Heidi M. Hurd (University of Illinois College of Law) has posted Fudging Nudging: Why ‘Libertarian Paternalism’ is the Contradiction It Claims It's Not (Georgetown Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
In this piece I argue that so-called “libertarian paternalism” is as self-contradictory as it sounds. The theory of libertarian paternalism originally advanced by Richard Thaler and Cass Sunstein, and given further defense by Sunstein alone, is itself just a sexy ad campaign designed to nudge gullible readers into thinking that there is no conflict between libertarianism and welfare utilitarianism. But no one should lose sight of the fact that welfare utilitarianism just is welfare utilitarianism only if it sacrifices individual liberty whenever it is at odds with maximizing societal welfare. And thus no one who believes that people have rights to craft their own lives through the exercise of their own choices ought to be duped into thinking that just because paternalistic nudges are cleverly manipulative and often invisible, rather than overtly coercive, standard welfare utilitarianism can lay claim to being libertarian.
After outlining four distinct strains of libertarian theory and sketching their mutual incompatibility with so-called “libertarian paternalism,” I go on to demonstrate at some length how the two most prevalent strains — namely, opportunity set libertarianism and motivational libertarianism — make paternalistically-motivated nudges abuses of state power. As I argue, opportunity set libertarians should recognize nudges for what they are — namely, state incursions into the sphere of liberty in which individual choice is a matter of moral right, the boundaries of which are rightly defined, in part, by permissions to do actions that do not maximize welfare. And motivational libertarians should similarly recognize nudges for what they are — namely, illicitly motivated forms of legislative intervention that insult autonomy no less than do flat bans that leave citizens with no choice but to substitute the state’s agenda for their own. As I conclude, whatever its name, a political theory that recommends to state officials the use of “nudges” as means of ensuring that citizens’ advance the state’s understanding of their own best interests is no more compatible with libertarianism than is a theory that recommends more coercive means of paternalism.
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