Georgetown instructor David Cole might not see what’s so unsettling about libertarian paternalism, but his profile of Harvard Law School professor Cass Sunstein in the latest issue of The Atlantic might raise some red flags for fans of freedom.
Sunstein served in the Obama administration, but he’s not especially liberal. In Conspiracy Theories, he defends free markets and criticizes “command and control” planning. He favors soft government interventions like warnings and default rules, which leave people freedom of choice, over outright bans on dangerous behavior. He questions minimum-wage laws and argues that the United States has no particular obligation to enter into climate-change agreements that might impose domestic burdens even if such moves were to benefit the rest of the world. He does call for a social safety net for the poor, protections against animal cruelty, and, disturbingly, government subterfuge to counteract conspiracy theories. But if this is the most dangerous man in America, we can drastically reduce our homeland-security spending right now.
So far, so good. But Cole doesn’t stop there.
Sunstein’s current overarching project is the opposite of revolutionary. He seeks to tame our impulses and intuitions, to counteract the irrational and emotional errors we often make, in order to help us reach better decisions through deliberation and rational thinking. (Of course, to a fiery talk-show host, that may be precisely what makes him so dangerous.)
For roughly the past 15 years, Sunstein has sought to apply the lessons of behavioral economists to difficult legal and policy questions. Their findings have shown what most of us already suspected—that the “rational actor” upon whom classical economics is based is a myth. In reality, people’s decisions are determined not by careful comparison shopping and cold, calculated reason, but by emotions, fears, unwarranted confidence, aversion to loss, acute susceptibility to peer influences, and all sorts of other cognitive biases. In Conspiracy Theories, as well as another new book, Why Nudge?, Sunstein maintains that such insights can assist us in resolving a variety of social problems. …
… [H]ere he deploys behavioralism to take on John Stuart Mill’s famous case against paternalism. In On Liberty, Mill argued that paternalism was unwarranted in large part because individuals know better than others do what will serve their interests. For that reason, unless an individual’s actions harm someone else, Mill maintained, the state should stay out of her business. This “harm principle” is one of the foundations of modern liberalism.
Mill’s case against paternalism is undermined, Sunstein says, by man’s propensity to err and sabotage his own interests. If we know that people make predictable mistakes, then paternalistic interventions designed to mitigate those mistakes may increase people’s welfare overall. Even when our actions harm no one else, government intervention may therefore be justified. And because the way that choices are presented to us inevitably influences our decision making (for example, people are more likely to choose the first item on a list over subsequent items), Sunstein advises the government to design “choice architecture” in ways that nudge us toward choices that better serve our ultimate ends.
The obvious question for both Sunstein and Cole is: How do either of them know how best to serve “our” ultimate ends?
Who should make that determination? Harvard law professors? Government bureaucrats?