How Change Happens
Page 11
From the normative point of view, we might want to distinguish between public and private institutions here. Perhaps private institutions, disciplined as they are by market forces, should freely compete along this dimension as they do along others, and perhaps public institutions should hesitate before requiring people to choose unless there is a close connection between the good or service in question and the object of active choice.
3. Active choosing among goods, services, or jobs as a condition for obtaining a good, a service, or a job.
For most consumption decisions, people are given a wide range of options, and they can choose one or more of them. Unless they make a choice, they will not obtain the relevant good or service. They are not defaulted into purchasing sodas, tablets, cell phones, shoes, or fishing poles. Indeed, this is the standard pattern in free markets. When people visit a website, a restaurant, or a grocery or appliance store, they are generally asked to make an active choice. The default—understood as what happens if they do nothing—is that no product will be purchased. People do not receive goods or services unless they have actively chosen them. The same point holds for the employment market. People are not typically defaulted into particular jobs, at least not in any formal sense. They have a range of options, and unless they take one they will be unemployed. In this respect, free markets generally require active choosing.
There is nothing inevitable about this situation. We could imagine a situation in which sellers assume, or presume, that people want certain products and in which buyers obtain them, and have to pay for them, passively. Imagine, for example, that a bookseller has sufficient information to know, for a fact, that Johnson would want to buy any new book by Harlan Coben, Richard Thaler, or Joyce Carol Oates, or that Smith would like to purchase a new version of a particular tablet, or that LaMotte would want to buy a certain pair of sneakers, or that Ullmann would like to purchase a particular product for his dog, or that when Williams runs out of toothpaste, he would like new toothpaste of exactly the same kind. If the sellers’ judgments are unerring, or even nearly so, would it be troublesome and intrusive, or instead a great benefit, for them to arrange the relevant purchases by default? Existing technology is increasingly raising this question.
There is a good argument that the strongest reason to require active choosing is that sufficiently reliable predictive shopping algorithms do not (yet) exist, and hence active choosing is an indispensable safeguard against erroneous purchases. The use of algorithms is not (yet) in the interest of those who might be denominated purchasers (by default). On this view, the argument for active choosing is rooted in the view that affirmative consent protects against mistakes—which leaves open the possibility of “passive purchases” if and when a reliable technology becomes available. We are getting there, and for some things we may already be there, but so long as such technology does not exist, passive purchases will be unacceptable. A hypothesis: Once reliable algorithms are indeed in place, we will see far more support for their use in cases like those of Johnson, Smith, Ullmann, and Williams.
What Choosers Choose
As the examples suggest, both private and public institutions might choose option 2 or 3, though of course only government can choose option 1. It should be clear that active choosing is far from inevitable. Instead of imposing active choosing, an institution might select some kind of default rule, specifying what happens if people do nothing. Of course options 2 and 3 also come with a kind of default rule: unless people make an active choice, they will have no good, no service, and no employment. But other approaches are possible.
For example, those who obtain driver’s licenses might be defaulted into being organ donors, or those who start work with a particular employer might be defaulted into a specific retirement or health care plan. These examples are not hypothetical. Alternatively, those who make an active choice to purchase a particular product—say, a book or a subscription to a magazine—might be enrolled into a program by which they continue to receive a similar product on a periodic basis, whether or not they have made an active choice to do so. The Book of the Month Club famously employs a strategy of this sort.
An active choice to purchase a product might also produce a default rule that is unrelated to the product—as, for example, when the purchase of a particular book creates a default enrollment in a health care plan, or when an active choice to enroll in a health care plan creates a default enrollment in a book club. In extreme cases, when disclosure is insufficiently clear, an approach of this kind might be a form of fraud, though we could also imagine cases in which such an approach would track people’s preferences.
Suppose, for example, that a private institution knows that people who purchase product X (say, certain kinds of music) also tend to like product Y (say, certain kinds of books). Suggestions of various kinds, default advertisements, default presentations of political views, and perhaps even default purchases could be welcome and in people’s interests, unfamiliar though the link might seem. For example, the website Pandora tracks people’s music preferences, from which it can make some inferences about likely tastes and judgments about other matters, including politics.5
We could also imagine cases in which people are explicitly asked to choose whether they want to choose. Consumers might be asked: Do you want to choose your cell phone settings, or do you want to be defaulted into settings that seem to work best for most people or for people like you? Do you want to choose your own health insurance plan, or do you want to be defaulted into the plan that seems best for people in your demographic category? In such cases, many people may well decide in favor of a default rule and thus decline to choose because of a second-order desire not to do so. They might not trust their own judgment; they might not want to learn. The topic might make them anxious. They might have better things to do.
