Whatever its precise form, the advantage of such an approach is that it would involve a dedicated and specialized team, highly informed and specifically devoted to the relevant work and with expertise in the design of experiments. If the team can work with others to conduct its own research, including randomized controlled trials, it might be able to produce important findings (as has in fact happened in the United Kingdom, Australia, Ireland, the Netherlands, and the United States, and similar efforts are occurring elsewhere). The risk is that such a team would be akin to an academic adjunct, a kind of outsider, without the ability to power or initiate real reform. Authority greatly matters. The United Kingdom has had the most experience with this kind of approach, and it has succeeded in part because it has enjoyed high-level support and access.
In this domain, one size does not fit all, but it is noteworthy that a growing number of nations have concluded that it is worthwhile to have a dedicated team. Of course, the two approaches might prove complementary.
Note
1. Louis D. Brandeis, Other People’s Money 92 (1914).
5
Forcing Choices
When you enter a taxicab in a large city and ask to go to the airport, you might well be asked: “What route would you like me to take?” If you are like many people, you will not welcome the question. You might even hate it. After all, it is the business of the driver to know how to get to the airport, and in any case the driver almost certainly has access to a GPS device. For you, the question—asking you to choose—is a kind of mental tax, cognitive for sure (because of the need to think) and possibly hedonic as well (because it is not exactly pleasant to ponder how to get to the airport). To be sure, the tax is likely to be small—but it might well be unwelcome.
Whenever a doctor or a lawyer asks a patient or a client a battery of questions, a possible reaction might be: “On some of these questions, why don’t you decide for me?” If the emotional stakes are high, and if the issues are difficult, the hedonic and cognitive tax might be very high. And whenever public officials require people to fill out complex forms to qualify for training or for benefits, the tax might turn out to be prohibitive, at least for some people. It might lead them not to apply at all. It is for this result that complex form-filling requirements are not merely a paperwork burden; they can undermine and even undo the underlying programs. Form filling can be a curse.
In this light, consider three problems:
1. An online clothing company is deciding whether to (a) adopt a system of default settings for privacy or (b) require first-time users to specify, as a condition for access to the site, what privacy settings they would prefer.
2. A large employer is deciding among three options: (1) to enroll employees automatically in a health insurance plan; (2) to ask them to opt in if they like; or (3) to say that as a condition for starting work, they must indicate whether they want health insurance and, if they do, which plan they want.
3. A utility company is deciding whether to adopt a “green default” for consumers, with a somewhat more expensive but environmentally preferable energy source, or instead a “gray default,” with a somewhat less expensive but environmentally less desirable energy source—or, alternatively, to ask consumers which energy source they prefer.
In these cases, and countless others, a public or private institution or an individual is deciding whether to use some kind of default rule or to require people to make some kind of active choice. (I shall say a good deal about what the word require might mean in this setting.) For those who reject paternalism and who prize freedom of choice, active choosing has evident appeal. Indeed, it might seem far preferable to any kind of default rule. It respects personal agency; it promotes responsibility; it calls for an exercise of individual liberty. It seems to reflect a commitment to human dignity.
In light of these considerations, it is tempting to think that active choosing deserves some kind of pride of place, especially if it is accompanied by efforts to improve or “boost” people’s capacities, perhaps by providing them with information, perhaps by increasing their statistical literacy. Some social scientists like to distinguish between System 1, the automatic or intuitive system of the mind, and System 2, the deliberative system.1 The deliberative system might tell you that air travel is very safe, even if the intuitive system thinks that planes cannot possibly make it over long distances. Perhaps the best approach is to strengthen System 2 and insist on active choosing.
In recent years, there have been vigorous debates about freedom of choice, paternalism, behavioral economics, individual autonomy, and the use of default rules and choice architecture. Invoking recent behavioral findings, some people have argued that because human beings err in predictable ways and cause serious problems for themselves, some kind of paternalism is newly justified, especially if it preserves freedom of choice, as captured in the idea of “nudging” or “libertarian paternalism.” Others contend that because of those very errors, some form of coercion is needed to promote people’s welfare. They believe that as a result, the argument for denying choice or nonlibertarian paternalism is strengthened.2
My central goal here is to unsettle that opposition and to suggest that it is often illusory. The central reason is that people often choose not to choose, and forcing them to choose is a kind of tax. In many contexts, insisting on active choosing, or forcing people to choose, is a form of paternalism, not an alternative to it. Under imaginable assumptions, any effort to require active choosing easily fits within the standard definition of paternalism and runs afoul of the most conventional objections to paternalism. Many people believe, in many contexts, that choosing is burdensome and costly. Sometimes they choose not to choose explicitly (and indeed are willing to pay a considerable amount to people who will choose for them). They have actively chosen not to choose.
