 The force is strong with this one. Cass is by far the most widely cited legal scholar of his generation. His older book, Nudge, and his new book on Star Wars are both best sellers. And he was head of Oira under President Obama from 2009 to 2013. Powerful, you have become. So tonight, I'd like to start with a survey of Cass's thought. We're going to look at legal theory, and then go to Nudge, and then consider Star Wars, how it all ties together. And then we're going to talk about everything. So let's start with your legal theory. If I think of Richard Epstein, I think of classical liberalism, some mix of rights and utilitarian reasoning. If I think of Dick Posner, I think of pragmatism mixed with law and economics. If I think of Dworkin, it's legal interpretivism. If it's Cass Sunstein, your legal theory in a nutshell, how should I characterize you? Well, I think I'd use three words, incompletely theorized agreements. And I don't think anyone's ever marched under a banner with those three words on it. But in a way, I think that is America's banner. So the idea of incompletely theorized agreements is often we can figure out what our rights are and what to do without committing ourselves to a particular conception of the foundations of morality, or without knowing exactly what we think about the foundations of morality. So you can have a free speech principle that says speech is protected unless there's a clear and present danger, even if you are a welfareist and think that the idea of respect for persons is metaphysical gobbledygook. You can believe in the clear and present danger standard if you are a Kantian and think that people have a right to say what they wish and go their own path. And think that welfareism is a form of barely human robot philosophy. You can be an Aristotelian and say the same thing. You might be just philosophically indifferent and think that if you want to have a society which figures out what's true in some way that is not highfalutin, the clear and present danger test is right. So that I could give a zillion examples, I won't, but our freedom of speech principle reflects an incompletely theorized agreement. So in some ways it's like the opposite of Star Wars. Star Wars, it's chock full of metaphysics. And here you're saying we don't really know about metaphysics. How far can we get with only a minimal amount of agreement? And sometimes you've called this judicial minimalism, right? So take like a case going on right now, very complicated case, North Carolina, transgender individuals, bathrooms, two different points of view. Your perspective of minimalism, is there a way you could apply it to give us the right solution? So I need to say a lot about the particulars of that to resolve that. But to resolve the transgender bathroom issue, we need to think, I think first about questions, kind of mundane questions about jurisdiction and authority. And I'd like to avoid big questions about sexuality and what people are like, unless you have to get there. And so one question is, what authority the states have, what authority does the federal government have? As a presumption, the states have authority over bathroom stuff. On the other hand, the federal government has some regulatory authority under the Civil Rights Act. And if you're falling asleep a little bit, because I'm not talking about transgender in the large, I'm sad you're falling asleep, I'm a little happy that hair isn't on fire. Because one way democracies work well is they put people's hair on fire very rarely. They try to use issues of democratic process and who has the authority to do what as a way of allowing us to live together peaceably, not withstanding our disagreements. So there's a good argument at least that the federal government has regulatory authority under the civil rights laws to figure out what counts as discrimination, sex discrimination in particular. So whether in the end this is a convincing argument, I'm kind of bracketing that. But that is a minimalist direction. It wouldn't say anything super large about what sex equality means. It would say something more modest about who has authority. Let's take you and Dick Posner as theorists of legal reasoning. He's also not a big proponent of metaphysics, but you and he end up at different points, especially earlier Dick Posner. He's actually moved closer to you. What's the empirical variable that you and Posner disagree about that accounts for where you end up and where he ends up? OK, well, we have to figure out where exactly we differ. Early on he had a view, and this is not an empirical disagreement, but early on he had a view that wealth maximization is what judges should try to maximize. He's moved away from that. Yeah, yeah. And I would say consider that to sectarian of you. So I think his view of judicial authority is a little too free floating for me. So where we disagree if we do, I think we probably do, is that I am more concerned about the need for stable rules that discipline judicial authority, even if it would be exercised wisely by some judges and Judge Posner, I think, is a superb judge whose judgment in particular cases is often excellent, but it doesn't have a kind of rule following character on some occasions that I think for most judges is a very important safeguard against the willful exercise of discretion. So now let's go to your famous work on Nudge with Dick Thaler. And Nudge is not direct physical violence. It's nudge, right? Is that just a direct outgrowth of judicial minimalism but applied to regulatory policy that here's what we ought to all be able to agree upon without much in the way of metaphysical commitment so it's all one big picture or not? It's a great question. So I'll give you a kind of yes and a no. The no is when Dick Thaler and I thought about the idea of nudging, the notion was that choice preserving approaches often have two really great features. One is they preserve people's ultimate freedom to go their own way. And the other is that a choice preserving approach can give welfare and longevity and everything good, the benefit of it, the doubt. So a GPS is a nudge. It tells you the direction in which probably ought to go if you want to get there expeditiously, the direction you want to go. And if you want the scenic route or the route that triggers feelings of nostalgia in you, go for it, tell that little voice to be quiet. You're gonna go your own way. That's a nudge. And what Thaler and I thought informed by behavioral signs and behavioral economics is that human beings don't know how to navigate roads unless they are really trained. They might use heuristics for how to get to places. I certainly do that often go wrong. And if you want to manage your savings portfolio, you might rely on rules of thumb that are gonna make you less wealthy than would be good or you might have eating habits that aren't so good or you might get a mortgage that isn't in your interest. And so given human fallibility, nudges are often super important for wellbeing. They're actually all around us. So a nudge-free world is actually literally unimaginable. So we thought about how can you get to good results while preserving people's freedom which is a great safeguard against private or public error. So that idea doesn't have much of a family resemblance to minimalism. Minimalism is a way of telling the judges be shallow which is not good in romance but which is good often for courts. Don't get deep, that might be too sectarian and be narrow, meaning decide this case and not all cases on the ground that width when it comes to a court can be a recipe for self embarrassment. You decide an affirmative action case in a way that resolves all affirmative action cases then you might be confounded by situations where either affirmative action is let's say extremely important or is invidious and your decision, okay so that's minimalism. But in terms of the- That does sound like nudge to me. What's the thing you can get people to agree on? Very