Monday, October 31, 2016

Ethics of Behavioural Science Policy

One of the three key themes of the new group in Dublin will be to examine the ethical aspects of behavioural science applications in policy. See the link here for a recent workshop we conducted in this area joint with Stirling Behavioural Science Centre and Newcastle University Law School. Threa readings below gives a sense of the interest in the ethical implications of nudging. I have been updating this list throughout the last year as part of developing our teaching programme. But more generally, ethical issues are always worth thinking about when devising and evaluating interventions that will impact upon people. Sunstein, in particular, has been responding at length to various ethical critiques of Nudge and if you haven't got time to get through the hundreds of pages below his recent paper on this is a good and readable way of getting into the debate and also his recent book here. Suggestions on other papers and streams of research in this area welcome. Am open to suggestions also for some resource that we could develop on the blog for this aspect of behavioural science and policy - see a reading list I prepared here on the broader policy implications.

Aggarwal et al (2014). “Nudge” in the clinical consultation – an acceptable form of medical paternalism? BMC Medical Ethics 2014, 15:31.

Overall the extremes of autonomy and paternalism are not compatible in a responsive, responsible and moral health care environment, and thus some compromise of these values is unavoidable. Nudge techniques are widely used in policy making and we demonstrate how they can be applied in shared medical decision making. Whether or not this is ethically sound is a matter of continued debate but health care professionals cannot avoid the fact they are likely to be using nudge within clinical consultations. Acknowledgment of this will lead to greater self-awareness, reflection and provide further avenues for debate on the art and science of clinical communication.

Alemanno (2016). The Future of Behavioural Change: Balancing Public Nudging vs Private Nudging. 2nd AIM Lecture, May 6, 2015.

Public authorities, including the European Union and its Member States, are increasingly interested in exploiting behavioral insights through public action. They increasingly do so through choice architecture, i.e. the alteration of the environment of choice surrounding a particular decision making context in areas as diverse as energy consumption, tax collection and public health. In this regard, it is useful to distinguish between two situations. The first is that of a public authority which seeks to steer behaviour in the public interest, taking into account one or more mental shortcuts. Thus, a default enrollment for organ donation leverages on the power of inertia to enhance the overall prevalence organ donors. Placing an emoticon (sad face) or a set of information about average consumption on a prohibitive energy bill has the potential to nudge consumers towards less energy consumption. I call this pure public nudging. The second perspective is when public authorities react to exploitative uses of mental shortcuts by market forces by regulating private nudging. I call this 'counter-nudging'. Pure public nudging helps people correct mental shortcuts so as to achieve legitimate objectives (e.g. increased availability of organs, environmental protection, etc.), regardless of their exploitative use by market forces.

It is against this proposed taxonomy that the 2nd AIM Lecture examines whether also private companies may nudge for good. Are corporations well-placed to nudge their customers towards societal objectives, such as the protection of the environment or the promotion of public health? This is what I call benign corporate nudging.

Their record is far from being the most credible. Companies have used behavioural inspired interventions to maximize profits, what led them to sell more and in turn to induce citizens into more consumption. Yet corporate marketing need not always be self-interested. An incipient number of companies are using their brand, generally through their packaging and marketing efforts, to 'nudge for good'. By illustrating some actual examples, this lecture defines the conditions under which companies may genuinely and credibly nudge for good. It argues that benign corporate nudging may have – unlike dominant CSR efforts – a positive long-term, habit-forming effect that influences consumers' future behaviour 'for good'.

Alemanno & Sibony (2015). Nudge and the Law: A European Perspective. Oxford & Portland: Hart.

Behavioural sciences help refine our understanding of human decision-making. Their insights are immensely relevant for policy-making since public intervention works much better when it targets real people rather than imaginary beings assumed to be perfectly rational. Increasingly, governments around the world are keen to rely on those insights for reshaping public interventions in a wide range of policy areas such as energy, health, financial services and data protection. When policy-making meets behavioural sciences, effective and low-cost regulations can emerge in the form of default rules, smart disclosure and simplification requirements. While behaviourally-informed intervention has a huge potential for policymaking, it also attracts legitimacy and practicability concerns. Nudge and the Law takes a European perspective on those issues and explores the legal implications of the emergent phenomenon of behavioural regulation by focusing on the challenges and opportunities it may offer to EU policy-making and beyond.

"This book offers an exceptionally impressive, and wide-ranging, set of essays on behaviourally informed approaches to law and regulation in Europe, with particular reference to nudges. In Europe as elsewhere, an important question is drawing increasing attention: what are the ethical limits on nudges? Insofar as the goal is to promote navigability, the ethical objections are greatly weakened and might well dissipate. In this regard, Alemanno and Sibony offer some helpful reflections on how to assess the autonomy objection to nudges. They argue, plausibly in my view, that many behavioural interventions are neutral with respect to autonomy because they affect behaviour in instances where, in all likelihood, no deliberation would have taken place." From the Foreword by Cass R Sunstein, Harvard School of Law

Arneson (2015). Nudge and Shove. Social Theory and Practice, Volume 41, Issue 4, October 2015.

This essay reexamines the idea of paternalism and the basis for finding it objectionable in light of recent writings on “libertarian paternalism.” Suggestion: to qualify as paternalistic, an interference that restricts someone’s liberty or interferes with her choice-making with the aim of helping the individual must be contrary to that very individual’s will. A framework for determining the justifiability of paternalistic action is proposed, under the assumption that the individual has a personal prerogative, up to a point, to engage in less than maximally beneficial action. Beyond that point, the content of the will of the individual disposed against interference can extinguish the presumptive wrongness of paternalism.

Ashcroft (2012). Doing good by stealth. J Med Ethics doi:10.1136/medethics-2012-101109

Axtell-Thompson (2012). Nudge Ethics for Health Plans. The American Journal of Bioethics, Volume 12, Issue 2.

Baldwin (2015). Nudge: Three Degrees of Concern. LSE Law - Policy Briefing Paper No. 7.

Nudging is hugely popular with governments but it is a practice that raises both conceptual and controversial issues. Three degrees of nudge can be distinguished and these raise different
concerns. When contemplating nudging, moreover, it is essential to be clear and open about the philosophical basis for such action and to be aware that clashes between different modes of
intervention may threaten not only effectiveness but also the serving of representative and ethical ends.

Baldwin (2014). From Regulation to Behaviour Change: Giving Nudge the Third Degree. The Modern Law Review,  Volume 77, Issue 6, pages 831–857.

Behaviour change strategies such as ‘nudge’ have become hugely popular with administrations on both sides of the Atlantic. The practice of nudging, however, raises conceptual and controversial issues which must be addressed in examining the conditions under which nudging can be used effectively and acceptably. A key to a clear conceptual understanding of nudge-related issues is to distinguish between three degrees of nudge. These three degrees raise different, and identifiable, concerns and it is possible to assess the extent to which these can be responded to in positive terms. The compatibility of nudging with other control devices cannot be assumed and, when contemplating nudging, it is essential to be transparent about its philosophical basis, as well as to be aware that different modes of intervention may operate with clashes of logic that threaten not only effectiveness but also the serving of representative and ethical ends.

Barton & Grüne-Yanoff (2015). From Libertarian Paternalism to Nudging—and Beyond. Rev.Phil.Psych. 6:341–359.

Blumenthal-Barby & Burroughs (2012). Seeking Better Health Care Outcomes: The Ethics of Using the “Nudge”. The American Journal of Bioethics, Volume 12, Issue 2.

Policymakers, employers, insurance companies, researchers, and health care providers have developed an increasing interest in using principles from behavioral economics and psychology to persuade people to change their health-related behaviors, lifestyles, and habits. In this article, we examine how principles from behavioral economics and psychology are being used to nudge people (the public, patients, or health care providers) toward particular decisions or behaviors related to health or health care, and we identify the ethically relevant dimensions that should be considered for the utilization of each principle.

