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68 Duke L.J. 1843 (2018-2019)
Sludge and Ordeals

handle is hein.journals/duklr68 and id is 1875 raw text is: 








Essay


                   SLUDGE AND ORDEALS

                            CASS R. SUNSTEINt

                                ABSTRACr
        Is there an argument for behaviorally informed deregulation? In
     2015, the United States government imposed 9.78 billion hours of
     paperwork burdens on the American people. Many of these hours are
     best categorized as sludge,  understood as friction, reducing access to
     important licenses, programs, and benefits. Because of the sheer costs
     of sludge, rational people are effectively denied life-changing goods
     and services. The problem is compounded by the existence of
     behavioral biases, including inertia, present bias, and unrealistic
     optimism. A serious deregulatory effort should be undertaken to
     reduce sludge through automatic enrollment, greatly simplified forms,
     and reminders. At the same time, sludge can promote legitimate goals.
     First, it can protect program integrity, which means that policyakers
     might have to make difficult tradeoffs between (1) granting benefits to
     people who are not entitled to them and (2) denying benefits to people
     who are entitled to them. Second, it can overcome impulsivity,
     recklessness, and self-controlproblems. Third, it can prevent intrusions
     on privacy. Fourth, it can serve as a rationing device, ensuring that
     benefits go to people who most need them. Fifth, it can help public
     officials to acquire valuable information, which they can use for
     important purposes. In most cases, however, these defenses of sludge
     turn out to be far more attractive in principle than in practice. For
     sludge, a form of cost-benefit analysis is essential, and it will often
     demonstrate the need for a neglected form of deregulation: sludge
     reduction. For both public and private institutions, Sludge Audits
     should become routine, and they should provide a foundation for
     behaviorally informed deregulation. Various suggestions are offered
     for new action by the Office of Information and Regulatory Affairs,


Copyright © Cass R. Sunstein 2019.
    t  Robert Walmsley University Professor, Harvard University. I am grateful to Stuanne
Hollister and Cody Westphal for superb research assistance, and to Richard Thaler for many
relevant conversations. The Program on Behavioral Economics and Public Policy at Harvard Law
School provided valuable support. This essay was written for a symposium held by the Duke Law
Journal at Duke University School of Law in February 2019.

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