Richard A. Epstein reviews latest book by Cass Sunstein

See Nudged to Be Free: We can lose our way when offered too many choices. But are we at liberty when social forces can step in to correct all our personal blunders? The book is On Freedom. Excerpts:

“On Freedom,” which is more of a pamphlet than a book, focuses largely on the psychological states of people grappling with illness, smoking, drinking, drugs and economic insecurity. His opening passage asks a rhetorical question: “Does freedom of choice promote human well-being? Many people think so.” But he sees a huge catch: “What if people do not know how to find their way?” In the modern world, he suggests, individuals lose their way when confronted with too many choices, about everything from where to live to whom to marry.

At this point he introduces his key notion: “navigability”—the best way to get from here to there. “When life is hard to navigate,” Mr. Sunstein writes, “people are less free.” Indeed, for Mr. Sunstein, these obstacles “create a kind of bondage.” Bondage, however, without a taskmaster. By that one verbal ploy, the author turns to talking about all-too-human mistakes that have nothing to do with political freedom.

A system of laws keyed to force and fraud maintains a relatively narrow scope. But preserving freedom becomes much more fraught if social and legal forces mean that someone—the reader is never quite clear who—has the right to step in to correct the full range of individual blunders. For Mr. Sunstein, two arcane tools help achieve his ambitious ends: “nudges” and “choice architecture.” Neither works.

By nudges, Mr. Sunstein means interventions that supposedly leave individuals freedom of choice but subtly steer them in certain desirable directions. These nudges can take the form of simple reminders to stop overeating; of automatic savings plans that employees are enrolled in unless they opt out; even of physically placing healthy foods more prominently on supermarket shelves. Taken together, Mr. Sunstein’s small “nudges” add up to a broad and ambitious agenda to uplift human conduct.pose nudges on others, and for what ends? Mr. Sunstein rightly warns against an Orwellian world, and quotes the famous last line of “1984,” about the fallen hero Winston Smith: “He had won the victory over himself. He loved Big Brother.” Yet Mr. Sunstein never quite explains why nudges couldn’t be used to steer people into an Orwellian state.

Mr. Sunstein’s notion of “choice architecture” fares little better. He defines this term loosely as “the environment in which choices are made.” But which social planners should be allowed to play the role of shaping that environment and how long can they keep that role? What institutional norms and safeguards will protect everyone else against these overseers’ own cognitive impairments, ideological blind spots or corrupt motivations? Mr. Sunstein never tells us who is fit to correct the mistakes of others.

Indeed, the author avoids any systematic account of his subject, instead invoking multiple rhetorical devices that make the argument painfully difficult to follow. His exposition is punctuated by a flurry of literary quotations, copious references to Adam and Eve, and just-so stories of how fictional individuals (Ted and Joan) may be “glad” to be induced to quit smoking and drinking by socially chosen guardians. He makes no reference to the extensive literature about how best to (voluntarily) treat these common problems. Ted and Joan can ask friends for advice, go online, check into rehab or privately hire life coaches, trainers and psychiatrists. Court-appointed guardians can be provided in extreme cases. Mr. Sunstein never explains why these decentralized market strategies are inferior to his preferred choice architects.

Sadly, Mr. Sunstein’s emphasis on personal disorders like smoking or alcoholism leads him to ignore or understate real threats to human freedom from private force, or fraud, or political faction. How does a free society best regulate pollution? Does a free society need, or should it even tolerate, labor market regulation? How should it design and pay for physical infrastructure? Enforce antitrust laws? Readers will have to look elsewhere for answers to such questions, all of which turn crucially on questions of individual freedom."