Simplified active choosing—active choosing with the option of using a default—has considerable promise and appeal, not least because it avoids many of the influences contained in a default rule and might therefore seem highly respectful of autonomy while also giving people the ability to select the default. For cell phone settings or health insurance plans, active choosers can choose actively if they like, while others can (actively) choose the default.
Note, however, that this kind of question is also an intrusion and a kind of tax. For that reason, it is not a perfect solution, at least for those people who genuinely do not want to choose. After all, they are being asked to do exactly that. (One more time: “Do you want to choose your route to the airport?” asked the taxi driver.) At least some of those people likely do not want to have to choose between active choosing and a default rule, and hence they would prefer a default rule to an active choice between active choosing and a default rule. Even that active choice takes time and effort and imposes costs, and some or many people might not want to bother. In this respect, supposedly libertarian paternalism, in the form of an active choice between active choosing and a default, itself has a strong nonlibertarian dimension—a conclusion that brings us directly to the next topic.
Choice-Promoting Paternalism
I now turn to the heart of my argument, which is very simple: Those who favor active choosing and who force people to choose are often acting paternalistically, at least if they are requiring choices in circumstances in which people would prefer not to choose. Because those circumstances are pervasive, those who require choices are, in the relevant sense, acting as paternalists. Paternalism might be justified, here as elsewhere; but choice-promoting paternalism may intrude on autonomy, welfare, or both. It may run into the same objections that are made against paternalism of the more familiar kinds. As we shall see, however, choice-promoting paternalism also has a distinctive defense.
Paternalism
Is active choosing paternalistic when people would prefer not to choose? To answer that question, we should start by defining paternalism. There is an immensely large body of literature on that issue.6 Let us bracket the hardest que
stions and note that though diverse definitions have been given, it seems clear that the unifying theme of paternalistic approaches is that a private or public institution does not believe that people’s choices will promote their welfare and is taking steps to influence or alter people’s choices for their own good.
What is wrong with paternalism, thus defined? Those who reject paternalism typically invoke welfare, autonomy, or both. They tend to believe that individuals are the best judges of what is in their interests and of what would promote their welfare and that outsiders should decline to intervene because they lack crucial information.7 Placing a bright spotlight on welfare, John Stuart Mill himself emphasized that this is the essential problem with outsiders, including government officials. Mill insisted that the individual “is the person most interested in his own well-being” and that the “ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else.”8 When society seeks to overrule the individual’s judgment, it does so on the basis of “general presumptions,” and these “may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases.” Mill’s goal was to ensure that people’s lives go well, and he contended that the best solution is for public officials to allow people to find their own paths.
Mill offered an argument about welfare, grounded in a claim about the superior information held by individuals. But there is an independent argument from autonomy, which emphasizes that even if people do not know what is best for them and even if they would choose poorly, they are entitled to do as they see fit (at least so long as harm to others, or some kind of collective action problem, is not involved). Freedom of choice has intrinsic and not merely instrumental value. It is an insult to individual dignity, and a form of infantilization, to eliminate people’s ability to go their own way.
Paternalists Who Force People to Choose
Whether or not these objections to paternalism are fully convincing, they have considerable force in many situations. But there might seem to be legitimate questions about whether and how they apply to efforts to override the choices of people whose choice is not to choose. Perhaps those who want people to choose are not acting paternalistically at all; perhaps they are seeking to promote self-determination and showing people a high level of respect.
That is probably what they believe they are doing. Recall the case of the taxi driver, who may be doing just that, and who may have passenger rage (“why did you choose that crazy route?”) and tips in mind. Doctors and lawyers asking patients and clients to choose might be analogous. If public officials promote or require choices, they might think that their own goal is to avoid any kind of paternalism. Focusing on Mill’s concerns, or some variation on them, they might insist that respect for individual agency calls for a two-word proclamation: you choose. What is paternalistic about that?
On reflection, however, the objections to paternalism apply quite well, so choice-promoting paternalism and choice-requiring paternalism are not oxymorons. If an outsider tells people that they must choose, she is rejecting their own conception of what they should be doing and thus endangering their welfare (on Mill’s premises) and refusing to respect their autonomy. People might decline to choose for multiple reasons. Their choice not to choose is, in their view, the best way to promote their welfare, and they want that choice to be treated with respect. They might have a kind of intuitive framework: they want to minimize decision costs and error costs. When choosing would impose high decision costs (and in a sense amount to a cognitive or hedonic tax), they might not want to do it, unless incurring those costs is a good way to reduce error costs. And if they think that someone (a cab driver, an employer, a public official) would be more likely to make the right decision, they might think that the best way to reduce error costs is not to choose. They might effectively appoint someone else as their agent; they might see themselves as the principal and delegate a choice to that agent with conviction, contentment, or pleasure.
