Nudging for health: On public policy and designing choice architecture

Medical Law Review

Volumn 21, Issue 4, 2013, Pages 588-621

  Quigley, Muireann ^a  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BEHAVIORAL RESEARCH; DECISION MAKING; HEALTH BEHAVIOR; HEALTH CARE POLICY; HUMAN; MANAGEMENT; PUBLIC HEALTH;

BEHAVIORAL RESEARCH; CHOICE BEHAVIOR; HEALTH BEHAVIOR; HEALTH POLICY; HUMANS; POLICY MAKING; PUBLIC HEALTH;

EID: 84887562941     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwt022     Document Type: Article

References (182)

1. See, for example, HMGovernment, Healthy Lives, Healthy People: Our Strategy for Public Health in England (The Stationary Office 2010). Available at, http://www.dh.gov.uk/health/2011/07/healthy-lives-healthy-people/. last accessed 2 July 2013.
2. For example, G Becker, 'Irrational Behavior and Economic Theory' (1962) 70 J Pol Econ 1;GBecker, The Economic Approach to Human Behavior (University of Chicago Press, Chicago 1978, 1990)
3. C Sunstein and RH Thaler, 'Libertarian Paternalism is Not an Oxymoron' (2003) 70 U Chic L Rev 1159, 1161
4. It should be noted that so-called nudging is not limited to health, but can encompass all sorts of social policy goals. Theworkof Richard Thaler has been particularly influential in bringing this approach to the table in UK policy circles.
5. See Sunstein and Thaler, above, n 3
6. RH Thaler and C Sunstein, 'Libertarian Paternalism' (2003) 93 Am Econ Rev 175
7. RH Thaler and C Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (Penguin Books, London 2008, 2009)
8. House of Lords Science and Technology Select Committee, Behaviour Change (The Stationery Office, London 2011) 11
9. Thaler and Sunstein 2009, above, n 4, ch 5
10. Cabinet Office Behavioural Insights Team. Applying Behavioural Insight to Health 2010, 22. Available at, http://www.cabinetoffice.gov.uk/sites/default/files/resources/403936_BehaviouralInsight_acc.pdf.
11. See, for example, Cabinet Office Behavioural Insights Team, Applying Behavioural Insight to Health 2010 (available at, http://www.cabinetoffice.gov.uk/sites/default/files/resources/403936_BehaviouralInsight_acc.pdf. last accessed 2 July 2013) and HM Government, above, n 1.
12. Additionally, this approach is gaining ground in France in relation to health initiatives see Centre for Strategic Analysis, Improving Public Health Prevention with Behavioural, Cognitive & Neuroscience 2010 (available at, http://oullier.free.fr/files/2010_Oullier-Sauneron_CAS-Neuroscience-Prevention-Public-Health_Book_Neuroeconomics-Behavioral-Economics-Neuromarketing.pdf. last accessed 2 July 2013).
13. Much of what is said here is also applicable to influences which would not be considered as nudges perse. However, we should guard against conflating 'nudge' with 'influence', a slippage which seems to have occurred as the idea of nudging has permeated popular consciousness and been adopted as a policyapproach.
14. For an analysis which differentiates nudges fromother categories of influence seeYSaghai, 'Salvaging the Concept of Nudge' (2013) 39 J Med Ethics 487
15. DMHausman and BWelch, 'Debate: To Nudge or Not to Nudge' (2010) 18 J Pol Phil 123, 135
16. Similar concerns have been raised, among others, by MD White, 'We've Been Nudged: The Effects of the Downturn on Dignity and Responsibility' inMAStarr (ed), Consequences of Economic Downturn: Beyond the Usual Economics (Palgrave MacMillan, New York 2011) 103
17. L Bovens, 'The Ethics of Nudge' in T Grü ne-Yanoffand SO Hansson (eds), Preference Change: Approaches from Philosophy, Economics and Psychology (Springer Dordrecht, London 2009) 207
18. E Selinger and KP Whyte, 'Competence & Trust in Choice Architecture' (2010) 23 Know Techn Pol 461
19. See, for example, J Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford University Press, Oxford 1986), chs 17 and 18
20. For example, REpstein, 'In Defense of the Old Public Health: The Legal Framework for the Regulation of Public Health' (2004) 69 Brook L Rev 1421
21. For a critique of Epstein's and other libertarian approaches to public health see J Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, & Political Claims in Public Health (Cambridge University Press, Cambridge 2012) 153-63
22. See, for example, R Upshur, 'Principles for the Justification of Public Health Intervention' (2002) 93 Can J Public Health 101, 102
23. See also JF Childress, RR Faden and others, 'Public Health Ethics: Mapping the Terrain' (2002) 30 J Law Med Ethics 170, 173
24. However, the claim (often taken as self-evident) that the least restrictive means is the (legally and) morally desirable course of action requires more work. The latter paper does suggest the least infringement principle as a means of resolving conflicts amongst competing moralconsiderations and outlines the need to take into account other factors such as effectiveness and proportionality.
