Brett M. Frischmann
Villanova University - School of Law
Originally published August 1, 2019
Behavioral data can and should inform the design of private and public choice architectures. Choice architects should steer people toward outcomes that make them better off (according to their own interests, not the choice architects’) but leave it to the people being nudged to choose for themselves. Libertarian paternalism can and should provide ethical constraints on choice architects. These are the foundational principles of nudging, the ascendant social engineering agenda pioneered by Nobel Prize winning economist Richard Thaler and Harvard law professor Cass Sunstein.
The foundation bears tremendous weight. Nudging permeates private and public institutions worldwide. It creeps into the design of an incredible number of human-computer interfaces and affects billions of choices daily. Yet the foundation has deep cracks.
This critique of nudging exposes those hidden fissures. It aims at the underlying theory and agenda, rather than one nudge or another, because that is where micro meets macro, where dynamic longitudinal impacts on individuals and society need to be considered. Nudging theorists and practitioners need to better account for the longitudinal effects of nudging on the humans being nudged, including malleable beliefs and preferences as well as various capabilities essential to human flourishing. The article develops two novel and powerful criticisms of nudging, one focused on nudge creep and another based on normative myopia. It explores these fundamental flaws in the nudge agenda theoretically and through various examples and case studies, including electronic contracting, activity tracking in schools, and geolocation tracking controls on an iPhone.
The paper is here.