Debate: To Nudge or Not to Nudge*

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Debate: To Nudge or Not to Nudge*
Daniel M. Hausman and Brynn Welch
Philosophy, University of Wisconsin, Madison
O
NE of the hottest ideas in current policy debates is “libertarian paternalism,”
the design of policies that push individuals toward better choices without
limiting their liberty. In their recent book, Nudge,
1
Richard Thaler and then
Obama advisor (now head of the White House’s Office of Information and
Regulatory Affairs), Cass Sunstein, suggest several ways in which government
agencies and private organizations might “nudge” individuals toward actions
that are better for them.
2
They hope to promote libertarian paternalism as
“a promising foundation for bipartisanship—a way of maintaining our firm
commitment to freedom of choice while also helping people make better
decisions for themselves” (p. 14). They suggest “that libertarian paternalism
offers a real Third Way—one that can break through some of the least tractable
debates in contemporary democracies” (p. 252/255).
Inthisarticle,weaddressquestionsbothaboutpaternalism—whatisit,andcould
there be a variety that does not limit freedom?—and about nudges—what are they,
and should those who value freedom find them unobjectionable? We deny
libertarian paternalism is both libertarian and paternalist and that it is as benign as
Thaler and Sunstein maintain.
3
We argue that some of their proposals constitute a
*We are grateful for comments and criticisms from Harry Brighouse, Claudia Card, Barbara Fried,
Robert Goodin, Michael McPherson, Philippe Mongin, Russ Shafer-Landau, Matthew Smith, Robert
Streiffer, and anonymous referees, though of course none of them is responsible for any remaining
blemishes.
1
(New Haven: Yale University Press, 2008). Page references in the text refer to this book; where
pagination differs between the original hard-cover edition and the revised paperback edition, the
second number (after the slash) refers to the paperback edition.
2
See also three other pieces by Thaler and Sunstein, “Libertarian paternalism,” American
Economic Review, 93 (2003), 175–9; “Libertarian paternalism is not an oxymoron,” University of
Chicago Law Review, 70 (2003), 1159–202; and “Preferences, paternalism, and liberty,” Preferences
and Well-Being, ed. Serena Olsaretti (Cambridge: Cambridge University Press, 2006), pp. 233–64. See
also Colin Camerer, Samuel Issacharoff, George Loewenstein, Ted O’Donoghue, and Matthew Rabin,
“Regulation for conservatives: behavioral economics and the case for asymmetric paternalism,”
University of Pennsylvania Law Review, 151 (2003), 1211–54, who at p. 1212 define asymmetric
paternalism in a more expansive way: “A regulation is asymmetrically paternalistic if it creates large
benefits for those who make errors, while imposing little or no harm on those who are fully rational.”
Many of the paradigm cases of old-fashioned paternalistic laws, such as laws requiring the use of seat
belts, are (contrary, we believe to the author’s intentions) instances of asymmetric paternalism.
3
Unlike Gregory Mitchell’s critique in “Libertarian paternalism is an oxymoron,” Northwestern
University Law Review, 99 (2005), 1245–77, our concern is not with whether a libertarian would
favor Thaler and Sunstein’s proposals.
The Journal of Political Philosophy: Volume 18, Number 1, 2010, pp. 123–136
© 2009 The Authors. Journal compilation © 2009 Blackwell Publishing Ltd., 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
doi: 10.1111/j.1467-9760.2009.00351.x

distinctive variety of paternalism, whose libertarian credentials are dubious, even
though their implementation would not be coercive
4
and would not significantly
limit freedom of choice. Our focus is on their concepts, not their policies.
After a first section that clarifies what Thaler and Sunstein take libertarian
paternalism to be, section II addresses the question of what constitutes
paternalism. In our view, what makes some of the policies Thaler and Sunstein
call “libertarian paternalism” paternalistic is that they push people to make
choices that are good for themselves by taking advantage of imperfections in
human decision-making abilities. Section III then addresses the broader question
concerning what limits there ought to be on nudges—that is, the use of flaws in
human judgment and choice to influence people’s behavior.
I. NUDGES AND LIBERTARIAN PATERNALISM
Thaler and Sunstein define nudges mainly by example. Consider their first
illustration, involving Carolyn, who has the responsibility of determining how
foods are displayed in school cafeterias. Carolyn knows that the placement of
food influences what children choose.
5
She has several options. For example, she
can arrange the items randomly or to maximize profits. She can also arrange the
dishes so that the students are likely to make the most nutritious choices.
Carolyn is what Thaler and Sunstein term a “choice architect:” she has the
“responsibility for organizing the context in which people make decisions” (p. 3).
Choice architects set the background against which people make choices,
whether or not their influence is recognized. Choice architecture is often
unavoidable.