25. D Ariely, Predictably Irrational: The Hidden Forces that Shape Our Decisions (Harper, London 2009)
26. Thaler and Sunstein 2009, above, n 4 at 6
27. Sunstein and Thaler 2009, above, n 3 at 1162
28. COBIT, above, n 7 at 22
29. In any case even if a person was initially nudged to buy a bicycle, the cost may even out over time if they save money on fuel or on the cost of public transport
30. We should be careful to distinguish between the idea of using the behavioural sciences to inform law and policy and the claim that any strategies adopted ought to be justified by an appeal to libertarian paternalism as the underlying political philosophy
31. In this article, I do not address whether libertarian paternalism is legitimate (or indeed preferable to other approaches to lawand policy) in this respect, but instead focus on the issues relating to altering the choice environment in which citizens make health-affecting decisions
32. See A Burgess, 'Nudging Healthy Lifestyles: The UK Experiments with the Behavioural Alternative to Regulation and the Market' (2012) 1 EJRR 3
33. As evidence that such strategies could indeed be perceived as a real thirdway, government and policy-makers on both sides of the Atlantic (Obama's Democrats and Cameron'sConservatives) have taken up the libertarian paternalist agenda with enthusiasm. In the USA, its influence ismost evident with the appointment of Cass Sunstein as the Administrator of the Office of Information and Regulatory Affairs (although he stepped down from this post in 2012). In the UK Richard Thaler acts as an advisor to the Cameron Government.
34. In particular, in 2010/11, there was a focus on the salt content of food
35. See Cabinet Office Behavioural Insights Team, Behavioural Insights Team Annual Update 2010-11, 7-9 (available at, http://www.cabinetoffice.gov.uk/sites/default/files/resources/Behaviour-Change-Insight-Team-Annual-Update_acc.pdf. last accessed 2 July 2013) and Salt Strategy Beyond 2012 (available at, https://responsibilitydeal.dh.gov.uk/wp-content/uploads/2013/03/Salt-Strategy-Beyond-2012.pdf. last accessed 2 July 2013).
36. Although a recent report by the Institute of Medicine demonstrates that the evidence on sodium intake is not as clear cut as often assumed
37. See Institute of Medicine, Sodium Intake in Populations: Assessment of Evidence (National Academies Press, Washington 2013) (available at, http://www.nap.edu/catalog.php?record_id=18311. last accessed 2 July 2013).
38. Department of Health, Healthy Lives, Healthy People: Call to Action on Obesity, 2011, 10 (available at, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/134840/dh_130487.pdf.pdf. last accessed 2 July 2013).
39. Department of Health, Healthy Lives, Healthy People: Tobacco Control Plan, 2011, 15 (available at, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/135349/dh_124960.pdf.pdf. last accessed 2 July 2013).
40. COBIT, above, n 23 and Department of Health, The Public Health Responsibility Deal (Crown Copyright 2011) 24
41. See, for example, P Rozin and others, 'Nudge to Nobesity I: Minor Changes in Accessibility Decrease Food Intake' (2011) 6 Judgm Decis Mak 323
42. Saghai, above, n 9, 2
43. See, http://www.nhsbt.nhs.uk/about/partners_and_supporters/dvla.html. last accessed 2 July 2013.
44. Thank you to one of the anonymous reviewers for this point
45. See, for example, Independent Inquiry into Inequalities in Health, Report of the Independent Inquiry into Inequalities in Health (The Stationery Office, London 1998)
46. The Marmot Review, Fair Society, Healthy Lives: Strategic Review of Health Inequalities in England post-2010 (available at, http://www.instituteofhealthequity.org/projects/fair-society-healthy-lives-themarmot-review. last accessed 2 July 2013).
