The Socratic Method: Cass Sunstein

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Professor Sunstein recently returned to HLS after 3 years as the head of the Office of Information and Regulatory Affairs (OIRA), a position he described as being in the “cockpit of the regulatory state.”

The Socratic Method: As you may know, the Harvard Law Record has been online-only for a while and we are bringing back a print edition. We thought it would be interesting to talk about legal education and the role of Harvard Law School in American society with a number of professors. To start with, when and why did you decide to become a law professor?

Cass Sunstein: I think it was when I was clerking for Justice Marshall, and I guess I thought that if I had a chance to become a law professor, it’s [would be a] great way to combine the ability to spend time thinking and reflecting while also, if you’re lucky, being able to make a contribution to what actually happens. There are multiple ways to combine the capacity for reflection with the ability to make a contribution, but the law professor one seemed most appealing to me.

TSM: You are obviously someone who has made a contribution both within law schools and by being able to combine careers outside. Focusing on the law school part of it, how do you see your role shaping the career choices of your students?

CS: Well, I think the best thing a student can do is follow his or her own drummer, and the best thing a law school can do is to expand the universe of good drummers. So when I look at – I’ve had so many students who are doing such amazing things – if I’ve had any effect on them it’s that there have been some topics or ideas that have connected well with their own enthusiasms and abilities. So if you have someone who is interested in environmental protection, and there is an administrative law course that shows what some of the live issues are and [what] the avenues for contribution are, that can really get people enthusiastic about that route. If you
have someone who is keenly interested in immigration policy and there is some case in a course that raises an issue and it seems like the legal system really could do better than it is now doing, sometimes that will get people thinking that’s an avenue they’d like to go in. So I think the best some of us can do is [hope] our own interests and enthusiasms can connect with the interests and enthusiasms of others.

TSM: Do you think there are avenues of influence other than by impacting the students who are going to graduate and do other things?

CS: Well I do think that law professors have two principal jobs. One is to teach and the other is to do academic work. Even if some do other things, those are the principal jobs that you are lucky [to have]. So the teaching is of course one. I do think that academic research is exceptionally important. Sometimes it’s important in the immediate sense that there will be an idea that someone will run with who is in a position to run with it. It could be a judge in a court of appeals; it could be someone at the Environmental Protection Agency. And the other is that if academic work is really good it may have a long-term effect in helping to orient how people think. So there is no question that Justice Kagan’s essay, “Presidential Administration,” helps orient how people think about separation of powers. And John Hart Ely wrote this great book, “Democracy and Distrust,” that has defined how many think about Constitutional Law all over the world. My wife wrote a book coming out of Harvard Law School called “A Problem From Hell,” which has had a very big effect in helping to orient how people think about human rights and genocide. I think it’s important not to understate the power of the written word. So in addition to the teaching, there’s the research responsibility, which is absolutely central.

TSM: Do you think the faculty, or the law school as an institution, has a responsibility towards the shape of the legal profession, given the way that so many legal resources are put towards such a small part of the population, whereas a vast amount of the population has very little access to lawyers or courts or legal resources?

CS: I don’t feel like I’m a specialist in the allocation of legal resources, or on how law schools ought to think about that. I do think it’s obviously important that legal safeguards be available to all rather than few, so to that extent it’s part of the things that law schools should focus on.

TSM: Harvard Law School recently introduced more admin law into the 1L curriculum. Is that something you supported, and do you think there are other changes that should be made on those kind of lines?

CS: I wasn’t involved in that but I do think it’s an excellent idea. The practice of law very frequently involves regulatory administrative work, and it does now have a kind of foundational character for the legal profession. I know in Washington I saw closeup that a lot of the most important work of lawyers that really affects their clients and the country involves knowing how to interact with regulatory agencies that really are helping to set policies. In terms of other things, I do think that every law student in this period should graduate with a pretty solid understanding of economic analysis of law. That’s really important. If you don’t know the standard economic thinking about contract law, tort law, regulatory problems, you haven’t gotten the ideal legal education. So I don’t know whether there’s anything aside from freedom of choice, which economists like, to promote that understanding, but I do think that just like undergraduate education should involve some exposure to economics, to know the foundations of economic analysis is very good for every law student.

