Manipulation As Theft

13 Pages Posted: 6 Jul 2021

See all articles by Cass R. Sunstein

Cass R. Sunstein

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

Date Written: July 4, 2021

Abstract

Should there be a right not to be manipulated? What kind of right? On Kantian grounds, manipulation, lies, and paternalistic coercion are moral wrongs, and for similar reasons; they deprive people of agency, insult their dignity, and fail to respect personal autonomy. On welfarist grounds, manipulation, lies, and paternalistic coercion share a different characteristic; they displace the choices of those whose lives are directly at stake, and who are likely to have epistemic advantages, with the choices of outsiders, who are likely to lack critical information. Kantians and welfarists should be prepared to endorse a (moral) right not to be manipulated, though on very different grounds. The moral prohibition on manipulation, like the moral prohibition on lies, should run against officials and regulators, not only against private institutions. At the same time, the creation of a legal right not to be manipulated raises hard questions, in part because of definitional challenges; there is a serious risk of vagueness and a serious risk of overbreadth. (Lies, as such, are not against the law, and the same is true of unkindness, inconsiderateness, and even cruelty.) With welfarist considerations in mind, it is probably best to start by prohibiting particular practices, while emphasizing that they are forms of manipulation and may not count as fraud. The basic goal should be to build on the claim that in certain cases, manipulation is a form of theft; the law should forbid theft, whether it occurs through force, lies, or manipulation. Some manipulators are thieves.

Keywords: manipulation, behavioral economics, nudge, vagueness, overbreadth

JEL Classification: D003, D10, D11, D18, D60, D80, K0, K2

Suggested Citation

Sunstein, Cass R., Manipulation As Theft (July 4, 2021). Available at SSRN: https://ssrn.com/abstract=3880048 or http://dx.doi.org/10.2139/ssrn.3880048

Cass R. Sunstein (Contact Author)

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

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