Catching up with Cass


After 27 years at the University of Chicago, Cass Sunstein ’78 is back in Cambridge as the Felix Frankfurter Professor of Law. Record Editor-in-Chief Andrew L. Kalloch sat down for a chat with Harvard’s newest superstar and life-long member of Red Sox Nation.

Does your return to Harvard feel like a homecoming?

It definitely feels like coming home. I grew up in Woburn, Massachusetts, spent a lot of years here in college (Harvard ’75) and law school people root for the right baseball team, and it really feels like home.

What are the differences in the intellectual atmosphere of Harvard compared to the University of Chicago, where you worked for 27 years?

The intellectual atmosphere at both places is fabulous. There is a lot of intensity, there is a no-nonsense quality, people really focus on law, and when they do interdisciplinary work, it is to illuminate the legal system. The main difference is that Chicago just had a smaller faculty, which has some advantages because everyone sees each other frequently, but the size and diversity of Harvard has its own advantages. You are people who are terrific in many areas. My guess is that there are a lot of great law schools, but in terms of the sheer numbers of terrific people, Harvard is unrivaled.

How can the legal community use interdisciplinary studies to its advantage?

A few fields that I have been working in for a while are behavioral economics and cognitive psychology. I feel we have a lot to learn about human behavior that goes beyond the rational actor model and that while a tremendous amount has been done in the past ten years, it is really just the tip of the iceberg. There are assumptions about human behavior in property and contract law that are probably not fully accurate. An area that I am interested in is biology and neuroscience. If we know more about the brain and how it produces criminal behavior or moral judgments, we might know some things that will make us think better about law.

So should we expect a course with you and faculty from other Harvard schools at some point?

Well, I have been talking to Marc Hauser (Professor of Psychology at Harvard) and I would not be amazed to see some course emerge from what we’re talking about.

You are running a new program called the Program on Risk and Regulation. What is this program and how will students be able to participate?

We’ve already gotten started, and I am really excited about this. The first project is tentatively called “Judging National Security.” What we are doing is building a complete database of all court of appeals cases since 9/11 that involve national security (to be completed next month). We want to know what’s going on in those cases. How often is the government winning these cases? Is it winning less today than it was in 2002 or 2003? The second question is whether Republican and Democratic appointees are approaching these issues differently and, if so, how? Is national security an area like abortion where judges have pretty strong positions and are relatively impervious to panel influences or are judges swayed by the politics of those who join them on the bench? I hope to do a lot more in the domain of national security, occupational safety and health, environmental protection, and the subprime mortgage crisis.

What else are you working on?

I am working on a book with two co-authors called Climate Change Justice. Some countries have contributed more to greenhouse gas emissions than others; should those countries have special obligations to solve the problem, or not? There is a series of justice-related questions that climate change brings up that have gotten extremely limited attention. Whatever legal solutions we reach, domestically and internationally, are going to hinge on certain conceptions of justice.

Are you and Richard Posner locked in a publications arms race?

Judge Posner and I are good friends. A few years back, Ronald Dworkin wrote an essay attacking the two of us simultaneously and we decide at lunch on Friday that we would co-author a response. I wanted to get the jump on the response, so I worked very hard over the weekend and produced a seventeen-page, single-spaced paper with no footnotes, which I faxed to Judge Posner on Monday morning. That was fast. I got back to my office and on my chair was a fax from Judge Posner which was thirty pages, single-spaced, with complete footnotes. So, publication races he wins.

How can law students make the most of their experience?

In terms of writing, if there s a topic you enjoy writing about it is a great spur. Second, students should not worry about the first draft. Get something down on paper that you can work with. A lot of prospective academics worry a lot about the first draft, but if you have the first draft done, you can share it with others and if it doesn’t look like it is going to get published, you can move on. It is actually very liberating. I also think it is good for writing if there is some idea of yours that gives you a tingle in the spine or some idea of someone else’s that really irritates you, those can be very inspirational emotions.

We know who your candidate is in the Presidential election (Sunstein is an Obama advisor), but what we’re really interested in is if you have any dirt on Senator Obama?

For someone who has such great character and such great intelligence, and for someone who is both such a good person and such a good decision-maker, for some people, that might be an issue. I have known Obama for a long time. I have never seen him angry. When he talks about not having red-states and blue-states, he really believes that they are just his fellow Americans. He takes ideas wherever they are most likely to make things better.

I can tell you one story. When I met one of his staffers in the Senate shortly after he was elected (in 2004), she told me, “This is the oddest job. I produce these position papers for my boss and I find that he’s done his own independent research. And the work I have done, I have poured over, and yet still he is ahead of me in the details.”

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