30. Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav. 303, 312 (2010).
31. Id. at 312–313.
32. Id. at 314.
33. Id. at 314–315.
34. Id. at 320. An important set of qualifications of these findings can be found in Thomas Wood & Ethan Porter, The Elusive Backfire Effect: Mass Attitudes’ Steadfast Factual Adherence (2018), Political Behavior (forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2819073. Wood and Porter show that in multiple domains, corrections do not backfire, even when they challenge preexisting political convictions. Their findings suggest that we need to know the boundary conditions for the phenomenon of backfiring corrections. An intense commitment to the original belief will of course make corrections less likely to work (and potentially backfire); distrust of the source is also relevant.
35. Brendan Nyhan, Jason Reifler, & Peter A. Ubel, The Hazards of Correcting Myths about Health Care Reform, 51 Med. Care 127, 127 (2013).
36. Id. at 129–130.
37. Id.
38. Id.
39. Nyhan & Reifler, supra note 30, at 321.
40. Id. at 321–322.
41. See Geoffrey Cohen, Party over Policy, 85 J. Persp. Soc. Psychol. 808 (2003).
42. Id.
43. See The Federalist No. 10 (James Madison).
44. Pub. L. 101-510, 104 Stat. 1485 (1990).
45. The Budget Control Act of 2011, Pub. L. 112-25, S. 365, 125 Stat. 240 (2011).
46. Id.
Closing Words
Human beings like patterns. Our minds work by seeing them, whether or not they are really there. When an individual life has taken a particular shape, and when a society has gone in specific direction, we tend to think that it was all inevitable—as if various pieces fit together. After the fact, we can see that they do. John was destined to be a lawyer. From birth, it was clear that that Susan would go into medicine. Thomas and Linda were bound to break up. Joan and Eric were made for each other. If same-sex marriage came to certain countries in the second decade of the twenty-first century, the time was right. If a certain musician or film suddenly became spectacularly popular, that was essentially inevitable; it connected with the culture. If #MeToo exploded in 2017, and if there was new attention to sexual harassment and sexual assault in that year, then that was bound to happen, especially in light of what happened in 2016.
Because history is only run once, it is hard to show that these claims are false. Some marriages cannot be saved, and some social movements certainly seem inevitable. But small shocks make all the difference. John meets a terrific teacher in college, who inspires him to think about law school; without that teacher, he would never have done that. (That is what actually happened to me.) A musician or film gets the right break at the exactly the right time—a sudden burst of enthusiasm from the right person or group—and that changes everything.
Some political movements are beneficiaries of tipping points and cascade effects. Some are not. Some norm entrepreneurs are skilled, lucky, or both. Some are not. After the fact, we find patterns, and they are there. But if things had gone otherwise, we would have found different patterns, and they too would have been there. A movement that seems inevitable in one year or in one period may have been a beneficiary of a critical nudge or push at a particular moment. Without that, it might have developed later, or perhaps not at all.
Consider in this regard the 2013 Oscar winner for best documentary, Searching for Sugar Man, a stunning film about an unsuccessful Detroit singer-songwriter named Sixto Rodriguez, who released two long-forgotten albums in the early 1970s. Almost no one bought his albums, and his label dropped him. Rodriguez stopped making records and worked as a demolition man. What Rodriguez did not know, while working in demolition, was that he had become a spectacular success in South Africa—a giant, a legend, comparable to the Beatles and the Rolling Stones. Describing him as “the soundtrack to our lives,” South Africans bought hundreds of thousands of copies of his albums, starting in the 1970s. Searching for Sugar Man is about the contrast between the failed career of Detroit’s obscure demolition man and the renown of South Africa’s mysterious rock icon.
It is tempting to think that Rodriguez resonated with South Africa’s culture, that the cultural link made him a spectacular success there, and that the absence of such a link produced failure elsewhere. Don’t believe it. He was the beneficiary of early popularity in South Africa, and that fueled a cascade. With a little luck, the same thing could have happened to him in the United States, the United Kingdom, Australia, or France. It didn’t.
