Gentle nudges vs. hard shoves: Solving the sticky norms problem

The resistance of law enforcers sometimes confounds the efforts of lawmakers to change social norms Thus, as legislators expand liability for date rape, domestic violence, and drunk driving, police become less likely to arrest, prosecutors to charge, jurors to convict, and judges to sentence severely. The conspicuous resistance of these decisionmakers in turn reinforces the norms that lawmakers intended to change. Can this sticky norms pathology be effectively treated? It can be, this Article argues, if lawmakers apply gentle nudges rather than hard shoves. When the law embodies a relatively mild degree of condemnation, the desire of most decisionmakers to discharge their civic duties will override their reluctance to enforce a law that attacks a widespread social norm. The willingness of most decisionmakers to enforce can initiate a self-reinforcing wave of condemnation, thereby allowing lawmakers to increase the severity of the law in the future without prompting resistance from most decisionmakers. The paper presents a formal model of this strategy for norm reform, illustrates it with real world examples, and identifies its normative and prescriptive implications.