47. For example, Government Office for Science, Tackling Obesities: Future Choices - Project Report (2nd edn, 2010)
48. see, in particular, the obesity systems map on p. 85 (available at, http://www.bis.gov.uk/assets/foresight/docs/obesity/17.pdf. last accessed 2 July 2013).
49. See also Department of Health, Tackling Health Inequalities: 10 Years On (Crown Copyright 2009) and Healthy Lives, Healthy People, above, n 1, 26. This has tackling the social determinants of health as one of its aims.
50. P John and L Richardson, Nudging Towards Localism (British Academy, London 2012) 18-25
51. See HM Government, One-in, One-out: Third Statement of New Regulation (Department for Business, Innovation and Skills, London 2012)
52. For examples of the move in this direction in relation to general regulations across sectors, as well as health and social care see the Cabinet Office's 'Red Tape Challenge':,http://www.redtapechallenge.cabinetoffice.gov.uk/home/index/. last accessed 2 July 2013. Although a move in this direction was also evident under the previousGovernment.
53. For example, a report by the BetterRegulation Commission stated that '[a]lternatives to classic regulation will often work better, stimulate more enterprise and innovation, promote greater freedom and choice, inspire greater self-reliance and responsibility, be cheaper and impose fewer burdens.'
54. See Risk, Responsibility, Regulation: Whose Risk is it Anyway? (BRC, London 2006) 37 (available at, http://webarchive.nationalarchives.gov.uk/20100402230200/http://archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/risk_res_reg.pdf. last accessed 2 July 2013).
55. See, for example, P Rainford and J Tinkler, 'Designing for Nudge Effects:How Behaviour Management Can Ease Public Sector Problems' in Innovating Through Design in Public Sector Services Seminar Series (LSE Public Policy Group 23 February 2011) 3 (available at, http://eprints.lse.ac.uk/37810. last accessed 2 July 2013).
56. K Yeung and B Morgan, An Introduction to Law and Regulation (Cambridge University Press, Cambridge 2007) 3
57. R Brownsword, Rights, Regulation, and the Technological Revolution (Oxford University Press, Oxford 2008) 7
58. For an article on the different understandings of regulation see J Black, 'Critical Reflections on Regulation' (2002) 27 Aus J Leg Phil 1
59. K Yeung, 'Towards an Understanding of Regulation by Design' in R Brownsword and K Yeung (eds), Regulating Technologies (Hart Publishing, Oxford 2009) 79, 80
60. R Brownsword, Code, Control, and Choice:WhyEast is East andWest isWest (2005) 25 LS 1, 3
61. K Yeung, 'Can We Employ Design-Based Regulation While Avoiding Brave NewWorld?' (2011) 3 Law Innov Tech 1, 3
62. K Yeung andM Dixon-Woods, 'Design-based Regulation and Patient Safety: A Regulatory Studies Perspective' (2010) 71 Soc Sci Med 502, 503
63. Yeung, above, n 44, 81-2
64. Although we will see a little later why this may only be 'apparent' choice
65. John and Richardson, above, n 37, 7-8
66. KE Stanovich and RFWest, 'Individual Differences in Reasoning: Implications for the Rationality Debate?' (2000) 23 Behav Brain Sci 645, 658
67. For an engaging overviewof this see Daniel Kahneman's latest book, especially part 1, which derives its title from this distinction: Thinking, Fast and Slow (Allen Lane, London 2011)
68. Kahneman won the Nobel Prize in Economics in 2002 (although he is a psychologist) for his work with the late Amos Tversky on judgement and decision-making. He is generally credited with being the father of behavioural economics.
69. O Amir and O Lobel, 'Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy' (2008) 108 Columbia Law Rev 2098, 2110
70. I take the reference to 'stumbles' from this article where the authors open by noting that '[t]o stumble is human'
71. For an entertaining overview see Thaler and Sunstein 2009, above, n 4, 24-40
72. These have been studied by psychologists over the years building on the seminal work of Amos Tversky and Daniel Kahneman who conducted studies of how we think under conditions of uncertainty
73. See A Tversky and D Kahneman, 'Judgement Under Uncertainty: Heuristics and Biases' (1974) 185 Science 1124
74. D Kahneman, JL Knetsch, and RH Thaler, 'Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias' (1991) 5 J Econ Perspect 193, 199-203
75. A Tversky andD Kahneman, 'The Framing of Decisions and the Psychology of Choice' (1981) 211 Science 453
76. Amir and Lobel, above, n 56, 2114 and 2117
77. See COBIT, above, n 7;COBIT, above, n 23
78. Department of Health, The Public Health Responsibility Deal (Crown Copyright 2011); HM Government, above, n 1; P Dolan and others, Mindspace: Influencing Behaviour Through Public Policy (Institute for Government 2010) (available at, http://www.instituteforgovernment.org.uk/images/files/MINDSPACE-full.pdf. last accessed 2 July 2013).
