New paternalists justify interfering with people’s choices on the grounds that doing so will mean the people who are interfered with will have more of their preferences satisfied than they otherwise would.
Rizzo and Whitman argue that the new paternalist program requires vastly more information than its advocates realize. They think that this information cannot be accumulated and that as a consequence the new paternalism will be indistinguishable from the old paternalism. That is, those engaging in paternalist interference will do so based on their own preferences rather than the preferences of the people who are being interfered with.
Their article is daunting in length, but they gave us a helpful guide at the beginning that identifies six basic areas (Rizzo and Whitman 2009, 910).
I found that when I think about these cases, I tend not to count the cost of paternalist interference. Prof. Brown’s graph made it quite clear that there is a cost, at least in economic theory. In that way, I suppose, I was illustrating Rizzo and Whitman’s point.
However, as Peter pointed out, in some of the cases that Thaler and Sunstein discuss, nudges do not impose costs. In the cafeteria example, no one actually prefers the cookie over the apple. What they want is whatever comes first in the line, whether it’s an apple or a cookie. Putting the apple first, so that it is chosen rather than the cookie, thus imposes no cost on the chooser. But doing that has a definite benefit from the chooser’s perspective since the chooser wants to be healthy and the apple is the healthier choice. Scott added that the examples of forced choices concerning organ donations are similar: you just have to make a choice, you don’t have to decide one way or another.1 In both cases, you have a costless bit of interference with some obvious benefit. What’s not to like?
Generally speaking, I said that I thought Thaler and Sunstein were working from the bottom up while Rizzo and Whitman were coming from the top down. Thaler and Sunstein identify particular cases that seem apt for nudges. Rizzo and Whitman argue that it is very hard to identify the full range of cases in which nudges would be appropriate. This leaves me with the feeling that both sides might be right at the same time.
That isn’t a knock on Rizzo and Whitman. As Patrick pointed out, their paper strongly suggests that there cannot be an abstract, general theory of when interference is appropriate under the new paternalism. That certainly has to temper the enthusiasm that many of us feel when reading Thaler and Sunstein.
Peter and I had a brief discussion about the nature of science. In the course of that, I mentioned Galileo’s contention that a bowling ball and a feather would fall to the ground at the same rate in idealized circumstances. I know that you know it’s true. But there’s nothing like seeing it.
Rizzo, Mario J., and Douglas Glen Whitman. 2009. “The Knowledge Problem of New Paternalism.” BYU Law Review 2009 (4): 103–61. http://digitalcommons.law.byu.edu/lawreview/vol2009/iss4/4.
It is a little odd to describe organ donations as a case of paternalism. The person who is forced to make a choice doesn’t benefit one way or the other. The beneficiaries are the ones who get the organs after the donor is dead.↩