Bell (2013). Nudging Without Ethical Fudging: Clarifying Physician Obligations to Avoid Ethical Compromise. The American Journal of Bioethics, Volume 13, Issue 6. (attached)

Borenstein & Arkin (2015). Robotic Nudges: The Ethics of Engineering a More Socially Just Human Being. Science and Engineering Ethics, pp 1-16

Robots are becoming an increasingly pervasive feature of our personal lives. As a result, there is growing importance placed on examining what constitutes appropriate behavior when they interact with human beings. In this paper, we discuss whether companion robots should be permitted to “nudge” their human users in the direction of being “more ethical”. More specifically, we use Rawlsian principles of justice to illustrate how robots might nurture “socially just” tendencies in their human counterparts. Designing technological artifacts in such a way to influence human behavior is already well-established but merely because the practice is commonplace does not necessarily resolve the ethical issues associated with its implementation.

Bovens (2009). The Ethics of Nudge.

Bovens (2013). Why couldn't I be nudged to dislike a Big Mac? J Med Ethics 2013;39:495-496 doi:10.1136/medethics-2012-101110

Brehm & Brehm (1981). Psychological Reactance: a Theory of Freedom and Control. New York: Academic Press. 

Brooks (2013). Should We Nudge Informed Consent? The American Journal of Bioethics
Volume 13.

Bubb & Pildes (2014). How Behavioral Economics Trims Its Sails and Why. Harvard Law Review, Vol. 127.
The preference of behavioral law and economics (BLE) for regulatory approaches that preserve “freedom of choice” has led to incomplete policy analysis and inefficient policies. BLE has been broadly regarded as among the most promising new developments in public policymaking theory and practice. As social science, BLE offers hope that better understanding of human behavior will provide a sounder foundation for policy design. As politics, BLE offers a possible political consensus built around minimalist forms of government action — “nudges” — that preserve freedom of choice. These two seductive dimensions of BLE are, however, in deep tension. Put simply, it would be surprising if the evidence documenting the failure of individual choice implied a turn toward regulatory tools that preserve individual choice.
Developing BLE fully along its social-scientific dimension would reveal two categories of recurring limitations in BLE. First, BLE often artificially excludes traditional regulatory tools, such as direct mandates, from its analysis of policy options. However, BLE’s preferred nudges are, in important cases, not likely to be effective — ironically, for reasons BLE itself identifies. BLE has also neglected the ways in which behavioral failures interact with traditional market failures and the implications of this interaction for policy design. A more complete framework generates policy recommendations beyond both nudges and neoclassical economic prescriptions.
Second, BLE does not properly evaluate, at times, how its own regulatory tools actually function. Many of these seemingly choice-preserving tools are not nearly as light touch as advertised. The default rules so central to BLE are often better viewed as preserving the formality of choice while, for many individuals, functioning as effective mandates. The view that people can always rationally opt out has led policymakers to set these powerful defaults at the wrong levels, resulting in counterproductive policies.

We illustrate the costs of BLE’s commitment to freedom of choice by analyzing three of the most important areas for current policy: retirement savings, consumer credit, and environmental protection.

Cohen (2013). Nudging and Informed Consent. The American Journal of Bioethics, Volume 13, Issue 6. (attached)

Libertarian paternalism's notion of “nudging” refers to steering individual decision making so as to make choosers better off without breaching their free choice. If successful, this may offer an ideal synthesis between the duty to respect patient autonomy and that of beneficence, which at times favors paternalistic influence. A growing body of literature attempts to assess the merits of nudging in health care. However, this literature deals almost exclusively with health policy, while the question of the potential benefit of nudging for the practice of informed consent has escaped systematic analysis. This article focuses on this question. While it concedes that nudging could amount to improper exploitation of cognitive weaknesses, it defends the practice of nudging in a wide range of other conditions. The conclusion is that, when ethically legitimate, nudging offers an important new paradigm for informed consent, with a special potential to overcome the classical dilemma between paternalistic beneficence and respect for autonomy.

Conly (2012). Against Autonomy: Justifying Coercive Paternalism. Cambridge: Cambridge University Press.

Since Mill's seminal work On Liberty, philosophers and political theorists have accepted that we should respect the decisions of individual agents when those decisions affect no one other than themselves. Indeed, to respect autonomy is often understood to be the chief way to bear witness to the intrinsic value of persons. In this book, Sarah Conly rejects the idea of autonomy as inviolable. Drawing on sources from behavioural economics and social psychology, she argues that we are so often irrational in making our decisions that our autonomous choices often undercut the achievement of our own goals. Thus in many cases it would advance our goals more effectively if government were to prevent us from acting in accordance with our decisions. Her argument challenges widely held views of moral agency, democratic values and the public/private distinction, and will interest readers in ethics, political philosophy, political theory and philosophy of law.

Coons & Weber (2014). Manipulation: Theory And Practice. Oxford University Press.

In all groups ― from couples to nation-states ― people influence one another. Much of this influence is benign, for example giving advice to friends or serving as role models for our children and students. Some forms of influence, however, are clearly morally suspect, such as threats of violence and blackmail. A great deal of attention has been paid to one form of morally suspect influence, namely coercion. Less attention has been paid to what might be a more pervasive form of influence: manipulation. The essays in this volume address this relative imbalance by focusing on manipulation, examining its nature, moral status, and its significance in personal and social life.
They address a number of central questions: What counts as manipulation? How is it distinguished from coercion and ordinary rational persuasion? Is it always wrong, or can it sometimes be justified, and if so, when? Is manipulative influence more benign than coercion? Can one manipulate unintentionally? How does being manipulated to act bear on one's moral responsibly for so acting? Given various answers to these questions, what should we think of practices such as advertising and seduction?

Darwall (2006). The Value of Autonomy and Autonomy of the Will. Ethics 116: 263–284.

Disilvestro (2012). What Does Not Budge for Any Nudge? The American Journal of Bioethics,
Volume 12, Issue 2.

Dworkin (2013). Lying and nudging. J Med Ethics 2013;39:496-497 doi:10.1136/medethics-2012-101060

Eyal (2014). Nudging by shaming, shaming by nudging. Int J Health Policy Manag. 2014 Jul; 3(2): 53–56.

Eyal (2008). Motivating Prevention: from Carrots and Sticks to “Carrots” and “Sticks”. AMA Journal of Ethics, Volume 10, Number 11: 756-762.

Felsen & Reiner (2015). What can Neuroscience Contribute to the Debate Over Nudging? Review of Philosophy and Psychology, September 2015, Volume 6, Issue 3, pp 469-479.

Strategies for improving individual decision making have attracted attention from a range of disciplines. Surprisingly, neuroscience has been largely absent from this conversation, despite the fact that it has recently begun illuminating the neural bases of how and why we make decisions, and is poised for further such advances. Here we address empirical and normative questions about “nudging” through the lens of neuroscience. We suggest that the neuroscience of decision making can provide a framework for understanding how nudges work, and how they can be improved. Towards this end, we first examine how nudges can be incorporated into a leading model of decision making supported by neurobiological data, and use the model to make predictions about the relative effectiveness of different classes of nudges. We then use the model to demonstrate how nudges can both infringe upon and promote autonomy. Finally, we explore the normative implications of the converging consensus from neuroscience and related fields that many everyday decisions are susceptible to covert external influences.

Ubiquitous cognitive biases hinder optimal decision making. Recent calls to assist decision makers in mitigating these biases—via interventions commonly called “nudges”—have been criticized as infringing upon individual autonomy. We tested the hypothesis that such “decisional enhancement” programs that target overt decision making—i.e., conscious, higher-order cognitive processes—would be more acceptable than similar programs that affect covert decision making— i.e., subconscious, lower-order processes. We presented respondents with vignettes in which they chose between an option that included a decisional enhancement program and a neutral option. In order to assess preferences for overt or covert decisional enhancement, we used the contrastive vignette technique in which different groups of respondents were presented with one of a pair of vignettes that targeted either conscious or subconscious processes. Other than the nature of the decisional enhancement, the vignettes were identical, allowing us to isolate the influence of the type of decisional enhancement on preferences. Overall, we found support for the hypothesis that people prefer conscious decisional enhancement. Further, respondents who perceived the influence of the program as more conscious than subconscious reported that their decisions under the program would be more “authentic”. However, this relative favorability was somewhat contingent upon context. We discuss our results with respect to the implementation and ethics of decisional enhancement.

