Academic journal article Missouri Law Review

Forcing People to Choose Is Paternalistic

Academic journal article Missouri Law Review

Forcing People to Choose Is Paternalistic

Article excerpt

I. INTRODUCTION

When you enter a taxicab in a large city, and ask to go to the airport, you might well be asked this question: "What route would you like me to take?"

If you are like many people, you will not welcome that question. You might even hate it. After all, it is the business of the driver to know how to get to the airport, and in any case the driver almost certainly has access to a GPS device. For you, the question--asking you to choose--is a kind of mental tax, cognitive for sure (because of the need to think) and possibly hedonic as well (because it is not exactly pleasant to ponder how to get to the airport). To be sure, the tax is likely to be small. But it might well be unwelcome.

Whenever a doctor or a lawyer asks a battery of questions to a patient or a client, a possible reaction might be: "On some of these questions, why don't you decide for me?" If the emotional stakes are high, and if the issues are difficult, the hedonic and cognitive tax might be very high. And whenever public officials require people to fill out complex forms to qualify for training or for benefits, the tax might turn out to be prohibitive, at least for some people. It might lead them not to apply at all. It is for this result that complex form-filling requirements are not merely a paperwork burden; they can undermine and even undo the underlying programs. Form-filling can be a curse.

In this light, consider three problems:

1. An online clothing company is deciding whether to adopt a system of default settings for privacy, or whether to require first-time users to specify, as a condition for access to the site, what privacy settings they would prefer.

2. A large employer is deciding among three options: (1) to enroll employees automatically in a health insurance plan; (2) to ask them to opt in if they like; or (3) to say that as a condition for starting work, they must indicate whether they want health insurance, and if so, which plan they want.

3. A utility company is deciding whether to adopt for consumers a "green default," with a somewhat more expensive but environmentally preferable energy source, or instead a "gray default," with a somewhat less expensive but environmentally less desirable energy source--or alternatively, to ask consumers which energy source they prefer.

In these cases, and countless others, a public or private institution, or an individual, is deciding whether to use some kind of default rule or instead to require people to make some kind of active choice. (I shall say a good deal about what the word "require" might mean in this setting.) For those who reject paternalism and who prize freedom of choice, active choosing has evident appeal. Indeed, it might seem far preferable to any kind of default rule. It respects personal agency; it promotes responsibility; it calls for an exercise of individual liberty. It seems to reflect a commitment to human dignity.

In light of these considerations, many people might argue that active choosing deserves some kind of pride of place, especially if it is accompanied by efforts to improve or "boost" people's capacities, perhaps by providing them with information, perhaps by increasing their statistical literacy. (1) In social science parlance, the best approach might be to strengthen System 2, the deliberative system of the mind, rather than to ignore it, or to exploit or enlist System 1, the automatic or intuitive system. (2)

In recent years, there have been vigorous debates about freedom of choice, paternalism, behavioral economics, individual autonomy, and the use of default rules and choice architecture. (3) Invoking recent behavioral findings, some people (including the present author) have argued that because human beings err in predictable ways, and cause serious problems for themselves, some kind of paternalism is newly justified, especially if it preserves freedom of choice, as captured in the idea of "nudging" or "libertarian paternalism. …

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