79. This would seem to be a (longer) version of Thaler and Sunstein's own acronym 'NUDGES': iNcentives, Understand mappings, Defaults, Give feedback, Expect error, and Structure complex choices (above, n 4, 109)
80. Dolan and others, above, n 65
81. The table is taken directly fromMindspace and I have added in the heuristics, biases, and effects which might be at play in some of the shorthand categories of influence
82. Thaler and Sunstein 2009, above, n 4, ch 5
83. COBIT, above, n 23, 8
84. In this regard, we fall prey to the availability heuristic; that is, we assess the frequency of an event based on the ease of which examples can be brought to mind. 'Incidents of alcohol abuse are easily recalled' (Thaler and Sunstein 2009, above, n 4, 73).
85. R B Cialdini, 'CraftingNormative Messagesto Protect the Environment' (2003) 12 Current Directions Psychol Sci 105
86. For an example of the power of norms on wearing seatbelts in vehicles see J Linkenbach andHWPerkins, Most of Us Wear Seatbelts: The Process and Outcomes of a 3-year Statewide Adult Seatbelt Campaign in Montana
87. Presented at the National Conference on the Social Norms Model, Boston, MA, 17 July 2003 (see also, http://www.mostofus.org/project-gallery/traffic-safety/2010/most-of-us%C2%AEwear-seatbelts-campaign-2002-2003. last accessed 2 July 2013).
88. K Yeung, 'Nudge as Fudge' (2012) 75 MLR 122, 125
89. Thaler and Sunstein 2009, above, n 4, 73-4
90. See also JW Linkenbach, 'The Montana Model: Development and Overview of a Seven-step Process for Implementing Macro-level Social Norms Campaigns' in HW Perkins (ed), The Social Norms Approach to Preventing School and College Age Substance Abuse (Josseey-Bass, San Francisco 2003) 182-208
91. JW Linkenbach andHW Perkins, 'Most of As Are Tobacco Free: An Eight-month Social Norms Campaign Reducing Youth Initiation of Smoking in Montana' in HW Perkins (ed), The Social Norms Approach to Preventing School and College Age Substance Abuse (Josseey-Bass, San Francisco 2003) 224-34
92. COBIT, above, n 7, 9
93. The much cited example of this is the 'piano stairs' where steps on a stairswere turned into piano keys which played music when stepped on
94. See, www. rolighetsteorin.se.,,www.youtube.com/watch?v=ivg56TX9kWI., and, www.thefuntheory.com. last accessed 2 July 2013.
95. Another nonhealth-related example of usingnoveltyand fun to alter behaviour is with recycling. Turning a glass recycling bin into a 'bottle bank arcade game' where points could be scored for depositing glass bottles increased thenumberbeing recycled (in comparison to a nearby ordinary bottle bank, see, http://www.youtube. com/watch?feature=player_embedded&v=zSiHjMU-MUo. and, www. thefuntheory.com. last accessed 2 July 2013.
