The Storrs Lectures: Behavioral Economics and Paternalism
![handle is hein.journals/ylr122 and id is 1910 raw text is: CASS R. SUNSTEIN
The Storrs Lectures:
Behavioral Economics and Paternalism
A B ST R ACT. A growing body of evidence demonstrates that in some contexts and for identifiabl
reasons, people make choices that are not in their interest, even when the stakes are high. Policymaker
in a number of nations, including the United States and the United Kingdom, have used this evideno
to inform regulatory initiatives and choice architecture. Both the resulting actions and the relevan
findings have raised the possibility that an understanding of human errors opens greater space fo
paternalism (and thus raises doubts about John Stuart Mill's famous harm principle). Such errors cal
be thought of as behavioral market failures, and they are an important supplement to the standan
account of market failures. Actions taken to correct behavioral market failures can sometimes b
justified, even if the resulting actions are paternalistic. While hard forms of paternalism cannot be rule(
out of bounds, a general principle of behaviorally informed regulation-its first and only law-is tha
the appropriate responses to behavioral market failures usually consist of nudges, generally in the forn
of disclosure, warnings, and default rules. Some people invoke autonomy as an objection to paternalism
but the strongest objections are welfarist in character. Official action may fail to respect heterogeneity
may diminish learning and self-help, may be subject to pressures from self-interested private group
(the problem of behavioral public choice), and may reflect the same errors that ordinary people make
Where paternalism is optional, the objections, though plausible, are unhelpfully abstract; they depen(
on empirical assumptions that may not hold in identifiable contexts. There are many opportunities fo
improving human welfare through improved choice architecture.
A U T H O R. Robert Walmsley University Professor and Felix Frankfurter Professor of Law, Harvar(
Law School. This Feature is a revised version of the Storrs Lectures in Jurisprudence, which were give]
at Yale Law School on November 12-13, 2012. A much-shortened version, intended for a genera
audience, will be included as a chapter in CASS R. SUNSTEIN, SIMPLER: THE FUTURE OF GOVERNMEN
(forthcoming 2013). The author is grateful above all to Richard Thaler for comments and for man
years of discussion of these topics. It is important to emphasize that Thaler does not agree wit]
everything said here and hence that nothing here should be taken as reflective of a shared view abou
nudges and nudging. Special thanks to audiences at Yale Law School for graciousness and kindness, an(
for a host of valuable thoughts and suggestions. The author is also grateful to Esther Duflo, Elizabet
Emens, Christine Jolls, Martha Nussbaum, Eric Posner, Richard Posner, Lucia Reisch, and Adriai
Vermeule for illuminating comments. The author is thankful as well to Daniel Kanter for excellen
comments and research assistance and to participants in superb workshops at Harvard's Department o
Economics, Harvard's Kennedy School of Government, and the University of Chicago Booth School o
Business. From September 2009 to August 2012, the author served as Administrator of the White Hous
Office of Information and Regulatory Affairs; nothing said here represents an official view in any way.
1826](ViewImageLocal?handle=hein.journals/ylr122&div=47&collection=&method=preview&ext=.png&size=3)
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The Storrs Lectures: Behavioral Economics and Paternalism
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