Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

Policy makers and scholars--both lawyers and economists--have long pondered the optimal design of default rules. From the classic works on "mimicking" defaults for contracts and corporations to the modern rush to set "sticky" default rules to promote policies as diverse as organ donation, retirement savings, consumer protection, and data privacy, the optimal design of default rules has featured as a central regulatory challenge. The key element driving the design is opt-out costs--howtominimize them, or, alternatively, how to raise them tomake thedefault sticky. Much of the literature has focused on "mechanical" opt-out costs--the effort people incur to select a nondefault alternative. This focus is too narrow. A more important factor affecting opt-out is information--the knowledge people must acquire to make informed opt-out decisions. But, unlike high mechanical costs, high information costs need not make defaults stickier; theymay insteadmake the defaults "slippery." This counterintuitive claim is due to the phenomenon of uninformed opt-out, which we identify and characterize. Indeed, the importance of uninformed opt-out requires a reassessment of the conventional wisdom about Nudge and asymmetric or libertarianpaternalism. We also show that different defaults provide different incentives to acquire the information necessary for informed opt-out. With the ballooning use of default rules as a policy tool, our information-costs theory provides valuable guidance to policy makers.

First Page

531

Volume

88

Publication Date

2021

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