In this article we develop a taxonomy of behavioral policy measures proposed by Thaler and Sunstein (2008). Based on this taxonomy, we discuss the ethical legitimacy of these measures. First, we explain two common reservations against nudges (choice architecture) rooted in utilitarian and Kantian ethics. In addition to wellbeing, we identify freedom of action and freedom of will (autonomy) as relevant ethical criteria. Then, using practical examples, we develop a taxonomy that classifies nudges according to the psychological mechanisms they use and separately discuss the legitimacy of several types of behavioral policy measures. We hope to thereby make a valuable contribution to the debate on the ethical legitimacy of behavioral policy making.

Floridi (2015). Tolerant Paternalism: Pro-ethical Design as a Resolution of the Dilemma of Toleration. Science and Engineering Ethics, pp 1-20.

Toleration is one of the fundamental principles that inform the design of a democratic and liberal society. Unfortunately, its adoption seems inconsistent with the adoption of paternalistically benevolent policies, which represent a valuable mechanism to improve individuals’ well-being. In this paper, I refer to this tension as the dilemma of toleration. The dilemma is not new. It arises when an agent A would like to be tolerant and respectful towards another agent B’s choices but, at the same time, A is altruistically concerned that a particular course of action would harm, or at least not improve, B’s well-being, so A would also like to be helpful and seeks to ensure that B does not pursue such course of action, for B’s sake and even against B’s consent. In the article, I clarify the specific nature of the dilemma and show that several forms of paternalism, including those based on ethics by design and structural nudging, may not be suitable to resolve it. I then argue that one form of paternalism, based on pro-ethical design, can be compatible with toleration and hence with the respect for B’s choices, by operating only at the informational and not at the structural level of a choice architecture. This provides a successful resolution of the dilemma, showing that tolerant paternalism is not an oxymoron but a viable approach to the design of a democratic and liberal society.

Gigerenzer (2015). On the Supposed Evidence for Libertarian Paternalism. Review of Philosophy and Psychology, Volume 6, Issue 3, pp 361-383.

Can the general public learn to deal with risk and uncertainty, or do authorities need to steer people’s choices in the right direction? Libertarian paternalists argue that results from psychological research show that our reasoning is systematically flawed and that we are hardly educable because our cognitive biases resemble stable visual illusions. For that reason, they maintain, authorities who know what is best for us need to step in and steer our behavior with the help of “nudges.” Nudges are nothing new, but justifying them on the basis of a latent irrationality is. In this article, I analyze the scientific evidence presented for such a justification. It suffers from narrow logical norms, that is, a misunderstanding of the nature of rational thinking, and from a confirmation bias, that is, selective reporting of research. These two flaws focus the blame on individuals’ minds rather than on external causes, such as industries that spend billions to nudge people into unhealthy behavior. I conclude that the claim that we are hardly educable lacks evidence and forecloses the true alternative to nudging: teaching people to become risk savvy.

Glaeser (2005). Paternalism and Psychology. NBER Working Paper No. 11789

Glod (2015). How Nudges Often Fail to Treat People According to Their Own Preferences.Social Theory & Practice, Vol. 41 Issue 4, p 599-617. (attached)

I focus on “prima facie problematic” (PFP) nudges to argue that libertarian paternalism often fails in its promise to track target agents’ own normative standards. I argue that PFP nudges are unjustified to significant numbers of people by virtue of autonomy-based defeaters—what I call “self-determination” and “discretion.” I then argue that in many cases, we face informational constraints on what a person’s good really is. In such cases, these nudges may not even benefit a significant number of agents and so fail even to be paternalistic—where “paternalistic” is a success term—for those they fail to benefit.

Gold & Lichetenburg (2012). Don't Call Me “Nudge”: The Ethical Obligation to Use Effective Interventions to Promote Public Health. The American Journal of Bioethics, Volume 12, Issue 2.

Goodwin (2012). Why We Should Reject ‘Nudge’. Politics, Volume 32, Issue 2, pages 85–92.
This article argues that the use of ‘nudge’ tactics in UK policymaking ought to be rejected. Nudge contravenes the coalition government's aspirations to promote ideas such as empowerment, freedom and fairness. Moreover, it is not an effective strategy for bringing about the kind of behavioural changes required to solve society's ‘big problems’– problems around climate change and public health, for example. The article mines political theory in a way that is distinctly absent from the current literature on ‘nudging’ and brings a fresh and insightful perspective to the nudge debate.

Grüne-Yanoff & Hertwig (2015). Nudge Versus Boost: How Coherent are Policy and Theory? Minds and Machines, pp 1-35.

If citizens’ behavior threatens to harm others or seems not to be in their own interest (e.g., risking severe head injuries by riding a motorcycle without a helmet), it is not uncommon for governments to attempt to change that behavior. Governmental policy makers can apply established tools from the governmental toolbox to this end (e.g., laws, regulations, incentives, and disincentives). Alternatively, they can employ new tools that capitalize on the wealth of knowledge about human behavior and behavior change that has been accumulated in the behavioral sciences (e.g., psychology and economics). Two contrasting approaches to behavior change are nudge policies and boost policies. These policies rest on fundamentally different research programs on bounded rationality, namely, the heuristics and biases program and the simple heuristics program, respectively. This article examines the policy–theory coherence of each approach. To this end, it identifies the necessary assumptions underlying each policy and analyzes to what extent these assumptions are implied by the theoretical commitments of the respective research program. Two key results of this analysis are that the two policy approaches rest on diverging assumptions and that both suffer from disconnects with the respective theoretical program, but to different degrees: Nudging appears to be more adversely affected than boosting does. The article concludes with a discussion of the limits of the chosen evaluative dimension, policy–theory coherence, and reviews some other benchmarks on which policy programs can be assessed.

Guala & Mittone (2015). A Political Justification of Nudging. Review of Philosophy and Psychology, Volume 6, Issue 3, pp 385-395.

Thaler and Sunstein justify nudge policies from welfaristic premises: nudges are acceptable because they benefit the individuals who are nudged. A tacit assumption behind this strategy is that we can identify the true preferences of decision-makers. We argue that this assumption is often unwarranted, and that as a consequence nudge policies must be justified in a different way. A possible strategy is to abandon welfarism and endorse genuine paternalism. Another one is to argue that the biases of decision that choice architects attempt to eliminate create externalities. For example, in the case of intertemporal discounting, the costs of preference reversals are not always paid by the discounters, because they are transferred onto other individuals. But if this is the case, then nudges are best justified from a political rather than welfaristic standpoint.

Guldborg Hansen et al (2016). Making Healthy Choices Easier: Regulation versus Nudging. Annual Review of Public Health, Review in Advance, first posted online on January 6, 2016.

In recent years, the nudge approach to behavior change has emerged from the behavioral sciences to challenge the traditional use of regulation in public health strategies to address modifiable individual-level behaviors related to the rise of noncommunicable diseases and their treatment. However, integration and testing of the nudge approach as part of more comprehensive public health strategies aimed at making healthy choices easier are being threatened by inadequate understandings of its scientific character, its relationship with regulation, and its ethical implications. This article reviews this character and its ethical implication with a special emphasis on the compatibility of nudging with traditional regulation, special domains of experience, and the need for a more nuanced approach to the ethical debate. The aim is to advance readers’ understanding and give guidance to those who have considered working with or incorporating the nudge approach into programs or policies aimed at making healthful choices easier.

Hagman et al (2015). Public Views on Policies Involving Nudges. Review of Philosophy and Psychology,  Volume 6, Issue 3, pp 439-453.

When should nudging be deemed as permissible and when should it be deemed as intrusive to individuals’ freedom of choice? Should all types of nudges be judged the same? To date the debate concerning these issues has largely proceeded without much input from the general public. The main objective of this study is to elicit public views on the use of nudges in policy. In particular we investigate attitudes toward two broad categories of nudges that we label pro-self (i.e. focusing on private welfare) and pro-social (i.e. focusing on social welfare) nudges. In addition we explore how individual differences in thinking and feeling influence attitudes toward nudges. General population samples in Sweden and the United States (n = 952) were presented with vignettes describing nudge-policies and rated acceptability and intrusiveness on freedom of choice. To test for individual differences, measures on cultural cognition and analytical thinking were included. Results show that the level of acceptance toward nudge-policies was generally high in both countries, but were slightly higher among Swedes than Americans. Somewhat paradoxically a majority of the respondents also perceived the presented nudge-policies as intrusive to freedom of choice. Nudge-polices classified as pro-social had a significantly lower acceptance rate compared to pro-self nudges (p < .0001). Individuals with a more individualistic worldview were less likely to perceive nudges as acceptable, while individuals more prone to analytical thinking were less likely to perceive nudges as intrusive to freedom of choice. To conclude, our findings suggest that the notion of “one-nudge- fits-all” is not tenable. Recognizing this is an important aspect both for successfully implementing nudges as well as nuancing nudge theory.