In the cafeteria example, Carolyn has an opportunity to act as a libertarian
paternalist by arranging the food in the way that makes the children best off. In
Thaler and Sunstein’s view, the decision to arrange the food to encourage
nutritious choices is paternalistic because “it tries to influence choices in a way
that will make the choosers better off, as judged by themselves” (p. 5, [their
emphasis]). They maintain that this “libertarian paternalism” does not threaten
liberty, because it does not hinder individuals from choosing what they prefer.
They take liberty or freedom to be the absence of obstacles that close off possible
choices or make them more costly in time, inconvenience, unpleasantness, and so
forth. “Libertarian paternalism is a relatively weak and nonintrusive type of
paternalism, because choices are not blocked or fenced off.”
6
Except when
otherwise noted, we shall use liberty and freedom in the narrow way that Thaler
and Sunstein do.
4
In this article, we shall identify coercing someone with intentionally influencing someone’s
choices by restricting the choice set or deceiving them concerning the choice set.
5
As Thaler and Sunstein note (Nudge, p. 11), similar issues arise with respect to adults, whose food
choices are also influenced by the order in which foods are laid out in a cafeteria line.
6
“Preferences, paternalism, and liberty,” p. 234.
124 DANIEL M. HAUSMAN AND BRYNN WELCH

In Thaler and Sunstein’s view, a nudge is “any aspect of the choice architecture
that alters people’s behavior in a predictable way without forbidding any options
or significantly changing their economic incentives” (p. 6).
7
Notice that nudges
are not necessarily intended to benefit those whom they nudge, and Thaler and
Sunstein give examples of nudges, such as the “Don’t mess with Texas”
anti-littering campaign (p. 60) that have other aims. Thus, some nudges are
paternalistic; others are not.
Thaler and Sunstein demand that nudges involve such minimal costs to
choosers that they should never be troublesome to libertarians. Unfortunately,
some of their examples belie this characterization. For example, Thaler and
Sunstein write that the requirement that firms publish “Toxic Release
Inventories” “is a nice example of a social nudge” (p. 191/193), which enables
the media and environmental groups to produce an “environmental blacklist”
(p. 191/193). Although the government is not coercing firms to do anything
except disclose what hazardous chemicals they are storing or releasing into
the environment, the requirement makes possible heavy social sanctions for
polluting. Requiring the publication of Toxic Release Inventories was effective
precisely because it significantly increased the costs of polluting. An even more
egregious example of mislabeling a coercive policy as a nudge appears when
Thaler and Sunstein write that a cap and trade system restricting pollution “is
compatible with libertarian paternalism, because people can avoid paying the tax
by not creating pollution” (p. 186/188). On that reasoning, libertarians should
have no objection to paternalistic “sin taxes.” Despite these examples, we shall
take Thaler and Sunstein at their word—that a policy or practice is only supposed
to count as a nudge if it leaves the choice set essentially unchanged.
Thaler and Sunstein document important applications. The best known
involve retirement plans, in which employee participation depends significantly
on whether the default is to be enrolled, with a costless option to opt out, or
not to be enrolled, with an option to enroll. On the assumption that those
designing the plans can judge what is better for employees, they can choose the
default so as to benefit the employees without any non-trivial cost to their
freedom.
Thaler and Sunstein are enthusiastic about libertarian paternalist nudges,
because they are impressed by the imperfections in individual decision-making
illustrated by the extent to which people’s choices to save for retirement are
influenced by details concerning enrollment that ought to be of negligible
importance. They catalogue many factors that can lead to mistakes in human
judgment and decision-making such as optimism and overconfidence (p. 31), loss
aversion (p. 33), a status quo bias (p. 34), framing (p. 36), akrasia and myopia
(p. 40), inertia (p. 43), inattention and error (p. 87), as well as heuristics such as
7
The word, “economic” here is a slip on their part. Thaler and Sunstein are not concerned only
with economic incentives.
DEBATE: TO NUDGE OR NOT TO NUDGE 125

anchoring (p. 23), availability (p. 24), and representativeness (p. 26). People may
also deliberate badly because of social pressure.
8
Why shouldn’t these factors influence preferences? Why should these factors
be regarded as interferences with rational choice rather than as rational
determinants of choice? Addressing this question comprehensively is beyond the
scope of this article. Instead, we shall assume that it is possible to draw a
relatively uncontroversial, though not perfectly sharp line between rational
persuasion and other methods of influencing beliefs, preferences, and choices. We
are not otherwise concerned to defend Thaler and Sunstein’s views of which
factors interfere with rational deliberation, though they are generally plausible.
How many people believe that the setting of the default ought to be relevant to
how much they should save for retirement?