context specific. It's not a judge, it's a regulator but it's like the unity of Cass Sunstein thought. No, there you're completely right. So what appeals to me about nudging in part is in a sharply divided polity. A nudge can be, salute to you, a form of political minimalism where people might say, you know I don't know what I think about climate change but if you give me a fuel economy label that tells me something about how much money I'm gonna pay this year and tell me by the way something about the polluting content of the car, I'm for that. So nudges often can attract appeal from people who would disagree about bigger stuff. Let me tell you some of my views on nudge and then you respond. So I view everything in life as a nudge. So in this sense, nudge per se doesn't bug me. Some nudges may or may not work, fine let's discuss that but I'm not offended by the nudge. But I see in the world so many people who hate the idea of nudge in a deep sense. And if you view every point as being a nudge of some kind you'll also think well there's no point of pure transparency we can nudge everyone to that's the default that nudging is always a metaphysical commitment of some kind. So I worry there are conflicting impulses in you. There's the well let's do this metaphysics for a like the minimalism. But if everything's a nudge and you're choosing across all of these non-transparent points there's some deep metaphysical commitment in Cass Sunstein and I wanna get at what that commitment is and then tie it into a big theory of why do some people seem to hate this idea so much. Do you see what I'm saying? Yes I do, so okay so the economic analysis of law has had many good ideas. It's had one great idea like world transforming idea I think and the idea is when you're stuck minimize the sum of the cost of decisions and the cost of errors. Now that is not gripping stuff but it's profoundly true that if you don't know what to do figure out either a meta rule or a particular decision that make error costs low meaning the number and the magnitude is small and that make decision costs low meaning you don't have to drive yourself crazy and we intuitively I think minimize the sum of error costs and decision costs when we decide how to handle a menu whether it's for a meal tonight or whether it's for what kind of car to buy when there's kind of an equivalent of a menu. So minimalism if it is to be defended on the judicial side the background kind of theory is it helps minimize the cost of decisions, cost of errors. If you decide this affirmative action case and not everyone then you're not going to be decisionally overwhelming to yourself if you're a court and more fundamentally you're not gonna produce tremendous errors for the future and that's a common risk for judicial decisions whether the question is the power of the president or the right to privacy. You can blunder terribly if you get away from the particulars of the case and this has something to do with what judge's informational inputs are. They're limited. Now in terms of nudges they have the same feature. Now they're not always the right way to go. Sometimes you have an option of not doing a nudge and you shouldn't and sometimes you have an option of doing a mandate like forbid murder, that's good. But the analysis of nudging when they make sense it's that they are decisionally less burdensome to produce and the cost of error are lower because if you screw it up people can say you're giving you some information about the caloric content of brownies and hamburgers. Thank you very much but I like that brownie and the high calorie hamburger that's my dinner tonight. Instead of nudging people what if we just pay them to do the right thing? Is that better or worse? It depends on the cost of decisions and cost of errors. So you could if you want to encourage people to save more there's first a question whether that's a good idea but let's stipulate. Right, I think it is, just saying more. Yeah, in Denmark economic incentives have had significantly less effect in promoting savings than automatic enrollment. There's every reason to believe that in the an area that isn't hugely important but isn't trivial that is paper usage. If you have a double-sided default for printing an institution will save much more money than if it jacks up, than if the price of paper is jacked up. So often a little nudge changing the default rule giving some people some information will have a very significant effect on behavior more so than tax incentives or other economic incentives and that's good by the way partly because on the cost side it's much less. You're not sticking the taxpayers with anything. On the other hand there are some domains where incentives have a bigger effect. We have evidence that taxes for cigarettes have a big impact in reducing smoking. I think presumptively that's a very good idea 480,000 Americans die every year if we can cut that number that's a good thing. Whereas the warnings we now have on cigarettes seem to be less effective than increasing the incentive not to smoke. Let's take a concrete example from real life. Jedi mind tricks. So Obi-Wan comes along and says these aren't the droids you're looking for. And what does the stormtrooper do? He goes away. Now is that a nudge? No, it's a form of manipulation. So, okay, but how do you draw the metaphysical categories? It seems like a nudge that just happens to work all the time. Okay, I'll give you a quick and dirty way of getting at that. Many social scientists make a distinction between system one, which is the intuitive, rapid processing of the brain, which sees maybe a large dog and thinks, oh my gosh, I'm gonna get bitten or feels turbulence in a plane and says we're all gonna die. And system two, the more deliberative system which says rightly upon seeing a large dog, this might be my best friend and the likelihood of being bitten is super low. And if the plane starts shaking, system two in the brain thinks it's plane shake and they hardly ever crash. Manipulation, we can say as a first approximation is when the agent is appealing to system one and not appealing to people's deliberative faculties. When Obi-Wan says, and we have to watch it in very slow motion to see exactly what's happening, but when Obi-Wan says these are not the droids you're looking for, Obi-Wan is not appealing to the deliberative faculties of the storm drooper. A nudge. Let's just say we follow David Kuhn, how much do people ever deliberate? So when I do things when I'm driving, I can end up in places I don't even recall having driven. What I choose to eat, how much I eat, it seems 98% of my life isn't deliberated. So does that really shrink the realm of nudge then? No, because a nudge can be a system one nudge or a system two nudge and whether, okay. So if it's a system two nudge, it's by definition not a form of manipulation. So if there's a reminder or a warning or a fuel economy label that tells you how much the car is gonna cost to operate, then there's no risk of manipulation. If people are given a graphic warning that let's say shows a smoker who has lung cancer, then there's a discussion to be had about whether it's manipulation. I think this is a way into the topic of manipulation. Probably we have to say something like if one person is appealing to another in a way that wholly bypasses deliberative capacities, there's at least a risk of manipulation. It might be justified, all things considered. The nudges that seem to me to be appropriate in a democratic society are either nudges that appeal to people's reflective or deliberative capacities or that don't exploit or inflame solely people's non-deliberative capacities. If you're doing that, then you owe them some stuff. One of which is publicity is about what you're doing. So I'm for a graphic warnings for cigarettes. That was preceded by a public comment period, completely transparent. There's evidence that when there are graphic warnings for smokers, smokers actually know better, not