Critics frequently argue that nudges are more covert, less transparent, and more difficult to monitor than traditional regulatory tools. Edward Glaeser, for example, argues that “[p]ublic monitoring of soft paternalism is much more difficult than public monitoring of hard paternalism”. As one of the leading proponents of soft paternalism, Cass Sunstein, acknowledges, while “[m]andates and commands are highly visible”, soft paternalism, “and some nudges in particular[,] may be invisible”. In response to this challenge, proponents of nudging argue that invisibility for any given individual in a particular choice environment is compatible with “careful public scrutiny” of the nudge. This paper offers the first of its kind experimental evidence that tests whether nudges are, in fact, compatible with “careful public scrutiny”. Using three sets of experiments, the paper argues that, even when entirely visible, nudges attract less scrutiny than their “hard law” counterparts.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Tax calculation will be finalised during checkout.
Subscribe to journal
Immediate online access to all issues from 2019. Subscription will auto renew annually.
Tax calculation will be finalised during checkout.
A note on terminology. Glaeser is using “soft paternalism” as synonymous with “nudging” here. In the legal and policy literatures, nudging is the most prominent example of soft paternalism. The defining feature of “soft” paternalism is that it preserves an individual’s freedom of choice (Sunstein 2014a, b, 19). By contrast, “hard” paternalism regulates through “highly aggressive” coercion, such as jail time (Id). Relatedly, the philosophical literature on freedom and autonomy uses the terms hard and soft paternalism. In the philosophical literature, “hard” paternalism refers to governmental interference with fully voluntary choices (Feinberg 1986). “Soft” paternalism, meanwhile, refers to governmental interference with choices that cannot be said to be fully voluntary, such a decision to stay in an abusive marriage due to economic pressure. This paper will use hard and soft paternalism as it is used in the legal and policy literatures.
By contrast, “private” nudging does not raise the same concerns as governmental nudging (Alemanno and Sibony 2015, 10).
These efforts have proven successful. As Benartzi et al., argue, “[r]ecent evidence indicates that the burgeoning field of behavioral science can help solve a wide range of policy problems” (Benartzi et al. 2017, 1). Behavioral interventions have proven effective in fields as diverse as public health, financial and retirement planning, energy consumption, college planning, and international development, among others (Id).
Across many areas of thought—including law and psychology—scholars typically think of an act or omission to be necessary to trigger moral or legal liability (Haidt and Baron 1996). Likewise, criminal culpability requires an act or omission. I am unaware of any sort of moral, social, or legal liability that might result from what one might call rightful noninvolvement.
By asking participants to answer a true or false question on a scale, the experiment is able to gauge the intensity and confidence in the participants’ belief. To be sure, many surveys conceptualize “true/false” questions as requiring a binary answer. The approach employed here assumes that there will be some variation on how strongly individuals hold their beliefs, and as such takes a more Bayesian approach and gauges the intensity and confidence of the answers.
Under Lamond’s definition, coercion might be non-material. An unjust law, for example, might be intellectually or emotionally coercive.
The traditional model is compatible with a “selection” theory of voting. But even in a selection theory of voting, voters must have a sense of the blameworthiness of officials.
Alemanno, A., & Sibony, A.-L. (2015). Nudge and the law: A European perspective. Portland: Hart Publishing.
Barton, A. & Grüne-Yanoff, T. (2015). From libertarian paternalism to nudging—and beyond. Review of Philosophy and Psychology, 6, 341–359.
Benartzi, S., Beshears, J., Milkman, K. L., Sunstein, C. R., Thaler, R. H., Shankar, M., et al. (2017). Should governments invest more in nudging? Pyschological Science. doi: 10.1177/0956797617702501.
Bubb, R., & Pildes, R. (2014). Behavioral economics trims its sails and why. Harvard Law Review, 127, 1593–1678.
Calo, R. (2014). Code, nudge, or notice? Iowa Law Review, 99, 773–802.
Fearon, J. (1999). Electoral accountability and the control of politicians: Selecting good types versus sanctioning poor performance. In A. Przeworski, S. C. Stokes, B. Manin (Eds.), Democracy, Accountability, and Representation (pp. 55–97). Cambridge: Cambridge University Press.
Feinberg, J. (1986). Harm to self. Oxford: Oxford University Press.
Ferejohn, J. (1986). Incumbent performance and electoral control. Public Choice, 50, 6.
Fox, J., & Jordan, S. (2011). Delegation and accountability. Journal of Politics, 73, 831.
Friedman, D. (2014). Public health regulation and the limits of paternalism. Connecticut Law Review, 46, 1687–1770.
Galle, B. (2017). What’s in a nudge? Administrative Law Review. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2922712.
Glaeser, E. (2006). Paternalism and psychology. University of Chicago Law Review, 73, 133–156.
Haidt, J., & Baron, J. (1996). Social roles and the moral judgment of acts and omissions. European Journal of Social Psychology, 26, 201.
Hausman, D., & Welch, B. (2010). To nudge or not to nudge. Journal of Political Philosophy, 18, 123–136.
Hill, A. (2015). Does delegation undermine accountability: Experimental evidence on the relationship between blame shifting and control. Journal Empirical Legal Studies, 12, 311–339.
Kagan, E. (2001). Presidential administration. Harvard Law Review, 114, 2245–2385.
Lamond, G. (2001). Coercion and the nature of law. Legal Theory, 7, 35.
Livermore, M. (2014). Cost-benefit analysis and agency independence. University of Chicago Law Review, 609, 616.
Reisch, L. A., Sunstein, C. R., & Gwozdz, W. (2017). Viewpoint: Beyond carrots and sticks: Europeans support health nudges. Food Policy, 69, 1–10.
Sunstein, C. (2013a). Why nudge? The politics of libertarian paternalism (pp. 123–162). New Haven: Yale University Press.
Sunstein, C. (2013b). Behavioral economics and paternalism. Yale Law Journal, 122, 1826–1899.
Sunstein, C. (2014a). Nudging and choice architecture: Ethical considerations, at 3. Aavailable at http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2551264.
Sunstein, C. (2014b). Why nudge?: The politics of libertarian paternalism. New Haven: Yale University Press.
Sunstein, C. (2016a). The ethics of influence: Government in the age of behavioral science. Cambridge: Cambridge University Press.
Sunstein, C. (2016b). People prefer system nudges (kind of). Duke Law Journal, 66, 1.
Sunstein, C. R. (2017). Default rules are better than active choosing (Often). Trends in Cognitive Sciences. doi:10.1016/j.tics.2017.05.003.
Thaler, R., & Sunstein, C. (2008). Nudge: Improving decisions about health, wealth, and happiness. New Haven: Yale University Press.
Wiener, J., & Alemanno, A. (2011). Comparing regulatory oversight bodies across the Atlantic: The Office of Information and Regulatory Affairs in the US and the Impact Assessment Board in the EU. In S. Rose-Ackerman, P. Lindseth (Eds.), Comparative administrative law. Northhampton: Edward Elgar.
Willis, L. (2011). The financial education fallacy. American Economics Review, 101, 429.
Yeung, K. (2012). Nudge as fudge. Modern Law Review, 75, 122.
Yeung, K. (2016). The forms and limits of choice architecture as a tool of government. Law & Policy, 38, 186–210.
Zwyicki, T. (2014). Behavior, paternalism, and policy: Evaluating consumer financial protection. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2408083.
About this article
Cite this article
Hill, A. Why Nudges Coerce: Experimental Evidence on the Architecture of Regulation. Sci Eng Ethics 24, 1279–1295 (2018). https://doi.org/10.1007/s11948-017-9944-9