Hanna (2015). Libertarian Paternalism, Manipulation, and the Shaping of Preferences. Social Theory and Practice, Volume 41, Issue 4. 

“Libertarian paternalism” aims to harness cognitive biases in order to improve prudential decision-making. Some critics have objected that libertarian paternalism is wrongly manipulative. I argue that this objection is mostly unsuccessful. First, I point out that some strategies endorsed by libertarian paternalists can help people to better appreciate reasons. Second, I develop an account of manipulation according to which an agent manipulates her target by worsening the target’s deliberative position. The means of influence defended by libertarian paternalists—for instance, the judicious use of default rules—are not manipulative in this way.

Hansen & Jespersen (2013). Nudge and the Manipulation of Choice
A Framework for the Responsible Use of the Nudge Approach to Behaviour Change in Public Policy. European Journal of Risk Regulation.

In Nudge (2008) Richard Thaler and Cass Sunstein suggested that public policy-makers arrange decision-making contexts in ways to promote behaviour change in the interest of individual citizens as well as that of society. However, in the public sphere and Academia alike widespread discussions have appeared concerning the public acceptability of nudgebased behavioural policy. Thaler and Sunstein’s own position is that the anti-nudge position is a literal non-starter, because citizens are always influenced by the decision making context anyway, and nudging is liberty preserving and acceptable if guided by Libertarian Paternalism and Rawls’ publicity principle. A persistent and central tenet in the criticism disputing the acceptability of the approach is that nudging works by manipulating citizens’ choices. In this paper, we argue that both lines of argumentation are seriously flawed. We show how the anti-nudge position is not a literal non-starter due to the responsibilities that accrue on policy-makers by the intentional intervention in citizens’ life, how nudging is not essentially liberty preserving and why the approach is not necessarily acceptable even if satisfying Rawls’ publicity principle. We then use the psychological dual process theory underlying the approach as well as an epistemic transparency criterion identified by Thaler and Sunstein themselves to show that nudging is not necessarily about “manipulation”, nor necessarily about influencing “choice”. The result is a framework identifying four types of nudges that may be used to provide a central component for more nuanced normative considerations as well as a basis for policy recommendations.

Hayek (1958). Freedom, Reason, and Tradition. Ethics, Vol. 68, No. 4 (Jul., 1958), pp. 229-245. 

Hausman & Welch (2010). Debate: to nudge or not to nudge? Journal of Political Philosophy Volume 18, Issue 1, pages 123–136.

Huang et al (2012). Nudge Ethics: Just a Game of Billiards? The American Journal of Bioethics, Volume 12, Issue 2.

Kapsner & Sandfuchs (2015). Nudging as a Threat to Privacy. Review of Philosophy and Psychology
September 2015, Volume 6, Issue 3, pp 455-468.

Nudges can pose serious threats to citizens’ privacy. The essay discusses several examples of nudges that must appear problematic to anyone valuing privacy. The paper also re-draws a well established connection between privacy and autonomy and argues that insofar as nudges incur too great a loss of privacy, they are incompatible with the libertarianism that libertarian paternalism is committed to by virtue of its very name.

Leggett (2012). The politics of behaviour change: nudge, neoliberalism and the state. Policy & Politics, Volume 42, Number 1, pp. 3-19(17). 

Behaviour change is increasingly central to policy and politics. The exemplar of nudge, and its relationship to behavioural economics and psychology, is outlined. Nudge's claim to libertarian paternalism is evaluated in the context of the neoliberal state. A sociological critique of behavioural economic assumptions enables a still wider account of shifting state–citizen relations. Foucauldian analyses of such relations, as well as deliberative 'think' perspectives, are assessed. A more explicitly political, social-democratic model of the behaviour change state is advocated. This would be more attuned to the socioeconomic context of behaviour, and also be prepared to defend citizens against ubiquitous attempts to shape their subjectivity.

Lepenies & Małecka (2015). The Institutional Consequences of Nudging – Nudges, Politics, and the Law. Review of Philosophy and Psychology. Volume 6, Issue 3 , pp 427-437.

In this article we argue that a widespread adoption of nudging can alter legal and political institutions. Debates on nudges thus far have largely revolved around a set of philosophical theories that we call individualistic approaches. Our analysis concerns the ways in which adherents of nudging make use of the newest findings in the behavioral sciences for the purposes of policy-making. We emphasize the fact that most nudges proposed so far are not a part of the legal system and are also non-normative. We propose two ideal types: “law-as-normative” and “law-as-instrumental”, that allow us to understand and evaluate the relation of nudges and the law. We stress the importance of law as a safeguard for the possible negative consequences of nudges and conclude with proposals that could complement nudging policies.

Lodge & Wegrich (2016). The Rationality Paradox of Nudge: Rational Tools of Government in a World of Bounded Rationality. Law & Policy, Volume 38, Issue 3, pages 250–267, July 2016.

Nudge and the wider behavioral economics approach has become increasingly dominant in contemporary political and policy discourse. While much attention has been paid to the attractions and criticisms of nudge (such as liberal paternalism), this article argues that nudge is based on a rationality paradox in that it represents an approach that despite its emphasis on bounded rationality, does not reflect on its own limits to rationality. The article considers the implications of this paradox by considering mechanisms that influence government decision making and mechanisms that lead to unintended consequences in the context of policy interventions.

Loewenstein, G., Bryce, C., Hagmann, D., & Rajpal, S. (2015). Warning: You
are about to be nudged. Behavioral Science & Policy, 1(1), pp. 35–42.

Presenting a default option is known to influence important decisions. That includes decisions regarding advance medical directives, documents people prepare to convey which medical treatments they favor in the event that they are too ill to make their wishes clear. Some observers have argued that defaults are unethical because people are typically unaware that they are being nudged toward a decision. We informed people of the presence of default options before they completed a hypothetical advance directive, or after, then gave them the opportunity to revise their decisions. The effect of the defaults persisted, despite the disclosure, suggesting that their effectiveness may not depend on deceit. These findings may help address concerns that behavioral interventions are necessarily duplicitous or manipulative.

Lunze &, Paasche-Orlow (2013). Financial incentives for healthy behavior: ethical safeguards for behavioral economics.American Journal of Preventive Medicine, 44(6):659-65.

McCrudden & King (2015). The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism. SSRN working paper.

McPherson & Smith (2008). Nudging for Liberty. Social Science Research Network.

Ménard (2010). A ‘Nudge’ for Public Health Ethics: Libertarian Paternalism as a Framework for Ethical Analysis of Public Health Interventions? Public Health Ethics, 3 (3): 229-238.

Is it possible to interfere with individual decision-making while preserving freedom of choice? The purpose of this article is to assess whether ‘libertarian paternalism’, a set of political and ethical principles derived from the observations of behavioural sciences, can form the basis of a viable framework for the ethical analysis of public health interventions. First, the article situates libertarian libertarianism within the broader context of the law and economics movement. The main tenets of the approach are then presented and particular attention is given to its operationalization through the notion of a ‘nudge’. Essentially, a ‘nudge’ consists in an intervention, which aims to suggest one choice over another by gently steering individual choices in welfare-enhancing directions yet without imposing any significant limit on available choices. Finally, the article concludes that, while it fails as an overreaching framework of ethical analysis, libertarian paternalism nonetheless constitutes a valuable addition to the conceptual toolbox of public health ethics.

Mills (2013). Why Nudges Matter: A Reply to Goodwin. Politics Volume 33, Issue 1, pages 28–36.
This article argues that, contrary to Goodwin's recent arguments, nudges are compatible with the coalition government's stated aspiration to further self-empowerment. This is because, despite its libertarian roots, nudging is compatible with the promotion of personal autonomy and thus can be used to promote self-empowerment in a non-paternalistic fashion. Further, I argue that nudging may play a valid role in tackling large-scale social problems in tandem with other traditional policy measures. Consequently, Goodwin is wrong to reject choice architecture for these reasons.