To sum up: Nudges are ways of influencing choice without limiting the choice
set or making alternatives appreciably more costly in terms of time, trouble,
social sanctions, and so forth. They are called for because of flaws in individual
decision-making, and they work by making use of those flaws. When intended to
benefit the person who is nudged, they constitute instances of what Thaler and
Sunstein call “libertarian paternalism.”
II. WHAT IS PATERNALISM?
Thaler and Sunstein define a policy as paternalistic “if it tries to influence choices
in a way that will make choosers better off, as judged by themselves” (p. 5).
9
According to this definition, the only things that distinguish paternalism from
beneficence in general are (a) that paternalism aims to benefit people by getting
them to make choices that are good for themselves rather than by providing
benefits in some other way and (b) that the choosers would agree with this
evaluation of their choice.
This definition of paternalism is unsatisfactory. Whether agents agree that
some intervention benefits them has nothing to do with whether the intervention
is paternalistic. More importantly, paternalism does not always aim to influence
choice. For example, consider a doctor who gives a life-saving blood transfusion
8
We are grateful here to Harry Brighouse. Chapter 3 of Nudge is concerned with peer pressure and
so touches on these influences, but its focus is on the psychological foibles that facilitate the influence
of others on our choices.
9
See also “Libertarian paternalism,” p. 175 and “Preferences, paternalism, and liberty,” p. 134.
Thaler and Sunstein maintain that a similar definition can be found in Donald Van de Veer,
Paternalistic Intervention: The Moral Bounds on Benevolence (Princeton: Princeton University Press,
1986), but in fact Van de Veer defines paternalism as follows: “A’s doing or omitting some act X to,
or toward, S is paternalistic behavior if and only if 1) A deliberately does (or omits) X, and 2) A
believes that his (her) doing (or omitting) X is contrary to S’s operative preference, intention, or
disposition at the time A does (or omits) X [or when X affects S—or would have affected S if X had
been done (or omitted)], and 3) A does (or omits) X with the primary or sole aim of promoting a
benefit for S [a benefit which, A believes, would not accrue to S in the absence of A’s doing (or
omitting) X] or preventing a harm to S [a harm which, A believes, would accrue to S in the absence
of A’s doing (or omitting) X]” (p. 22).
126 DANIEL M. HAUSMAN AND BRYNN WELCH

to an unconscious Jehovah’s Witness, who has asked not to be transfused.
We agree with Bernard Gert and Charles Culver that the doctor acts
paternalistically.
10
The doctor aims to benefit the Jehovah’s Witness against his
will, but obviously not by influencing his choice.
At the same time, Thaler and Sunstein’s characterization of paternalism
mistakenly counts giving advice and rational persuasion that aims at the good of
the advisee as paternalistic. So Thaler and Sunstein regard the following as
nudges: educational campaigns (p. 68/69), warning labels on cigarettes (p.
189/191), requirements that firms notify employees of hazards (p. 189/191), and
signs warning people on a hot day to drink more water (p. 244/247).
11
Unlike
constraining someone or substituting your judgment for theirs, providing
information and giving advice treats individuals as fully competent decision
makers.
12
In his classic critique of paternalism in On Liberty, John Stuart Mill is
as emphatic in his approval of attempts by individuals and the government to
inform and rationally to persuade as he is in his condemnation of what he calls
“the system of despotic, or what is called paternal, government.”
13
What Mill
objects to in paternalism is interference with individual liberty. Typical
contemporary philosophical treatments of paternalism treat a limitation on
freedom as a defining feature and the reason why paternalism is morally
problematic.
14
Unlike Sunstein and Thaler, the philosophers mentioned in the last
footnote have seen coercion as the crucial feature that distinguishes specifically
paternalistic actions and policies from the wider class of actions and policies
that merely aim at making people better off. Informing workers of hazards or
warning people to drink water in hot weather is accordingly not paternalistic.
Thaler and Sunstein disagree. They deny that paternalism must limit freedom in
the sense of closing off alternatives or making them more costly,
15
but their
argument for this denial consists largely of describing nudges that do not limit
choices and asserting that they are nevertheless paternalistic.
10
“Paternalistic behavior,” Philosophy and Public Affairs, 6 (1976), 45–57 at p. 46. Presumably,
the Jehovah’s Witness is also unlikely to agree that the intervention was beneficial.
11
There are many other examples. Nearly half of the nudges listed in the “bonus chapter” in the
revised paperback edition consist of proposals to provide people with more easily accessible
information via “smart” energy meters, feedback on energy use while driving, glowing power cords
or carbon labels. The RECAP program (Record, Evaluate, and Compare Alternative Prices), which
Thaler and Sunstein would apply to credit cards (p. 93/95), cell phones (p. 93/95), mortgages
(137–8/139–40), student loans (141/142), and Medicare Part D (173–4/175–6) is designed only to
provide more salient information.