worse about the actual risk of smoking. So it gets kind of complicated, but the simple bottom line is Obi-Wan Kenobi is a great hero of the galaxy. Long time ago, far, far away. Still a great hero. That moment was an act of manipulation. If you were to pick one character from Star Wars who would nudge you, you get to elect them. You're the only vote. Even Samantha doesn't get a vote. Just guess, not your children. Which character would you pick? Whom would you trust with that nudge? It's a universe full of Jedi here, right? Yoda. Yoda. But I worry about Yoda. I trust him. It seems to me Yoda is always wrong. Here's what someone online wrote about Yoda. Let me just read episode five and six. I quote, basically every single word of advice Yoda offers Luke is dead wrong. In the end, Luke was right and Yoda was wrong. There was still good in Anakin and the death of Palpatine came about because Luke ignored his advice. Yoda was also wrong about what to do at the end of Empire Strikes Back. Episode one, Yoda refuses to believe that Mal was a Sith and he refuses to allow Anakin to become a Padawan until it is confirmed there were Sith about then he totally changes his mind and he badly missandles the crisis on Naboo. Episode two, Yoda not only takes the bait and jumps into the trap of taking the clones to rescue Anakin and Obi-Wan, therefore starting the events leading to the death of all the Jedi and the start of the worst war in millennia, dot, dot, dot. You sure you want to pick Yoda? You would have had it all figured out. So it looks like he made a lot of bad decisions, but he knew, you know, no pain, no gain and it all works out. Hurray Yoda. He doesn't tell Luke who his father is, right? He could have said that. So another way to put it is that that's I think you're onto something actually very deep about the movies, which is that Yoda is nominally the wise person, but he makes a fundamental error, which is he thinks that detachment is good and attachment is bad. He's the kind of stoic or Buddhist figure in the movie to which obviously the saga is deeply drawn, but the Buddhist and stoic view is defeated in the end. Attachment wins out. That's what brings balance to the force because Anakin can't bear. And he's called Anakin by the way in the script for the first time after he saves Luke by killing the emperor and being in his death scene. Then he's called Anakin again. And it's attachment. It's attachment that restores him. So Yoda is deeply wrong. I was just thinking about, you know, if the question is financial wisdom or food consumption or exercise, I don't want to ask Luke or Leia or Han. If you ask Luke, I can't even understand what R2-D2 is saying and C3PO is just going to get all anxious on me. So Yoda's my guy. If you ask Luke, you're going to get a weird chaste kiss with your sister, right? Yeah, yeah, yeah. And it might be not that chased and I love my sister and let's change the subject. So let's take a question or two about Star Wars. I take it you've seen these movies. Your book is now number one on the Washington Post Best Seller List. It's on other best seller lists. Every day I see it covered. President Obama is also a Star Wars fan. What can you tell us about the President and Star Wars? Well, I can tell you a few things. First, I did have an opportunity to talk to him when I was working in the White House about many subjects, cost-benefit analysis, the relationship between regulation and economic recovery, issues involving regulatory reform and small business. And I didn't once talk to him about Star Wars. But very recently, post-book, I did talk to him about Star Wars. He doesn't have a lot of time to talk at length about Star Wars. But we did talk about Star Wars. And what I'd say is a couple of things. First article, two-section, one of the Constitution protects executive privilege. It's kind of a foundation of the separation of powers and that protects him from disclosure of anything he may or may not have said in private about Star Wars. But I will say that he said publicly something which I'm gonna make a little news tonight. You know, I worked with him for four years and people who work under the president, I think, have an obligation not to break with their former boss publicly. And I haven't done that, but I will now. The president said that A New Hope was the best of the Star Wars movies. Number four. Number four. And that was a colossal blunder on his part. It hasn't... And the best, of course, is The Empire Strikes Back. And I do feel that the president has superb judgment and he's done many excellent things, but I'm kind of getting my mind around the fact that this person, my boss, how could he have made that level of mistake? So he's hope and change and you're a darker vision of history, actually. Well... I'm wondering if that's the nature of the disagreement. I think hope and change of the new hope sort, whatever your political affiliation, Senator Cruz is a big Star Wars fan. Donald Trump is a Star Wars fan. People who don't like President Obama's policies love Star Wars. But I think that The Empire Strikes Back just is a better movie. So if you like dark movies or light movies, The Empire Strikes Back is one of the great movies of all time. It's probably the greatest movie of all time. A New Hope is a superb movie. It's probably the second greatest movie of all time, but The Empire Strikes Back is better. But let me tell you a bit at my views of the prequels and then you respond. I think they're strongly underrated. Lucas was a genius. He broke with his previous mold. They're fundamentally movies about institutions that drop with the idea of following simple personal narratives. And number one especially is the story of how youth grows into seeking power and they're deep and profound and highly original. So from my point of view, the worst episode, Seven Aside, which is not even part of the canon. The worst one is number six, Jedi, which is two redemptionist, too many Ewoks, a little too cuddly. It's a very good Disney movie. And the most underrated episode is number one, but I take it you have different views. So you tell us how you see the different pieces fitting together. I agree with a lot of what you said, but there's one thing you said which is the level of colossal error of the presidents and saying new hope is the best. And that is, you said three is the worst of the movies. And that is, forgive me, that's a colossal error. Not because... But three is the worst? Not because you, didn't you say three? I'm six is the worst. Six is the worst, six and the worst, six and the worst, you said. So six is, when you said it's the worst, I'm going to disagree with the idea that it's the least good, but the only answer to the question which is the worst of the Star Wars movies is there is no worst Star Wars movies. One might be the least amazing and fantastic, but there's none that is the worst of the Star Wars movies. So with that pedantic point, so let's get to the fundamentals. I think you are right in saying the prequels are underrated and we need a movement. You may have just started it for the revival of the prequels as an object of admiration. And the reason I think they deserve admiration is multiple. One is just your point that they boldly go where, I won't finish the sentence. They boldly... Don't let anyone go there again, I'm afraid. They boldly don't do, as the standard movie of this kind does, a focus on individuals. There's individual stuff, but it's about institutions. And they have something to say about both how people go bad. And here I think it does get deep, especially about a little boy who loses his mother. And then his loved one who was much older and in some ways a mother figure, that's extremely interesting. I think psychologically, and he kind of loses her too. And it's the threat of loss that gets to him. I think that's super interesting. And there's something very similar that happens with the Republic. So the institutional failure of a