Sometimes people have made no explicit choice; they have not actively chosen anything. But it is nonetheless reasonable to infer that in particular contexts, their preference is not to choose, and they would say so if they were asked. (Recall the case of the cab ride to the airport or the interaction with a doctor or a lawyer.) They might fear that they will err. They might be busy and lack “bandwidth”3 and thus have limited cognitive resources and do not want them to be taxed. They might want to focus on some concerns but not others; they might think that choosing would deny them that freedom. They might be aware of their own lack of information or perhaps their own behavioral biases (such as unrealistic optimism). They might find the underlying questions confusing, difficult, painful, and troublesome—empirically, morally, or otherwise. They might not enjoy choosing. They might not want to take responsibility for potentially bad outcomes for themselves (and at least indirectly for others).4 They might anticipate their own regret and seek to avoid it.
But even when people prefer not to choose, many private and public institutions favor and promote active choosing on the ground that it is good for people to choose. They may have sufficient reasons for that belief. Sometimes active choosing is required as a way of overcoming a collective action problem (people cannot delegate the right to vote), but sometimes it is a means of protecting those who choose not to choose against their own mistake(s). The central idea is that people should be choosing even if they do not want to do so. An institution might think that choice making builds some kind of muscle; it might think that it helps people to learn. To the extent that the institution’s preference for choice making overrides that of the chooser (who prefers not to choose), active choosing counts as paternalistic. It overrides people’s own judgments about what is good or what best promotes welfare or freedom.
To be sure, nanny states forbid choosing, but they also forbid the choice not to choose. Choice-promoting or choice-requiring paternalism might be attractive forms of paternalism, but neither is an oxymoron, and they are paternalistic nonetheless.
If people are required to choose even when they would prefer not to do so, active choosing counts as a specie
s of nonlibertarian paternalism in the sense that people’s own choice is being rejected. We shall see that in many cases, those who favor active choosing are mandating it and may therefore be overriding (on paternalistic grounds) people’s choice not to choose. When people prefer not to choose, required choosing is a form of coercion—though it may be a justified form, at least when active choosing does not impose high taxes, when it does not increase the likelihood and magnitude of errors, and when it is important to enable people to learn and to develop their own preferences.
If, by contrast, people are asked whether they want to choose and can opt out of active choosing (in favor of, say, a default rule), active choosing counts as a form of libertarian paternalism. In some cases, it is an especially attractive form. A company might ask people whether they want to choose the privacy settings on their computer or instead rely on the default, or whether they want to choose their electricity supplier or instead rely on the default.
With such an approach, people are being asked to make an active choice between the default and their own preference, and in that sense their liberty is fully preserved. Call this simplified active choosing. Simplified active choosing has the advantage of avoiding the kinds of pressure that come from a default rule while also allowing people to rely on such a rule if they like. In the future, we should see, and we should hope to see, adoption of this approach by a large number of institutions, both public and private.
But that approach is no panacea. It imposes a tax of its own, even if the tax is small. It is important to acknowledge that whenever a private or public institution asks people to choose, it might be overriding their preference not to do so and in that sense engaging in choice-requiring paternalism. This point applies even when people are being asked whether they want to choose to choose. (The passenger must focus her attention even if a cab driver merely asks, “Do you want to tell me how to go, or would you like it better if I choose the route on my own?”) After all, they might not want to make that second-order choice (and might therefore prefer a simple default rule). If the point is not obvious, consider the fact that any question—in person, by email, by regular mail—that demands an answer is in effect a tax on people’s scarce cognitive resources.
In this sense, there is a strong nonlibertarian dimension to apparently liberty-preserving approaches that ask people to choose between active choosing and a default rule. If these claims do not seem self-evident, or if they appear a bit jarring, it is because the idea of active choosing is so familiar, and so obviously appealing, that it may not be seen for what it is: a form of choice architecture, and one that many choosers may dislike, at least in settings that are unfamiliar or difficult.
Varieties of Choice
Is government untrustworthy? Always? Many of those who embrace active choosing believe that consumers of goods and services, and indeed choosers of all sorts, should be free from government influence. Of course they recognize that in markets, producers will impose influences of multiple kinds, but they contend that when third parties are not affected, and when force and fraud are not involved, the government itself should remain neutral. They reject paternalism on government’s part.
