3 Admin. L. Rev. Accord 1 (2017-2018)

handle is hein.journals/alrcod3 and id is 1 raw text is: 











       A RESPONSE: WHAT'S IN A NUDGE?


                              BRIAN GALLE*

                              INTRODUCTION
   This Essay offers some brief comments on Professor Sunstein's very fine
survey project, Do People Like Nudges?, which appeared recently in the
Administrative Law Review.' The survey is deeply imbedded in Sunstein's on-
going project of elaborating and defending the nudge concept,2 an idea that
has been enormously influential over the past decade and a half.3 My com-
mentary necessarily engages both the survey and that larger project. To pre-
view, my central take on both the project and the survey's contribution to it,
is that if anything they have been too modest. Researchers who want to push
behavioral economics beyond the bounds of what Sunstein has been inclined
to defend may need to be careful to distinguish their projects from his, in-
cluding by taking the simple but important step of using different words for
the objects of their studies.
   From the early days of the 0Vudge project, there was a sense at least
among commentators on the left of a certain frustration with the project's
limited scope.4 Instead of exploring the potential for behavioral economics
to open new options in the regulation of virtually any social problem, Sun-
stein and Thaler seemed determined to focus instead only on a project of
convincing regulation skeptics. Again and again, they debate the legiti-
macy of nudging, particularly with respect to regulations that aim to protect

         * Professor, Georgetown Univ ersity Law Center. My thanks to Professor Sunstein
and the staff of the Administrative Law Rev iew. This Essay was accepted for publication in
January 2017.
   1. Cass R. Sunstein, Do People Like.,Vudges, 68 ADMI1N. L. RLV. 177 (2016).
   2. E.g., RICHARD THALLR & CASS SUNSIrJN, NUDGL (rev. & expanded ed. 2009).
   3. See RHYS JONLS LT AL., CHANGING BLHAV1OURS: ON THL RISL OF THL
PSYCHOLOGICAL STAIT vii xii (2013).
   4. On Amir & Orly Lobel, Stumble, Predict, ,Vudge: How Behavioral Economics Infw s Law and
Poliy, 108 COLUB. L. RLV. 2098, 2127 32 (2008); Pierre Schlag,,Vudge, Choice Architecture, and
Libertarian Paternalism, 108 MICH. L. RLV. 913, 919 (2010). For more recent commentary along
these lines, see, Frank Pasquale, 1T74 'Vudges Hardl Help, AILANTIC (Dec. 4, 2015),
https://w-w\w,,.theadantic.com/business/archive/2015/12/nudges-effeCti\eness/418749/.

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