Mitchell (2005). Libertarian Paternalism Is an Oxymoron. FSU College of Law, Public Law Research Paper No. 136; FSU College of Law, Law and Economics Paper No. 05-02.

This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this attempt to reconcile the traditionally opposed concepts of libertarianism and paternalism fails to succeed. Most significantly, Sunstein and Thaler neglect alternative approaches to dealing with irrational choice behavior that are more consistent with libertarian principles and that make choice-framing paternalism evitable, they would subjugate the liberty of irrational individuals to a central planner's paternalistic welfare judgments, and they fail to deal with the redistributive consequences of libertarian paternalism. Libertarian paternalism, as currently formulated, is not designed to liberate individuals from their irrational tendencies but to capitalize on irrational tendencies to move citizens in directions that the paternalistic planner deems best. Libertarian paternalism does leave rational persons a way out of the central planner's paternalism, but often the exit will not be costless, as the paternalistic costs of trying to improve the welfare of irrational persons are shifted to the rational persons. While fidelity to libertarian principles leaves little room for the government to regulate irrational behavior, there are some forms of irrationality regulation more congenial to libertarian principles than Sunstein and Thaler's version of libertarian paternalism, examples of which are discussed here.

Moles (2015). Nudging for Liberals. Social Theory and Practice, Volume 41, Issue 4, October 2015. 

In this article I argue that anti-perfectionist liberals can accept nudging in certain areas: in particular, they can accept nudges aimed at helping people to discharge their nonenforceable duties, and to secure personal autonomy. I claim that nudging is not disrespectful since it does not involve a comparative negative judgment on people’s ability to pursue their plans, and that the judgments that motivate nudging are compatible with treating citizens as free and equal. I also claim that despite being sometimes manipulative, nudging is easy to resist and so it can be employed to pursue legitimate goals.

Mols et al (2015). Why a nudge is not enough: A social identity critique of governance by stealth. European Journal of Political Research, Volume 54, Issue 1, pages 81–98, February 2015.

Policy makers can use four different modes of governance: ‘hierarchy’, ‘markets’, ‘networks’ and ‘persuasion’. In this article, it is argued that ‘nudging’ represents a distinct (fifth) mode of governance. The effectiveness of nudging as a means of bringing about lasting behaviour change is questioned and it is argued that evidence for its success ignores the facts that many successful nudges are not in fact nudges; that there are instances when nudges backfire; and that there may be ethical concerns associated with nudges. Instead, and in contrast to nudging, behaviour change is more likely to be enduring where it involves social identity change and norm internalisation. The article concludes by urging public policy scholars to engage with the social identity literature on ‘social influence’, and the idea that those promoting lasting behaviour change need to engage with people not as individual cognitive misers, but as members of groups whose norms they internalise and enact.

Nagatsu (2015). Social Nudges: Their Mechanisms and Justification. Review of Philosophy and Psychology, Volume 6, Issue 3, pp 481-494.

In this paper I argue that the use of social nudges, policy interventions to induce voluntary cooperation in social dilemma situations, can be defended against two ethical objections which I call objections from coherence and autonomy. Specifically I argue that the kind of preference change caused by social nudges is not a threat to agents’ coherent preference structure, and that there is a way in which social nudges influence behavior while respecting agents’ capacity to reason. I base my arguments on two mechanistic explanations of social nudges; the expectation-based and frame-based accounts. As a concrete example of social nudges I choose the “Don’t Mess With Texas” anti-littering campaign and discuss in some detail how it worked.

Pavey & Sparks (2009). Reactance, autonomy and paths to persuasion: Examining perceptions of threats to freedom and informational value. Motivation and Emotion, Volume 33, Issue 3, pp 277-290.

Autonomy, often associated with an open and reflective evaluation of experience, is sometimes confused with reactance, which indicates resistance to persuasion attempts. Two studies examined a path model in which autonomy and reactance predicted motivation following the provision of anonymous or source-identified health-risk information, via the mediation of perceived threat to decision-making freedom and of perceived informational value. Study 1 (N = 122) investigated alcohol consumption. The results showed that autonomy was positively related to autonomous motivation and intentions to drink responsibly. Reactance negatively predicted autonomous motivation in the source-identified information condition but positively predicted autonomous motivation and intentions in the anonymous information condition. Reactance negatively predicted attitudes through the mediation of perceived threat to decision-making freedom. Study 2 (N = 145) tested our hypothesized model for smoking behavior and replicated several of the Study 1 findings. Implications for our understanding of autonomy, reactance, and responses to risk-information are discussed.

Ploug et al (2012). To nudge or not to nudge: cancer screening programmes and the limits of libertarian paternalism. J Epidemiol Community Health 2012;66:1193-1196 doi:10.1136/jech-2012-201194

Potts et al (2012). When a Nudge Becomes a Shove. The American Journal of Bioethics, Volume 12, Issue 2.

Quigley (2014). Are health nudges coercive? Monash Bioethics Review March 2014, Volume 32, Issue 1, pp 141-158.

Governments and policy-makers have of late displayed renewed attention to behavioural research in an attempt to achieve a range of policy goals, including health promotion. In particular, approaches which could be labelled as ‘nudges’ have gained traction with policy-makers. A range of objections to nudging have been raised in the literature. These include claims that nudges undermine autonomy and liberty, may lead to a decrease in responsibility in decision-making, lack transparency, involve deception, and involve manipulation, potentially occasioning coercion. In this article I focus on claims of coercion, examining nudges within two of the main approaches to coercion—the pressure approach and the more recent enforcement approach. I argue that coercion entails an element of control over the behaviour of agents which is not plausibly displayed by the kinds of serious examples of nudges posited in the literature.

Quigley & Stokes (2015). Nudging and Evidence-Based Policy in Europe: Problems of Normative Legitimacy and Effectiveness. In Alemanno & Sibony (eds.) Nudge and the Law: A European Perspective. Bloomsbury.

Mills (2015). The Heteronomy of Choice Architecture. Review of Philosophy and Psychology,
Volume 6, Issue 3, pp 495-509.

Choice architecture is heralded as a policy approach that does not coercively reduce freedom of choice. Still we might worry that this approach fails to respect individual choice because it subversively manipulates individuals, thus contravening their personal autonomy. In this article I address two arguments to this effect. First, I deny that choice architecture is necessarily heteronomous. I explain the reasons we have for avoiding heteronomous policy-making and offer a set of four conditions for non-heteronomy. I then provide examples of nudges that meet these conditions. I argue that these policies are capable of respecting and promoting personal autonomy, and show this claim to be true across contrasting conceptions of autonomy. Second, I deny that choice architecture is disrespectful because it is epistemically paternalistic. This critique appears to loom large even against non-heteronomous nudges. However, I argue that while some of these policies may exhibit epistemically paternalistic tendencies, these tendencies do not necessarily undermine personal autonomy. Thus, if we are to find such policies objectionable, we cannot do so on the grounds of respect for autonomy.

Qizilbash (2009). Well-Being, Preference Formation and the Danger of Paternalism.  Papers on Economics and Evolution, # 0918, Max Planck Institute of Economics.

Informed or rational desire, capability and prudential value list views of well-being - must
accommodate human limitations, as well as address issues about adaptation and paternalism. They
sometimes address adaptation by toughening the requirement(s) on those desires, satisfaction of which constitutes well-being. That exacerbates a concern that these accounts if adopted will encourage policies which override actual desires and enforce paternalistic restrictions. Sunstein, like Sen, invokes democratic deliberation to address the adaptation problem, and advocates autonomy
promoting paternalistic restrictions. Sunstein and Thaler’s ‘libertarian paternalism’ extends this
flavour of argument to cover examples of irrationality from behavioural economics. Their variation of the informed desire account involves highly idealized preferences which cannot, in practical terms,
guide a paternalistic social planner, but lead to a potentially large range of cases where paternalistic
intervention might, in principle, be justified. I argue that the liberal paternalist policy agenda should
as currently conceived be resisted.

 Quong (2010). Liberalism without Perfection. OUP.

