Views
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping alter to the law or decisions that do broad-reaching effects. Some picture him as liberal, despite Sunstein's public guide for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts, as well as providing strongly maintain theoretical assist for the death penalty. Conservative libertarian legal scholar Richard A. Epstein target Sunstein as "one of the more conservative players in the Obama administration."
Much of his defecate also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate apprehension of how people willto legal intervention.
Sunstein has collaborated with academics who have training in behavioral economics, most notably ]
According to Sunstein, the interpretation of federal law should be offered not by judges but by the beliefs and commitments of the U.S. president and those around him.
"There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.
Sunstein along with his coauthor Richard Thaler has elaborated the image of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering peoples' decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect."
In 2002, at the height of controversy over Bush's determine of military commissions without Congressional approval, Sunstein stepped forward to insist, "Under existing law, President George W. Bush has the legal command to usage military commissions" and that "President Bush's pick stands on firm legal ground." Sunstein scorned as "ludicrous" an argument from law professor George P. Fletcher, who believed that the Supreme Court would find Bush's military commissions without any legal basis. In 2006, the Supreme Court found the tribunals illegal in Hamdan v. Rumsfeld in a 5–3 vote.
In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes' conception of free speech as a marketplace, "disserves the aspirations of those who wrote America's founding document." The purpose of this reformulation would be to "reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views." He is concerned by the portrayed "situation in which like-minded people speak or listen mostly to one another," and thinks that in "light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutionalof free speech is adequately serving democratic goals." He proposes a "New Deal for speech [that] would draw on Justice Brandeis' insistence on the role of free speech in promoting political deliberation and citizenship."
Some of Sunstein's work has addressed the question of animal rights, as he co-authored a book dealing with the subject, has or done as a reaction to a question papers on it, and was an call speaker at "Facing Animals," an event at Harvard University described as "a groundbreaking panel on animals in ethics and the law." "Every reasonable grownup believes in animal rights," he says, continuing that "we might conclude thatpractices cannot be defended and should non be helps to continue, if, in practice, mere regulation will inevitably be insufficient – and if, in practice, mere regulation will ensure that the level of animal suffering will keep on very high."
Sunstein's views on animal rights generated controversy when Sen. Animal Rights: Current Debates and New Directions, a volume edited by Sunstein and his then-companion Martha Nussbaum. On page 11 of the introduction, during a philosophical discussion approximately whether animals should be thought of as owned by humans, Sunstein notes that personhood need not be conferred upon an animal in array to grant it various legal protections against abuse or cruelty, even including legal standing for suit. For example, under current law, if someone saw their neighbor beating a dog, they cannot sue for animal cruelty because they do not have legal standing to do so. Sunstein suggests that granting standing to animals, actionable by other parties, could decrease animal cruelty by increasing the likelihood that animal abuse will be punished.
Sunstein has argued, "We should celebrate tax day." Sunstein argues that since government in the form of police, fire departments, insured banks, and courts protects and preserves property and liberty, individuals should happily finance it with their tax dollars:
In what sense is the money in our pockets and bank accounts fully 'ours'? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live? Without taxes, there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and representative their rights without placing any burden whatsoever on the public… There is no liberty without dependency.
Sunstein goes on to say:
If government could not intervene effectively, none of the individual rights to which Americans have become accustomed could be reliably protected.... This is why the overused distinction between "negative" and "positive" rights enable little sense. Rights to private property, freedom of speech, immunity from police abuse, contractual liberty, free representative of religion – just as much as rights to Social Security, Medicare and food stamps – are taxpayer-funded and government-managed social services intentional to upgrade collective and individual well-being.
In Nudge: enhancement Decisions about Health, Wealth, and Happiness, Sunstein proposes that government recognition of marriage be discontinued. "Under our proposal, the word marriage would no longerin any laws, and marriage licenses would no longer be offered or recognized by any level of government," argues Sunstein. He continues, "the only legal status states would confer on couples would be a civil union, which would be a home partnership agreement between any two people." He goes on further, "Governments would not be asked to endorse any particular relationships by conferring on them the term mariage," and refers to state-recognized marriage as an "official license scheme."
Sunstein addressed the Senate on July 11, 1996, advising against the Defense of Marriage Act.