by Glen Whitman
Some new paternalists have recognized the slippery-slope objections to their approach, and they have made some effort to respond. But we find the responses insufficient (p. 735-737):
In their book Nudge, Sunstein and Thaler recognize the slippery-slope objections to their policies, and offer three responses. We reply to their responses here.Sunstein and Thaler’s first response is that the slippery-slope argument “ducks the question of whether our proposals have merit in and of themselves.” They say if the initial interventions are worthwhile, then we should “make progress on those, and do whatever it takes to pour sand on the slope.”
Our claim is not that slippery slopes are the only objection to the new paternalism. Various other objections have also been made (and referenced in the introduction to this Article). The slippery slope is an additional argument against the new paternalism.
The idea that we should “make progress” on the initial interventions, and then do what we can to “pour sand” on the slope, is a variant of the usual (and, we think, hackneyed) response to all slippery-slope arguments: that we can simply “do the right thing now, and resist doing the wrong thing later.” But if the slope argument is correct, there is a causal (albeit probabilistic) connection between initial interventions and later ones. Saying we should move forward on those initial interventions is akin to saying we should do something because it promises present benefits, while ignoring the potential costs in the future. Ironically, it is just this sort of error in private decision-making that most new paternalists think cries out for correction. The slope risk must be counted among the costs of the initial intervention.
Furthermore, how should we “pour sand” on the slope? Aside from invoking the term “libertarian,” Sunstein and Thaler offer no suggestions. We do, in the remainder of this Article. Our suggestions involve, among other things, rejecting their paternalism-generating framework.
Sunstein and Thaler’s second response is that their “libertarian condition” limits the steepness of the slope. They say their proposals are “emphatically designed to retain freedom of choice.” In short, they are relying on the “libertarian” part of libertarian paternalism to do the work of resisting paternalist slopes. But as we have seen (see especially Section III.B), their redefinition of “libertarian” actually encourages the slope. They recognize no sharp line between libertarian and non-libertarian policies, just a smooth gradient. And also as we have seen, their proposals do not, in fact, preserve freedom of choice in all cases. They have proposed or supported numerous policies (such as mandatory time-and-a-half overtime pay and cooling-off periods) that rule out certain options altogether, all under the rubric of libertarian paternalism.
It is also simply implausible to think the mere word “libertarian” will create a bulwark against further interventions. Even if Sunstein and Thaler themselves genuinely care about freedom of choice, they cannot control the application and transformation of their own ideas. They will not be in charge of all future legislation. As we have emphasized throughout this Article (see especially Sections II and IV), the creation of policy is a social process that involves multiple decisionmakers, who may not share their alleged concern with freedom of choice.
Sunstein and Thaler’s third response is to insist that in many situations, “some kind of nudge is inevitable,” because there will always be default rules and contexts that frame choices in certain ways.
It is one thing to have defaults, quite another to choose them with paternalist goals in mind. Traditional contract law chooses defaults in line with the customary expectations of the parties in question. Thus the new paternalists advocate overruling customary expectations so as to privilege what they (the experts) believe are better decisions. They would purposely shift transaction costs to those who wish to deviate from the experts’ preferred outcomes.
If new paternalism were truly inevitable, it would hardly be necessary to argue for it. Clearly, Sunstein and Thaler believe they are offering something beyond the inevitable. Moreover, they present their position in a manner designed to ease the transition from the inevitable to the more intrusive. They explicitly reject any sharp line between changing defaults and raising costs in other ways. Again, their very own next step, in discussing default rules, is to suggest raising the cost of exercising exit options, and then to endorse eliminating some options altogether.
To these points, I would add that even if you agree that paternalist selection of default rules is needed, the new paternalist approach advocates much, much more. The new paternalists must defend their whole position, not just the most defensible part.