A growing number of political philosophers favour a view called liberal perfectionism. According to this view, liberal political morality is characterised by a commitment to helping individuals lead autonomous lives and making other valuable choices. In this book Jonathan Quong rejects this widely held view and offers an alternative account of liberal political morality. Quong argues that the liberal state should not be engaged in determining what constitutes a valuable or worthwhile life nor trying to make sure that individuals live up to this ideal. Instead, it should remain neutral on the issue of the good life, and restrict itself to establishing the fair terms within which individuals can pursue their own beliefs about what gives value to their lives. The book thus defends a position known as political liberalism. The first part of the book subjects the liberal perfectionist position to critical scrutiny, advancing three major objections that raise serious doubts about the liberal perfectionist position with regard to autonomy, paternalism, and political legitimacy. The latter chapters then present and defend a distinctive version of political liberalism. In particular, Quong clarifies and develops political liberalism's central thesis: that political principles, in order to be legitimate, must be publicly justifiable to reasonable people. Drawing on the work of John Rawls, Quong offers his own interpretation of this idea, and rebuts some of the main objections that have been pressed against it. In doing so, the book offers novel arguments regarding the nature of an overlapping consensus, the structure of political justification, the idea of public reason, and the status of unreasonable persons.

Raz, J. (1986) The Morality of Freedom. Oxford: Clarendon Press.

Raihani (2015). Nudge politics: efficacy and ethics. Frontiers in Psychology, 4: 972.

Libertarian Paternalism has been hailed by its proponents as the 'true Third Way'. It attempts to reconcile paternalism and libertarianism, and claims to provide freedom-preserving solutions to some of the most intractable problems faced by contemporary Western societies. The bounded rationality of voters is not ignored, but is exploited for their greater good. The approach is cheap to implement, and, its proponents claim, often very effective. What is there to dislike?
In Taking Liberties, Rebonato examines whether the freedom-preserving claims of libertarian paternalism truly stand up to scrutiny; questions the degree of effective decisional autonomy it affords; and raises concerns about the transparency deficit of the programme and about its supposed value-neutrality. Taking Liberties argues that libertarian paternalism fails to respect decisional autonomy exactly if individuals truly are as cognitively impaired as libertarian paternalists claim. If this is the case, exploiting the citizens' decisional deficiencies (even for the own good) poses difficult moral and political issues, which are largely ignored in the libertarian paternalistic literature. If, on the other hand, the cognitive shortcomings of individuals are not as pervasive and 'hard-wired' as the behavioural finance literature seems to suggest – and Rebonato reports convincing evidence to this effect – a completely different programme, aimed at improving the quality of the whole decision process, not just of the outcomes, becomes more desirable and defensible.
If we accept that some degree of paternalistic intervention by the state is desirable, Rebonato argues that, paradoxically, a hard, transparent and highly visible form of paternalism may be more desirable – if for no other reason than for the ability it gives voters to reject it. As they engage in this process of acceptance or rejection, Rebonato claims, citizens and voters make use of their critical faculties, engaging in a process that has value over and above a narrow evaluation of the outcomes. The libertarian paternalistic alternative is not attractive: by accepting the supposed cognitive limitations of individuals as inevitable, and by attempting to systematically exploit them, libertarian paternalism can dull our critical faculties, and, in the end, the programme can become a self-fulfilling prophecy. This is not a perspective than any true libertarian should cherish.

'The slumber of reason generates monsters', Goya wrote. Turning these monsters into pleasant dreams without waking up the sleeper may be possible. But is it desirable? In Taking Liberties, Rebonato argues that it is not.

Saghai (2013). Salvaging the concept of nudge. J Med Ethics, 39:487-493

In recent years, ‘nudge’ theory has gained increasing attention for the design of population-wide health interventions. The concept of nudge puts a label on efficacious influences that preserve freedom of choice without engaging the influencees’ deliberative capacities. Given disagreements over what it takes genuinely to preserve freedom of choice, the question is whether health influences relying on automatic cognitive processes may preserve freedom of choice in a sufficiently robust sense to be serviceable for the moral evaluation of actions and policies. In this article, I offer an argument to this effect, explicating preservation of freedom of choice in terms of choice-set preservation and noncontrol. I also briefly explore the healthcare contexts in which nudges may have priority over more controlling influences.

Sawicki (2016). Ethical Limitations on the State's Use of Arational Persuasion. Law & Policy
Volume 38, Issue 3, pages 211–233, July 2016.

Policy makers frequently use arational appeals and nudges—such as those relying on emotion, cognitive biases, and subliminal messaging—to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers rather than reasoned argument. This article develops a fuller account of the nonconsequentialist objection to arational persuasion by state actors, focusing on theories of decisional autonomy and metadecisional voluntariness. The article concludes by proposing ethically justifiable limitations on state communications that should be compelling to both critics and advocates of arational persuasion.

Schubert (2015). On the ethics of public nudging: Autonomy and Agency. Joint Discussion Paper Series in Economics by the Universities of Aachen · Gießen · Göttingen Kassel · Marburg · Siegen

Nudges, i.e., low-cost interventions that steer people’s behavior without compromising their freedom of choice, are the key contribution of ‘Libertarian Paternalism’ (LP) to public policy. They typically work through either harnessing or responding to people’s cognitive biases and heuristics – which is why they have been criticized for being manipulative and for compromising personal autonomy. We argue, though, that (i) nudging hardly compromises autonomy, properly understood, and that (ii) it rather risks undermining people’s agency, i.e., their ability to engage in creative self-constitution over time. This reorientation has farranging implications for the ethics of behavioral policies in general and LP in particular.

Scrinis & Parker (2016). Front-of-Pack Food Labeling and the Politics of Nutritional Nudges. Law & Policy, Volume 38, Issue 3, pages 234–249, July 2016.

This article examines the potential for new front-of-pack (FOP) nutrition labeling initiatives to nudge consumers toward healthier food choices. The libertarian-paternalist approach to policy known as nudge initially developed by Thaler and Sunstein is discussed, with its emphasis on designing spaces (including the space of the food label) to shape the behavior of individuals while not restricting consumer choice or imposing restrictions or penalties on producers. In the context of concerns over diet-related chronic diseases and obesity, new FOP interpretive nutrition labels have been proposed or implemented in an attempt to shift consumer dietary choices, including the Multiple Traffic Light labeling system in the United Kingdom and the Health Star Rating system in Australia. We identify some of the characteristics, the underlying nutritional philosophies, and the limitations of these FOP labeling schemes. We suggest that the potential of these schemes is compromised by the coexistence on the food label of many other forms of nutrition information and food marketing. Some alternative ways of labeling and communicating the nutritional quality of foods are also discussed.

Selinger & Whyte (2011). Is There a Right Way to Nudge? The Practice and Ethics of Choice Architecture. Sociology Compass, Volume 5, Issue 10, pages 923–935.

Cass Sunstein and Richard Thaler’s Nudge: Improving Decisions about Health, Wealth, and Happiness presents an influential account of why ‘choice architecture’ should be used to ‘nudge’ people into making better decisions than they would otherwise make. In this essay we: (1) explain the main concepts that Thaler and Sunstein rely upon to defend their project; (2) clarify the main conceptual problems that have arisen in discussions about nudges; (3) clarify practical difficulties that can arise during nudge practice; (4) review the main ethical and political objections that have been raised against nudging; and (5) clarify why issues related to meaning can pose methodological problems for creating effective choice architecture.

Sugden (2008). Why incoherent preferences do not justify paternalism. Constitutional Political Economy, Volume 19, Issue 3, pp 226-248.

A variety of recent arguments emerging from behavioural economics claim to undermine the credibility, and even the conceptual coherence, of the economist’s traditional rejection of paternalism. Indeed, some suggest that the incoherent nature of preferences inevitably implies a form of paternalism, since some basis for officiating between expressed preferences is required, and some preferences will be over-ridden in favour of others. This paper reviews and contests these arguments. It argues that markets operate according to a normatively defensible and non-paternalistic principle of mutual advantage, and that this principle does not require preferences to be coherent.

Sunstein (2006). Preferences, Paternalism, and Liberty. Royal Institute of Philosophy Supplement,  Volume 59, December 2006, pp 233-264.

