Nudge as Fudge
| Author | Karen Yeung |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00893.x |
| Date | 01 January 2012 |
| Published date | 01 January 2012 |
REVIEW ARTICLE
Nudge as Fudge
Karen Yeung*
Richard Thaler and Cass Sunstein,Nudge: Improving Decisions About Health,
Wealth and Happiness, London: Penguin Books, 2008, 320 pp, pb £9.99.
Nudges are often used in my household. Directed primarily at my two year old
daughter, these practices range from pointing to other children riding happily in
their pushchairs in order to prompt her to climb aboard her own,reminding her
of the fun she had the previous day playing with a particular toy to enhance her
interest in it, to fashioning vegetables into animal shapes to encourage her to eat
them. What unites these diverse practices is their common aim: to elicit my
daughter’s co-operation in complying with my (typically unarticulated) wishes
without resort to more punitive,coercive techniques which generally end in tears
and tantrums. My techniques are, I suspect, as familiar to parents everywhere as
they are to policy-makers.The carrot shaped in the form of a duck and the speed
hump installed in a residential street can both be understood as techniques that
deliberately seek to elicit a particular behavioural response from another, whilst
formally preserving the latter’s freedom of choice. While there is arguably
nothing particularly new or unusual about these techniques, what is novel is the
claim by various scholars that their effectiveness (at least when directed at adult
decision-makers of ordinary mental competence) rests on scientific foundations.
More specifically, recent research into the ‘science of decision-making’ has
spawned a new academic sub-discipline often referred to as ‘behavioural eco-
nomics’ and its off-spring,‘behavioural law and economics’.
Although Richard Thaler is merely one among many economists working
from within this burgeoning field, it is his partner ing with lawyer and legal
academic, Cass Sunstein, to produce the best-selling and highly readable paper-
back, Nudge: Improving Decisions About Health,Wealth and Happiness that has the
catapulted the ideas underpinning so-called ‘nudge’ techniques into political
prominence.Although the book first appeared in 2008, this review is timely in
light of its extraordinary success in recent years, capturing the imagination of
politicians from both ends of the political middle-ground and spawning a
plethora of nudge-based policy proposals across a varied range of social sectors.
In the UK, David Cameron has energetically promoted the use of nudges as a
technique for solving social ills, claiming that Nudge ideas can be adopted to
*Professor of Law,Director of the Centre for Law,Ethics and Technology in Society (‘TELOS’), School
of Law, King’s College London. I am indebted to Roger Brownsword, John Coggon and the anony-
mous reviewers for comments on earlier drafts.All errors remain my own.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(1) MLR 122–148
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
implement the policies of his ‘Big Society’,1marked by the establishment of
the ‘Nudge Unit’(formally known as the Behavioural Insight Team) within the
Cabinet Office.2On the other side of the Atlantic, the Democratic Obama
administration’s active endorsement of Nudge strategies are evident in his
appointment of Cass Sunstein as his so-called ‘Regulation Czar’, head of the
White House Office of Information and Regulatory Affairs,3and in Obama’s
recent promulgation of Executive Order EO 12866.4
According to Thaler and Sunstein, a nudge is‘an aspect of choice architecture
that alters people’s behaviour in a predictable waywithout forbidding any options
or significantly changing their economic incentives’(6).The idea of nudge is best
grasped by reference to specific examples,rather than by formal definition. One of
Nudge’s most frequently cited examples is the etching of the image of a housefly
into the men’s room urinals at Amsterdam’s SchipolAirpor t,which is intended to
‘improve the aim’ (4 & 91).Apparently, the fly etchings have reduced spillage by
80 per cent (261).Other examples include ar ranging the food in a cafeteria so that
the healthy items are displayed prominently at eye level, with the fattier, sugar-
laden options displayed further back in order to encourage customers to choose
the healthy options (‘Cafeteria’, 1–4), automatic enrolment of employees into a
scheme which commits them to allocating future salary increases into a retirement
savings plan (‘Save More Tomorrow’,118–119), and the painting of white stripes
on road bends spaced more closely together at the most dangerouspoints to create
the illusion that the vehicle’s speed is increasing thereby prompting the driver
to brake before the apex of the curve (‘Painted Road Stripes’, 41). According
to Thaler and Sunstein, the core feature of these (and a host of other policy
interventions which they advocate) is their reliance upon ‘choice architecture’,
referring to the conscious and deliberate attempt to shape the context in which
people make decisions (3).In advocating the use of choice architecture to‘improve’
individual decision-making, Thaler and Sunstein seek to establish ‘our new
movement’which they dub ‘libertarian paternalism’ (6).
While the ‘paternalistic’ dimensions of Thaler and Sunstein’s policy proposals
have sparked lively debate about the virtues and vices of paternalism, which is
currently enjoying something of a renaissance in legal scholarship,fuelled by the
growing popularity of behavioural law and economics,5it is clear that many of
the proposals advocated in Nudge are concerned with shaping other-regarding
1 P. Ormerod,‘A network is as good as a nudge for a Big Society’ FinancialTimes 15 September 2010.
2 Headed by behavioural economist David Halpern, it has been directed to focus on problems of
obesity,diet and alcohol, to work alongside the Health Secretary’s Responsibility Deal Behaviour
Change group: F. Lawrence,‘First goal of David Cameron’s nudge unit is to encourage healthy
living’ The Guardian 12 November 2010.
3 J.Weisman and J. Bravin,‘Obama’s Regulatory Czar Likely to Set a New Tone’Wall Street Journal
8 January 2009.
4 Section 4, titled ‘Flexible Approaches’ provides that, ‘Where relevant, feasible, and consistent with
regulatory objectives, and to the extent permitted by law, each agency shall identify and consider
regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the
public.These approaches include warnings,appropr iate default rules,and disclosure requirements as
well as provision of information to the public in a form that is clear and intelligible.’ See B. Obama,
‘Towards a 21st Century Regulatory System’ Wall Street Journal 18 January 2011.
5 M.A. Edwards,‘The FTC and the New Paternalism’ (2008) 60 Administrative Law Review 323,323.
Karen Yeung
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 123
(2012) 75(1) MLR 122–148
To continue reading
Request your trial