Academic journal article Missouri Law Review

Once and Future Nudges

Academic journal article Missouri Law Review

Once and Future Nudges

Article excerpt

I. INTRODUCTION

The nudge has successfully colonized the regulatory state. (1) The success of nudges has, in turn, changed the regulatory ecosystem in which individual nudges operate.

To see how the world has changed, consider the environment of the primordial nudge. To succeed--to be adopted as a mechanism for government action--early nudges had to outcompete existing regulatory mechanisms. Those existing mechanisms--command and control, pure market mechanisms, basic disclosure, etc.--had already carved ecological niches for themselves. As entrenched species, these other mechanisms initially had an advantage over the newcomer nudges. Policymakers and stakeholders knew about these older mechanisms, had tested their legal and political welcome, and in many cases, statutes and regulations had already been specifically crafted to be hospitable to them.

As a practical matter, this meant that adoption of early nudges was relatively costly for policymakers. Not only did policymakers have to know of the nudge to begin with, but they also had startup costs in ensuring that nudges could be used in a way that was legally permissible and politically and practically feasible. As the new kid on the block, these early nudges had much to prove to gain acceptance and to carve a place for themselves.

This early environment was not all bad for primordial nudges. True, each nudge had to compete with other entrenched types of government action. But structural advantages that nudges hold versus those other mechanisms--including administrability benefits, (2) welfare benefits, (3) cost-effectiveness (4) and autonomy benefits (5)--often stood the nudge in good stead. When a nudge competed with other (even entrenched) regulatory species--that is, when policymakers were introduced to the option of using nudges as alternatives to other forms of government action--the nudge often prevailed.

One way to understand the explosion of the nudge population, then, is that the competitive advantage nudges offered in many regulatory contexts allowed nudges to outcompete other mechanisms and led to increasing numbers of nudges. (6) As a species, the nudge was successful at replicating itself and at finding an ecological niche within the regulatory ecosystem. In this sense, the captive breeding program that Cass Sunstein and Richard Thaler developed to engineer and breed nudges and release them into the wild (7) has been extraordinarily effective.

And yet the very success that has led to Symposia like this one has also changed the regulatory ecosystem in which nudges now operate. Not only must modern and future nudges compete with traditional tools of regulatory intervention like mandates and bans, they must also interact successfully with other nudges. And as the nudge population continues to grow, strategic policymakers now need to consider how the size of the population is likely to affect the experience of individual organisms.

This consideration should address at least two aspects of nudges' evolutionary ecology. First, policymakers should develop observational methods for identifying and classifying possible nudge-nudge interactions. These observations can then form the groundwork for evaluating when and how nudges can be expected to interact with one another. Second, policymakers should consider the institutional tools available for managing the nudge population and for structuring potential interactions between and among nudges. The remainder of this Essay provides starting points for each of these analyses.

II. RECOGNIZING NUDGE-NUDGE INTERACTIONS

Early nudges were generally justified by reference to their superiority (at least in some circumstances) to entrenched regulatory tools, including mandate, pure market mechanisms, and (non-behaviorally-informed) disclosure. (8) Initial arguments for nudges were thus arguments about the regulatory fitness of nudges in comparison to other mechanisms. …

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