Our goal in this chapter is to draw on empirical work about preference formation and welfare to propose a distinctive form of paternalism, libertarian in spirit, one that should be acceptable to those who are firmly committed to freedom of choice on grounds of either autonomy or welfare. Indeed, we urge that a kind of ‘libertarian paternalism’ provides a basis for both understanding and rethinking many social practices, including those that deal with worker welfare, consumer protection, and the family.

Sunstein (2015). Why Nudge?: The Politics of Libertarian Paternalism. Yale University Press.

Based on a series of pathbreaking lectures given at Yale University in 2012, this powerful, thought-provoking work by national best-selling author Cass R. Sunstein combines legal theory with behavioral economics to make a fresh argument about the legitimate scope of government, bearing on obesity, smoking, distracted driving, health care, food safety, and other highly volatile, high-profile public issues. Behavioral economists have established that people often make decisions that run counter to their best interests—producing what Sunstein describes as “behavioral market failures.” Sometimes we disregard the long term; sometimes we are unrealistically optimistic; sometimes we do not see what is in front of us. With this evidence in mind, Sunstein argues for a new form of paternalism, one that protects people against serious errors but also recognizes the risk of government overreaching and usually preserves freedom of choice.

Against those who reject paternalism of any kind, Sunstein shows that “choice architecture”—government-imposed structures that affect our choices—is inevitable, and hence that a form of paternalism cannot be avoided. He urges that there are profoundly moral reasons to ensure that choice architecture is helpful rather than harmful—and that it makes people’s lives better and longer.

Sunstein (2015). Nudging and Choice Architecture: Ethical Considerations. Yale Journal on Regulation, Forthcoming.

Is nudging unethical? Is choice architecture a problem for a free society? This essay defends seven propositions: (1) It is pointless to object to choice architecture or nudging as such. Choice architecture cannot be avoided. Nature itself nudges; so does the weather; so do customs and traditions; so do spontaneous orders and invisible hands. The private sector inevitably nudges, as does the government. It is reasonable to worry about nudges by government and to object to particular nudges, but not to nudging in general. (2) In this context, ethical abstractions (for example, about autonomy, dignity, manipulation, and democratic self-government) can create serious confusion. To make progress, those abstractions must be brought into contact with concrete practices. Nudging and choice architecture take highly diverse forms, and the force of an ethical objection depends on the specific form. (3) If welfare is our guide, much nudging is actually required on ethical grounds, even if it comes from government. (4) If autonomy is our guide, much nudging is also required on ethical grounds, in part because some nudges actually promote autonomy, in part because some nudges enable people to devote their limited time and attention to their most important concerns. (5) Choice architecture should not, and need not, compromise either dignity or self-government, but it is important to see that imaginable forms could do both. It follows that when they come from government, choice architecture and nudges should not be immune from a burden of justification, which they might not be able to overcome. (6) Some nudges are objectionable because the choice architect has illicit ends. When the ends are legitimate, and when nudges are fully transparent and subject to public scrutiny, a convincing ethical objection is less likely to be available. (7) There is ample room for ethical objections in the case of well-motivated but manipulative interventions, certainly if people have not consented to them; such nudges can undermine autonomy and dignity. It follows that both the concept and the practice of manipulation deserve careful attention. The concept of manipulation has a core and a periphery; some interventions fit within the core, others within the periphery, and others outside of both.

Sunstein (2015). Nudges, Agency, and Abstraction: A Reply to Critics. Review of Philosophy and Psychology, Volume 6, Issue 3, pp 511-529.

This essay has three general themes. The first involves the claim that nudging threatens human agency. My basic response is that human agency is fully retained (because nudges do not compromise freedom of choice) and that agency is always exercised in the context of some kind of choice architecture. The second theme involves the importance of having a sufficiently capacious sense of the category of nudges, and a full appreciation of the differences among them. Some nudges either enlist or combat behavioral biases but others do not, and even among those that do enlist or combat such biases, there are significant differences. The third general theme is the need to bring various concerns (including ethical ones) in close contact with particular examples. A legitimate point about default rules may not apply to warnings or reminders. An ethical objection to the use of social norms may not apply to information disclosure. Here as elsewhere, abstraction can be a trap. We continue to learn about the relevant ethical issues, about likely public reactions to nudging, and about differences across cultures and nations. Future progress will depend on a high level of concreteness, perhaps especially in dealing with the vexing problem of time-inconsistency.

Sunstein (2015). Nudges Do Not Undermine Human Agency. Journal of Consumer Policy, Volume 38, Issue 3, pp 207-210.

Some people believe that nudges undermine human agency, but with appropriate nudges, neither agency nor consumer freedom is at risk. On the contrary, nudges can promote both goals. In some contexts, they are indispensable. There is no opposition between education on the one hand and nudges on the other. Many nudges are educative. Even when they are not, they can complement, and not displace, consumer education.

Sunstein (2014). The Ethics of Nudging. SSRN Working Paper.

This essay defends the following propositions. (1) It is pointless to object to choice architecture or nudging as such. Choice architecture cannot be avoided. Nature itself nudges; so does the weather; so do spontaneous orders and invisible hands. The private sector inevitably nudges, as does the government. It is reasonable to object to particular nudges, but not to nudging in general. (2) In this context, ethical abstractions (for example, about autonomy, dignity, and manipulation) can create serious confusion. To make progress, those abstractions must be brought into contact with concrete practices. Nudging and choice architecture take diverse forms, and the force of an ethical objection depends on the specific form. (3) If welfare is our guide, much nudging is actually required on ethical grounds. (4) If autonomy is our guide, much nudging is also required on ethical grounds. (5) Choice architecture should not, and need not, compromise either dignity or self-government, though imaginable forms could do both. (6) Some nudges are objectionable because the choice architect has illicit ends. When the ends are legitimate, and when nudges are fully transparent and subject to public scrutiny, a convincing ethical objection is less likely to be available. (7) There is, however, room for ethical objections in the case of well-motivated but manipulative interventions, certainly if people have not consented to them; such nudges can undermine autonomy and dignity. It follows that both the concept and the practice of manipulation deserve careful attention. The concept of manipulation has a core and a periphery; some interventions fit within the core, others within the periphery, and others outside of both.

Sunstein (2014). Choosing Not to Choose. Harvard Public Law Working Paper No. 14-07.

Choice can be an extraordinary benefit or an immense burden. In some contexts, people choose not to choose, or would do so if they were asked. For example, many people prefer not to make choices about their health or retirement plans; they want to delegate those choices to a private or public institution that they trust (and may well be willing to pay a considerable amount for such delegations). This point suggests that however well-accepted, the line between active choosing and paternalism is often illusory. When private or public institutions override people’s desire not to choose, and insist on active choosing, they may well be behaving paternalistically, through a form of choice-requiring paternalism. Active choosing can be seen as a form of libertarian paternalism, and a frequently attractive one, if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose); it is a form of nonlibertarian paternalism insofar as people are required to choose. For both ordinary people and private or public institutions, the ultimate judgment in favor of active choosing, or in favor of choosing not to choose, depends largely on the costs of decisions and the costs of errors. But the value of learning, and of developing one’s own preferences and values, is also important, and may argue on behalf of active choosing, and against the choice not to choose. For law and policy, these points raise intriguing puzzles about the idea of “predictive shopping,” which is increasingly feasible with the rise of large data sets containing information about people’s previous choices. Some empirical results are presented about people’s reactions to predictive shopping; the central message is that most (but not all) people reject predictive shopping in favor of active choosing.

Swindell et al (2010). Beneficent Persuasion: Techniques and Ethical Guidelines to Improve Patients’ Decisions. Annals of Family Medicine, vol. 8 no. 3 260-264.

Physicians frequently encounter patients who make decisions that contravene their long-term goals. Behavioral economists have shown that irrationalities and self-thwarting tendencies pervade human decision making, and they have identified a number of specific heuristics (rules of thumb) and biases that help explain why patients sometimes make such counterproductive decisions. In this essay, we use clinical examples to describe the many ways in which these heuristics and biases influence patients’ decisions. We argue that physicians should develop their understanding of these potentially counterproductive decisional biases and, in many cases, use this knowledge to rebias their patients in ways that promote patients’ health or other values. Using knowledge of decision-making psychology to persuade patients to engage in healthy behaviors or to make treatment decisions that foster their long-term goals is ethically justified by physicians’ duties to promote their patients’ interests and will often enhance, rather than limit, their patients’ autonomy. We describe techniques that physicians may use to frame health decisions to patients in ways that are more likely to motivate patients to make choices that are less biased and more conducive to their long-term goals. Marketers have been using these methods for decades to get patients to engage in unhealthy behaviors; employers and policy makers are beginning to consider the use of similar approaches to influence healthy choices. It is time for clinicians also to make use of behavioral psychology in their interactions with patients.

