Cass Sunstein on Liberalism and Rights in the Age of AI

Sunstein argues liberalism faces threats from illiberal forces rather than self-undermining, though it doesn't create conditions for self-perpetuation. The discussion explores immigration policy's liberal tensions, including European concerns about Islamic immigration, the practical brutality of enforcement, and the need for lawful pathways. Sunstein shares his experience at the Southern border and advocates for technology, infrastructure, and humane enforcement.

• •Liberalism doesn't self-undermine but lacks resources to maintain itself against illiberal forces in human nature
• •Immigration enforcement requires walls, technology, and personnel - not necessarily brutality, but unpleasant realities remain
• •Lawful pathways (like H-2B visas) are essential - allow workers in legally while preventing unlawful entry
• •Individual characteristics should determine immigration screens, not blanket religious or national restrictions
• •Technology can reduce tragic trade-offs in immigration enforcement, similar to animal welfare innovations

Cowen and Sunstein discuss whether liberal thought is replenishing itself with new thinkers. Sunstein identifies economists like Ed Glaeser, John List, Esther Duflo, and Sendhil Mullainathan as current liberal leaders, while noting philosophers may be focusing on other topics. They discuss the legacy of figures like Rawls, Dworkin, Parfit, and Edna Ullman-Margalit, with Sunstein defending Parfit's liberalism despite concerns about his views on individualism.

• •Current liberal thought is strongest among economists (Glaeser, List, Duflo, Mullainathan) rather than philosophers
• •Philosophers may take longer to develop major works - Rawls' 'Theory of Justice' came when he wasn't young
• •Parfit's search for commonalities among Kantianism, contractarianism, and utilitarianism represents liberal thinking
• •Edna Ullman-Margalit did groundbreaking work on invisible hand, norms, presumptions, and considerateness
• •The Harvard/Oxford philosophy departments' historical clustering created a 'powder keg' of liberal thinking

Sunstein expresses sympathy for Ludwig von Mises' 'cranky enthusiasm for freedom' and discusses Hayek's Road to Serfdom, arguing its core thesis isn't true but individual claims are convincing. He critiques Hayek's misunderstanding of Mill, particularly regarding Mill's relationship with Harriet Taylor and the subjection of women, which Sunstein sees as foundational to understanding modern 'woke' concerns.

• •Mises has humanistic quality in his excitement about capitalism despite his elbows-out style
• •Hayek's Road to Serfdom thesis (regulation leads to totalitarianism) isn't true, but milder versions about state capitalism are valid
• •Mill's 'Subjection of Women' is the origin of legitimate 'woke' concerns about subordination and adaptive preferences
• •Hayek fundamentally misunderstood Mill's liberalism and his relationship with Harriet Taylor
• •Woke movements go wrong through arrogant shaming rather than showing respect for people deserving it

Sunstein argues AI itself lacks First Amendment rights (like toasters or vacuum cleaners), but people interacting with AI have protected rights to receive information. Content-based restrictions on AI use would be presumptively invalid. He discusses how collaborative human-AI outputs are generally protected, though certain categories like fraud or libel remain regulable regardless of AI involvement.

• •AI lacks First Amendment rights, but users have rights to receive information from AI systems
• •Content-based restrictions on AI interactions (e.g., banning questions about Israel) would violate users' rights
• •Collaborative human-AI outputs are generally protected speech, similar to movie producers' rights
• •Commercial fraud, libel, and false advertising remain unprotected even when AI-generated
• •The key legal question is always: what is the speech and what is the government's justification for regulating it?

Sunstein proposes establishing a legal right not to be manipulated, distinguishing manipulation (inducing people not to use reflective capacities) from mere falsehood. He suggests starting with egregious cases involving hidden terms or commercial trickery. The discussion explores how manipulation law might apply to tweets, commercial transactions, and the weakening of libel protections in the digital age.

• •Manipulation means inducing people not to use reflective capacities through trickery, distinct from falsehood
• •Legal systems should recognize a right not to be manipulated, similar to how privacy rights emerged
• •Start with egregious cases: hidden terms causing money/time loss, commercial fraud-adjacent behavior
• •Libel law has weakened due to anonymous posting, international jurisdiction, and Streisand effect
• •Propose allowing suits for small damages plus corrections for negligent falsehoods, not just knowing falsehoods

Sunstein discusses the possibility of AI-run trials, noting constitutional jury trial rights would prevent this currently. He shares his experience serving on a jury and explains that juries bring moral assessments beyond accuracy. Algorithm aversion research shows people resist AI decision-making partly due to legitimate concerns about context-specific human knowledge and the deep desire for human engagement.

• •AI trials are 'thinkable' but face constitutional barriers (Sixth Amendment jury rights) and public resistance
• •Juries serve to bring 'conscience of the community' to bear, not just determine accuracy
• •Algorithm aversion is partly based on mistakes but also legitimate beliefs about human contextual knowledge
• •Human participation in legal processes is 'deeply sought' even when it doesn't increase accuracy
• •As AI becomes more reliable (airlines, vehicles), public acceptance may grow but constitutional barriers remain

Sunstein explains why A.S. Byatt's 'Possession' is his favorite novel (capturing romance's intensity and unknowability), how Star Wars shaped his thinking about law and liberty, and why Bewitched illustrates rules and their breaking. He extensively discusses Bob Dylan's liberalism, centered on self-invention, freedom, and the line 'he not busy being born is busy dying,' connecting it to his own intellectual evolution.

• •Byatt's 'Possession' uniquely captures romance's specificity and has a twist on Genesis in its ending
• •Star Wars is profound about liberty vs. tyranny and freedom of choice in small and large settings
• •Bewitched illustrates how rules (Ullman-Margalit law) create structure but their breaking generates episodes
• •Dylan's liberalism centers on self-invention, impermanence, and freedom - 'Like a Rolling Stone' as freedom anthem
• •Dylan's name change exemplifies American freedom: 'This is America. You can change your name'

Sunstein reveals his next major project is a book on animal rights called 'Animals Matter,' returning to a topic he abandoned after facing ridicule and death threats during Senate confirmation. He's also considering a book on 'How to Disagree' based on principles of charitable interpretation, acknowledging what you've learned from others, and avoiding being a 'scold.'

• •Writing 'Animals Matter' - a bill of rights for animals, learning about octopuses, dogs, horses
• •Self-silenced on animal welfare after Senate confirmation ridicule and death threats, now returning to it
• •Considering 'How to Disagree' book based on Rapoport rules: characterize arguments charitably, indicate what you've learned
• •Key disagreement principles: avoid scolding, find agreement with critics, share non-obvious insights
• •The risk in both projects is appearing on a 'high horse' - trying to avoid that while seeking clarity