One of my major claims involves the constraining effects of social norms. People often do as they do, say what they say, and maintain silence only because of the pressure imposed by norms. We might take those norms for granted and have no particular attitude toward them. They are part of life’s furniture. We might approve of them. We might dislike them or even deplore them; those are among the most interesting cases. If people live in accordance with norms they abhor, the circumstances are right for sudden change. People can be unleashed. Whether that is desirable depends on what exactly they are unleashed to do.
By contrast, some social movements inculcate beliefs and values that did not exist before. Sometimes preferences have adapted to existing practices and norms; nothing has been suppressed, and there is nothing to unleash. In those circumstances, large-scale change may be more difficult and also slower. But in such circumstances, cascades are possible as well. Serendipitous interactions and enclave deliberation, featuring people determined to fuel cascades, can be essential. They produce stunning surprises.
Acknowledgments
This book reflects decades of thinking, and I owe a great debt to a lot of people. I hope I may be forgiven for singling out just a few.
Special thanks to Richard Thaler, my collaborator on all issues relating to nudging, for that collaboration and, even more, his friendship. Heartfelt thanks too to Jon Elster, Eric Posner, Lucia Reisch, and Edna Ullmann-Margalit for help with many of the ideas here. Emily Taber, my editor, did a terrific, careful job; she is also a joy to work with. Thanks as well to Sarah Chalfant, my agent, for wisdom and support; Madeleine Joseph for truly exceptional research assistance; Melinda Rankin for a careful and superb copyedit; and the Program on Behavioral Economics and Public Policy at Harvard Law School for financial support.
The chapters here draw on earlier work, though there have been substantial revisions. For permission, I am grateful to the relevant publications: chapter 1, Unleashed, 85 Soc. Res. 73 (2018); chapter 2, Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L. J. 71 (2000); chapter 3, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021 (1996); chapter 4, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 583 (2014); chapter 5, Forcing People to Choose Is Paternalistic, 82 Missouri L. Rev. 643 (2017); chapter 7, Nudges That Fail, 1 Behav. Pub. Pol’y 4 (2017); chapter 9, The Ethics of Nudging, 32 Yale J. Reg. 413 (2015); chapter 10, “Better Off, as Judged by Themselves”: A Comment on Evaluating Nudges, Int’l Rev. Econ. (2017); chapter 11, Nudges vs. Shoves, 127 Harv. L. Rev. F. 210 (2014); chapter 11, On Preferring A to B, While Also Preferring B to A, 30 Rationality and Politics 305 (2018); chapter 12, Output Transparency vs. Input Transparency, in Troubling Transparency (David Pozen and Michael Schudson eds. 2018); chapter 13, Beyond the Precautionary Principle, 151 U. Pa. L. Rev. 1003 (2004); chapter 14, Moral Heuristics, 28 Behav. & Brain Sci. 531 (2005); chapter 15, Is Deontology a Heuristic? On Psychology, Neuroscience, Ethics, and Law, 63 Iyyun: The Jerusalem Philosophical Quarterly 83 (2014) (special memorial issue for Edna Ullmann-Margalit); chapter 16, Partyism, 2015 U. Chi. Legal F. 1 (2015).
