Behavioral Economics and Paternalism
Sunstein, Cass R., The Yale Law Journal
III. AGAINST PATERNALISM: WELFARE
Let us put the definitional issues to one side. Why might paternalism be objectionable? There are two time-honored reasons; both have firm roots in Mill's own argument. The first involves welfare. The second involves autonomy.
Because we are focusing here on paternalism from the government, we should observe that there are special concerns in that context. On a familiar view, it may not be unacceptable if a private employer acts paternalistically in an effort to protect its employees, or if a credit card company does so in an effort to protect its customers. Because of the operation of the free market, harmful, insulting, or unjustified paternalism will ultimately be punished. (144) But if government acts paternalistically--to improve health, to lengthen lives, to save money--some people believe that the question is different. Certainly it is true that many of the most prominent objections to paternalist interventions (decrying "elitism," "government overreach," or "the nanny state") have a great deal to do with the distinctive social role of particular paternalists: those who work for the government.
To be sure, there are political constraints on the actions of a paternalistic government, at least in a democratic society, and on an optimistic view, those constraints will sharply limit the occasions for harmful or unjustified paternalism. But that view may be too optimistic, especially in light of the fact that some forms of paternalism are not salient or highly visible, (145) and the associated fact that well-organized private groups, with their own interests at stake, may wish to move public policy in their preferred directions.
Whatever the origins of the objections to paternalistic government, the force of those objections should depend on whether paternalism, from government, threatens to reduce people's welfare (broadly understood) or to intrude on people's autonomy. It is not unreasonable to fear that the risks of a paternalistic government are more serious than the risks of private paternalism. But if those risks come to fruition, the underlying concerns involve welfare, autonomy, or both. Many of the concerns about paternalistic government focus on the idea of "legitimacy," but in this context, at least, it is possible that the term is a placeholder, or perhaps even a mystification, rather than a freestanding concept. (146)
I focus on welfarist concerns in this Part and turn to autonomy in the following Part. I begin with a set of apparently powerful welfarist objections to paternalism and then turn to responses, focusing on the fact that as an empirical matter, paternalism can in fact increase people's welfare. I suggest that a great deal depends on context and that the objections cannot be shown to be convincing in the abstract. In fact, the problem is that these objections operate at too high a level of generality, potentially making them into a form of chest-thumping. The best that can be said is that there is an intelligible rule-consequentialist argument against paternalism, both hard and soft, but the argument is unhelpful insofar as choice architecture (and hence a form of paternalism) is inevitable. Insofar as paternalism can be avoided, the rule-consequentialist objection depends on empirical claims that are unlikely to be true, at least in important contexts.
A. Five Welfarist Objections: An Antipaternalist's Quintet
1. Information. Suppose that we care about people's welfare, understood broadly to capture how well their lives are going. Suppose that we believe that people's lives should go as well as possible. We might insist that individuals know best about what will make their lives go well and that public officials are likely to err. Such officials might be mistaken about what people's ends are, and they might also be mistaken about the best means of achieving those ends. People might really enjoy running, sleeping, having sex, singing, jumping, smoking, drinking, gambling, or (over)eating. …