Portal de Periódicos da CAPES

Default Rules and the Inevitability of Paternalism

2009; RELX Group (Netherlands); Linguagem: Inglês

10.2139/ssrn.1346497

1556-5068

Leandro Martins Zanitelli, Richard H. Thaler, Ana Paula Werlang,

Legal principles and applications

In a paper published some years ago, Cass R. Sunstein and Richard Thaler argue for a sort of soft paternalism referred to as “libertarian paternalism.” Relying on cognitive findings regarding the status quo bias, one of Sunstein and Thaler’s central claims is that default rules can be used for paternalistic purposes, given people’s proneness to adhere to what is established by these rules. This strategy is also called ‘libertarian’, since parties remain free to contract around the paternalistic rule if they wish. Considering the influence of default rules on parties’ behavior, Sunstein and Thaler affirm that soft paternalism is not just defensible but inevitable, inasmuch as any adopted rule will affect people’s choices. This is an audacious conclusion, which surprisingly has attracted little attention from critics of the paternalism of behavioral law and economics The aim of this paper is to assess the alleged inevitability of paternalism. After examining the distinction between hard and soft paternalism, it sustains that, in order to validate Sunstein and Thaler’s claim, paternalism has to be broadly equated to 1 Professor of Contract Law and Legal Methodology at Centro Universitario Ritter dos Reis (UniRitter), Canoas, Rio Grande do Sul, Brazil. I am grateful to UniRitter, CAPES (Foundation for the Improvement of Higher Education Personnel) and FAPERGS (Research Incentive Foundation of the State of Rio Grande do Sul) for financial support, and to Ana Paula Werlang for research assistance. E-mail: leandro_zanitelli@uniritter.edu.br.