Law in the Internet Society
It is a well-established observation of behavioral psychology that choices – all sorts of choices, from relatively minor ones like which menu item to order at a restaurant to truly significant decisions about the management of money or health care – are subject to significant influence by external factors outside the control, or even the conscious awareness, of the people who make them. This field of study is relatively young, yet its insights have had a profound influence on business, policy, and economics, where one of the earliest pioneers in the field, Daniel Kahneman, won a Nobel Prize for his work usurping the predictive power of the long-held “rational maximizer of self-interest” model of human economic decision-making.

In response to the emergence of behavioral psychology, a new philosophy of government and private management is emerging, emphasizing the manipulation of choice architecture – that is, the context surrounding the presentation of a choice – in order to prompt people, without forcing them, to make choices that will enrich their lives or promote some other pro-social goal. The object is to find areas in which peoples’ everyday intuitions, default choices, or heuristics tend to conspire to lead people to make decisions that they would not if they were giving a full application of their reason, and change some or many aspects of the choice architecture to subtly push people toward the “better” choice. These subtle pushes, called nudges by Cass Sunstein, may take many forms: placing office amenities like bathrooms far away from offices, thus increasing the odds that people will run into one another the halls, in workplaces that want to encourage collaboration and collegiality; designing cafeteria lines to promote the selection of healthy options; providing sugary drinks to judges to combat the effects of cognitive fatigue on their decision-making. The result is to demonstrably promote welfare and improve behavior while preserving freedom of choice.

There are numerous attractive features to this model: nudges are typically cheap to implement, they feel natural, and their preservation of choice avoids problems related to coercion. But because they rely on exploiting errors in decision-making, nudges must rely on a deep knowledge of the human subconscious to be effective. After all, the judge who denies a higher and higher proportion of parole applications as lunchtime draws near is not doing so because she thinks this is a right and good way to make decisions about peoples’ lives, she does so because it takes more cognitive effort to deviate from a default action than to not, and the glucose she needs to make that cognitive effort has been depleted by a long morning of hard intellectual labor. Only by understanding this subconscious process can a nudge to correct the flaw influencing her decisions can be designed.

Thus, we come to a limitation of this method and the nexus to our class. Because nudging requires deep knowledge of subconscious processes, it can only take advantage of general subconscious errors, and moreover, only those general subconscious errors that are discoverable by the methods available to researchers: small–scale controlled experiments, limited real world observation. But with the advent of online tracking software, as more of our behavior moves into the digital realm, it has become not only plausible but probable if not certain that the idiosyncrasies of individual subconscious processes may become discoverable by observers who know what they’re looking for. It stands to reason that individually-targeted nudges might be even more effective than others, and therefore, peoples lives might be improved more completely and more quickly, which surely is a good goal of governments, producers of self-help products, or both.

Many objections to this concept spring to mind. Corporations and governments are not necessarily benevolent institutions and these tools in the hands of a bad actor would likely be at least as destructive as they would be positive in the hands of a good actor. Even assuming good faith, it is overly presumptuous to believe that a third party could know what’s best for another individual and so nudge them in positive directions. It is overly invasive to seek this sort of knowledge. All these and other criticisms are meritorious and worthy of careful discussion and consideration. However, there is one objection that I think is most interesting. That is: individually-targeted nudges are a violation of autonomy.

By altering the choice architecture around each individual, based on specific knowledge of the idiosyncrasies of that individual’s subconscious processes, we move from nudgers to puppet masters who have completely shattered the illusion of choice or free will from the targets of the nudge. It is one thing to know that generally, Chicago-area public school students will purchase 25% more produce with one cafeteria configuration than with the original; it is quite another to know that Jimmy Eckhart of Downer’s Grove Elementary wasn’t in a good mood this weekend so perhaps there should be a special treat – just one, the last one – for sale at a reduced price at eye level at the end of the cafeteria line when he goes through so that he’ll be 45% more likely to buy it, and therefore 32% less likely to throw a fit during the math class for which he probably did not do his homework on account of his mood.

This is a fascinating argument to me because it has a very strong intuitive appeal despite the fact that nothing has changed on the surface of the decision. If there is a cafeteria line, it must be laid in out some way, and it would be absurd to say that this fact destroys autonomy simply because the choice of how it is laid out will have some effect relative to all other possible layouts; to call it a destruction of autonomy would serve as a de facto denial that there can ever be autonomy, and thereby negate the point. But once the choice architecture begins changing to specifically influence each individual person, there is an inevitable sense of transgression.

I arrive at the conclusion of this essay with nothing firm to conclude: I very much like the potential of nudges to do good in the world; I think the objections to individually-targeted nudges have a good deal of merit, but I don’t believe any of them are knock-down arguments. However, I suspect that there is something important in the tension identified in the last paragraph; I hope to tease it out either in the revision to this essay or perhaps in a new essay next semester.

-- TomLawrence - 05 Jan 2015

 

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r1 - 05 Jan 2015 - 21:43:26 - TomLawrence
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