squabbling legislature leading for interest in a strong paternal leader that's mirrored in the democratic process as it is in the individual life. And that's great. Also the visual imagination of Lucas in the prequels I think is unimpaired. It indeed, it exceeds the first three in terms of release. They're fantastic. So I think that's completely true. I wanna say a word in favor of Return of the Jedi, which you're describing as the least fabulous of the six. I would say The Phantom Menace is probably the sixth greatest movie ever made, but it's also the sixth best of the movies, which is to say the W word, it's the least good of those movies. But the Return of the Jedi I think is terrific. And the reason it's terrific is the redemption scene is a triumph where what Lucas did in the original trilogy was to borrow on Joseph Campbell's idea of the hero with a thousand faces. Many myths and religions have an arc of a hero and Lucas described Campbell as my Yoda and that was his model. But there's a twist here about that involves freedom of choice and redemption, concretized in the idea of a father whose life course had been dedicated to terrible things, repudiating that life course and choosing to save his child because he can't bear that loss. And that scene is, I think, one of surpassing beauty where Vader, now called Anakin, says, let me see you with my own eyes and Luke says, but you'll die, takes the mask off and Luke says, I can't leave you, I have to save you, father. And Anakin says, you already have. I think you're more of a sentimentalist than I am. Let me get to what I view as our point of deepest disagreement in all of political philosophy and then you respond to it. If I ask myself, what are these movies as a set really about? To me, the core message is how hard it is to exercise freedom of the will and that evil is both stronger and more attractive. So the central character is Darth, who is mostly evil. There's some redemption at the end, but he never sets things right. He just stops there from being further destruction. Even in episode seven, there's a terrible amount of murder. Nothing is set right in the galaxy. Episodes one through three, which we both admire. They're all the Darth story. Luke ended up doing voices for children's cartoons. Even Han Solo is a bit of a scoundrel. And if you look at Anakin, right, who becomes Darth, the evil guy, he gets Natalie Portman. Luke kisses his sister once and is sent to live in some netherworld that looks like New Zealand. And then he looks like he has an opioid addiction. And that's good. So to me, it's all about the potency of evil. And that's why Lucas picked the Lenny-Riefenstahl scenes for episode four, when there's the triumphant rebels coming at the end. It's taken from Nazi cinema, right? We all know that. So I have this deep and dark view of them. And then it's not surprising. I would find Return of the Jedi, number six, to be the weakest and really admire episode one. Now, you totally disagree with that and consider that to be absurd. So tell us what you think. I don't consider it absurd. So I think one of the, you know, sources of awesomeness in these cartoon-like and probably awesome movies is that an interpretation like the one that you offered is eminently plausible and there's material there that justifies it. And let me say a little bit in favor of your interpretation and then say why in the end it's not mine. So William Blake said of the greatest religious poem, I think in the English language, Paradise Lost, said of John Milton, roughly this. He said, the reason Milton wrote in fetters and speaking of God in heaven and at liberty when speaking of the devil in hell is that he was a true poet and of the devil's party without knowing it. Now that's a wow sentence. It's about Blake's, I don't think this was Blake's considered view, but Blake's flirtation, let's say, with the view that Satan runs away with Paradise Lost because a true poet is more Dionysian than Apollonia and the kind of wild system one eroticism or something of Darth Vader or Satan is ultimately sublimely powerful, something like that. That's in your interpretation of the movies. I don't see it that way and I think George Lucas kind of got a little bit at why I don't see it that way. He said in one interview long after the original trilogy, I think long after the prequels too, he said, every one of us has a choice of being a hero every single day of our lives. We can treat somebody with dignity and kindness or not. We can be a decent person on that day or not. And I think that kind of somewhat innocent and earnest thinking that you are at a crossroads, you can go one way rather than the other is basically the authorial voice behind Star Wars. So it may be that you're turned off and I don't love the Ewoks so much and the way they're a little too cutesy, I agree with that. But the idea that Luke and, okay, so I think this is one of the most powerful lines in let's say popular culture in American history. I am a Jedi like my father before me. That's extraordinary. And what's extraordinary about that is the statement is my father, the worst person in the universe is a Jedi. And that is claiming the goodness and non-sifthness of the father. Ultimately Luke makes it true that the Jedi-ness of Vader is redeemed in the end. And that's where I think the movies in the end come down but they do go to the dark side. So that's why I think what you say has plausibility. They don't in the end honor it. Have episodes one through three made you more libertarian? I'd say writing the book has made me more libertarian. And how so? I mean, not in a way that's fundamentally different from how I've been. So Nudge, the title for Nudge, we were committed to calling it Libertarian paternalism. I don't think anyone would have bought that book. But it shows that it's a... Two unpopular words put together somehow. It still remain unpopular. But the idea that unless you're really confident you should let people go their own way, whoever you are, I think that's part of American culture and that's an essential part of American culture. But what writing the book has made me focus on maybe more is the deep truth to the fact that each of us all the time faces a crossroads and neither for welfare reasons or for reasons of respect for dignity. And these are, we can have an incompletely theorized agreement whichever one is our foundation to let people choose their own path is, that's the right idea. Now that's not different from what I thought before but it's kind of focuses it a little more. What is it? It puts it a little more the font size of those sentences a little larger in my head than before. One thing I find striking in the dark reading of Star Wars is that it introduces the notion that maybe slavery is almost bound to be a constant throughout history. If you look at the portrait of droids that are treated, it's quite grim and they may be sentient to varying degrees. There's slavery throughout the empire. It feels quite natural. We're not in any way supposed to approve but it forces us to re-face the question if there's been slavery throughout most of human history and we're seeing this alternative world where slavery re-emerges and in an ugly horrible way feels quite natural. Does that sell you more on this dark vision of history and therefore confirming your favoritism for episode five or are you back with this president guy and the hope and change stuff? I think the arc of history is long and it bends toward justice and I think that's what the Star Wars message is. The dark side is in the human heart and chaos is very troubling for an individual or for a culture which can lead you to authoritarian leaders. But the arc of history is on the right side. I believe that. And should Luke have completed his training in the Dagobah system? Take that as the central moral dilemma for episode five. No, he made the right choice. So the Nudger's were wrong. Well, one Nudger. Obi-Wan and Yoda, right? You're