12
Posting a sign does not mean that people will read it, and people do not automatically process
what they do read. Some of the information-giving nudges that Thaler and Sunstein discuss such as
the Texas anti-littering campaign (p. 60) exploit limits to rational evaluation to make information
salient and might after all count as the paternalistic “shaping” of evaluation and choice which we
discuss later. But most of the information-giving nudges discussed by Thaler and Sunstein are not
instances of paternalism.
13
John Stuart Mill, On Liberty (Indianapolis: Hackett, [1859] 1978), ch. 5.
14
See for example: Joel Feinberg, “Legal paternalism,” Canadian Journal of Philosophy, 1 (1971),
106–24; Gerald Dworkin, “Paternalism,” Monist, 56 (1972), 64–84; or Peter de Marneffe, “Avoiding
paternalism,” Philosophy and Public Affairs, 34 (2006), 68–94.
15
“The second misconception is that paternalism always involves coercion” (p. 11).
DEBATE: TO NUDGE OR NOT TO NUDGE 127

Have Thaler and Sunstein discovered that paternalism can be reconciled with
respect for individual liberty after all, or are they merely pointing out in
misleading language that beneficence need not conflict with freedom? Their
nudges do not limit what alternatives people can choose, except in trivial ways.
Perhaps students in the cafeteria line now cannot get cake without having to
reach over the fruit, but the cake is still there. Nudges leave the “choice set,” the
set of alternatives among which agents can choose, essentially unchanged. So if a
policy is paternalistic only if it limits what people can choose, none of Thaler and
Sunstein’s nudges are paternalistic.
Yet those who have been worried about the ways in which government action
and social pressure limit liberty have been concerned about liberty in a wider
sense than closing off alternatives or rendering them more costly. Let us call the
other aspects of this wider sense of liberty, “autonomy,”
16
—the control an
individual has over his or her own evaluations and choices. If one is concerned
with autonomy as well as freedom, narrowly conceived, then there does seem to
be something paternalistic, not merely beneficent, in designing policies so as to
take advantage of people’s psychological foibles for their own benefit. There is an
important difference between what an employer does when she sets up a
voluntary retirement plan, in which employees can choose to participate, and
what she does when, owing to her understanding of limits to her employees’
decision-making abilities, she devises a plan for increasing future employee
contributions to retirement. Although setting up a voluntary retirement plan may
be especially beneficial to employees because of psychological flaws that have
prevented them from saving on their own, the employer is expanding their choice
set, and the effect of the new plan on employee savings comes mainly as a result
of the provision of this new alternative. The reason why nudges such as setting
defaults seem, in contrast, to be paternalist, is that in addition to or apart from
rational persuasion, they may “push” individuals to make one choice rather than
another.
17
Their freedom, in the sense of what alternatives can be chosen, is
virtually unaffected, but when this “pushing” does not take the form of rational
persuasion, their autonomy—the extent to which they have control over their
own evaluations and deliberation—is diminished. Their actions reflect the tactics
of the choice architect rather than exclusively their own evaluation of
alternatives.
We shall call the use of flaws in human decision-making to get individuals to
choose one alternative rather than another “shaping” their choices. We intend
“shaping” to exclude rational persuasion. “Manipulation” would be a more
16
Autonomy is, of course, also used in the sense of what Isaiah Berlin calls “positive
freedom”—that is as conformity to standards of a substantive objective rationality—in “Two
concepts of liberty,” Four Essays on Liberty (Oxford: Oxford University Press, 1990). We are using
the term “autonomy” only to refer to the control an individual has over her own evaluation,
deliberation and choice.
17
Thaler and Sunstein, “Preferences, paternalism, and liberty,” pp. 234–5.
128 DANIEL M. HAUSMAN AND BRYNN WELCH

natural label, but since we are concerned with whether shaping people’s
choices is justified, we have avoided using a word with such pejorative
connotations. Employing this stipulative definition of “shaping” choices, one can
then say that what makes some of the nudges Thaler and Sunstein discuss
instances of paternalism is that they involve shaping people’s choices for their
own benefit.
One straightforward way to define paternalism would accordingly be to
maintain that:
A policy is paternalistic if and only if it aims to advance the interests of some person
P either (a) via influencing P’s choices by shaping how P chooses or limiting what P
can choose or (b) by some means that will take effect regardless of what P does and
against P’s will.
18
What characterizes paternalism are the aims with which one acts and the means
one employs, not whether one is successful. According to (a), which is the only
clause that is relevant to Thaler and Sunstein’s position, a paternalist aims to
influence P’s choices through means other than rational persuasion. Paternalistic
policy aims to affect choice either by changing the set of available alternatives
among which an agent can choose or by employing non-rational means to
influence how the agent chooses among an unchanged set of alternatives.
Paternalistic actions either coerce people or use imperfections in their deliberative
abilities to shape their choices. In Seana Shiffrin’s suggestive terminology,
paternalistic policies attempt to substitute the policy-maker’s judgment of what is
good for the agent for that of the agent.
19
Carolyn’s food arrangement satisfies the first part of this definition and thus
counts as paternalistic. If instead she placed placards by the various dishes with
nutritional information, then she would not be aiming to shape how the children
choose or to limit what can be chosen, and her actions would not in our view (as
opposed to Thaler and Sunstein’s) count as paternalistic. If the placards
contained false information designed to deceive the students into making the
right choices for the wrong reasons, then she would be behaving paternalistically
again. Similarly, policies setting participation as the default in a retirement
scheme aim to advance the interests of the employees by shaping how they
choose, unlike setting up a voluntary retirement scheme which influences
employee’s choices mainly via their knowledge of the enlarged choice set. Our
definition will count as paternalistic everything that traditional definitions count.
But some actions that are not coercive, such as Carolyn’s food arrangements, will
also count as paternalistic.
18
Clause (b) might be too broad. For example, are gifts that recipients would refuse to purchase
for themselves paternalistic, as (b) suggests? It is not clear that this is so. Furthermore, most gifts can
be refused or returned and so are not likely to “take effect regardless of what P does.” Clause (b) does
not figure in our discussion of Thaler and Sunstein’s views.
19
“Paternalism, unconscionability doctrine, and accommodation,” Philosophy & Public Affairs,
29 (2000), 205–50.
DEBATE: TO NUDGE OR NOT TO NUDGE 129

Why draw the line between paternalistic and non-paternalistic attempts to
influence people’s choices for their own benefit at limiting what people can
choose or shaping their choices? What connection is there between such a line
and the possibility that there is something morally troubling about paternalism?
The answer is that rational persuasion respects both individual liberty and the
agent’s control over her own decision-making, while, in contrast, deception,
limiting what choices are available or shaping choices risks circumventing the
individual’s will. What matters is whether the policy-maker is attempting to bring
about something against the beneficiary’s will.
20
When attempting to persuade people rationally, we may be kidding ourselves.
Our efforts to persuade may succeed because of the softness of our smile or our
aura of authority rather than the soundness of our argument, but a huge
difference in aim and attitude remains. Even if purely rational persuasion were
completely impossible—that is, if rational persuasion in fact always involved
some shaping of choices as well—there would be an important difference
between attempting to persuade by means of facts and valid arguments and
attempting to take advantage of loss aversion or inattention to get someone to
make a choice that they do not judge to be best. Like actions that get people to
choose alternatives by means of force, threats, or false information, exploitation
of imperfections in human judgment and decision-making aims to substitute the
nudger’s judgment of what should be done for the nudgee’s own judgment. When
such interference aims at the individual’s own good, it is paternalistic. The
paternalistic policies espoused by Thaler and Sunstein and others, which involve
negligible interferences with freedom (in the sense of the range of alternatives that
can be chosen), may threaten the individual’s control over her own choosing. To
the extent that they are attempts to undermine that individual’s control over her
own deliberation, as well as her ability to assess for herself her alternatives, they
are prima facie as threatening to liberty, broadly understood, as is overt coercion.
Insofar as it is genuinely paternalistic, libertarian paternalism will count as
“libertarian” only for those whose concerns about liberty are limited to questions
about the contents of the choice set.
III. USING DECISION-MAKING FOIBLES TO INFLUENCE CHOICES
Is paternalism that plays on flaws in human judgment and decision-making to
shape people’s choices for their own benefit defensible? If one believes, as we do,
that paternalistic policies (such as requiring the use of seat belts) that limit liberty
are sometimes justified, then it might seem that milder nudges would a fortiori be
unproblematic.
But there may be something more insidious about shaping choices than about
open constraint. For example, suppose, for the purposes of argument, that
20
Shiffrin, op. cit., p. 213.
130 DANIEL M. HAUSMAN AND BRYNN WELCH

subliminal messages were highly effective in influencing behavior.
21
So the
government might, for example, be able to increase the frequency with which
people brush their teeth by requiring that the message, “Brush your teeth!” be
flashed briefly during prime-time television programs. Influencing behavior in this
way may be a greater threat to liberty, broadly conceived, than punishing drivers
who do not wear seat belts, because it threatens people’s control over their own
evaluations and deliberation and is so open to abuse. The unhappily coerced
driver wearing her seat belt has chosen to do so, albeit from a limited choice set,
unlike the hypothetical case of a person who brushes his teeth under the influence
of a subliminal message. In contrast to Thaler and Sunstein, who maintain
that “Libertarian paternalism is a relatively weak and nonintrusive type of
paternalism,”
22
to the extent that it lessens the control agents have over their own
evaluations, shaping people’s choices for their own benefit seems to us to be
alarmingly intrusive.
