From: Northwestern Law Review

Aneil Kovvali


Cass Sunstein is the leading advocate of “nudges”—small policy interventions that yield major impacts because of behavioral quirks in the way that people process information. Such interventions form the core of Sunstein’s philosophy of “libertarian paternalism,” which seeks to improve on individuals’ decisions while preserving their freedom to choose. In Why Nudge?, Sunstein forcefully defends libertarian paternalism against John Stuart Mill’s famous Harm Principle, which holds that government should only coerce a person when it is acting to prevent harm to others. Sunstein urges that, unlike more coercive measures, nudges respect subjects’ goals, even as they reshape their choices. Using an analogy to voting paradoxes, this Review shows that reconciling multiple, inconsistent goals is a fundamentally challenging problem that leaves even deliberative individuals vulnerable to manipulation through nudges. The fact of inconsistent goals means that government regulators who deploy nudges select and impose their own objectives, instead of merely advancing the goals of the regulated. The analogy also highlights that multimember legislative bodies are subject to many of the same quirks as individuals, raising questions about the government’s ability to improve on individuals’ choices.


As a result, government can only improve upon the rationality of its citizens by adopting an institutional framework that deemphasizes the legislature. Congress can make broad delegations of authority to the President, who can then adopt a disciplined approach that ensures that policies are developed in a rational and orderly fashion. As the cockpit of the administrative state, OIRA is the institutional embodiment of this solution. Pursuant to a series of executive orders that generally direct the use of cost–benefit analysis, OIRA guides regulatory agencies in the reasoned use of their essentially open-ended grants of authority from Congress. Sunstein’s optimistic view of the capacity of government to improve upon citizens’ decisions seems to be informed by his experience within the executive as the head of OIRA. He assures readers that “[w]ithin the executive branch in the U.S. government, the long-standing requirement of attention to costs and benefits can produce . . . a safeguard against serious mistakes.”[45] Elsewhere, he writes that “consideration of ‘politics’ is not a significant part of OIRA’s own role.”[46]

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