TSM: There is an emerging national conversation about the duration of law schools and possibilities for transforming the third year. President Obama recently suggested abolishing the third year. Do you have any views on his suggestions or others being made for law school reform?

CS: I don’t really have a view. In general, while I was in Washington, certainly, whatever the President thinks I tended to agree with. On legal education I don’t know what the right answer is. I do think there are some benefits to the third year. I think that many students benefit greatly from the chance to go into detail on some subjects, to diversify on some subjects. I think it is true that one of the things about life is that you may by serendipity be exposed to something that will really have a huge impact. And since a legal career for most people is decades, and law school, for anyone, is not very long, for many people that third year is really valuable. I think that is an important consideration. Though it is true that law school costs a lot of money and that some people are eager to get going faster.

TSM: Was there an experience in your law school that guided you in a direction that you think you might not have gone in otherwise?

CS: Yes, though I think it was in my second year. I took an administrative law course from Richard Stewart, who was then on the faculty, and that course had a huge impact on me – it completely changed my life – but it could easily have happened in the third year.

TSM: Did he focus on economic analysis within administrative law?

CS: Some, but not so much. I think what was so great about it, as I experienced it, was that it had some of the largeness and drama of Constitutional law, but in a way where the analysis was less abstract and more disciplined and where the human consequences were more palpable. So you might have a Constitutional case where the actual stakes are, at least in some Constitutional cases, not that clear. [They] often [are], but often not in Constitutional cases. In administrative law, it might be whether some rule that is going to have massive effects on human health or on the economy is going to be validated. So it seemed to me that where theory hit human life most excitingly was in administrative law. Undoubtedly not everyone thinks that.

TSM: You are known for writing a lot and on a wide range. Do you have any ideas in mind about things that you would like to be writing about in the future that you haven’t started working on that might surprise people?

CS: Maybe. There’s a conference we’re going to have here at Harvard this weekend on the brain and public policy. Neuroscientists have been learning so much about the brain and about how its functioning relates to human capacity for judgments both good and not so good. I think we’re going to see a lot in the next decade on policy implications of what we learn. And I do have one paper on this – it’s an early draft – but I expect to be working in this area [for] the next few years.

TSM: Do you see this as something that’s maybe moderating some of the economic analysis or replacing some of it or some ideas within in?

CS: It’s a great question. I think the behavioral economics, which continues to be something I’m keenly interested in, is kind of all of those things. It does show that the rational actor model has real problems. So it moderates the idea that people are excellent maximizers – they often aren’t. So the behavioral stuff does modify that. It’s continuous in the sense that it’s very much focused on trying to do the best predictions we can of consequences and trying to think about how can we go beyond – and I think this is the great achievement of economic analysis of law – how can we go beyond intuitions and hunches and try to be more disciplined. And behavioral economics is certainly like that. A lot of people who are interested in behavioral economics are also interested in the brain. Neuroeconomics is a field now. So in that sense, some of the interest in behavioral economics applies to the more recent interest in the brain.

TSM: Another way that you personally and many other professors shape society beyond students is in writing books for a more popular audience. Do you think that is an important thing for law professors to be doing?

CS: I think everyone should do what fits best their own first job responsibilities and second their own tastes and talents. So my favorite thing to do, I confess, is to teach and to write academic articles. I love teaching, I love writing a law review article. If I have a book with a university press, I love that. I do some popular writing also, and I very much enjoy that, but I do think a law school is basically an academic institution, and those are the things that the faculty should generally be focusing on. So I certainly wouldn’t want to say that law professors shouldn’t do non-academic writing. I do some, and I enjoy it, but my focus really is on articles that have a lot of footnotes.

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