Influencing behavior in such ways is troubling, and we propose in this section
to comment on the general question of what limits there should be on the
exploitation of decision-making flaws to influence behavior. There is obviously a
huge range of techniques that people use to influence the behavior of others
without limiting what alternatives they can choose. In addition to shaping
behavior—exploiting the flaws in rational deliberation with which Thaler and
Sunstein are concerned—advertisers attempt to influence consumer choices by
suggesting associations between products and valued traits such as masculinity or
femininity or wealth or health. Charities attempt to draw on people’s emotions.
Pictures or music can change people’s perception of the value of alternatives.
There is also often some element of informing and rationally persuading in the
complex and rich panoply of ways in which people influence the choices of
others. Assessing these techniques is a complex task, and we can only scratch the
surface.
In particular, we shall focus on the limits that ought to be imposed specifically
on government action, in part because it is difficult to see how to implement
limits on persuasive techniques employed by non-governmental agents. What
makes the cacophony of invocations of irrational responses by non-governmental
agents tolerable (to the extent that it is tolerable) are, we suggest, the limits to its
effectiveness and the extent to which these invocations conflict with one another
and cancel one another out.
Despite their suggestion that protecting freedom of choice is sufficient to allay
libertarian concerns about methods of influencing choices, Thaler and Sunstein
21
Luc Bovens considers the same thought experiment and argues that what distinguishes nudges
from subliminal messages is the requirement that people be informed in each instance in which
someone attempts to shape their choices. But he does not justify this requirement, and he concedes
that such transparency is a matter of degree. See “The ethics of nudge,” Preference Change:
Approaches from Philosophy, Economics and Psychology, ed. Till Grüne-Yanoff and S. O. Hansson
(Berlin: Springer, 2008), pp. 207–219, esp. pp. 216ff.
22
“Preferences, Paternalism, and Liberty,” p. 234.
DEBATE: TO NUDGE OR NOT TO NUDGE 131

show some awareness of the risks that shaping poses to people’s control over
their own choices. They argue that subverting people’s control over their own
actions by means such as subliminal messages is morally objectionable, because,
unlike the nudges they favor, subliminal messages violate a publicity condition
that “bans government from selecting a policy that it would not be able or willing
to defend publicly to its own citizens” (244/247).
23
One way to rationalize their
imposition of a publicity condition would be to attribute to them the recognition
that, while not changing what individuals can in fact choose, deception can make
it appear to the individual that the choice set has changed and thereby limit
freedom.
Thaler and Sunstein’s publicity principle is however insufficient to rule out the
use of subliminal advertising. For example, it seems possible that the government
might be able and willing to defend the use of subliminal messages such as “Brush
your teeth!” and thus satisfy the publicity condition. But Thaler and Sunstein
would condemn subliminal advertising, on the ground that it is impossible for
individuals to monitor it (pp. 246, 249). They go on to question whether
subliminal advertisements (if they worked) would count as nudges, on the
grounds that they would make it appreciably more difficult to choose some
alternatives. But Thaler and Sunstein cannot consistently maintain that
subliminal advertising counts as an infringement of freedom, because it does not
rule out alternatives or make them more costly. It seems to us that what bothers
Thaler and Sunstein about the hypothetical case of efficacious subliminal
advertising is the efficacy itself. In other words, we suspect that despite their
explicit claims to the contrary, they agree that nudges are not always benign.
What limits should there be on the government’s use of nudges that shape
choices? Three distinctions may be helpful. First, in many cases, regardless of
whether there is a nudge or not, people’s choices will be shaped by factors such
as framing, a status quo bias, myopia and so forth. Although shaping still raises
a flag because of the possibility of one agent controlling another, it arguably
renders the action no less the agent’s own, when the agent would have been
subject to similar foibles in the absence of nudges. When choice shaping is not
avoidable,
24
then it must be permissible.
Second, although informed by an understanding of human decision-making
foibles, some nudges such as “cooling off periods” (p. 250/253) and “mandated
choice” (pp. 86–7/88) merely counteract foibles in decision-making without in
any way pushing individuals to choose one alternative rather than another.
25
In
23
Thaler and Sunstein offer this principle and say that they endorse John Rawls’s publicity
condition in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 48. However,
Rawls’ principle requires that principles be known and understood by the public, not merely that they
be publicly defensible.
24
Thaler and Sunstein argue that choice architecture is unavoidable. See pp. 239–53 of
“Preferences, Paternalism, and Liberty” and especially p. 250.
