Cass Sunstein Returns to the Law School to Share an Insider’s View of Federal Regulation

Meredith Heagney
Law School Office of Communications
January 23, 2013

Cass Sunstein, who spent the better part of 27 years as a Chicago Law professor, visited the Law School to offer an insider’s view of federal regulatory practice and how rules really get made in Washington.

Sunstein, now at Harvard Law, served for nearly four years in the Obama administration, most of them as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA), the office that oversees rules and regulations for federal agencies. He spent three days in residence at the Law School, during which he gave a faculty workshop, attended a faculty roundtable and two faculty dinners, and guest-lectured during an Administrative Law class.

On January 8, he presented this year’s Ulysses S. and Marguerite S. Schwartz Lecture, titled “The White House and Regulation.” The Schwartz Lecture, established in 1974, brings distinguished lawyers with experience in the academy, practice, or public service to the Law School.

Speaking to a capacity crowd, with students lining the classroom walls and aisles, Sunstein talked about how what OIRA actually does is much different from the public perception, or even the perception held by other Washington insiders. Its job, he explained, is not so much to be the body that determines the best regulations and rules, but rather to serve as an “information aggregator,” getting the best, most effective ideas and suggestions from other agencies and the public.

Sunstein said the government must be Hayekian, referring to the philosophy of Friedrich Hayek, in that it must recognize that knowledge is widely dispersed. OIRA must be adept at working with agencies to collect a lot of information the government might not otherwise have when making rules, Sunstein said. The government is a “they,” not an “it,” filled with many people who carry unique and valuable knowledge. That’s why bringing in other agencies and the public is so important.

It’s a misconception that OIRA is the sole agency responsible for reviewing the rules, when really, its job is to coordinate the review of many different agencies over the rules, he said. Then there’s the public comment process, which Sunstein said is actually very meaningful and effective, contrary to popular belief that it’s just for show.

“The internal process can be very lengthy,” Sunstein said. “All actors inside the federal government are getting a chance to be heard.”

And while much of the process is technical, and administrators generally have a cost-benefit analysis in mind, the value of human dignity can be relevant to making rules, Sunstein added, even though it’s difficult to quantify.

He spoke of some of the frustrations of being in the public eye, namely, that the press and public took OIRA’s actions to be largely political when they weren’t, he said.

In his introduction for Sunstein, Dean Michael Schill pointed out that Sunstein was one of the first academics to take the insights of behavorial economics and apply them to law and government regulation.

“Cass was, to many of his students and his colleagues here at the University of Chicago, the man who inspired them and opened them up to new ways of thinking and appreciating the law,” Schill said.

Sunstein returned the kind words.

“Being in government, I was struck every day by the privilege of being able to spend time at the University of Chicago Law School,” he said. For one, he often found himself among Chicago alumni.

“In any administration, University of Chicago Law School graduates have a presence,” he said, though the president being a part of the Law School community, as a former Senior Lecturer, doesn’t hurt.

Michael H. Schill