About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

99 Nw. U. L. Rev. 1245 (2004-2005)
Libertarian Paternalism Is an Oxymoron

handle is hein.journals/illlr99 and id is 1255 raw text is: Copyright 2005 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 99, No. 3 Review Essay LIBERTARIAN PATERNALISM IS AN OXYMORON Gregory Mitchei I. THE EVITABILITY OF CHOICE-FRAMING PATERNALISM ....................................... 1248 II. USING PATERNALISM TO MAXIMIZE LIBERTY, NOT WELFARE ............................ 1260 III. THE REDISTRIBUTIVE CONSEQUENCES OF LIBERTARIAN PATERNALISM .............. 1269 IV . C ONCLU SIO N ...................................................................................................... 1276 In Libertarian Paternalism Is Not an Oxymoron, Professors Sunstein and Thaler set out to show that state control over the structure of choice op- tions can improve the welfare of citizens without reducing personal auton- omy.t A public or private institution that adopts the perspective of the libertarian paternalist will steer people's choice in directions that will improve the choosers' own welfare but will not prescribe or proscribe any particular choices.2 This limited regulation of choice behavior should be * Associate Professor, Florida State University College of Law, and Visiting Associate Professor, University of Virginia School of Law. The author may be contacted by e-mail at gmitchel@law.fsu.edu or by regular mail at Florida State University College of Law, 425 West Jefferson Street, Tallahassee, Florida 32306-1601. I appreciate the helpful comments on a draft by participants in the N.Y.U. Collo- quium on Market Institutions and Economic Processes, Amitai Aviram, Paul Edelman, Chris Guthrie, Steve Hetcher, Adam Hirsch, Jon Klick, Mae Kuykendall, Peter Oh, Jim Rossi, Phil Tetlock, Mike Van- denbergh, and particularly Richard Thaler. I See Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Cm. L. REV. 1159, 1160 (2003) (We propose a form of paternalism, libertarian in spirit, that should be acceptable to those who are firmly committed to freedom of choice on grounds of either autonomy or welfare.). Despite its newness, the libertarian paternalism concept has already been cited to discount libertarian concerns about paternalistic proposals generated from behavioral economics analyses. See Michael Pereira, Risk Management for the Age ofInformation, 9 FORDHAM J. CORP. FIN. L. 715, 758 (2003) (reviewing ROBERT J. SHILLER, THE NEW FINANCIAL ORDER: RISK IN THE 21ST CENTURY (2003)) (An emerging strain of scholarship offers a means of reconciling intervention in individual choices with a concern for autonomy. The idea, known variously as 'asymmetric paternalism' or 'liber- tarian paternalism,' suggests that planners (government or private) can increase social welfare by setting default rules that create benefits for those who make errors but impose little or no harm on those who are fully rational.). Thaler and Sunstein also published a shorter essay on libertarian paternalism for an economic audi- ence. Richard H. Thaler & Cass R. Sunstein, Libertarian Paternalism, 93 AM. ECON. REV. 175, 175 (2003). My comments focus on the more detailed discussion of libertarian paternalism found in the University of Chicago Law Review article. 2 See Sunstein & Thaler, supra note 1, at 1162. Sunstein and Thaler encourage planners within both public and private institutions to design choice settings in ways that steer people in welfare- 1245

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most