SSRNMeet the Author: Cass SunsteinCass R. Sunstein is currently 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. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the Presidents Review Board on Intelligence and Communications Technologies and on the Pentagons Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom. He is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Too Much Information (2020), Decisions About Decisions (2022), How to Become Famous (2023), and Free Speech on Campus (2024). He spoke with SSRN about free speech on college campuses, Barbies, and how behavioral science informs law.Q: Youve accomplished so much in your career: writing dozens of books and hundreds of articles, working for the White House and the World Health Organization, your work in academia, and I know Im only skimming the surface there. Through all of this, youre consistently producing work thats timely and relevant. How would you say your career and research interests have evolved along with the changing times?A: I started out as a very law-focused law professor. My principal fields are administrative law which is about the legal rules governing administrative agencies and constitutional law. I shifted toward a corresponding interest in behavioral economics and psychology and economics generally. That was partly because some legal issues depend on an understanding of human behavior that may or may not be accurate. Working in the government under President Obama from 2009 to 2012 got me even more intensely focused on regulatory policy cost benefit analysis, environmental law, climate change issues, public safety, occupational safety, pandemics. Those issues have been at the center of my research interests since I left government in 2012.Ive also been interested in Bob Dylan and Star Wars and Taylor Swift, and some of my books have dealt a bit with those topics. Culture, broadly, is something Ive always been interested in arent we all? but Ive been more academically interested in the last 10 years.Q: You mentioned your focus in behavioral economics, for which youve written and co-authored books on the subject, including Decisions About Decisions and the New York Times bestseller Nudge. How would you say your knowledge about behavioral economics informs your legal understanding and gives you a different perspective than people without that background?A: Suppose you have a problem, which is road safety, and you want to create legal requirements that reduce the risk that people will get in crashes. What do you do? You might say, well, we should punish unsafe drivers, or we should require people to buckle their seat belts. And those might be good ideas, but if you know behavioral science, youll know something about nudges that might help, such as informing people of certain things, or maybe putting a camera in their car so they can see in back. Thats information coming in. Maybe you have certain forms of signage that can help people be safer. Or maybe you have bumper strips so if people are in a place where going too fast is more likely to cause an accident, the architecture will slow them down. People will be responsive to that.Behavioral science gives another set of tools and a set of understandings, in addition to those available in law. Ill give you an example: the government has done a bunch of things to reduce time taxes that it imposes on people. Theres a customer service innovation in Washington to make it simpler for people to sign up for things. You make some things automatic for them. If theyre eligible, theyre just in, and they dont have to fill out long forms. That reduction of time taxes is heavily informed by behavioral science.Q: In your paper Barbies, Ties, and High Heels: Goods That People Buy But Wish Didnt Exist, you explore how people consume products or engage in activities, not necessarily because they want to, but because not doing so can offer unwanted signals. What are some of the main takeaways you want people to gain from your research on this concept?A: This paper is near and dear to my heart, and its very much part of my current research focus, which is on the problem of manipulation. Some mundane examples: suppose theres a party Saturday night, and you really dont want to go to the party. You want to stay home with your partner, or you want to have an evening off. But if you [dont] go to the party, youll send the signal to the host or friends that are going to be there that you dont like parties or that you dont like them. You dont want to send that signal. So given the existence of the party, youre going to go.As another example, say a bunch of people are on a social media site tonight after 10pm, and you think, Oh my gosh, I wish I could go to sleep or do something work related, or watch a show I want to watch, but all my friends are on. Ive got to stay on. Those things are goods or activities that people purchase either with money or with time that they wish didnt exist.For men, ties are Barbies. Not talking about Barbies, literal Barbies, but things that are causing losses to be self-conscious about the risk that people are buying with money or time: something that they wish did not exist. I assert that many men wear ties, but if ties were abolished from the face of the earth, a lot of men would be really happy. So, a tie is a Barbie. For many women, high heels, I understand, are Barbies, where the abolition of high heels would be a great thing.For social media users, we actually have data on this. Instagram and Tiktok are, to some extent, Barbies. Young people are going to use TikTok and Instagram, but if theyre asked whether they wish TikTok or Instagram away, a lot of them would say, absolutely, yes. I wish they didnt exist. But theyre going to stay there. Im thinking there are a lot of things like this, a lot of products. Maybe the latest iPhone is a Barbie. We have data suggesting that people want fewer product launches of iPhones, but theyre going to get the newest iPhone. The reason is they dont want to be with technology thats behind the times, but if they could have the iPhone 11, they might be plenty happy with it.Q: In this paper, you suggest that the way to change how these goods are consumed is through collective action, but with how pervasive this is in our culture, what do you think would need to change in society for that kind of progress to be feasible?A: Sometimes small groups can recognize either as a group or with leadership that theyre dealing with a Barbie. When I was in the government, there were a lot of meetings that were, by tradition, either hour or half-hour meetings, and I created a rule that all the half-hour meetings would be 15-minute meetings, and all the hour meetings would be half-hour meetings. My observation is that this was reflective of what most people wanted all along. Once you change a half-hour meeting to a 15-minute meeting, people really get focused early, and they get a gift of 15 minutes extra.In my family, my sister said a number of years ago that Christmas presents would be exchanged just for children, and adults would not exchange Christmas presents. For my sister and me and various family