Jeremy A. Blumenthal, Expert Paternalism

64 Fla. L. Rev. 721 |

Scholars and policymakers from multiple disciplines have long debated whether and when paternalistic intervention might be appropriate to guide ordinary decision makers choices and behaviors. Recently, the use of empirical data has begun to inform this debate. Some such research has demonstrated that individuals‘ susceptibility to cognitive and emotional biases leads to nonoptimal decisions in a variety of areas, including health, finance, and safety, among others. This has led some scholars to suggest a role for third-party intervention to help protect citizens from their own biased decisionmaking.

Critics of this approach suggest that such intervention prevents individuals from learning from their mistakes; that it infringes not only on individuals‘ autonomy per se but also on their preference for choosing; or that those designing the interventions can truly know what principals‘ true preferences are. Substantial empirical evidence challenges these claims, however, showing that in many instances people do not learn from their mistakes or in fact prefer to leave choices to others.

Most recently, antipaternalists have challenged experts‘ ability to develop interventions in the first place, arguing that experts (a) are likely to be ―captured‖ and act in their own interests, rather than the public‘s; and (b) are just as susceptible to the same cognitive and emotional biases as ordinary citizens, and thus deferring to their interventionist decisions is unwarranted.

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