Cass R. Sunstein (Harvard Law School and Harvard Kennedy School) has posted Legal Paternalism: On Mandates, Nudges, Boosts, and Laissez-Faire on SSRN. Here is the abstract:
Is legal paternalism legitimate? Might it increase welfare? When would it compromise autonomy in some impermissible way? The massive recent outpouring of empirical work on cognitive biases, and on departures from perfect rationality (not “irrationality”), has led to a wholesale rethinking of paternalism in law and its limits. Over the last decades, three camps have emerged: (1) coercive paternalists, who urge that behavioral findings undermine John Stuart Mill’s Harm Principle and greatly strengthen arguments for paternalistic mandates and bans; (2) libertarian paternalists, who urge that behavioral findings justify a host of paternalistic but freedom-preserving interventions or “nudges,” such as warnings, reminders, labels, and automatic enrollment; and (3) antipaternalists, who urge that behavioral findings justify only, or at most, efforts to strengthen or “boost” people’s competences, or their capacities to make good choices. At least on welfare grounds, it is possible to specify the circumstances in which one or another approach would be best. (1) Libertarian paternalism has significant advantages over coercive paternalism when (a) choosers are heterogeneous and (b) many do not err. (2) When most or many choosers do err, and when the right course of action is clear, the welfarist argument for coercive paternalism is very strong. (3) When choosers are not only heterogeneous but also adequately informed and free or relatively free from behavioral biases, antipaternalism makes a great deal of sense. All of this is subject to a proviso, which is (4) if paternalists are ignorant or ill-motivated, paternalism might be a cure worse than the disease. All of this is subject to another proviso, which is (5) if learning is feasible and important or otherwise desirable, the argument against coercive paternalism is strengthened, and so is the argument against libertarian paternalism, unless it is educative.
Highly recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum