The Forms and Limits of Choice Architecture as a Tool of Government

Although the use of design‐based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design‐based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim “your money or your life?” is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their use by date to stimulate sales. This article focuses on three forms of choice architecture—coercion, inducements, and nudge—employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as libertarian. Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.