More particularly, they might believe that in the context at hand, they lack information or expertise. They might fear that they will err. They might not enjoy the act of choosing; they might like it better if someone else decides for them. They might be too busy. They might not want to incur the emotional costs of choosing, especially for situations that are painful or difficult to contemplate (such as organ donation or end-of-life care). They might find it a relief, or even fun, to delegate. They might not want to take responsibility. They might not want to pay the psychic costs associated with regretting their choice. Active choosing saddles the chooser with responsibility for the choice and reduces the chooser’s welfare for that reason.
In daily life, people defer to others, including friends and family members, on countless matters, and they are often better off as a result. In ordinary relationships, people benefit from the functional equivalent of default rules, some explicitly articulated, others not. Within a marriage, for example, certain decisions (such as managing finances or planning vacations) might be made by the husband or wife by default, subject to the right to opt out in particular circumstances. That practice has close analogues in many contexts in which people are dealing with private or public institutions and choose not to choose. They might want their rental car company, their health care provider, or their employer to make certain choices for them. Indeed, people often are willing to pay others a great deal to make such choices. But even when there is no explicit payment or grant of the power of agency, people might well prefer a situation in which they are relieved of the obligation to choose because such relief will reduce decision costs, error costs, or both.
Suppose, for example, that Jones believes that he is not likely to make a good choice about his retirement plan, that he does not want to be educated to be able to do so, and that he would therefore prefer a default rule chosen by someone who is a specialist in the subject at hand. In Mill’s terms, doesn’t Jones know best? Recall Mill’s insistence that the “ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else.”9
Or suppose that Smith is exceedingly busy and wants to focus on her most important concerns, not on a question about the right health insurance plan for her or on the right privacy setting for her computer. Doesn’t Mill’s argument support respect for Smith’s choice? Whatever the chooser chooses, the welfarist arguments seem to call for deference to the chooser’s choice, even if that choice is not to choose. If we believe in freedom of choice on the ground that people are uniquely situated to know what is best for them, then that very argument should support respect for people when they freely choose not to choose.
Or turn from welfare to considerations of autonomy and dignity. Suppose that Winston, exercising her autonomy, decides to delegate decision-making authority to someone else and thus to relinquish the power to choose, in a context that involves health insurance, energy providers, privacy, or credit card plans. Is it an insult to Winston’s dignity, or instead a way of honoring it, if a private or public institution refuses to respect that choice? It is at least plausible to suppose that respect for autonomy requires respect for people’s decisions about whether and when to choose. That view is especially reasonable in light of the fact that people are in a position to make countless decisions, and they might well decide that they would like to exercise their autonomy by focusing on their foremost concerns, not on what seems trivial, boring, or difficult.
But are people genuinely bothered by the existence of default rules, or would they be bothered if they were made aware that such rules had been chosen for them? We do not have a full answer to this question; the setting and the level of trust undoubtedly matter. But note in this regard the empirical finding, in the context of end-of-life care, that even when they are explicitly informed that a default rule is in place and that it has been chosen because it affects people’s decisions, there is essentially no effect on what people do.10 This finding suggests that people are not
uncomfortable with defaults, even when they are made aware both that choice architects have selected them and that they were selected because of their significant effect. There is increasing evidence that transparency about defaults does not decrease their effects.11
Freedom and Its Alienation
To be sure, we could imagine hard cases in which a choice not to choose seems to be an alienation of freedom. In the most extreme cases, people might choose to relinquish their liberty in some fundamental way, as in the aftermath of 9/11. In a less extreme case, people might choose not to vote, not in the sense of failing to show up at the polls, but in the sense of (formally) delegating their vote to others. Such delegations are impermissible, perhaps because they would undo the internal logic of a system of voting (in part by creating a collective action problem that a prohibition on vote selling solves), but perhaps also because individuals would be relinquishing their own freedom.
Or perhaps people might choose not to make choices with respect to their religious convictions, or their future spouse, and they might delegate those choices to others. In cases that involve central features of people’s lives, we might conclude that freedom of choice cannot be alienated and that people must make their own decisions.
We cannot easily specify which cases fall in this category. People can have nice debates on that question. But even if the category is fairly large, it cannot easily be taken as a general objection to the proposition that on autonomy grounds, people should be allowed not to choose in multiple domains.
Asymmetries
Choice-promoting paternalism is no oxymoron, but it might have a distinctive appeal, and along some dimensions it is quite different from forms of paternalism that (1) do not promote choosing, (2) actively discourage choosing, and (3) forbid choice. As a familiar example of the first category, consider a default rule; as an example of the second, consider a warning or a reminder designed to persuade people to delegate authority and not to choose on their own. Examples of the second type are admittedly rare, but we could certainly imagine them in the domain of financial or medical choices. Examples of the first category are, of course, common. Examples of the third category are also common and are the most standard target of those who reject paternalism.