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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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