, but then I discovered the early work in behavioral economics and behavioral science. It was like a beautiful explosion of light in my head, and that was extremely rewarding—even thrilling— to discover that work and see its applications to law.

So, I started working on these issues in the mid-1980s. I became friends with Richard Thaler, and we started co-authoring together. Our work, including the book Nudge (2008), is definitely a highlight of my academic career. It was great to have the chance to work with him and experience the synergy between the two of us. He is probably the most important figure behind behavioral economics, and I am focused more on law and policy.

HULR: Where do you see the world of law and public policy going in the future? Do you have any concerns?

CS: In terms of where it will go, so much has been extremely hard to foresee. There’s a great deal of work now in law, policy, politics, and academia on pandemic response and preparedness, and this was not anticipatable in, you know, 2017.

There was, for a long time and still is, a great deal of focus on terrorism after the attacks of 9/11. That wasn’t anticipated either—at least not by most people thinking about national security. There’s a lot of work growing out of the recession of 2007 and 2008 that was not anticipated in 2004 or 2005. So, I think whatever we’re going to be focusing on in three or four years will surprise us. 

One thing that I think we will continue to focus on, unsurprisingly, that is not only a concern of mine is democracy and human rights. It seems as if democracy is more vulnerable—even in the United States—than people would have thought. I believe and profoundly hope our democracy is stable, but I say that without the unambiguous confidence I would have had five years ago. So, I say this with confidence but without complete confidence. All over the world, of course, democracy is facing threats. That is a great concern, independent of substantive concerns about poverty, health, and climate change, which are also immensely important.

HULR: Do you have any closing remarks about your career or advice to undergraduates interested in law and politics?

CS: My basic advice to undergraduates interested in law and politics is that you know what makes you feel energized and excited, and you know what makes you feel bored and tired. To go for the things that make you feel energized and excited is usually a good idea. 

I would also say that we need a heuristic for thinking about the short-term and long-term future. Let’s call it the fun heuristic. If you find it fun to do, there’s a good argument that you should do it. Now, I don’t mean to stay up all night and drink. I mean, focus on a problem that’s fun to resolve. Though, staying up all night and drinking in moderation also has its place.