Academic journal article Michigan Law Review

Nudge-Proof: Distributive Justice and the Ethics of Nudging

Academic journal article Michigan Law Review

Nudge-Proof: Distributive Justice and the Ethics of Nudging

Article excerpt

NUDGE-PROOF: DISTRIBUTIVE JUSTICE AND THE ETHICS OF NUDGING

THE ETHICS OF INFLUENCE: GOVERNMENT IN THE AGE OF BEHAVIORAL SCIENCE. By Cass R. Sunstein. New York: Cambridge University Press. 2016. Pp. ix, 202. $29.99.

INTRODUCTION

Nudges-factors that influence behavior while maintaining choice-are everywhere. And they can apparently get us to do all kinds of things that we might not ordinarily do,1 like eat chicken livers,2 wake up early,3 or join a Facebook group for scrapbooking enthusiasts.4

According to Cass R. Sunstein,5 one of the world's foremost scholars on nudging, nudges are "choice-preserving, low-cost tools" (p. 5) to influence behavior positively.6 Nudges harness the power of choice architecture to influence people's decisions. Choice architecture refers to "the background conditions for people's choices" (p. 5). Our decisions do not occur in a vacuum. Take the seemingly simple decision of what to eat for lunch at a restaurant. The ways in which the restaurant presents the available choices- whether printing them on individual menus, listing them on a chalkboard, or having a server describe them-is the choice architecture behind your lunch order.

Not only are nudges ubiquitous, they are also inescapable. Because all choices have context, choice architecture is unavoidable.7 The restaurant has to put the items on the menu in some order, and that order will affect what people decide to eat (p. 35). Insofar as it influences our behavior, even the weather is arguably a type of choice architecture (p. 35). When crafted intentionally, nudges capitalize on the reality that the circumstances under which people make decisions can have a powerful impact on what they decide.8

Yet it was only in the past ten years that governments attempted to realize the power of choice architecture. Ever since, nudging has been hailed as a sort of policy panacea, able to address some of society's stickiest problems- from the obesity epidemic to the energy crisis to the lack of retirement savings. President Obama jumped on the nudge bandwagon, establishing the White House's Social and Behavioral Science Team (p. 8) and issuing an executive order9 requiring federal agencies to design and implement policies based on insights from behavioral economics and psychology. (Sunstein himself served as administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012.) The United States was not the first to engage in these efforts. Nudges as policy interventions have made a splash worldwide. The governments of other affluent, industrialized nations-mainly the United Kingdom, Germany, Australia, Denmark, Sweden, Canada, Singapore, Israel, the Netherlands, South Korea, and Mexico-have also embraced nudges to improve the lives of their citizens.10

While the Trump Administration may not keep President Obama's team and infrastructure intact, a complete move away from nudges of all kinds seems unlikely and shortsighted. Research shows surprisingly strong bipartisan support for many nudges.11 Thus, in this era of extreme political divisiveness, nudges may actually represent an opportunity for consensus across party lines, making them more important now than ever as tools for policymaking. Whether you are on the left or on the right, nudges can help you get what you want. Perhaps nudges could offer solutions on such contentious issues as healthcare12 and climate change.13

When used as policy interventions, nudges are based on the core insight of behavioral economics-that human beings do not always act in our own long-term best interests. We are subject to several well-documented cognitive quirks that lead us down the path of less than perfect decisionmaking.14 Nudges can help people avoid what behavioral economists call "behavioral market failures" and, in the process, advance prosocial goals.15

In his latest book on the subject, The Ethics of Influence: Government in the Age of Behavioral Science, Sunstein takes a deeper dive into government efforts to nudge its citizens. …

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