Academic journal article Texas Law Review

How I Learned to Stop Worrying and Love Nudges

Academic journal article Texas Law Review

How I Learned to Stop Worrying and Love Nudges

Article excerpt

How I Learned to Stop Worrying and Love Nudges THE ETHICS OF INFLUENCE: GOVERNMENT IN THE AGE OF BEHAVIORAL SCIENCE. By Cass R. Sunstein. New York, New York: Cambridge University Press, 2016. 234 Pages. $29.99.

Imagine yourself commuting home from work in the near future.1 As you start your car, an audible recording reminds you that nine fatalities occur every day due to distracted driving,2 all of which can be avoided by switching offyour phone. When you fail to switch offyour phone, your car (having had sensors installed to detect the phone, as required by the National Highway Traffic Safety Administration) reminds you that texting and driving causes 341,000 accidents each year.3 Although you are in a hurry, you sigh and switch offyour phone before driving off.

Your phone is partly the reason you are in a hurry. It is Election Day, and a social media app encouraged you to make a public commitment to your Facebook friends to vote on the way home from work. Several of your friends have already sent you texts (on the phone you have now switched off) to remind you of this promise. Anyway, President Sunstein is running for a second term, and you support many of the welfare-enhancing initiatives of the last four years-even the annoying reminder in your car. You are also late because you spent time late in the workday at a mandatory meeting with your company's retirement planner. Minor changes to retirement-savingstaxation regulations created an opportunity for you to save an extra few hundred dollars a year in your retirement account, so long as you rearranged your savings plan. Regulations required your employer to meet with all affected employees because email requests to the employees to update their plans induced an inadequate fraction of younger workers to take advantage of the potential savings.

Being in a hurry you decide that you do not have time to cook, so you stop at a drive-through fast-food restaurant. You order a cheeseburger and fries, even though the menu advises you that the calorie count, salt content, sugar content, and saturated-fat levels of your meal vastly exceed the recommended norms for a healthy life. Indeed, the employee taking your order asks you, as is now required, whether you would not prefer a healthy salad instead of the fries or a chicken burger instead of the cheeseburger. The menu screen also informs you that your meal is reducing your life expectancy by one hour relative to having the salad and chicken.4 With another sigh, you decide that you might need that extra time and change your order.

No nudging at the voting booth. At one time voters were asked to swipe a credit card and make a donation to the American Red Cross before voting. But people reacted negatively to that, even though they could opt out by signing a statement indicating that they preferred not to donate. So the program was eliminated. Each voter gets a pamphlet on how to vote by mail in the future, however. That program arose when research indicated that Election Days produce an average of twenty-four extra traffic fatalities each year.5 A proposal to force registered voters to reregister, so as to make them choose whether to vote by mail or in person, failed after preliminary studies suggested that many would simply fail to reregister, thereby suppressing voter turnout. The Federal Election Commission seemed willing to tolerate the excess fatalities to keep voter turnout high. Only new registrants must make such a choice.

You finally get home. You sort through your mail to find two utility bills. The monthly electric bill was at one time paid automatically (you were forced to consider that option when you moved to your apartment), but no more. The electric company discovered that informing their customers each month of the amount of energy consumption reduced overall demand for energy.6 Your bill shows that your apartment used more energy than 62% of your neighbors in the same building. A yellow frowny face accompanies this statistic. …

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