telling him to complete your training. And he's like, later Ben, why didn't you tell me? So thank God for Libertarian paternalism. That Luke has a choice. So that's the Sith, by the way, like the Jedi, respect freedom of choice. So in the crucial scene in episode three where the question is whether Anakin is going to save the person who would be emperor, he says, you must choose. And so there's full respect for freedom of choice. The Nudgers have that. The bad guys always tell you the deal and then they say, choose evil. It seems the good guys always mislead you. Well, this is funny tension. Star Wars makes me more nervous about Nudge. I'm not like this huge anti-Nudge guy. But when I look at Obi-Wan and Yoda lying to Luke, Ben, Ben, Ben, why didn't you tell me? How many times have I heard that in these movies? Well, okay. So advertisement for Nudge? I think it's fair to ask whether Obi-Wan and Yoda had it right. Sure. So one view is that they kind of completely knew what they were doing. They were like strousey. They had second order stuff going on and superficial people like you and me. We need to get in back of it to see the deep logic and it all worked out and they knew it. But on nudging, the point is if there's a website, it's going to nudge. If there's a cafeteria, it's going to nudge. If there's a rental car office, it's going to nudge. Everything but a fifth. So, well, Sith Nudge is two. In this respect, a Sith doesn't coerce. It's a little like Dr. Faust that your soul, you get to decide whether your soul is saved. The Sith agree with that. So on nudging in general, the fact that we can find bad nudgers, which is very true, attests to the importance of having either free markets which discipline bad nudging. So we have choice architecture much more often than not in a market society which is in consumers' interests and having democratic controls on government nudging such that if the people hate it or the government's going in a direction that doesn't make much sense, the democratic safeguard will kick in. Now we have a section in all of these chats. It's called overrated or underrated. I toss up some items, people, whatever. You're free to pass on any of these if it's not appropriate. Number one, overrated or underrated? The United States Constitution. Underrated. Underrated, tell us why. Well, it's been the foundation for probably the greatest experiment in democratic self-government in the history of the world and there's grave difficulty in overrating something that's done something like that. So whether the Constitution is a set of specific prescriptions or whether instead it's a framework for a society which has changed radically from 200 years, there's disagreement about that. But whatever it is, underrated. If the Supreme Court had to be only three people or 50 people, which of those numbers would you prefer? 50. You seem to like eight, right? Because minimalism. 50. 50. Or diffusion of power. Yeah, with three there's two greater risks that it's gonna go off half-cocked. The original television show Star Trek, overrated or underrated? Underrated. Great. And what's the difference in, think of Star Trek and Star Wars, they're alternate growth models, right? What's the key economic variable or political variable that differs to get you one result rather than the other? Meaning to go in. Is it replicators, dilithium crystals, how good the economic variables are? Who nudges whom? Like why do you get these two parallel worlds? What's the comparative status? I think the answer is that there's a technological something that Star Wars captures. And there's nothing quite like that, that Star Wars gets at. So whether it's a little, I think it's a little thing, it's so small you can't even see it. We of course haven't discovered it yet. That produces replicators and ships like that. That's what they got. And in Star Wars they didn't. And so the universe looks fundamentally different. The only reason I'm hesitating a little bit here is Millennium Falcon was able to do the Kessel Run in less than 12 parsecs. And no way the enterprise gets there. And 27 parsecs, probably maybe more. And so there is a technological advantage. I'm struggling with this question. Here's an easy one then. James Joyce, overrated or underrated? Now they're watching back home, so be careful. Yeah, Irish family. So I think underrated that Ulysses is arguably the richest novel in the last 150 years. Not the greatest, but the richest. Richest in what sense? That it's just full of multiple interpretations that aren't an interpolation of a smart reader, but are actually there in the materials. So there's stuff from Irish history, stuff from the Bible stuff about men and women that are extremely surprising and variable from one chapter to another. Now I'm gonna read forth a quotation. It's actually a theory of regulatory reform. You've worked in this area. You tell me if it's underrated or overrated. This is from Master Yoda. And I quote, try not. Do or do not. There is no try. The regulatory reform. Overrated or underrated? Overrated. Tell us why. You gotta try. I mean, if it's deregulation or economic incentives or information strategies, try and test. So not do. Well, you can't just sit there and try and stare at your federal register notice. You have to, if the question is, do you deregulate the airwaves in some respects or deregulate transportation? You do, but there has to be an experimental attitude which Yoda's words aren't capturing. So the- But Yoda got the airlines right. Well, it seemed to work out in the sense that we didn't see a lot of inadvertent crashes by the Jedi. You wouldn't do a Yoda for workplace safety is what you're saying. I think they try. What I'm picking up on in Yoda's, I mean, you could read it in a way such that it's compatible with what I'm saying, but it seems to have, okay, so there's work. In fact, I've co-authored an article on this on action bias, which says when you're stuck in a tough situation, either an institution or an individual, do something. Don't just stand there, do something, but that's often a mistake. You might wanna strike when the iron is cold. Wait, have a chance to think. So I think Yoda, maybe that's a headline to a more convincing account than Yoda was able to give in the confines of the movie. Be the guy you chose to nudge you. Keep that in mind, right? Well, the question is my investment portfolio or my diet or my exercise regimen. But not your regulatory reform. Well, I think I have more experience with the regulatory reform than Master Yoda. Forgive me, Master. But on that issue, not deferring to you, Master Yoda. So he's a master, you're a grandmaster. No, no, he's a master who has a few pockets of limited experience. What's the most underrated Bob Dylan album? That's a great question. I'm going to say The Free Wheel and Bob Dylan. And it's a bit of a risky choice because people don't think it's bad. It's in the top seven probably. And some people would put it in the top five. It has a terrible title, The Free Wheel and Bob Dylan. Sure. The Free Wheel and anyone, that would be a terrible title. There's no one, The Free Wheel and Han Solo. That's awful. There's no one for whom that's a good title. Bob Dylan, whatever he is, he's not free wheeling. He's complicated or mischievous or something or troubled, but the title is Wrong Foot's You. But I think that's his greatest album actually. And so it's underrated. How did your time in government change your view of academia? I concluded that academics, including people like me, were in important respects clueless. And I did not think that before. I did feel as admiring or even more admiring of basic research by academics that produces knowledge or fresh ideas that can be put to use. But having studied administrative law for more than two decades, I was amazed by how steep my own learning curve was in an area that I thought I knew well. So I had written about, and I don't need to single myself out for a program here. I, like