Code, Nudge, or Notice?

• Author: Ryan Calo
• Pages: 773-802

773

Code, Nudge, or Notice?

Ryan Calo

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.

774 IOWA LAW REVIEW [Vol. 99:773

INTRODUCTION ...................................................................................... 775

I. CODE ...................................................................................................... 778

II. NUDGE ................................................................................................... 783

III. NOTICE .................................................................................................. 787

IV. OVERLAP ................................................................................................ 790

A. DIFFERING CONVERSATIONS .............................................................. 790

B. EASY AND HARD CASES ..................................................................... 792

C. COMMON VALUES ............................................................................. 794

V. FRICTION OR FACILITATION? ................................................................. 796

CONCLUSION ......................................................................................... 801