Index
1984 (Orwell), 18, 93
Abstraction
dangers of, 117–120
ethics and, 117–122
transparency and, 185, 188
Accountability
, xii, 184–191, 194
Active choosing
ethics and, 118–120, 124–125, 132–134
forcing choices and, 62, 68–82, 85
nudges and, 62, 68–82, 85, 88, 118–120, 124–125, 132–134
welfare and, 88
Adams, John, 12–13
Affirmative action, 19–20, 26, 192
Affordable Care Act, 72, 189, 266
African Americans, 21, 34, 39, 46–47, 171, 258–260
Agency
control and, 137–139, 142
forcing choices and, 68, 72, 78, 80, 84
morals and, 227–228
partyism and, 268
preferences and, 171
rational choice and, 139–141, 157
transparency and, 183, 187–189, 192, 195
AIDS, 206
AirNow, 187
Air quality, 166, 187–189
AJBT (“as judged by themselves”) criterion, 87–94
Alcohol, 7, 47, 63, 90–91, 112, 228
American Revolution, 12
Anderson, Elijah, 46–47
Argument pools, 20, 26, 29, 35
Armstrong, Scott, 191
Asian disease problem, 224–226
Attribute substitution, 218–219
Automatic enrollment
coercion and, 149–152
control and, 138
ethics and, 124, 127–128
paternalism and, 59–62, 87, 89, 91–92, 98, 102–103, 106, 124, 127–128, 138, 149–152, 176
preferences and, 176
welfare and, 87, 89, 91–92
Autonomy
coercion and, 149, 152
ethics and, 115, 117, 119–125, 129–134
forcing choices and, 68, 76–81, 84–85
nudges and, 68, 76–81, 84–85, 113, 115, 117, 119–125, 129, 131–134, 149, 152
rights and, 250
Availability entrepreneurs, 11
Availability heuristic
discrimination and, 10–12
ethics and, 122
familiarity and, 210
forcing choices and, 83
moral heuristics and, 217–218, 221, 224, 236
nudges and, 83, 101, 122, 144
precautions and, 209–211
rights and, 251
risk and, 210–211
social norms and, 10–12
transparency and, 186, 188–189
unleashing and, 10–12
Bans
coercion and, 147, 154
control and, 138
ethics and, 116, 133
expressive function of law and, 41, 47, 50
hate speech and, 41
manner restrictions and, 47
nudges and, 59–60, 97, 104–105, 111, 113, 116, 133, 138, 147, 154
precautions and, 201, 204, 206
rights and, 250
uses of money and, 50
Behavioral Insights Team, 60
Behavioral science, xii, 61, 98, 117, 157
Beliefs
anonymity and, 278n10
control and, 142
creating new, 4, 6
ethics and, 126, 128
forcing choices and, 69
moral heuristics and, 215–216, 223, 241
nudge failures and, 103, 110
partyism and, 261, 266, 305n34
precautions and, 202, 207–210
preexisting, 3, 6
religion and, 7 (see also Religion)
social norms and, 3–7, 10, 13, 17, 22, 27, 42
transparency and, 192
values and, 3–7, 10, 13, 17, 22, 27, 42, 274, 278n10
Betrayals, 230–232
Bias
behavioral, 69, 87, 93, 97, 108, 110–111, 117–118, 122–124, 133, 154, 159
choice architecture and, 82, 87, 93, 101, 122, 133
coercion and, 151, 154
control and, 139–140, 144
ethics and, 116–118, 122–124, 133
forcing choices and, 69, 82–83
implicit, 259
information, 69, 87, 93, 110, 117, 124, 133, 216–218
moral heuristics and, 216, 218, 232, 239
nudges and, 69, 82–83, 87, 93, 97, 101, 108–111, 116–118, 122–124, 133, 139–140, 144, 151, 154, 159, 170–171, 178, 286n14
officials and, 133–134
omission, 232, 239
partyism and, 259
precautions and, 209
preferences and, 159, 170–171, 178
unrealistic optimism and, 69
welfare and, 87, 93
Bloomberg, Michael, 138
Bobadilla-Suarez, Sebastian, 142
Body mass index (BMI), 189
Brandeis, Louis, 63
Brethren, The (Woodward and Armstrong), 191
Brexit, x, 138
Brown v. Board of Education, 40
Burkean conceptions, 36
Bursztyn, Leonardo, 16–17
Bush, George W., 265–266
Capital punishment, 11, 29, 43–44, 243
Cascades
availability, 10–11
