Missouri Law Review
UVA Law Faculty Affiliations
We can properly call a number of nudges libertarian nudges, but the territory of libertarian nudging is smaller than is often realized. The domain of libertarian nudges is populated by choice-independent nudges, or nudges that only assist the decision process and do not push choosers toward any particular choice. Some choice-dependent nudges pose no great concern from a libertarian perspective for rational choosers so long as there is a low-cost way to avoid the nudger’s favored choice. However, choice-dependent nudges will interfere with the autonomy of irrational choosers, because the opt-out option will be meaningless for this group. Choice-independent nudges should be of no concern with respect to irrational actors and in fact should be welcomed because they can promote the decision competence fundamental to libertarianism, but choice-dependent nudges can never truly be libertarian nudges.
Gregory Mitchell, Libertarian Nudges, 82 Missouri Law Review 695-708 (2017).