Perhaps it is legitimate for public officials to require the provision of accurate information in order to ensure that consumers’ choices are adequately informed. Perhaps reminders are justified as well. But some people think that if government seeks to nudge people in its preferred directions in other ways—by imposing default rules or embracing paternalism of any kind—it is exceeding its appropriate bounds. In particular, they prefer active choosing, and they want to encourage it. And even if their focus is on the public sector, they might say the same thing for the private sector as well.
But what does active choosing entail? What does it mean to “require” people to indicate their preferences? The question is more difficult than it might seem. Those who insist on the inevitability of default rules will object that it has no clear answer. Even if choice architects seek to promote active choosing, they have to specify what happens if people simply refuse to choose. Isn’t the answer some kind of default rule?
The question is a good one, because some kind of default rule is ultimately necessary. Choice architects have to establish what happens if people decline to choose—a point that critics of nudging often miss. Choice architecture itself is inevitable. But this point should not be taken to collapse the distinction between active choosing and default rules. To see why, consider three possibilities.
1. Criminal or civil punishment for those who refuse to make an active choice.
In most contexts, no one contends that if people fail to make a choice, they should be killed, imprisoned, fined, or otherwise punished. The usual sanction for that failure is that they do not receive a good or service. But there are exceptions. In some nations, including Australia, Belgium, and (before 1970) the Netherlands, people have been subject to civil sanctions if they fail to vote, and in that sense they may be punished for refusing to make an active choice. Similarly, a provision of the Affordable Care Act, now repealed, required people to obtain health insurance, subject to punishment (in the form of a tax penalty) if they failed to do so. If people are required to obtain health insurance, they will normally be required to choose which plan to obtain.
With respect to active choosing, both of these cases do have a wrinkle: People are being forced to choose along one dimension (for whom to vote and which health insurance plan to obtain), but are being prohibited from choosing along another dimension (whether to vote or to obtain health insurance). But insofar as one kind of choice is being required, we may fairly speak of coerced choosing. In both cases, coerced choosing can be justified as a means of overcoming a collective action problem: the democratic system might be jeopardized unless most or all adults are voting, and perhaps a health insurance system requires very broad participation.
But we could easily imagine an effort to defend both forms of coercion on simple paternalistic grounds—for example, to protect themselves against disaster, people should be required to purchase health insurance, and to ensure that people have the right health insurance plan, people should be required to make a personal choice about what plan they should have. (To be sure, the second form of paternalism reflects a form of respect for individual agency that the first form of paternalism does not display. But on plausible assumptions, both forms make sense, and they do not really contradict each other.)
We could also imagine other contexts in which people would face sanctions if they do not choose, though admittedly some such cases look more like science fiction than the real world. For realistic examples, consider cases in which people must decide whether to become organ donors (or face criminal penalties) or must choose privacy settings on their computers (subject to civil sanctions if they do not). The fact that sanctions are rarely imposed on people who choose not to choose seems to suggest an implicit recognition that in a free society, such choices are generally acceptable and indeed a legitimate part of consumer sovereignty. One reason involves information: People know best what they want, and others should not choose for them, even if the choice is not to choose. I will press this point, which has been insufficiently emphasized by those who claim to prize individual choice.
2. Active choosing with respect to a related or ancillary matter as a condition for obtaining a good or a service (or a job).
Sometimes active choosing is mandatory in a distinctive sense: Unless people make an active choice on some matter, they cannot obtain a good or service, even though that good or service, narrowly defined, is not the specific topic of the choice that they are being asked to make. We can imagine a continuum of connections between the matter in question, for which an active choice is being required, and the specific good that has already been chosen. There would be a close connection if, for example, people were told that unless they indicate their preferences with respect to car insurance, they cannot lease a car. So too, there would be a close connection if peo
ple were told that unless they create a password, or indicate their preferences with respect to privacy settings, they cannot use their computer. And indeed, both of these cases are standard. In markets, sellers sometimes insist that purchasers must make an active choice on some related matter to obtain or use a product.
By contrast, there would be a somewhat weaker connection if people were informed that they cannot work with a particular employer until they indicate their preferences with respect to their retirement plan. The connection would be weaker still if people were told that they cannot obtain a driver’s license unless they indicate their preferences with respect to organ donation. The connection would be even weaker if people were told that they cannot register to vote unless they make a choice about their preferred privacy settings on their computer.
In the final example, there is no connection between the matter on which people are being asked to make a choice and the good that they are specifically seeking. In some cases, the choice architect is requiring an active choice on a matter that is genuinely ancillary. Note that in imaginable cases that fall in this category, the requirement of active choosing has a strongly coercive dimension insofar as the good in question is one that people cannot easily reject (such as a driver’s license, a job, or a right to vote). The choice architect is, in effect, leveraging that good to ensure an active choice on some other matter.
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