Obama and the Trial Lawyers -- What to Expect

At first glance, the election of Barack Obama, an attorney who was president of the Harvard Law Review and who taught constitutional law at the University of Chicago, would seem promising for the trial bar. Plus, Vice President-elect Joe Biden has a long record in the Senate as a friend of plaintiffs' attorneys. With solid Democratic majorities in both houses of congress, some fear, America's inclination to litigate could quickly worsen.

Even so, there are some encouraging signs. In Obama's book, The Audacity of Hope, he suggests that the benefits of regulation must be weighed against its costs. Moreover, the transition team has announced that Obama plans to appoint Cass Sunstein, his former Chicago colleague who recently moved to Harvard as the Felix Frankfurter professor of law, to head the Office of Information and Regulatory Affairs in the new administration. This is a key job in determining the president's approach to regulatory policy, and Sunstein's appointment sends a positive signal. Sunstein's most recent book is Nudge: Improving Decisions about Health, Wealth, and Happiness (2008), co-authored by economist William Thaler. The book elaborates the theory of libertarian paternalism and applies the field of behavioral economics to law. The central concept is that institutions can maintain people's freedom of choice while also guiding their decisions in directions that improve their lives. The classic example is that when employers offer employees a 401(K) plan, most people will participate if the default option is opt-in rather than opt-out. Sunstein and Thaler argue that "people often make poor choices - and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself." Though he is often classified as a liberal, Sunstein supported the nomination of Chief Justice John Roberts to the Supreme Court, and during his years at University of Chicago occasionally found himself allied with conservatives. Like Obama, he may prove to be a centrist and pragmatist.

To read about Sunstein's views of Obama, whom he calls "A Visionary Minimalist," click here.

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