Tannenbaum, Fox & Rogers. On the misplaced politics of behavioral policy interventions. Working Paper.

One common criticism of policy tools derived from behavioral science that can be applied to a range of policy objectives (commonly referred to as nudges) is that such interventions are manipulative and coercive. We show that such criticism sometimes reflects a partisan nudge bias, whereby partisans conflate their attitudes toward policy tools with their attitudes toward policy objectives. Across five experiments we find that partisans evaluate policy nudges as relatively unethical when applied to policy objectives they oppose or by policymakers they distrust, but evaluate the same policy tools more favorably when applied to political objectives they support or by policymakers they trust. Both politically liberal and conservative partisans exhibited partisan nudge bias, as did practicing policymakers. However, these partisan differences disappear when behavioral policy interventions are described without a specific policy application or sponsor. Thus, explicitly setting aside particular policy objectives and endorsements may facilitate less prejudiced discussion about the appropriateness of deploying behavioral policy tools.

Vallgarda (2012). Nudge—A new and better way to improve health? Health Policy Volume 104, Issue 2, Pages 200–203.

Nudging, or libertarian paternalism, is presented as a new and ethically justified way of improving people's health. It has proved influential and is currently taken up by the governments in the US, the UK and France. One may question the claim that the approach is new, in any case it has many similarities with the idea of “making healthy choices easier”. Whether the approach is better from an ethical perspective depends on the ethical principles one holds. From a paternalistic perspective there could be no objections, but from a libertarian, there are several. Contrary to what the authors state, libertarian paternalism is an oxymoron.

Waldron (2014). It’s All for Your Own Good. The New York Review of Books. October 9th Issue. 

Wertheimer (2012). Should Nudge be salvaged? J Med Ethics doi:10.1136/medethics-2012-101061

Whitman & Rizzo (2015). The Problematic Welfare Standards of Behavioral Paternalism. Review of Philosophy and Psychology, Volume 6, Issue 3, pp 409-425. 

Behavioral paternalism raises deep concerns that do not arise in traditional welfare economics. These concerns stem from behavioral paternalism’s acceptance of the defining axioms of neoclassical rationality for normative purposes, despite having rejected them as positive descriptions of reality. We argue (1) that behavioral paternalists have indeed accepted neoclassical rationality axioms as a welfare standard; (2) that economists historically adopted these axioms not for their normative plausibility, but for their usefulness in formal and theoretical modeling; (3) that broadly rational individuals might fail to satisfy the axioms for various reasons, making them unpersuasive as normative criteria; and (4) that even if their violation did constitute irrationality, that would not justify paternalists’ choosing among inconsistent preferences to define an individual’s “true” preferences.

Whyte et al (2012). Nudge, Nudge or Shove, Shove—The Right Way for Nudges to Increase the Supply of Donated Cadaver Organs. The American Journal of Bioethics, Volume 12, Issue 2.
Richard Thaler and Cass Sunstein (2008) contend that mandated choice is the most practical nudge for increasing organ donation. We argue that they are wrong, and their mistake results from failing to appreciate how perceptions of meaning can influence people's responses to nudges. We favor a policy of default to donation that is subject to immediate family veto power, includes options for people to opt out (and be educated on how to do so), and emphasizes the role of organ procurement organizations and in-house transplant donation coordinators creating better environments for increasing the supply of organs and tissues obtained from cadavers. This policy will provide better opportunities for offering nudges in contexts where in-house coordinators work with families. We conclude by arguing that nudges can be introduced ethically and effectively into these contexts only if nudge designers collaborate with in-house coordinators and stakeholders.

Wikler & Eyal (2013). Nudges and Noodges: The Ethics of Health Promotion—New York Style. Public Health Ethics (2013) 6 (3): 233-234.
Michael Bloomberg's three terms in New York City's mayoral office are coming to a close. His model of governance for public health influenced cities and governments around the world. What should we make of that model? This essay introduces a symposium in which ethicists Sarah Conly, Roger Brownsword and Alex Rajczi discuss that legacy.

Wilkinson (2013). Nudging and Manipulation. Political Studies, Volume 61, Issue 2, pages 341–355.

Behavioural economics and social psychology have shown that humans have all sorts of psychological quirks. Policy makers have become enthusiastic about taking advantage of these quirks through what Thaler and Sunstein call ‘nudges’. This article asks: when would nudging be manipulative? The article has six parts: (1) publicity and transparency, which claims that Thaler and Sunstein's own attempt to deal with evil nudges is inadequate; (2) manipulation and autonomy, where the nature and wrongness of manipulation is connected to a conception of autonomy; (3) the perversion of the decision-making process – a piecemeal approach, which sorts nudges into easy and hard cases and assesses attempts to pick out certain methods, such as temptation, as manipulative; (4) the perversion of the decision-making process – general accounts, which shows why we do not have a clear, complete and correct account of what such perversion is; (5) intentions and nudging's escape clause, where it is shown that governments that nudge as Thaler and Sunstein would wish do not manipulate because they do not have the intention to manipulate; and (6) consensual manipulation, where it is claimed that manipulation can, with the right consent, be consistent with autonomy.

Dr. Mark D. White explains the informational, ethical, and practical problems faced by libertarian paternalism and 'nudges,' by which the government subtly influences people's choices for their own good, in his exciting new volume The Manipulation of Choice. In a lighthearted manner, the author points out critical flaws in the way economists model decision-making, how behavioral economics failed to correct them, and how they led to the problems with libertarian paternalism and nudges. Sprinkled throughout with anecdotes, examples, and references to a wide range of scholarly literature, this new volume argues against the use of paternalistic nudges by the government and makes a positive case for individual choice and autonomy.

Wright & Ginsberg (2012). Behavioral Law and Economics: Its Origins, Fatal Flaws, and Implications for Liberty. Northwestern University Law Review, Vol. 106, No. 3.

Behavioral economics combines economics and psychology to produce a body of evidence that individual choice behavior departs from that predicted by neoclassical economics in a number of decision-making situations. Emerging close on the heels of behavioral economics over the past thirty years has been the “behavioral law and economics” movement and its philosophical foundation — so-called “libertarian paternalism.” Even the least paternalistic version of behavioral law and economics makes two central claims about government regulation of seemingly irrational behavior: (1) the behavioral regulatory approach, by manipulating the way in which choices are framed for consumers, will increase welfare as measured by each individual’s own preferences and (2) a central planner can and will implement the behavioral law and economics policy program in a manner that respects liberty and does not limit the choices available to individuals. This Article draws attention to the second and less scrutinized of the behaviorists’ claims, viz., that behavioral law and economics poses no significant threat to liberty and individual autonomy. The behaviorists’ libertarian claims fail on their own terms. So long as behavioral law and economics continues to ignore the value to economic welfare and individual liberty of leaving individuals the freedom to choose and hence to err in making important decisions, “libertarian paternalism” will not only fail to fulfill its promise of increasing welfare while doing no harm to liberty, it will pose a significant risk of reducing both.

Yeung (2012). Nudge as Fudge. The Modern Law Review, Volume 75, Issue 1, pages 122–148.

Yeung (2016). The Forms and Limits of Choice Architecture as a Tool of Government. Law & Policy
Volume 38, Issue 3, pages 186–210, July 2016.

Although the use of design-based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design-based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim “your money or your life?” is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their use by date to stimulate sales. This article focuses on three forms of choice architecture—coercion, inducements, and nudge—employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as libertarian. Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.

1 comment:

Unknown said...

Great list, thanks a lot! You might include Hausman/Welch, J Pol Phil 2010, as well, though. I found it particularly helpful for its critical discussion on the way Sunstein and Thaler use some key notions related to the ethics of nudging.
Anyway, thanks for mentioning my own paper as well 😊
Christian Schubert