About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

40 Regulation 55 (2017-2018)
Who Will Nudge the Nudgers

handle is hein.journals/rcatorbg40 and id is 55 raw text is: 


SPRING 2017 / Regulation / 55


ligentsia had had still more power. Imagine
what would happen  to the First Amend-
ment if the high priests of college political
correctness were to form the government's
epistocratic council. Imagine the propo-
nents of the parenting license among the
top epistocrats of the future. If a mild level
of epistocracy has not worked, it is not clear
that more of the same is the solution.

Classical liberal solution / An alternative
solution, which is the classical liberal solu-
tion, is to limit the scope of state action.
If the state did little, the damage done
by political ignorance would be limited,
especially in a representative democracy,
and more to the point in a republic based
on the division of power. Brennan does
not disagree with this, but he believes that
more epistocracy would lead us to less gov-
ernment, which is a contentious claim.
   Power to the knowers? No. But power to
the ignorant neither. Some mild epistocratic
elements could be added to the current
political system. State propaganda should
not actively encourage the ignorant to vote.
(An ignorant nonvoter is more respectable
than an ignorant voter.) If politically palat-
able, a poll tax would reduce the electoral
participation of those who vote only to fol-
low the crowd and entertain themselves.
(Brennan hints at a similar measure.) The
voting age could be raised.
   Libertarian economist and political
philosopher James  Buchanan's  way of
conceiving the foundations of classical
liberalism may be useful here: Each man
counts for one, and that is that, he wrote
in The Limits of Liberty (University of Chi-
cago Press, 1975). Is Brennan too quick to
discard the symbolic value of democracy?
What is the best form of government (if we
need any) to protect individual liberty? On
these deep issues, political philosophers
disagree after 2,500 years of analysis and
debate. This observation does not invali-
date the necessary pursuit of truth, but it
does cast further doubts on epistocracy.
   Perhaps libertarians should be content
to dwell somewhere between wild populism
and undisguised epistocracy. This may be
the true lesson of Against Democracy.  1


Who Will Nudge the Nudgers?

    REVIEW   BY  PHIL  R. MURRAY



         avid Halpern   heads the United  Kingdom's Behavioural Insights
         Team,  also known as   the  Nudge   Unit. It was originally a part
         of the UK  government but now is a partly private entity. This
book,  he writes ofInside the Nudge  Unit, is about the application ofpsy-
chology   to the challenges  we  face in the world  today. He  is dedicated
to applying behavioral psychology as a   sumption data in'machine-readable form.'


tool of government. Love it, or hate
it, he declares, nudging is here to stay.
   Richard Thaler, professor of economics
and behavioral science at the University of
Chicago, and Cass Sunstein, professor of
law at Harvard, introduced the idea ofnudg-
ing to the public in their 2008 book Nudge.
(See A Less Oppressive Paternalism, Sum-
mer 2008.) Halpern explains, A 'nudge'
is essentially a means of encouraging or


guiding behaviour, but with-
out mandating or instructing,
and ideally without the need
for heavy financial incentives
or sanctions. As such, nudg-
ing seems harmless.
   Opposition  arises, how-
ever, from those  who  see
nudges as too tame, as well
as those who see nudging as
some kind of pernicious form
of meddling. To illustrate the
former view, take the example
of an anti-litter campaign that
paints footsteps on a sidewalk
to show the way to a garbage
can. The nudge supposedly
encourages people to dispose
of litter properly; critics of
the effort would prefer a law
that prohibits littering and
a fine for those who disobey.


This nudge supposedly helps consumers
make more informed decisions in the mar-
ketplace, for instance by showing them
which nearby supermarket sells selected
items at the lowest prices or with the least
carbon footprint. The secretary could not
unilaterally impose this regulation. But, as
though it were a feature and not a bug, Halp-
ern writes, this sword of Damocles had an
almost immediate impact, encouraging at


    David Halpern




















By David Halpern
383 pp.; W.H. Allen,
2015 & 2016


To illustrate the latter criticism, take the
midata clause, which gave the Secretary
of State for Business [in the UK govern-
ment] the power to require firms to allow
their customers access to their own con-

PHIL R. MURRAY is aprofessor of economics at Webber
International University.


least some companies to com-
ply before they were pushed.
Perhaps he chose his words
poorly, but he appears to be
saying that nudging worked
in this case because the nud-
gees, if you will, feared being
pushed. That undermines
his argument that nudging is
a noncoercive tool of govern-
ment and gives ammunition
to his opponents who  fear
the sinister application of
nudging.

Government  nudges/  Most
of the book is about seem-
ingly uncontroversial nudg-
ing. Halpern begins with a
history of such policies. One
early example was Frederick
the Great, who wanted  his


Prussian subjects to produce and con-
sume  potatoes. Initial coercive efforts
failed. However, by growing potatoes for
his own consumption and feigning to pro-
tect his crop from theft, he successfully
generated covetousness in his subjects and
nudged  them  into producing and con-

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most