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go, but even when libertarianism is “in,” as it seems to be now, it is difficult to find someone who believes that this category of bans and criminal punishments should be empty. People might disagree on specific issues such as marijuana, handguns in the home, or late-term abortions, but all but the most unreasonable believe that the government should occasionally step in and overrule some individuals’ choices. There is an implicit balancing between the desire to protect the autonomy of individuals and the desire to protect individuals from themselves and others. The question is where to draw the line.

Short of these mandates, law has a number of tools for encouraging good choices. The government can subsidize good decisions (installing home insulation or replacing your clunker with a new car) and tax bad ones (smoking cigarettes or refusing to buy health insurance). It can require us to disclose certain information necessary for others to make good decisions about such things as stock trades, chemical exposure in work-places, and the side effects of prescription drugs. And the government can require that you take sufficient time to think through your choice, whether it be a big purchase (lemon laws give buyers a certain number of days to make a return) or a major life decision such as whether to get married (roughly half the states require some kind of waiting period before issuing a marriage license).9

Increasingly, public policy experts are urging governments to take advantage of so-called choice architecture in order to nudge individuals toward better decisions. Cass Sunstein and Richard Thaler have popularized the notion of “libertarian paternalism,” the idea that even if government should not require certain decisions, it need not be neutral in whether they should be encouraged. Public policy can be used “to move people in directions that will make their lives better.”10 An example of a nudge is putting fruit at the beginning of school lunch lines rather than at the end. This action does not require school children to eat fruit, but it uses our known tendency to select food early in a food line to encourage more healthful eating. Another example is to create a default rule in favor of organ donation whenever someone renews a driver’s license. Individuals can still opt out, but our tendency to stick with the status quo will result in a greater number of organ donations, thus saving lives. Another nudge is disclosure, usually about costs, so that consumers can do a better job choosing financial products, cell phones, or prescription drug plans. Sunstein and Thaler’s book Nudge is full of similar policy ideas.

In a sense, choice architecture is simply using the insights of behaviorists and psychologists for public policy goals rather than to sell cigarettes, cars, or toothpaste. The choice architects are taking the suggestions like those in the previous section, aimed at individuals, and applying them more globally. In other words, they argue we should take advantage of humans’ tendencies to conform their behavior to situational cues, to succumb to habit, and to make decisions based on irrationalities, and use these tendencies for good.

I’m a fan of Sunstein and Thaler’s work, and I could get behind most of their very clever proposals. But I think we should nudge their views a little further.

The “nudgers” credit human decision making a great deal. They may call their suggestions libertarian paternalism, but it’s still libertarian. As Sunstein and Thaler claim in their introduction, “Choices are not blocked, fenced off, or significantly burdened . . . If people want to smoke cigarettes, to eat a lot of candy, to choose an unsuitable health care plan, or to fail to save for retirement, libertarian paternalists will not force them to do otherwise—or even make things hard for them.”11

Where I differ from them is that they imply that without nudges we operate in a world in which human autonomy and human choice flourishes. They feel they can “influence choices in a way that will make choosers better off, as judged by