many administrative law professors, write about stuff and just the absence of a sufficiently thick understanding of how things happen, that really surprised me. On the other hand, so that's the not-so-good side of academia, I think. When it works about actual practical things, it's often insufficiently informed. But if anything, as I say, the idea that you can go on the National Bureau of Economic Research website, as I did in government and do now, and find out stuff about what programs are working and what not in a way that has a kind of rigor that outruns anything that you could find in the newspaper or generate in a conversation in government. So that I felt, I almost feel like it has a purity, like almost like a religious purity, some of the work that academics do. And that's one of the things I was, I had a glow, everyone leaves the White House, I think has a glow. Well, when they leave, part of my glow, and this is probably unique, was that I was getting a little more sleep, but also that I got to go back to that stuff, maybe do some empirical work and figure out something that might be true and wasn't known yet. What was Gary Becker's biggest mistake? His biggest mistake was his greatest virtue, which was a unfailing commitment to the rationality assumption. So I love Gary Becker as a person and as a scholar. He's in the pantheon. But his insistence on human rationality was both what made him as fantastic as he was, but also let him astray. So I'll give you a term for it. It's actually recently invented by Matthew Rabin, behavioral economist. The term is explain-o-ations. And the term means, suppose you have a situation where people, let's say, value a coffee mug that they've been given more than a coffee mug that their neighbor has been given. That's an anomaly that there's an immediate increase in value once you get the thing. An explain-o-ation might say something like, well, there's transaction costs in trading, which is desperate. It's an explain-o-ation. It's not an explanation. And Gary Becker was, both in his writing and even more in person, a master of the explain-o-ation where he'd come up with some account which had surface credibility, so he could say it, but nah. You've written a lot of different books. That's your view of Becker. My guess is there's some unity to those books. What do you yourself see as the semi-hidden metaphysical assumption behind all or most of them that most readers don't see, but if you sit down and think real hard about, I don't mean that you're trying to hide it from people, but it's hidden in the sense that only after writing them all have you seen that it's there. And what is that assumption? I'd say that it's a form of consequentialism that is very much focused on how will one or another thing make human lives better? So there's some work on political science and law on legitimacy, as if that's a master value. And my work doesn't focus so much on legitimacy. Maybe that's a mistake, but if you look at things on behavioral economics or about nudging or about freedom of speech or about the problems with echo chambers in the internet world or minimalism, it's what will, regulation certainly, it's what will make people's lives better. And this may seem kind of sentimental, but I hope it isn't. If you're thinking about a highway safety regulation, this was my view in government, my view now, to think about what does some subcommittee of Congress think or what's the left gonna think or what the right gonna think or even something about some abstraction is probably not as good as thinking what are the actual human consequences of doing that? Are you gonna save one life or 80? Are you going to adversely affect little businesses which are trying to grow or not? And this is relative to individual preferences. Well, I would not be preference fixated. I think preferences are a very good clue to what is going to promote people's welfare. But what adjudicates preferences versus the other stuff you wanna count? Well, I'll say at this point, related to our discussion of incompletely theorized agreements, John Rawls had a footnote in a book that he never published a footnote, which said, we post a signpost, no deep thinking here, things are bad enough already. I love that. So I want to be very clear on the particulars. So if people have a preference, let's say for something that clearly truncates their life significantly, like they want to drive super fast, let's just stipulate in a way that's not going to endanger others. It's just on a track. That's their preference. To deem that sovereign is not clearly correct. It might be that they're making their lives shorter in a way which on reflection by their own reflective lights is not a good idea. And that's a pretty stark example. But with respect to smoking, I mentioned the 480,000 deaths per year example. I think that's a number, but each one of those people as a human being, probably everyone who's listening to this knows at least one. I know two who died of lung cancer. And the preference for smoking, that's not something that we want to be aware of. We want to be careless about. Now I wouldn't want to forbid smoking. That would be too coercive. But some efforts to educate and nudge to try to help people not die, that's okay. But like in most pluralist theories, I tend to think there's an underlying metaphysical assumption used to perform aggregation. So banning smoking is too coercive. It's not obvious to me why that is correct. Most people feel that way, but we ban plenty of other drugs and that's not too coercive. There's some mix of costs and benefits. There's a lot of things people eat, which are bad for them. We don't do much about that. And in the scale of preferences, autonomy, well-being, liberty, again, what's the final principle ruling these trade-offs? That's like the hidden metaphysical assumption. You're right. I want to get it. Okay, great. So I think you're completely right that the claim that it's too coercive to ban smoking, that's a conclusion in search of an argument. And the shorthand is that the welfare consequences, all things considered of a ban would be negative. But that would have to be earned rather than just asserted. That's my view, but I haven't given you data to support it. So what I'd like to do at every difficult point is to be able to say that whatever your metaphysical assumptions, you will be able to go in a certain direction that will be compatible with, let's call it, non-sectarian welfareism. Now, if you push me to talk about liberty, that liberty is an ingredient in welfare, meaning being able to go the direction that you want is welfare promoting for the people who are exercising their freedom. That's one point. And the other point is the million point that there are multiple contexts at least, let's say, we don't wanna make a theology of this, but as I think Mills sometimes almost did, but we want to acknowledge that people know, by and large, and acknowledging the behavioral biases better than third parties, what will make their lives go better? So to see liberty as an ingredient in welfare because of its exercise, and to see it as a heuristic for what's actually going to promote welfare, those are both good ideas. But let me tell you what I love about Nudge and see if I can pull you into greater love of Nudge. Even greater. Even greater. Take the products today which governments ban. Put aside nuclear weapons and violent products. We should unban them. And as my colleague Robin Hansen suggests, put them all in a store called the Band Products Store. And the government will spend a lot on big signs. These are bad for you. Don't buy them. There'll be all kinds of negative advertising, but the store will be there. So we're gonna nudge people a lot, not to buy these products, but in fact, we could move from current bans and mandates to having them available, but lots more nudges. So I want maybe more nudges than you do, or is that not true? Are you the nudge critic? No, no, you may