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Cass R. Sunstein, Behavioral Science in the Administrative State, 75 Admin. L. Rev. 213 (2023).


Abstract: In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as "tweaks"). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsidies for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, calorie labels, and automatic enrollment in savings plans); sometimes interventions have significant positive effects and there is no evidence that they make more aggressive forms less likely. Choice-preserving interventions, such as nudges, do not "crowd out" more aggressive approaches.