members, that was so great because we spent a long time finding presents that the adults really didnt like, and it was basically a net negative. So, small groups can do something. Now for larger things, its harder. I applaud Instagram for developing a nudge where it tells teenagers, after 10pm, Are you sure you want to stay on Instagram? Maybe you want to get off? And whether this is the ideal solution or a first step, we dont know yet, but Instagram, I think, has an implicit understanding that late night Instagram use on the part of teenagers is a Barbie. If you can encourage people to get off, you might be able to solve the problem. Im thinking were a real tip of the iceberg here for private institutions and for governments to [ask], when are we dealing with a Barbie that is actually causing serious harm for people? Thats going to be increasingly important, with the power of technology to grab us as it grows over time.Q: Youve written a lot about free speech on college campuses, recently releasing Campus Free Speech: A Pocket Guide, as well as an op ed for the New York Times called Only the First Amendment Can Protect Students, Campuses and Speech. In these, you dive into what the First Amendment protects and what it doesnt. How does educating people about the functions of the First Amendment and free speech help inform difficult conversations and decisions being made amidst controversies, especially on college campuses?A: This morning, I had a mild car problem. I didnt know how to solve it, so I went to the car place. The car people knew how to solve my car problem, and I am grateful to them. To think in the abstract about how to deal with, lets say, racist speech, unpatriotic speech, antisemitic speech, or threatening speech on campus is extremely difficult. We saw in the spring, that if youre asked, What do I do? I have students or faculty who are doing this, that is a recipe for disagreement, and maybe like me trying to fix a car its not something that I do.Our culture has built up over the course of hundreds of years, a set of principles for handling free speech controversies. Its not perfect but its extremely impressive and careful. We know that if a person on campus or on the street comes up to another person and says, If I see you again, youre toast, thats not protected by the First Amendment. Thats a true threat, as its called. We know that if three people get together and say, Lets conspire to fix prices, or lets conspire to engage in some act of violence, were well on our way to having conspiracy, and thats not protected by the First Amendment. If I say, if you buy my book, youll never get cancer, thats not a very effective form of fraud because I dont think anyone would believe it, but it is a form of fraud, and its not protected by the First Amendment. Thats just the start of categories of agreed upon permission slips for regulators, but there arent a lot of permission slips. So, if someone says, I think America is a horrible country, racist from the start, or I think that Hitler was great, or I think that communism is beautiful, and we should go there as fast as we can, those are all protected. That wont answer every question that educational institutions have to grapple with, but it will answer the vast majority of them, and itll answer them pretty well. Thats my exercise in automobile repair and the subject of my little book on the First Amendment on campus.Q: What are some things that you think people overlook or maybe dont understand about the First Amendment and free speech in particular?A: I think one view is that incitement isnt protected by the First Amendment. Ive heard that a lot. There was a great judge named Learned Hand who made that argument, but it didnt prevail. If I say, Hey people, lets all litter, its going to be great, thats incitement, and its protected by the First Amendment. If I engage in speech thats intended and likely to incite imminent lawless action, that is not protected. Notice that requires an intention and likelihood to produce imminent lawless action, and theres plenty of incitement where the likelihood of producing lawless action is really low. If I go down the street saying, steal my book, please. Its going to be really fun, I think, as a first approximation, no one would steal my book, so I havent incited anything. I think the difference between incitement and violation of the clear and present danger test, as its called, is not well understood.Q: What papers, projects or research are you working on now or in the near future that youre particularly excited about?A: Theres a lot. [Im] doing a paper right now on the relationship between embarrassment and judgments about prevalence. The claim is: if you are really embarrassed about something, you probably wont talk about that very much. And if everyone else is like you and not talking about it, you will underestimate the prevalence of the thing. [This] will include embarrassment and shame, and there will be a kind of cycle of silence.I testified before Congress a number of years ago about Dont Ask, Dont Tell, the military policy which said you can stay in the military if youre gay, but only if you dont say so. I said this is not a good policy, that any form of discrimination should be stopped. One member of Congress came up to me afterwards and he said, You know, when I grew up, there werent any homosexuals. There just werent any. And then he paused, and he said, Oh, there was one guy, he might have been he lived on a hill. I just thought that was so interesting, because it wasnt the case that when he grew up in the 1940s there were no gay people. He wasnt lying: he just didnt know any. People who have mental health challenges, physical health challenges, who have issues that are extremely widespread, they often dont know that theyre widespread. Thats because the very thing that makes them ashamed or embarrassed becomes the source of that silence. We now have data [that] just came in thats supportive of the hypothesis that embarrassment and underestimating prevalence are not just correlated, but causal.Q: You are one of the most downloaded and highly cited authors on SSRN. How do you think SSRN fits into the broader research and scholarship landscape?A: I would say to anyone on the planet whos willing to listen that I love SSRN. If you have a paper that is potentially a source of discussion among people and youre not ready to publish it in a peer reviewed journal, SSRN is a green light that says, give it a try. That is so liberating for writers. Its also the case that sometimes there will be a paper that youll never put in an academic journal or a peer reviewed journal, but that either for the author or for the world, its a good thing that exists. I read so many [on] SSRN, and some percentage of them, theyre never published in academic journals. But they add something important. For both readers and writers, its a massive gift. I think the number of people who believe that is very, very high, and the number of people who say it out loud is not very high; lets not be embarrassed.You can see more work by Cass R. Sunstein on his SSRN Author page here.Photo credit: Rose Lincoln