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Forcing People To Choose Is Paternalistic

22 Pages Posted: 2 Nov 2016  

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: November 1, 2016

Abstract

It can be paternalistic to force people to choose. Although many people insist on drawing a bright line between active choosing and paternalism, that line is often illusory. Calling for active choosing is a form of libertarian paternalism if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose). By contrast, calling for active choosing is a form of nonlibertarian paternalism insofar as people are actually required to choose. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people’s preferences and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse).

Keywords: default rules, active choosing, behavioral economics, paternalism

Suggested Citation

Sunstein, Cass R., Forcing People To Choose Is Paternalistic (November 1, 2016). Forthcoming, Missouri Law Review, Symposium on Libertarian Paternalism. Available at SSRN: https://ssrn.com/abstract=2862694 or http://dx.doi.org/10.2139/ssrn.2862694

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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