Code, Nudge, or Notice?
ABSTRACT: Regulators are increasingly turning to means other than law
to influence citizen behavior. This Essay compares three methods that have
particularly captured the imagination of scholars and officials in recent
years. Much has been written about each method in isolation. This Essay
considers them together for the first time in order to generate a novel
normative insight about the nature of regulatory choice.
The first alternative method, known colloquially as architecture or “code,”
occurs when regulators change a physical or digital environment to make
undesirable conduct difficult. Speed bumps provide a classic example. The
second method, libertarian paternalism or “nudging,” refers to leveraging
human bias to guide us toward better policy outcomes. For instance, the state
might attempt to increase organ donation by moving to an opt-out system
because people disproportionally favor the status quo. Finally, mandated
disclosure or “notice” requires organizations to provide individuals with
information about their practices or products. Examples include everything
from product warnings to privacy policies.
These methods feel more distinct than they actually are. The timely example
of graphic warnings on cigarettes illustrates how hard it can be to
characterize a given intervention and why categorie s matter. The issue—
which was headed for the Supreme Court—turned on whether the Food and
Drug Administration (“FDA”) intended for the warnings to change smoker
behavior or merely to provide information. The FDA abandoned the
intervention when it became clear the “warnings” were really about driving
down smoking. Indeed, whether regulators employ code, nudge, or notice,
they almost always have a deeper choice between helping citizens and
hindering them. This Essay argues that regulators should choose
“facilitation” over “friction” where possible, especially in the absence of the
usual safeguards that accompany law.
Assistant Professor of Law, University of Washington School of Law. Affiliate Scholar,
Stanford Law School Center for Internet and Society. Thank you to Jean Brownell, Steve
Calandrillo, Ronald Collins, Mary Fan, Michael Townsend, Shannon McCormack, Evan
Selinger, Pelle Guldborg Hansen, Jathan Sadowski, Diana Cooper, and Kathryn Watts for their
helpful comments, to Michael Umberger and Alena Wolotira, for their excellent res earch
support, and to Grace Feldman for her expeditious cite-checking.