25
For an example of a cooling-off period, buyers of goods from door-to-door salesmen have three
days in which to rescind the purchase. Thaler and Sunstein do not regard cooling-off periods as
132 DANIEL M. HAUSMAN AND BRYNN WELCH

this way, shaping apparently enhances rather than threatens an individual’s
ability to choose rationally. Allowing people voluntarily to place themselves on a
list that bans them from casinos (p. 233/235) shifts the decision about whether to
gamble to a moment when temptation is weaker and thereby shapes the choice
that results, but it does not threaten people’s control over their own choices.
26
Third, one should distinguish between cases in which shaping increases
the extent to which a person’s decision-making is distorted by flaws
in deliberation, and cases in which decision-making would be at least as
distorted without any intentionally designed choice architecture.
27
In some
circumstances, such as (hypothetical) subliminal advertising, the foibles that
make people care less about brushing their teeth are less of a threat to their
ability to choose well for themselves than the nudging. In other cases, such as
Carolyn’s, the choices of some of the students passing through the cafeteria line
would have been affected by the location of different dishes, regardless of how
the food is displayed.
There remains an important difference between choices that are intentionally
shaped and choices that are not. Even when unshaped choices would have been
just as strongly influenced by deliberative flaws, calculated shaping of choices still
imposes the will of one agent on another. Suppose, for example, that, with the
help of a consulting behavioral economist, an employer is able to structure the
defaults, the contribution timing, and the framing of a retirement plan so as to
achieve a very high contribution rate from a large majority of employees. When
the employer and the consultant get together to congratulate themselves on
engineering the situation so that the employees chose in just the way that the
employer had planned for them to choose, they are celebrating their power over
the employees. Even if the employees would have chosen to structure the choice
architecture in this way if they had been able to choose, the employer and the
consultant were knowingly choice architects, and their shaping partly controlled
what the employees take to be their independent choices.
Having drawn these distinctions, let us focus on the use of shaping that is
avoidable and not designed exclusively to facilitate rational choice. Should we be
nudges, on the grounds that they are substantial infringements on freedom. An example of mandated
choice would be a requirement that prospective employees decide on what contribution they will
make to the company’s retirement plan as a condition of employment. It is not clear whether Thaler
and Sunstein regard mandated choice as a nudge, but whether they do or not, it is paternalistic only
insofar as it coerces people into choosing.
26
A related distinction between hard and soft paternalism is important to the justification of
openly coercive paternalistic policies such as seat belt laws. This is the distinction between on the one
hand limits on freedom of choice that aim to benefit people by counteracting their irrationality and
on the other hand limits that aim to benefit people by correcting rational but mistaken choices.
According to hard paternalism, the fact that interference will prevent harm to the actor is a good
reason to interfere, regardless of why the actor chooses as he or she does. Soft paternalism maintains
that such interference is justified only when the choice the actor makes is largely non-voluntary. See
Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), pp. 12–16.
27
Although some comparisons seem to be possible, there is no obvious metric of how seriously
compromised someone’s deliberative capacities are.
DEBATE: TO NUDGE OR NOT TO NUDGE 133

troubled by efforts to nudge people in this way, whether for their own good or for
the good of others? One reason to be troubled, which Thaler and Sunstein to
some extent acknowledge (p. 246/249), is that such nudges on the part of the
government may be inconsistent with the respect toward citizens that a
representative government ought to show. If a government is supposed to treat its
citizens as agents who, within the limits that derive from the rights and interests
of others, determine the direction of their own lives, then it should be reluctant
to use means to influence them other than rational persuasion. Even if, as seems
to us obviously the case, the decision-making abilities of citizens are flawed and
might not be significantly diminished by concerted efforts to exploit these flaws,
an organized effort to shape choices still appears to be a form of disrespectful
social control.
We think that it is nevertheless sometimes acceptable for the government to
shape people’s choices. Not only is there no bright line between the use of shaping
to influence choice and its use to facilitate autonomous decision-making by
freeing individuals from other irrelevant influences, but when there are strong
reasons (paternalistic or otherwise) to get citizens to behave in a certain way,
shaping people’s choices may be more efficient and less constraining than limiting
what they can choose. Public service announcements often make use of our
foibles, rather than simply using rational persuasion to influence our behavior.
They may thereby promote the desired behavior at a lower cost with a smaller
infringement of freedom than passing a law requiring the behavior. Although the
“Don’t mess with Texas” campaign was informational and complemented rather
than replaced laws against littering, both in its formulation and in the advertising
campaign, it attempted to create a machismo image for those who don’t litter (p.
60) and to influence behavior via that association. The campaign was not a
significant threat to freedom, and in any event, coercion to prevent littering is
clearly permissible. By playing on emotions that ought to be irrelevant to
littering, it attempted some very mild shaping and thereby influenced behavior at
a much lower cost than harsher penalties for littering or expanded enforcement
of anti-littering laws.
28
The justification for such shaping, like the justification
of openly coercive policies, rests on a comparison of benefits to the loss of
autonomy, not, as Thaler and Sunstein suggest, on the view that nudges are
costless.
