Harvard's Sunstein to oversee regulation

Law professor, prolific writer to join Obama team

In choosing Cass R. Sunstein to lead his regulatory reform effort, President-elect Barack Obama has tapped a leading public intellectual and legal scholar who has been called a one-man think tank. The 54-year-old Harvard Law School professor is an idea-generating machine, prolific writer, and media-savvy communicator.

"It's a sign of President-elect Obama's seriousness about regulatory reform," said Jeffrey Rosen, a professor at The George Washington University Law School and legal affairs editor at The New Republic, where Sunstein is a contributor. "There is going to be a huge amount of action in the regulatory arena after years of deregulation under President Bush. . . . [Sunstein] is the most distinguished scholar in the country on the subject of regulation, both its promise and limitations."

Sunstein, who has described himself as "an informal, occasional adviser" to Obama, has accepted the position of administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget, with oversight on environmental, healthcare, and safety issues. Except for a brief stint as a Justice Department lawyer before becoming a professor in 1981, Sunstein has no experience in government or management.

Last year, after 27 years on the faculty of the University of Chicago Law School, where he became a friend of Obama's, Sunstein moved to Harvard, where was named Felix Frankfurter professor of law and director of a new program on risk regulation. In July, he married Samantha Power, a public policy professor at Harvard's Kennedy School and a Pulitzer Prize-winning journalist.

Sunstein, who declined to be interviewed for this story, lists 454 publications, including more than a dozen books in the past 18 years, on his Harvard web page.

Last year, he co-wrote, with economist Richard Thaler, "Nudge: Improving Decisions About Health, Wealth and Happiness." The book argues that businesses and government can encourage individuals to make better decisions without impinging on their freedom through what is called "choice architecture." An often-cited example is the way businesses can encourage employees to save by automatically enrolling new hires in 401(k) retirement savings plans and allowing them an option to withdraw - rather than giving them the option of signing up.

In an earlier paper, they called it "libertarian paternalism," writing, "It is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice."

That is consistent with Sunstein's evolution as a scholar, said Dennis Hutchinson, a former colleague at the University of Chicago.

"He views himself as a policy wonk and when he began he was heavily into legal doctrine and theory," said Hutchinson, who joined the Chicago law school faculty the same year as Sunstein. "But the more he stayed around Chicago, the more he was influenced by social scientists and began looking at what are the incentives or disincentives that move people to behave in certain ways."

Rosen said Sunstein is "very much a pragmatist," adding, "My sense is that he will recognize the limitations as well as the possibilities of his position and not view himself as the philosopher-in-chief trying to impose an ambitious liberal regulatory agenda that Congress and the president are unlikely to support."

In a 2004 book, he argued for implementation of the "Second Bill of Rights" promoted in January 1944 by Franklin D. Roosevelt, whom Sunstein called "America's greatest leader." The Second Bill of Rights, never enacted, included the right of every American to a job, a home, and medical care.

Sunstein has also argued that the country's political discourse has become more polarized because Internet users and others validate their own political beliefs by seeking information sources they tend to agree with. It was the subject of his book, "Republic.com 2.0," published in 2007.

"Like Obama, he is concerned about partisanship and polarization and the things that lead people to become polarized," said Rosen.

Richard A. Epstein, another professor at the University of Chicago and a prominent libertarian, said it is difficult to predict how Sunstein's skills will translate to government. "Cass has an immense ability to come up with creative ideas and persuade people; he's almost an academic pied piper with his ability to pique people's interest," Epstein said. "But it's one thing to start a debate, which is what you do in academia, and it's another to start a program, which is what you do in government."