On Friday, Dec. 5, Cass Sunstein, one of the most widely cited legal scholars and the Robert Walmsley university professor at Harvard Law School, delivered a talk at Swarthmore. The lecture, “Nudging Past, Present and Future,” related to his highly acclaimed book “Nudge: Improving Decisions about Health, Wealth, and Happiness,” co-written with Richard H. Thaler. Sunstein has written on a variety of topics — including constitutional law, environmental law, and behavioral economics — and has served in various public roles. Most recently, he was the senior counselor to the secretary of homeland security under the Biden Administration, and during the Obama presidency he served as administrator of the office of information and regulatory affairs.
Sunstein began his talk with a retelling of what he calls the “friendship that changed the world”: that of Amos Tversky and Daniel Kahneman, behavioral scientists who presented revolutionary theories on human behavior that challenged the prevailing rational actor model. The rational approach posits that people make decisions and respond to incentives in a rational manner. Sunstein said that people of this approach viewed “human beings [as] really intuitive statisticians,” and operated with the assumption that they were always “rational actors,” by consistently and logically assessing potential costs and benefits.
To introduce his overview of humanity, Sunstein began with a discussion of how the rational actor model may be affected by cognitive biases: errors in thinking and perception that may lead to skewed or incorrect conclusions. Two relevant biases are present and optimistic bias. Present bias is the tendency to not see one’s future self in the same way we view ourselves in the present. Similarly, optimistic bias is an inclination to see the future very optimistically, including underestimating the severity of future problems or the amount of time it might take to complete a task. Therefore, people are more likely to accept risks in the future that they would not normally accept in the present. As a result, Sunstein posited that if issues in “2027 and 2029 are kind of invisible, then we will have health and safety problems and policy problems that will be very challenging to draw attention to.”
Sunstein also identified the concept of inertia, where individuals are more hesitant to move against the status quo despite potential rational reasons for doing so, even if “it’s a very low cost to switch.” Similarly, humans are significantly loss-averse, with individuals biased towards the things they currently possess. As a result, “a gain is less exciting than the loss is disturbing.” Similarly, he also recognized limited attention, which, by virtue of “the fact that we economize on attention, can make us manipulable.”
Drawing attention to the harmful effects of biases in the legal system, Sunstein highlighted the potential for artificial intelligence to offer more objective judgments. He further explained that judges suffer from current offense bias where they are more likely to place undue weight on more recent behavior. Similarly, representativeness bias, which manifests in subjective bail decisions based on the appearance of criminality — regardless of other characteristics — can unfairly impact the decisions judges make in respect to awarding bail.
As opposed to judges, Sunstein said that “algorithms do better in the sense that if we use algorithms rather than the people, we could prevent thousands of crimes in New York City every year and hold the prison population constant, or we could keep the prison population [and] the crime level constant and have many fewer people in jail.”
Extending these insights into the sphere of policy, Sunstein identified the use of nudges, defined “as an intervention that fully preserves freedom of choice, but that promises to make people’s lives better by their own lights.”
Educative nudges are ones that provide information and, in particular, ways to encourage certain behavioral choices. For example, Sunstein identified changes in U.S. nutritional labels that reformatted the labels to emphasize calories, or warnings on products that disclose information about negative health effects.
Architectural nudges, by contrast, are typically more effective in influencing behavior, yet they “don’t increase people’s capacity for agency.” By changing the structure of the situation in which individuals make choices, people can “use the architecture of the environment to give outcomes the benefit of the data,” according to Sunstein. This includes small changes in environmental settings, such as shifting the default options or providing automatic enrollment for certain programs, which can shift participation and behavior.
Building on this work, Sunstein explained the acronym “F.E.A.S.T.,” which provides guidelines for informed policy implementation. Policies that promote ease (E) help increase access to services by lowering the costs of participation. For example, access to vaccines can be improved by providing nearby vaccination centers that help decrease transportation time.
Increasing the attractiveness (A) of policies can increase a sense of relevance as well as memorability. Designing with regard to the social (S) element of policy can also increase effectiveness in recognizing individuals’ tendency to be aware and sensitive to current and emerging norms. Additionally, awareness of the timeliness (T) of information or implementation can affect outcomes.
While Sunstein conceded that the acronym typically takes the form as only “E.A.S.T.,” he added the fifth letter to stand for fun (F), based on the argument that enjoyment can induce a positive emotional response among individuals, further increasing the effectiveness of policies designed to increase the likelihood of a certain outcome.
Referring to some of the philosophical bases of nudging, Sunstein highlights a notion of a “respect for persons” that is “valuable independent welfare.” Underscoring this idea is the view that “we want people to have better lives, and our proxy for better lives is whether they think their lives are better.”
To help apply these principles in reality, Sunstein introduced the concept of sludge as something for them to avoid. The term “sludge” covers a range of administrative practices that place extra burdens on individuals, often thought of as bureaucratic hurdles including paperwork and interview requirements that add unhelpful friction to administrative processes.
He explained that “the basic idea is that human beings … are going to struggle with sludge much more than private and public institutions anticipate,” and as a result, sludge can significantly impact human welfare as well as the equity and efficiency of delivering services.
Sunstein further elaborated,“If you are busy, sick, poor, old, or lonely, your processing power is going to be diminished.” Defined as cognitive scarcity, these limitations can negatively impact individuals’ fluid intelligence and executive functioning, further exacerbating the negative effects of sludge on outcomes.
He stated that, according to the International Sludge Academy, “In the United States, [the sludge] is in the vicinity of 11 billion hours of paperwork requirements, which is a shocking number, given what we know about human psychology.” As a result, there is broad political agreement for the need of “sludge audits,” which often take the form of reducing paperwork and requirements that create unnecessary barriers and frustration.
Sunstein noted that this “consensus in favor of a sludge reduction initiative … basically tries to use the principles we’ve discussed to prompt simplification and automaticity, to reduce the likelihood of people’s behavioral biases [that impair] their lives.”
Speaking on recent actions by the Department of Government Efficiency, an initiative started in the second Trump Administration, Sunstein expressed that he had been “hopeful for” but “was disappointed by” what he considers to be a “reckless and clueless” approach. Reiterating his support for eliminating government sludge, Sunstein called for rather “more scalpel, less sledgehammer” in the process.
Finishing with a final appeal to time, what Sunstein calls “the most precious thing that people have,” he proposed that “[we] find … ways to give people more of that.”
