Mark D. White
It is no surprise that The New York Times columnist Mark Bittman laments the judicial rejection of New York City mayor Michael Bloomberg's ban on large sodas. Unfortunately he resorts to slander when addressing its opponents:
The argument that preventing us from buying 32 ounces of liquid candy in one container somehow restricts our “liberties” can be seriously made only by those who would allow marketing of tobacco to children.
I would hope that Mr. Bittman realizes that paternalistic intervention has significantly different ethical implications when directed towards children rather than adults. Or perhaps he doesn't, as indicated later in the piece:
If 16 ounces of soda isn’t enough for you, the ban would not, of course, have prohibited your purchase of two 16-ounce containers; the idea was to make you think twice before doing so.
This is a nice characterization of this particular nudge, "making you think twice." It's akin to cooling-off periods that are often mandated with major purchases (like cars and homes) and life decisions (such as divorce), to help ensure that people don't make such decisions in what psychologists call a "hot state" in which emotions may supersede rationality.
As I discuss in The Manipulation of Choice: Ethics and Libertarian Paternalism, these nudges are less offensive to autonomy than the standard type because they encourage better decision-making rather than steering people into the decisions policymakers want them to make. In other words, they engage rational deliberation rather than subverting it. Also, in principle they're outcome-independent, focusing on the process decision-making itself rather than actual decisions made. But in many cases, these outcome-independent interventions would not have been imposed if there were not some concern about the choices being made, and the ban on big sodas is a prime example.
I doubt supporters of the ban would be satisfied if people "thought twice" about their soda consumption decisions and still drink large amounts of it. After all, there is no way to test the quality of a person's decision-making process; they can see observe the decision made, not how or why it was made. And if the outcome is judged by policymakers to be inferior, they make an illegitimate inference regarding the decision-making process, judging it to be inferior as well—a judgment based on their idea of people's interests, not the actual interests of people themselves.
Maybe that's why Mr. Bittman feels it appropriate to "make people think twice" about soda consumption—if they only did, they'd come to the same conclusion he does. It is that presumption, the belief that policymakers both know better that people what's good for them and that they have the right to impose this by law, that makes the soda ban and other nudges so offensive.
(For more, I encourage you to check out The Manipulation of Choice: Ethics and Libertarian Paternalism.)