96. See Bovens, above, n 10, 207
97. Rozin and others, above, n 29
98. Amir and Lobel, above, n 56, 2120
99. Kahneman, Knetsch, and Thaler, above, n 61, 197-9
100. AcuteRespiratory Distress Syndrome Network, 'Ventilation with Lower Tidal Volumes as Compared with Traditional Tidal Volumes for Acute Lung Injury and the Acute Respiratory Distress Syndrome' (2000) 342 NEJM 1301
101. For a discussion of this in the context of the Danish breast-screening programme, see T Ploug, S Holm, and J Brodersen, 'To Nudge or Not to Nudge: Cancer Screening Programmes & the Limits of Libertarian Paternalism' (2012) 66 J Epidemiol Commun H 1193
102. Sunstein and Thaler, above, n 3, 1164
103. See also Hausman andWelch, above, n 10, 132
104. Amirand Lobel, above, n 56, 2117-27
105. See also G Mitchell, 'Libertarian Paternalism is an Oxymoron' (2005) 99 NWULR 1245-77
106. Yeung, above, n 72, 135
107. See White, above, n 10, 110-3
108. Bovens, above, n 10, 218, and Yeung, above, n 72, 145-6
109. White, above, n 10
110. Thaler and Sunstein 2009, above, n 4, 6
111. Hausman andWelch, above, n 10, 125
112. The autonomy worry is something which has loomed large in the writing of both critiques and supporters of nudging thus far
113. See Hausman and Welch, above, n 10, 128-30
114. Yeung, above, n 72, 135-38
115. White, above, n 10, 105-7
116. Bovens, above, n 10
117. Hausman andWelch, above, n 10, 130
118. Feinberg, above, n 11, 28
119. Note that Feinberg talks of four different, albeit related, senses of autonomy: capacity, actual self-government, ideal of character, and sovereign authority
120. G Dworkin, The Theory and Practice of Autonomy (Cambridge University Press, Cambridge 1988, reprinted 1991) 12-3
121. I Berlin, 'Two Concepts of Liberty' in H Hardy (ed), Liberty, Incorporating 'Four Essays on Liberty' (Oxford University Press, Oxford 1969) 166, 178
122. Yeung and Morgan, above, n 42, 3-4
123. It is not necessarily behaviour alteration per se that is the core of the objections, but the manner in which it is being done. 102 Berlin, above, n 99, 178.
124. See JS Mill, On Liberty and Other Essays, Edited with an Introduction and Notes by J Gray (Oxford University Press, New York 1991)
125. Berlin, above, n 99
126. Feinberg, above, n 11, ch 18
127. Yeung, above, n 72, 135
128. Bovens, above, n 10, 209-10
129. D Archard, 'Informed Consent: Autonomy and Self-ownership' (2008) 25 J App Phil 19, 21 [emphasis in original]
130. See LHaworth, Autonomy: An Essay in Philosophical Psychology and Ethics (Yale University Press, New Haven 1986) 39
131. For the idea of bounded rationality see HSimon, Sciences of the Artificial (3rd edn MIT Press 1999)
132. Hausman andWelch, above, n 10, 135 [emphasis added]
133. White, above, n 10, 111
134. Granted it is often difficult to determine what 'intentions' (or indeed if there are any) lie behind certain policies
135. See PG Hansen and AM Jespersen, 'Nudge and the Manipulation of Choice: A Framework for the Responsible Use of the Nudge Approach to Behaviour Change in Public Policy' (2013) 1 EJRR 3
136. Here the authors discuss the relevance of 'intentionality (10-11) and argue that this imposes responsibilities upon policy-makers (23-27)
137. We might also conceive of these on a spectrum of micro tomacro; for example, the alterations to the salad bar described earlier might be thought of as designed at the level of the cafeteria, but is more akin to a random aspect of choice architecture when taken in the wider context of a person's life or the general structure of society
138. White, above, n 10, 111
139. In talking of interests and preferences, I am mindful of Sunstein and Thaler's claim that 'contextual influences render the very meaning of the term "preferences" unclear' ('Libertarian Paternalism', 1161). However, for the purposes of this article, I assume that it is possible to attribute persons with such things as 'true' preferences and interests.
140. Yeung, above, n 72, 129 [emphasis added]
141. Hausman andWelch, above, n 10, 134
142. A Carter and W Hall, 'Avoiding Selective Ethical Objections to Nudges' (2012) 12 Am J Bioethics 12, 13
143. I say behavioural science orientated effortshere because, as already noted earlier, insomesense allgovernment policy is an attempt to influence behaviour one way or the other
144. Thank you to John Coggon for helping to clarify my thoughts in this section
145. AAlemanno, 'NudgingSmokers:TheBehaviouralTurn ofTobaccoRiskRegulation' (2012) 1 EJRR 32, 36
146. See also G Lowenstein, 'Out of Control: Visceral InfluencesonBehavior' (1996)65OrganBehaveHumDec272
147. JD Hanson and DA Kysar, 'Taking Behavioralism Seriously: Some Evidence of Market Manipulation' (1999) 112 Harvard Law Rev 1420. In 2012, the UK government conducted a consultation on removing all branding from cigarette packets.
148. See, http://consultations.dh.gov.uk/tobacco/standardised-packaging-oftobacco-products/consult_view. last accessed 16May 2013.
