Sludge and Ordeals

By Sunstein, Cass R. | Duke Law Journal, May 2019 | Go to article overview

Sludge and Ordeals


Sunstein, Cass R., Duke Law Journal


ABSTRACT

Is there an argument for behaviorally in formed deregulation? In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as "sludge, " understood as friction, reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services. The problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. A serious deregulatory effort should be undertaken to reduce sludge through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. Fifth, it can help public officials to acquire valuable information, which they can use for important purposes. In most cases, however, these defenses of sludge turn out to be far more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often demonstrate the need for a neglected form of deregulation: sludge reduction. For both public and private institutions, "Sludge Audits" should become routine, and they should provide a foundation for behaviorally informed deregulation. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.

TABLE OF CONTENTS

  I. 9.78 Billion Hours
 II. Sludge Hurts (and Can Kill)
     A. "Everyone Believes In Redemption"
     B. Behavioral Biases and Sludge
     C. Cognition and Scarcity
III. A Very Quick Tour of the Horizon
 IV. Justifying Sludge
     A. Program Integrity
     B. Self-Control Problems
     C. Privacy and Security
     D. Targeting and WTPT
     E. Acquiring Useful Data
  V. Sludge Reduction as Behaviorally Informed Deregulation
     A. The Office of Information and Regulatory Affairs
     B. Courts
     C. Congress
     D. Sludge Audits
Conclusion

I. 9.78 BILLION HOURS

Enacted in 1979, the Paperwork Reduction Act ("PRA") (1) was meant to be a deregulatory statute. It was designed to minimize the paperwork burden imposed on the American people and to maximize the benefit of the information obtained. Its key provision states:

With respect to the collection of information and the control of paperwork, the Director [of the Office of Management and Budget] shall--

(1) review and approve proposed agency collections of information

(2) coordinate the review of the collection of information associated with Federal procurement and acquisition by the Office of Information and Regulatory Affairs with the Office of Federal Procurement Policy, with particular emphasis on applying information technology to improve the efficiency and effectiveness of Federal procurement, acquisition and payment, and to reduce information collection burdens on the public;

(3) minimize the Federal information collection burden, with particular emphasis on those individuals and entities most adversely affected;

(4) maximize the practical utility of and public benefit from information collected by or for the Federal Government:; and

(5) establish and oversee standards and guidelines by which agencies are to estimate the burden to comply with a proposed collection of information. (2)

For present purposes, the most important provisions are (3) and (4). The word "minimize" suggests that paperwork burdens should be no greater than necessary to promote the agency's goals. …

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