We do not defend any wholesale conclusions justifying or condemning policies
such as nudges that make use of limitations of individual decision-making. But
we would defend the following four claims:
28
In addition, whether via coercion or shaping, limitations on freedom can benefit people not only
by making them better off but by making them in the future better able to choose for themselves. For
example, government interference, whether by requiring enrollment in social security or setting
defaults to encourage participation in a retirement savings plan, might indirectly help protect the
autonomy of individuals in the future by providing them with greater financial security when they are
retired.
134 DANIEL M. HAUSMAN AND BRYNN WELCH

1. Government action to shape people’s choices is subject to abuse: it is
possible by means of shaping to get people to make choices that are at odds
with their stated preferences and with the preferences they would express if
their deliberation were not flawed. Furthermore, it might be more difficult
to monitor attempts to shape choices than it would be to monitor openly
coercive policies. The main protections against abuse seem to us to be our
limited proficiency at exploiting flaws in human decision making and the
extent to which efforts at shaping choices on the part of different agents
undercut one another. The most serious risks of abuse seem to us to lie in
the exploitation of people’s fears and hatreds, some of which surely counts
as shaping choices.
2. As Thaler and Sunstein wisely but somewhat inconsistently maintain,
publicity is important. One important way to protect against abuse and to
respect autonomy is to make sure that the government actually inform
people of efforts to shape their choices, not merely that it be able and willing
to do so. People should be informed of government efforts to exploit their
decision-making foibles, even if doing so undercuts their effectiveness.
29
3. The findings of psychologists and behavioral economists concerning the
character and significance of flaws in our deliberative capacities remind us
of their fragility and of the need to nurture them. No matter how well
intentioned government efforts to shape choices may be, one should be
concerned about the risk that exploiting decision-making foibles will
ultimately diminish people’s autonomous decision-making capacities.
30
When the government intentionally employs non-rational means of
persuasion, it should take care not to undermine its capacity to persuade
people rationally.
4. Coercion is often justified, and shaping sometimes a better alternative than
coercion, but rational persuasion is the ideal way for government to
influence the behavior of citizens. Although the force of rational persuasion
is limited, and actual persuasion is rarely purely rational, only rational
persuasion fully respects the sovereignty of the individual over his or her
own choices.
31
29
Thaler and Sunstein defend their publicity condition on two grounds. First, they say, “If a
government adopts a policy that it could not defend publicly, it stands to face considerable
embarrassment, and perhaps much worse, if the policy and its grounds are disclosed.” Second, they
think the publicity condition reflects respect: “The government should respect the people whom it
governs, and if it adopts policies that it could not defend in public, it fails to manifest that respect.
Instead, it treats its citizens as tools for its own manipulation” (p. 245). Although necessary to show
respect, the ability of the government to defend policies publicly is not sufficient. We maintain that
publicity must be actual, not merely counterfactual.
30
As Bovens notes, “Nudging may not create sustainable effects on people’s behaviour” op. cit.,
p. 11.
31
A systematic account of rational persuasion is needed here. We do not mean to suggest that
rational persuasion is emotionless cold calculation. Clarifying the role of emotions in rational
persuasion is a difficult task for another occasion.
DEBATE: TO NUDGE OR NOT TO NUDGE 135

IV. CONCLUSIONS
Libertarian paternalistic nudges are in many cases not paternalistic at all, but
instead largely cases of rational persuasion. When they are paternalistic and in
our terminology “shape” choices, their libertarian credentials are questionable,
even though they do not close off alternatives or render them appreciably more
costly. Those nudges that Thaler and Sunstein discuss that are actually
paternalistic seem to us in most cases nevertheless unobjectionable, but not
merely on the grounds that they do not change the choice set. Systematically
exploiting non-rational factors that influence human decision-making, whether
on the part of the government or other agents, threatens liberty, broadly
conceived, notwithstanding the fact that some nudges are justified. Publicity,
competition and limits to human abilities to influence choices limit the threat. But
once the character of the paternalism in Thaler and Sunstein’s “libertarian
paternalism” has been clarified, its risks to an agent’s control over her own
deliberation are evident.
32
32
Though not of philosophical importance, Thaler and Sunstein’s hope “that the general approach
might serve as a viable middle ground in our unnecessarily polarized society” (p. 252/255) strikes us
as implausible. Their major policy proposals—school choice, cap and trade markets to limit
pollution, and privatizing marriage and limiting legal recognition to domestic partnerships open to
gays and lesbians—have little connection to libertarian paternalism or nudges, and they are hardly
middle ground. There are many insights in Nudge for the nitty-gritty business of designing policies,
but no path toward reconciling disagreements concerning major issues.
136 DANIEL M. HAUSMAN AND BRYNN WELCH