149. See also a systematic review that was commissioned by the government on the impact of using plain packaging, http://phrc.lshtm.ac.uk/papers/PHRC_006_Final_Report. pdf. last accessed 2 July 2013.
150. Carter and Hall, above n 119, 13
151. There is, of course, an issue of legitimacy with strategies such as the responsibility deal in relation to alcohol outlined earlier in this article. Where the government uses corporate actors as intermediaries in order to execute their public policy measures, the public/private distinction becomes blurry. Questions need to be asked about the appropriateness of private actors essentially acting as state regulators. Thank you to Elen Stokes for this point.
152. More will be said on this in the concluding section
153. White, above, n 10, 110
154. See Kahneman, above, n 54, 41-2
155. For an overview article of some of the studies and research in the area, see RF Baumeister and KD Vohs, Self-Regulation, Ego Depletion, and Motivation (2007) 1 Soc Personal Psychol Compass 115
156. Kahneman, above, n 54, at 42
157. Of course while foods themselves cannot really be said to be 'virtuous', 'bad', or the like, our behaviour over time with respect to certain types of foods mightmeanthat theyare betteror worse forour health and well-being
158. Hausman andWelch, above, n 10, 134
159. Amore complexworry, which requires further exploration, might be that individuals might fare worse when taken out of the contexts which are supportive or facilitative of certain aspects of their decision-making; that is, they will not learn to resist influences in more hostile choice environments. Thank you to Kalle Grill for this point.
160. For a discussion of revealed versus normative ('true') preferences and strategies which might favour one over the other see J Beshears and others, 'How Are Preferences Revealed?' (2008) 92 J Pub Econ 1787
161. Amir and Lobel, above, n 56, 2121
162. White, above, n 10, 105
163. I say 'potentially' because this is a claim that would need morework to be done in support of it since it is up for debate that these actually constitute legitimate ends of government. I make the assumption here that, to the extent that the government has obligations to its citizens in respect of health, these seem to be good candidates for such ends.
164. RH Frank, 'Review of Nudge' (2008) 119 Ethics 202, 205
165. For a similar point see Amir and Lobel, above, n 56, 2124
166. Schlag, above, n 16, 916
167. On a related note, see also Bovens who says that '[a]dvertisement for products that do not increase welfare may use all kinds of Nudge style techniques and the government may be fighting a losing battle against, say, obesity, if it cannot access the same arsenal of techniques' (above, n 10, 218)
168. Burgess, above, n 22, 11 [emphasis added]
169. R Korobkin, 'What Comes After Victory for Behavioral Law & Economics' (2011) U Ill L Rev 1653, 1655
170. Yeung, above, n 72, 124, 146
171. Amir and Lobel, above, n 56, 2110-4
172. E Selinger and KP Whyte, 'Nudging Cannot Solve Complex Policy Problems' (2012) 1 EJRR 26
173. See also House of Lords'Report, above, n 5
174. T Marteau and others, 'Judging Nudging: Can Nudging Improve Population Health?' (2011) 342 BMJ 263, 265
175. Although as John and Richardson point out there is also a lack of evidence about the effectiveness of other approaches (above, n 37, 26)
176. Thank you to Elen Stokes for her thoughts on this point
177. Marmot Review Working Committee 3, Cross-cutting Sub-group Report, Learning Lessons from the Past: Shaping a Different Future, November 2009 (available at, http://www.instituteofhealthequity.org/projects/the-marmot-review-working-committee-3-report. last accessed 2 July 2013) 3.
178. See this recommendation in the Marmot Review, above, n 34. Although note Sreenivasan's disquiet regarding the causal link between health and social factors. He maintains that '[i]t is not clear that our existing understanding of the causal pathways between socially controllable factors and specific mortality risks is sufficiently well-developed to underwrite concrete policy proposals.' We, therefore, need to ensure empirical robustness whatever our posited causal mechanism and policy solution.
179. Amir and Lobel, above, n 56, 2116
180. See the recent COBIT report on the potential for using randomised controlled trials to test public policy initiatives
181. LHaynes and others, Test, Learn, Adapt: Developing Public Policy with RandomisedControlledTrials (Cabinet Office behavioural Insights Team 2012) (available at, http://www.cabinetoffice.gov.uk/sites/default/files/resources/TLA-1906126.pdf. last accessed2July 2013).
182. Although asCoggonnotes, evidence of effectiveness (or lack of it) in itself does not speak to the political legitimacy of nudging as a measure (Coggon, above, n 12, 256-7)