expressive function of law and, 46, 48
group polarization and, 21, 31–32, 34
informational, 9–11, 21, 31, 34, 48, 279n28
moral heuristics and, 223
politics and, 273–274
reputational, 9–11, 21, 34, 46
social norms and, 9–12, 21, 31–32, 34, 46, 48, 279n28
China, 189, 205
Choice architecture
active choosing and, 71
availability heuristic and, 101
bias and, 82, 87, 93, 101, 122, 133
declined response and, 72
default rules and, 68, 71–72, 81, 87, 95–101, 104, 109–110, 114–115, 118, 121, 123, 125, 130, 148
ethics and, 115–125, 130, 133–134
forcing choices and, 68, 71–72
goals and, 89
nudges and, 60, 68, 71–72, 87, 89, 93, 101, 104, 114, 115–125, 130, 133–134
preferences and, 87, 157
social environment and, 60
transparency and, 118–119
welfare and, 87, 89, 93
Civil rights
civil disobedience and, 11
discrimination and, 14–15, 43, 51
enclave deliberation and, 35, 37
expressive function and, 44
King and, 11, 32
polarization entrepreneurs and, 32
social norms and, 3, 11, 14–15, 32, 35, 37, 43–44, 51
transparency and, 195
Civil Rights Act, 14–15
Climate change, 10–11, 22, 138, 141, 203, 205, 212
Clinton, Bill, ix, 186
Cloning, 235–237
Coercion
automatic enrollment and, 149–152
autonomy and, 149, 152
bans and, 147, 154
bias and, 151, 154
consumers and, 152–155
cost-benefit analysis and, 148, 154–155
default rules and, 147–150, 155
dignity and, 149
disclosure and, 152
entitlements and, 153
environmental issues and, 150–153
ethics and, 116, 121, 124–126
expressive function of law and, 47
externalities and, 153
food and, 148
forcing choices and, 68, 70, 72
freedom of choice and, 147–152, 155, 289n2
fuel economy and, 152–155
group polarization and, 33
human error and, 147, 155
intrinsic value and, 149, 152
loss aversion and, 154
mandates and, 147–155
moral heuristics and, 238
nudges and, 60, 68, 70, 72, 77, 97, 116, 121, 124–126, 147–155
paternalism and, 68, 70, 72, 120–121, 123, 154
preferences and, 155
retirement and, 150, 152
risk and, 147–148, 152–153, 155
savings and, 149–154
self-control and, 147
students and, 150
values and, 149, 152–154
welfare and, 147–155, 289n2
Cognitive reflection test (CRT), 249–250
Collective action
expressive function of law and, 44–46, 51–52
forcing choices and, 72, 78, 81, 83
nudges and, 72, 78, 81, 83, 111
social norms and, 44–46, 51–52, 279n23
College Affordability and Transparency Center, 187
Comparison friction, 162–163, 167, 290n4
Congress, 161, 164, 168, 194, 261–262, 267, 269
Conly, Sarah, 129–130
Conscience, 100, 191
Consequentialists, 53
fixed points for, 244
footbridge problem and, 174–175, 245–248, 250, 254
legal issues and, 243
morals and, 222–223, 233–235, 243–244
rights and, 243–245, 248–254, 301n2, 302n22
trolley problem and, 174–175, 245–246, 250, 254
weak consequentialism and, 222–223, 233–235, 244
Constitutional law, 20, 37, 40–41, 43, 196, 238, 243
Consumers
campaigns for default positions and, 286n14
coercion and, 152–155
control and, 138
ethics and, 120, 122
forcing choices and, 68, 71, 73, 76
moral heuristics and, 237
nudges and, 61, 63, 65, 68, 71, 73, 76, 102, 104, 106, 108–111, 120, 122, 138, 152–155, 158, 160, 164–165, 168–169, 177
preferences and, 158–160, 164–165, 168–169, 177, 290n4
transparency and, 183, 190
Contingent valuation, 175–176, 179
Control
agency and, 137–142
automatic enrollment and, 138
bans and, 138
beliefs and, 142
bias and, 139–140, 144
consumers and, 138
cost-benefit analysis and, 144
default rules and, 138
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