Are Nudges Legal? On Nudges, Human Dignity and the Rule of Law

Jeremy Waldron’s critique to Cass Sunstein on the risks posed by nudges on human dignity (by not allowing agents to recognize themselves in their own decisions) was a turning point in the academic discussion of the legitimacy of nudges. In this paper I will argue that this dignitarian objection can be invoked to question the legality of nudges, that is, their compatibility with the rule of law. For this purpose, I will emphasize that Lon Fuller’s conception of the rule of law (according to which laws ought to be clear, public, prospective, etc.) involves a commitment to the dignity of a responsible agent, that is, an individual capable of understanding and responding to rules. Since nudges do not create reasons for action and are not cognitively accessible some have suggested they lie outside the legal system. I will consider this possibility but, in the end, I favor a more moderate solution, arguing for the implementation of safeguards and mechanisms for a democratic control of nudges

Behavioral Responsive Regulation

The ambition to improve regulators’ responsiveness to regulatees has been the driving force of two of the most influential theories in regulation in the past decades: Responsive Regulation and Behavioral Public Policy. Yet despite their substantial impact and shared ambitions, RR and BPP have rarely intersected. In this paper, we explore the intellectual evolution of RR and BPP, and compare their differences in assumptions, methodology, and prescriptions. We argue that these differences can be leveraged to promote both theories and generate a synthesis – Behavioral Responsive Regulation (BRR) – that surpasses its progenitors in helping to understand and improve regulation. We offer an expanded regulatory pyramid for BRR and illustrate the advantages of our approach in many contexts and particularly through the example of taxation. Finally, we argue that BRR promotes the effectiveness, efficiency, and legitimacy of regulation, and is superior in these dimensions to both RR and BPP.

Nudging and disadvantaged groups: insights from the Chilean experience

Underlying the concept of nudge are two core theoretical assumptions: that everyone is equally receptive to nudges and that nudges can promote autonomy and welfare. These theoretical assumptions have had significant implications for public policymaking. In the last ten years, the use of nudges as regulatory tools has gained increasing attention in a wide range of social policy fields, such as welfare benefits, healthcare, and environmental protection, etc. Chile has recently joined this trend, formulating and implementing several policies informed by behavioral insights. Examples include front-of-package warning signs, nutrition labels, water-saving campaigns, warning signs and pictures in cigarette packages, amongst others. The use of these self-regulation and soft-regulation tools, against the backdrop of widespread inequality and a heavily market-based approach to social policy issues, raises pressing questions of constitutional equality, non-discrimination, and group vulnerability.