ABSTRACT
The seminal book Nudge by Richard Thaler and Cass Sunstein demonstrates that policy makers can prod behavioral changes. A nudge is ‘any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives’. This type of strategy, and the notion of libertarian paternalism at its base, prompted discussions and objections. Academic literature tends to focus on the positive potential of nudges and neglects to address libertarian paternalism that does not promote the welfare of individuals and third parties, but rather infringes on it – a concept this Article refers to as ‘evil nudges’. This kind of choice architecture, which negatively influences individual behavior, raises a variety of legal questions and challenges that policy makers must address; yet it remains under-conceptualized.
Should the law recognize liability for evil nudges that result in bad faith influence? This Article aims to answer this question. It suggests the inclusion of nudges within tort law, arguing that nudges can and should be subject to third-party liability. The inclusion of evil nudges within tort law can be explored broadly, but this Article focuses on one particular case study: the liability of online intermediaries for speech torts caused by evil nudges. This case study provides a natural starting point for considering liability for evil nudges, as designing effective nudges is much easier in a technologically connected environment than in a brick-and-mortar world …
Lavi, Michal, Evil Nudges (2018). Vanderbilt Journal of Entertainment and Technology Law, volume 21, no 1, 2018.
First posted 2021-05-29 11:00:32
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