Washington Lawyer - November/December 2019 - 40

WORTH READING

GUIDED CHOICES & FREEDOM
Review by Rich Blaustein

dizzying, financially complex, and internetomnipresent world.

Courtesy of Princeton University Press

Unambiguously, Sunstein's treatise furthers
a Western, individualistic understanding of
freedom, of which 19th-century philosopher
John Stuart Mill, who pops up in On Freedom,
is the grand figure. Mill's classic On Liberty
prefigured the current behavioral economists'
emphasis that individuals, empowered to apply
an "as judged by themselves" standard, can best
determine their well-being. Moreover, Mill's
idea of freedom links choices with human
development. "He who lets the world, or his own
portion of it, choose his plan of life for him, has
no need of any other faculty than the ape-like
one of imitation. He who chooses his plan for
himself, employs all his faculties," Mill wrote.

reedom, American philosopher
John Dewey wrote in 1922, "is
found in that kind of interaction
which maintains an environment in
which human desire and choice
count for something." Not much is
different today, and Harvard law
professor and prolific writer Cass
Sunstein looks at this interlinking of
choice and freedom in his brief yet
stimulating 2019 book On Freedom.
Sunstein admits that his discussion leaves out
important facets of freedom, such as freedom
of expression and active liberty - the freedom
to participate in public issues that modern and
persuasive tracts like Justice Stephen Breyer's
Active Liberty and John Ely's Democracy and
Distrust affirm as intrinsic to America's constitutional tradition. Yet Sunstein's exposition, which
expands contemporary behavioral economics,
resonates because it illuminates freedom in our
40 WASHINGTON LAWYER

Refining this line of thought, Sunstein emphasizes that "navigability" for informed choices is
key to freedom today. Sunstein defines navigability as a clear and helpful steering toward a
decision process, which could be easy (e.g.,
making a selection at a cafeteria) or, quite often,
challenging. Unclear web registration, health
insurance claims processing, justice system
filings and hearings, and entrance into a professional field are areas in which people often
experience navigability challenges. Low-income
people in particular face these obstacles
because they might lack the technology to
access information, leading to a longer and
more stressful decision-making process.
"Obstacles to navigability have been the great
blind spot in the Western philosophical tradition," Sunstein writes. "They deserve sustained
attention - not only from philosophers and
political theorists but also from economists,
psychologists, designers, architects, computer
scientists, lawyers, public officials, the private
sector, and ordinary citizens."
Two other core concepts, nudges and choice
architecture, influence freedom and navigability. Nudges, "interventions that fully preserve
freedom of choice, but also steer people's decisions in certain directions," are everywhere.
Examples include GPS systems, automatic
enrollment in optional pension plans, and the
USDA MyPlate (which replaced the iconic USDA
"Food Pyramid" in 2011). Choice architecture,

NOVEMBER/DECEMBER 2019

which Sunstein introduces as "the environment
in which choices are made," is more protean.
Contract law, for example, qualifies as a choice
architecture because it offers multiple but not
unlimited transaction possibilities, but so are
government and business web designs and
the market variety of seed that farmers can
purchase for a new planting season.
Nudges and choice architecture go a long way
(but not all the way) in fostering the "as judged
by themselves" criterion. Sunstein explains, "As
the GPS device and MyPlate examples suggest,
many nudges, and many forms of choice architecture, have the goal of increasing navigability
- of making it easier for people to get to their
preferred destination."
Nudges and choice architecture can also
legitimately steer people away from bad
choices that offer immediate satisfaction but
have future high costs. Promoting the right
balance for nudges and choice architecture
that support the "as judged for themselves"
criterion is generally not a tortuous endeavor.
However, Sunstein raises some interesting
dilemmas involving a temptation that transpires over three periods of time: before the
decision, during the decision's realization,
and afterward when an individual experiences
regret or a harmful consequence. A person
typically might be thankful that a nudge
steered her or him from that choice, but there
are other possibilities. For example, a person
might be equally content with multiple
outcomes steered by different choice architectures, or conclude that intensely gratifying
feelings felt during the experience were as
important as the remorseful self-regard at the
third point in time.
Sunstein postulates that for infrequent yet
weighty situations, the "as judged by themselves criterion" might be secondary to impersonal standards. He writes, "In my view, there
is no alternative to resorting to some kind of
external standard, involving a judgment about
what makes the chooser's life better, all things
considered. That judgment might require moral
evaluations of options and outcomes. It might
require some kind of aggregate judgment
about people's well-being."

Washington Lawyer - November/December 2019

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2019