Gently Nudging with Liability Rules?

No Smoking symbolWhy have sexual harassment and anti-smoking laws been so successful in changing entrenched social norms in the U.S. over the past few decades? In a 2000 U. Chicago Law Review article, Dan Kahan observed that combatting these ills took the approach of “gentle nudges,” imposing moderate remedies that were within the range of what decisionmakers (e.g. judges and juries) thought was reasonably proportional to the violation. Because these moderate remedies were enforced, norms shifted, and lawmakers could ratchet up the remedies. By contrast, Kahan observed that “hard shoves” imposing remedies substantially exceeding social norms fail to be enforced or to change norms. For example, France tackled sexual harassment by making it a criminal offense, which French society saw as vastly disproportionate. As a result, French sexual-harassment law went unenforced against conduct that would have easily incurred liability under U.S. law, and French norms barely shifted.

There is an underexplored connection between Kahan’s “gentle nudge” vs. “hard shove” dichotomy, and Calabresi & Melamed’s “property rule” vs. “liability rule” dichotomy. Calabresi & Melamed observed that remedies are either (1) liability rules, such as compensatory damages, or (2) property rules, such as injunctions or prison, which aim to deter. Liability rules generally overlap with “gentle nudges” in that they aim for proportional compensation. Property rules largely overlap with “hard shoves.”

The debate over the relative merits of property rules and liability rules has raged in academia and the courts. Bringing Kahan’s observations into the mix weighs in favor of liability rules, which are more likely to be enforced – and to shift norms.

I explore the relationship between these two dichotomies in sections II.C.3 and IV.C of a forthcoming article looking at IRS enforcement (or lack thereof). But their interrelationship is promising for anyone interested in either the property-rule/liability-rule debate or in altering social norms.

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7 Responses

  1. Brett Bellmore says:

    The problem here, though, is that the people most enamored of the idea of “nudges” right now, are people who can’t accept the “nudge” not, in the end, working. And what’s a nudge that you just keep ramping up until it works? Yup. A “shove”.

    The other problem is that nudges work best in altering social norms when they extend social norms, rather than attempting to reverse them. A norm against blowing smoke in people’s faces becomes a norm against second hand smoke, for instance.

    But a lot of today’s talk about “nudges” comes from people trying to impose new social norms, not simply extend existing ones. Like trying to impose gun control on a population with no norm AT ALL against gun ownership.

    I don’t see the ‘nudge’ talk, in the end, being much more than another excuse for coercion.

  2. Ken Rhodes says:

    Brett, I wouldn’t use the word “excuse.”

    Yes, any law that attempts to impose the will of the majority (assuming that it took a majority to pass the law) against the desire of the minority (assuming that the minority had not the power to prevent the law) is coercion. NOW certainly attempted to “coerce” the good-ol-boys in the office to bite their tongues when tempted to tell some off-color sex joke to the young secretary to see if they could get her to blush.

    But I think the above discussion about enforcement has nothing to do with making an excuse for the law. Rather, it seems, it says that if we use a certain subset of enforcement rules, rather than an alternative subset, we will achieve greater success. That, it seems to me, should be the objective of the majority who passed the law; i.e., to achieve compliance. The fact that the method may also be less distasteful, and less injurious in its penalty, is a bonus.

  3. Joe says:

    Nudges are a means of regulation. Many allow the ultimate thing in the end but make it somewhat harder, so if you want something (e.g., a gun when you are legally able to get one), you might have to think about it a bit more. If this is “coercion,” it is a fairly mild form. Speed limits are “coercive” too. Also, often the “nudges” are alternatives to more restrictive regulations.

    “Like trying to impose gun control on a population with no norm AT ALL against gun ownership.”

    What Brett is concerned about here is gun regulation, which is not “new,” since they have been in place in a myriad of ways since the beginning. The most notable “nudge” here is the background check bill. The bill doesn’t block gun ownership for those legally able to obtain guns. This is why so many gun owners have no problem with it, including lots of members of Congress (e.g., Patrick Leahy).

    It is helpful to know specifically what we are talking about.

  4. Brett Bellmore says:

    But owning a gun is a civil liberty. Is the government really permitted to “nudge” people into not exercising civil liberties?

  5. Andrew Blair-Stanek says:

    Brett, you are absolutely right that nudges are a form of coercion. But they are much less coercive than hard shoves. Between being required to pay a fee to compensate for the average social impact of activity X, and having the police potentially arresting you for activity X, which is preferable?

    Your question about nudging people into giving up civil liberties is very intriguing. It depends on the level of scrutiny applied by courts to burdens on that liberty, what the government’s goal is, and how closely tailored the nudge is to that goal.

  6. Joe says:

    “Is the government really permitted to “nudge” people into not exercising civil liberties.”

    The government can at times “nudge” people to not do things that are civil liberties (e.g., nudge people to choose a certain type of education, such as public school or joining a military academy), but they cannot use means that are unconstitutional. The nudge that “you might have to think about it a bit more” does not generally do that in this context.

  7. Brett Bellmore says:

    Joe, your example is the government nudging people about HOW they exercise a civil liberty, while mine is the government simply outright trying to discourage exercise of a particular civil liberty at all. I don’t think that’s quite the same thing, and the goal itself is constitutionally dubious.

    Another issue, of course, is where you draw the lines between the activities being nudged. In the case of smoking, the actual, legal activity, smoking, causes cancer. There’s no volition involved in whether a particular instance of smoking promotes disease or not. All instances of smoking carry a risk of disease.

    OTOH, suppose the difference between the harmless activities and harmful ones that you’ve swept together is volitional. Driving vs vehicular homicide. Speech vs libel or fraud. Gun ownership vs armed robbery. The nudger may see one activity subject to risk, while the nudgee becomes extremely irate over what amounts to an accusation of moral turpitude, because they see themselves under attack over an activity they do not chose to engage in.