Copyright 2005 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Uw Review Vol. 99, No. 3 Review Essay LIBERTARIAN PATERNALISM IS AN OXYMORON Gregory Mitchelt I. THE EVITABILITY OF CHOICE-FRAMING PATERNALISM 1248 II. USING PATERNALISM TO MAXIMIZE LIBERTY, NOT WELFARE 1260 III. THE REDISTRIBUTIVE CONSEQUENCES OF LIBERTARIAN PATERNALISM 1269 IV. CONCLUSION 1276 In Libertarian Paternalism Is Not an Oxymoron, Professors Sunstein and Thaler set out to show that state control over the structure of choice op- tions can improve the welfare of citizens without reducing personal auton- omy.' A public or private institution that adopts the perspective of the "libertarian paternalist" will "steer people's choice in directions that will improve the choosers' ovm welfare" but will not prescribe or proscribe any particular choices.^ This limited regulation of choice behavior should be Associate Professor, Florida State University College of Law, and Visiting Associate Professor, University of Virginia School of Law. The author tnay be contacted by e-mail at
[email protected] or by regular mail at Florida State University College of Law, 425 West Jefferson Street, Tallahassee, Florida 32306-1601. I appreciate the helpful comments on a draft by participants in the N.Y.U. Collo- quium on Market Institutions and Economic Processes, Amitai Aviram, Paul Edelman, Chris Guthrie, Steve Hetcher, Adam Hirsch, Jon Klick, Mae Kuykendall, Peter Oh, Jim Rossi, Phil Tetlock, Mike Van- denbergh, and particularly Richard Thaler. ' See Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism ts Not an Oxymoron, 70 U. CHI. L. REV. 1159, 1160 (2003) ("We propose a form of paternalism, libertarian in spirit, that should be acceptable to those who are firmly committed to freedom of choice on grounds of either autonomy or welfare.").