The Hazards of "Libertarian Paternalism" and Political "Choice Architecture"

Here's Richard Thaler and Cass Sunstein in today's LA Times:

Those who design supermarkets and school cafeterias are engaged in what we call “choice architecture”: the organization of the context in which people make decisions. Choice architects are everywhere. If you design the ballot that voters use to choose candidates, you are a choice architect. If you are a doctor and must describe the alternative treatments available to a patient, you are a choice architect. If you design the form that new employees fill out to enroll in the company healthcare plan, you are a choice architect. If you are a parent, describing possible educational options to your son or daughter, you are a choice architect. If you are a salesperson, you are a choice architect (but you already knew that).
There are many parallels between choice architecture and more traditional forms of architecture. A crucial parallel is that there is no such thing as a “neutral” design. Cognitive psychology and behavioral economics have shown that small and apparently insignificant contextual details can have a major effect on people's behavior.

They are right about the importance of context and framing. And I very much like the idea of “choice architecture,” in its place. I agree that there is generally no “neutral” design. But this opens them up to an obvious line of argument. What kind of architecture are we aiming at? A mundane utilitarian edifice or a challenging vertiginous space? Homey comfort or antiseptic austerity?
Sunstein and Thaler may wish to design the presentation of choices to bias decisions in favor of, say, happiness. But other choice architects may be more interested in biasing our choices toward virtue or toward participation in great collective projects. Obviously everyone is a “choice architect” to some degree in his or her daily intercourse with others. And some people, like marketers and salespeople, try to shape choices for a living. The thing is, we often rightly resent their attempts to manipulate us, but at least we are more or less in control of our exposure to such people. But when choice architecture is implemented politically, we cannot opt out of these attempts at manipulation, attempts which may or may not be benign. That's a big problem because political choice architecture may do a great deal to shape us, even if, in its “libertarian paternalist” incarnation, it makes a show of leaving the ultimate choice open to individuals.
For example, I would object if President John McCain implemented a policy of opt-out national service because such a policy would communicate all-too-clearly that individuals need some kind of special justification or rationale not to serve the state. The default rule itself contains meaningful content. If allowed to stand, such a policy could shape norms and individual preferences in a direction antagonistic to the value of autonomy. Soon enough we might find ourselves asking, “Why should you be able to opt out at all?” The paternalistic nudge may “leave the choice open” but accepting the legitimacy of certain nudges may imperil liberty.
Back to Thaler and Sunstein:

Let's return to the cafeteria line. If, all things considered, you think the arrangement of food ought to nudge kids toward what's best for them, then we welcome you to our new movement: libertarian paternalism. We are keenly aware that both those words are weighted down by stereotypes from popular culture and politics. Why combine two often reviled and seemingly contradictory concepts? The reason is that if the terms are properly understood, both concepts reflect common sense. They are far more attractive together than alone — and taken together, they point the way to a whole new approach to the role of government.
The libertarian aspect of the approach lies in the straightforward insistence that, in general, people should be free to do what they like. They should be permitted to opt out of arrangements they dislike, and even make a mess of their lives if they want to. The paternalistic aspect acknowledges that it is legitimate for choice architects to try to influence people's behavior in order to make their lives longer, healthier and better.

OK. But there's sure a lot of disagreement about “better” isn't there? I sense that the fact of pluralism isn't their chief concern. And the “libertarian” part of this I suspect really is a ruse. If Sunstein and Thaler were our wise choice archietcts, would it be legal or illegal for employers to not offer employment contracts without opt-out savings/investment accounts? Forcing some people to frame choices they offer to others in a way that will bias those people's choices can't be libertarian in any meaningful sense.
Then there is the problem of the meaning of default rules. Thaler and Sunstein suggest “If we want to increase the supply of transplant organs in the United States, we could presume that people want to donate, rather than treating nondonation as the default.” But isn't this the sort of presumption that itself contains a great deal of normative and symbolic content? Does it not say, “Your body presumptively belongs to the commonwealth, and you must take special action to use it as you and your family wish?” Wouldn't the very existence of such a default rule bias subsequent political deliberation against alternative policies, like legalizing markets in organs and tissue?
Individual choices made again and again create habits. Coordinated patterns of individual actions create norms. Choice architecture not only nudges us to do what we already want to do, but over time shapes what we want and shapes the social context and meaning of choice. By modifying the local frame of choice, the architect systematically affects the global frame of future choices. Suppose manipulating the context of micro-level individual choices eventually shifts political preferences. Do we think it is okay for the state to aim at producing a population with different political preferences, so that they will vote for the things that we, the choice architects, know will make them better off? (My critique of Social Security is that this is terribly illiberal and is exactly what happened.) Obviously this is completely pernicious and unacceptable. Which may be one reason why a chaotic ad hoc gallimaufry of completing choice frames, which add up to nothing in particular and tilts at no one set of values may be precisely what leaves us best off in the end.

Dissertation topic: If there is no “neutral” choice architecture, does that mean liberal neutrality is impossible? Short answer: No. It means that neutral neutrality is impossible.