be right, but we have to think of what the thing is. And then we have to do- Everything banned that's not violent. Heroin cocaine. Well, I worry with respect to heroin, not being an expert on heroin, but I worry that it is nearly instantaneously addictive and extremely tempting to a wide range of people in different life circumstances. To be a heroin addict is really, really rough. So to nudge people and not to take the step we have now taken might leave a lot of tragedy around. Now it is true that the heroin ban does not eliminate heroin and it has ancillary consequences that aren't good. But I would say with respect to some product, let's say it's a food where there's a one over X of death from consuming it and X is not that high a number to say to people, you know, you can have this, note that your death risk is one over X. I mean, why is it so great to shift from banning the thing to allowing people to have it when you're gonna see a lot of bodies on the streets? Say I'm dying of a terminal disease and there's a treatment that probably won't help me, but there's a one-tenth of 1% chance that it will. And I wanna use it as kind of a self-defense argument. And I say, well, self-defense, that's like a minimal value we all would agree upon. I love nudge. Let's take the FDA out of the picture and just put it in the band product store and have big, huge signs, bad music surrounding it, disco, whatever we need to do, telling that it's not any good, but let me buy it. So I want more nudge than you do. So you might, but I'm open to these ideas. So in a case where someone has a terminal illness and there's a drug that has an extremely low probability of working, there's a good argument that on welfare grounds, they should get that because the chance of death without that, let's stipulate as 100%, and the chance of despair without that is also 100%. So if people's tastes are such that they want to spend their money on a very small risk of living, it's possible to say that's in the store, your store. Yes, now you're intrigued by the John Stuart Mill, Harriet Taylor correspondence, and also by buy its novel, Possession, from the early 90s. I think you once said it was your favorite novel. What is it that ties those two together and what explains your fascination with them? Okay, so, Possession. What does it say about you? Maybe I'm a romantic, so. Sentimental, they're both letters. Something dialogical about them. Okay, I'll tell you, for those who don't know Possession, go read it tomorrow. It's my personal favorite novel in any language. I can't say it's as rich as Ulysses, but I like it even better, and in terms of greatness, I would rank it with Joyce. So what makes it, I think, so fantastic, and what gets to me about it is, and you're correct, the letter exchange between the two lovers, and I think for one thing, they're alertness to the particulars of their own hearts and the particulars of their lover's hearts. So the ability in each of them to be kind of fundamentally in touch with what they themselves are most deeply about and what the person they love is most deeply about, that is, in those letters, I think, overwhelming. And what Bayet gets at, and I think this is what gets to me about it, probably none of us has the literary quality of the two protagonists in Possession, but every one of us has that inside ourselves, and we just see surfaces. Even of our friends, we just see surfaces, but there's stuff going on in them about it can be needs or fears or loves that are just inaccessible, but there's an inside to everybody that has what Bayet gets in the protagonist. So I think that's completely phenomenal. Now, with Mill and Taylor, I wasn't particularly interested in Mill and Taylor. I was interested in Mill as one of the great thinkers and Taylor as a very important figure and maybe a great thinker, but I wasn't interested in their relationship until I saw that the University of Chicago Press was issuing in its great Hayek series, Hayek on Mill. And that seemed to me intriguing beyond belief. What would Hayek write about Mill? Two of the great liberal thinkers who are very different, but Hayek on Mill is not really Hayek on Mill. It's Hayek's edited edition of the Mill-Taylor correspondence essentially. And Mill and Taylor had a correspondence, one to the other, much of which I think is destroyed, that has some of the delicacy and I'm just struggling for the right words here. What is that? The seeing the particularity of persons, the preciousness of persons and lives. Mill and Taylor both do that. And some of those sentences, one to the other, I think they're not quite as great as Byatt's protagonist, but they're really something. And when Taylor says something about how she felt when Mill left one day, and we don't even say that to each other, to people we love, to our spouses maybe sometimes, we don't say it, but we feel it. And so that Hayek, who seems both one of the great figures in liberal thought, but also a cold fish, I think he seems like a cold fish. So he's kind of, as I responded to your question, he kind of had all that stuff in him clearly. Why would he have gotten into the Mill-Taylor correspondence? This guy who writes about the uses of knowledge and society and the rule of law, which is that's great stuff, but it's not about how it was when you left that day, but he completely got into that. So I like that too. Last question, and before Q&A, this is in a way about nudges, but even in the last two years, you've published quite a few books. I've lost track of myself. And normally when we have someone in for one of these chats, we pile up all of the papers they've written, but today we're in Washington DC. There are height restrictions on the buildings. So in lieu of those papers, we have Yoda, Darth, and an Imperial Walker. Those legs were not properly regulated. That's why they fell over so easily. So you've done all this. It's obvious from reading your book you spend a lot of time with your children. Time management. How do you do it? And what's your advice? How do you nudge yourself? Or who nudges you? Well, I have a four-year-old daughter, and she just turned four. And if I don't deliver pages to her at night, she goes to bed around 8.30. She's really mad. She said, daddy, what did you write? And this is completely false. I'm making it up. But she doesn't have any need that I write pages. But I feel, I guess I feel every day that if I haven't written at least something or had an idea, then I haven't quite done my job. Most days I feel that to write something. And if I have a week or two weeks where I haven't made a little progress on something that is potentially an academic article or a book, I feel, you know, pedal through the metal time. You gotta produce something. So I have kind of an internal superego or something about writing. I also really enjoy it. I have no writer's block, but I will write a lot of stuff that no one will ever see because it's too terrible. So we only get the tip of the iceberg. You got the, my filter is probably not sufficiently rigorous. So you get probably see too much, but I do have a filter. There's a lot of stuff that I, so I write, I try like the, there is no try, there's do, but there's also experimenting. So I'm working on a book on liberty. I've been doing it for a few years and I have 90,000 words. And I don't like, I don't like what's there. I hope something will come of it, but just the advice would be, you know, you are a living practitioner of this is, you know, if you have something to say, write it and then think is it worth showing to the world to be too critical of your own production, I think is a, at the early stages at least, is an error. Be critical if it's a book or an academic article, you know, be really hard on yourself late, but early just assume it's good. Before we do Q and A, let's have a big round of applause for Jeff. On this side, Brian. Yeah, on the surface, it seems like Star Wars is a highly militaristic story where you