The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.

The Dark Side of Nudging

A podcast of a talk presented at a conference in Berlin organized by the Vervassungsblog on Choice Architecture in Democracies, in January 2015 - Verfassungsblog - Autonomy vs. Technocracy: Libertarian Paternalism revisited

Doping, sport and the law: time for repeal of prohibition?

This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes’ health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport’s various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler’s theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon’s and Simon’s work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

Shifting Ground:Beyond National Architecture

The Irish Pavilion at the Venice Architecture Biennale 2012 charts a position for Irish architecture in a global culture where the modes of production of architecture are radically altered. Ireland is one of the most globalised countries in the world, yet it has developed a national culture of architecture derived from local place as a material construct. We now have to evolve our understanding in the light of the globalised nature of economic processes and architectural production which is largely dependent on internationally networked flows of products, data, and knowledge. We have just begun to represent this situation to ourselves and others. How should a global architecture be grounded culturally and philosophically? How does it position itself outside of shared national reference points?
heneghan peng architects were selected as participants because they are working across three continents on a range of competition-winning projects. Several of these are in sensitive and/or symbolic sites that include three UNESCO World Heritage sites, including the Grand Egyptian Museum in Cairo, the Giants Causeway Visitor Centre in Northern Ireland, and the new Rhine Bridge near Lorelei.
Our dialogue led us to discussing the universal languages of projective geometry and number are been shared by architects and related professionals. In the work of heneghan peng, the specific embodiment of these geometries is carefully calibrated by the choice of materials and the detailed design of their physical performance on site. The stone facade of the Giant’s Causeway Visitor Centre takes precise measure of the properties of the volcanic basalt seams from which it is hewn. The extraction of the stone is the subject of the pavilion wall drawings which record the cutting of stones to create the façade of the causeway centre.
We also identified water as an element which is shared across the different sites. Venice is a perfect place to take measure of this element which suggests links to another site – the Nile Valley which was enriched by the annual flooding of the River Nile. An ancient Egyptian rod for measuring the water level of the Nile inspired the design of the Nilometre - a responsive oscillating bench that invites visitors to balance their respective weights. This action embodies the ways of thinking that are evolving to operate in the globalised world, where the autonomous architectural object is dissolving into an expanded field of conceptual rules and systems. The bench constitutes a shifting ground located in the unstable field of Venice. It is about measurement and calibration of the weight of the body in relation to other bodies; in relation to the site of the installation; and in relation to water. The exhibit is located in the Artiglierie section of the Arsenale. Its level is calibrated against the mark of the acqua alta in the adjacent brickwork of the building which embodies a liminal moment in the fluctuating level of the lagoon.
The weights of bodies, the level of water, changes over time, are constant aspects of design across cultures and collectively they constitute a common ground for architecture - a ground shared with other design professionals. The movement of the bench required complex engineering design and active collaboration between the architects, engineers and fabricators. It is a kind of prototype – a physical object produced from digital data that explores the mathematics at play – the see-saw motion invites the observer to become a participant, to give it a test drive. It shows how a simple principle can generate complex effects that are difficult to predict and invites visitors to experiment and play with them.

Governing Public Health: EU Law, Regulation and Biopolitics

This book contributes towards EU studies and the growing discourse on law and public health. It uses the EU’s governance of public health as a lens through which to explore questions of legal competence and its development through policy and concrete techniques, processes and practices, risk and security, human rights and bioethics, accountability and legitimacy, democracy and citizenship, and the nature, essence and ‘future trajectory’ of the European integration project. These issues are explored first, by situating the EU's public health strategy within the overarching architecture of governance and subsequently by examining its operationalisation in relation to the key public health problems of cancer, HIV/AIDS and pandemic planning.

The book argues that the centrality and valorisation of scientific and technical knowledge and expertise in the EU's risk-based governance means that citizen participation in decision-making is largely marginalised and underdeveloped – and that this must change if public health and the quality, accountability and legitimacy of EU governance and its regulation are to be improved. Subsequently the book goes on to argue that the legitimating discourses of ethics and human rights, and the developing notion of EU (supra-)stewardship responsibility, can help to highlight the normative dimensions of governance and its interventions in public health. These discourses and dimensions provide openings and possibilities for citizens to power ‘technologies of participation’ and contribute important supplementary knowledge to decision-making.