have fighting, resolving every important situation. But if you really think about the arc of the six stories, it seems like the war result was totally futile. If the Jedi had simply surrendered in episode one, things would have actually been turned out to be better, at least a whole lot of bodies would have been spared. And striking, if you take a look at the end of episode six in the digitally altered version, Coruscant still looks awesome. So when they had the fireworks going over Coruscant, it does not seem like the emperor's rule actually did any harm, except in so far as resisting, it caused problems. So what do you think is Star Wars actually as militaristic as it is on the surface, or is it a Straussian tale of pacifism, as it should be? Okay, so I think that's part of what makes the Star Wars saga work, that these are legitimate questions. My own view is that the best analogy to Star Wars is the American Revolution or the fall of communism, meaning there's an authoritarian regime whose horribleness you don't see constantly on screen, but you get glimpses of it. And the idea of restoring peace and justice to the galaxy, that's completely sincere. And while it wouldn't be that dramatically pleasing to see horror from the authoritarian regime thrown in your face all the time, nor would it be that dramatically pleasing to see a completely easy victory by the forces of peace and justice, the rebel heart of Star Wars is Republican. You were just wrong about everything else this time of the show, so could you not do that? Master Yoda isn't wrong about everything else. He made some mistakes, but Yoda is, he's Yoda for a reason, meaning he's really good. Next question. One of Lord Acton's lesser known aphorisms is that great men are almost always bad men. Jedi are generally always great men or women. With that in mind, if Luke really cared about the galaxy, do you think he should have let himself be the last of the Jedi and gone into self exile at the end of episode six? What I think Joe and Lai said about the French Revolution is true here, it's too soon to tell. So I don't have a view on the French Revolution, I should add, and I'm against communism, I should add. But whether Luke made a mistake or not in going into exile, as he evidently did, we need to know more, so stay tuned. He went into exile after training people. My assumption would be that he didn't train people anymore. Well, we will see, we will see. The, okay, John Dewey said about America, be the evils as they may, the experiment is not played out. The United States are not an established fact to be categorically assessed, so true of Star Wars. Next question. Hi, I'm Ash Navavi from Student at George Mason University. You've talked about libertarian paternalism, you've talked about F.A. Hayek. Hayek though famously wrote in his wrote to Surfton that the worst rise to the top. So given the current institutional environment we're in, what is your confidence level that libertarian paternalism won't become authoritarian paternalism? Hi, so Hayek was a great man. The idea, I wanna look at the passage about the worst rising to the top to see what exactly is being said here. But I work very closely in the federal government with people in the Department of Transportation who are both the political appointees, but more importantly for present purposes, the kind of very high level civil servants. And believe me, they're not the worst. They're tremendous. And so America has in its governance, I happen to have coffee today with a person. I have no idea what his political party is. He's someone who works at the Office of Management and Budget. I worked with him in the government. He's fantastic. The guy is superb judgment. He knows economics. He knows law. So this worst rise to the top, I think that's, I wish Hayek hadn't said that. The worst are, you know, a lot of the worst are in jail. Worst aren't typically at the top. Sometimes they are. Next question. So occupational licensing has exploded in recent years. This is a problem that's been acknowledged by the White House Council of Economic Advisers. And it's a problem that you have written about extensively in your own work, the regulatory burdens that everybody who seeks to earn a living in anything from animal massage to giving tour guides to African hair braiders. You have written about the Constitution's commitment to the idea that values should be public values. They shouldn't be self-serving. And you've written about the Constitution as a prohibition against naked preferences. At the same time, you're a judicial minimalist. And the Supreme Court has for decades in the context of evaluating economic rights been committed to something called the rational basis test, which is very, very minimal. At the same time, the idea that protectionism that serves only the benefits of licensed practitioners is something that would seem to contradict the notion of a public value. So I'm interested in your idea of how judges should approach cases like this and evaluate these kinds of restrictions on people's rights to earn a living. We have three minutes total. So give a semi-short answer, then we'll take one more question. I know there's a lot in there. So I would favor release order, not episode order. Is that what you, in terms of viewing the Star Wars movies? Okay, so the short answer to the legal question is, I do think our constitutional framework rightly understood requires a public regarding justification for all legislative acts. I also think that the judicial role with respect to ordinary legislation is appropriately modest, which is to say that for judges to be overseeing whatever comes out of, let's say, the New York or California legislatures to see whether on the judge's view, it's public regarding rather than whether with deference to the knowledge and accountability of the political process, it's public regarding, that would be a mistake. So ramped up rational basis review of the sort that honorable people urge to get rid of what I would agree are objectionable things would produce an excessively aggressive role for federal and state judges in a back to Star Wars Republic. Last question. Hi, so you've talked a lot tonight about making distinctions between when it is appropriate to nudge and when it is appropriate to say ban things. Who makes those decisions and when, who decides when those decisions need to be made? Okay, simple. Okay, I think you intend that question to be rhetorical, but a meaning as an objection to the whole enterprise, but I hope on reflection, it's actually a good substantive question that does have a pretty easy answer, which is, are elected representatives subject to the democratic and constitutional safeguards that they face? So if you have, let's say, a libertarian president who wants no, that wasn't meant to be funny, but if you have a libertarian president who let's say is generally against bans, is okay with nudging, but doesn't want a whole lot of that, then that is what we the people want and there we go. If we have a president who let's say is pretty bullish on bans, as in accordance with Tyler's points maybe about, well, I guess he wasn't there, but as some people are, not me, not Tyler. So more upbeat about bans than there are constitutional and legal restrictions on that. And the reason I'm saying that that's the inevitable answer are elected representatives, there's no other option. So if you intend your question, forgive me if I'm wrong, is I think I detect it as a kind of objection to the whole enterprise. I think what you're saying is you want something like strong constitutional safeguards against any of this stuff. And that's a reasonable view, but that would have to come from we the people also. Over the summer, we will have podcast only episodes of Conversations with Tyler. We'll have some fantastic guests to be announced. The next live in-person event is Stephen Pinker, October 24th, Arlington campus, but most of all, big round of applause. Forkast.