“All of this information spread over numerous actors can never be fully enveloped in a governmental regulator.” Baloney. The internet has made it easier than ever to coordinate all the information.

But let’s say you are correct — the gov’t can’t fully envelop all the information. Then how do you expect any consumer to either? The fact is that most consumers get their information from advertising, which is hardly accurate or gives a full picture.

Regarding Thalidomide. Okay, so the gov’t approved it for use initially, until they found out that it produced birth defects. Are you then arguing that there should be no FDA, and that the product should still be sold? Are we just supposed to rely upon the good will of the manufacturer to tell us the truth about it? The tobacco companies didn’t until forced to, so I suspect most companies won’t either.

Did my post mention thalidomide? Well, let’s say it did. Did you know the FDA has approved thalidomide for treatment of multiple myeloma? Or that it only did so seven years after the first reports of its effectiveness in treatment appeared in medical journals? How many people suffered or died while the FDA dragged its feet?

Regardless, companies conduct studies on their drugs, other companies conduct studies on its competitors products, colleges conduct studies on products, physicians review literature, consumers make choices every day regarding products they use. All of this information spread over numerous actors can never be fully enveloped in a governmental regulator.

Perhaps you would like to have a world where thalidomide is still available, despite it’s being called “the biggest medical tragedy of all time.” I mean, hey, if a pregnant woman is stupid enough to take the medication and it results in birth defects, that’s her problem, right?

I, along with most Americans, prefer to have an FDA that is checking upon the safety and efficacy of drugs to avoid problems like this in the future, even if you think this is ‘paternalism’

Bruce: “My view is that we have a much better regulator for product safety, esp. in drugs, in the form of a robust tort system.”

Possibly. But that’s an ‘after the fact’ remedy. The harm has already been done. If your child died because he took a medication that killed him, you can certainly sue and that might prevent future deaths, but it’s cold comfort to you. Me, I would rather have the medication pulled before it causes any deaths.

Yes, certainly, there are medications that are delayed because of this process. Prior to the 90s, the process was actually very long and cumbersome. It was only because gay men were dying of AIDS that various protests were made at the FDA, and that forced the process to be speeded up, and to allow experimental treatments to be approved. So the process is now greatly improved, which is a good thing.

Ilya Somin: Not true. Thaler and some of his coauthors advocate numerous policies that actually restrict choices. See here for some examples.

We could all debate each of the policies discussed in the blog post but these have nothing to do with the policies that Crampton addresses. Has Thaler advocated higher alcohol taxes and called them “libertarian paternalism”? Not in anything I’ve read of his.

I would note that most sensible libertarians I’ve met think you should not be allowed to sell yourself into slavery. That’s even more “libertarian paternalistic” than the examples Whitman gives since there would be no way of getting around such a restriction on right of consenting adults to freely contract. There’s no point in being doctrinaire.

What’s ironic about the opposition to libertarian paternalism here is that a big part of the goal of libertarian paternalism is making freedom of choice palatable to an electorate that would, in many cases, rather restrict freedom outright. A lot of the misguided regulations we currently have came about through high-profile cases of abuse. Dishonest financial advisers and stockbrokers taking advantage of the elderly and the financially unsophisticated led to a lot of modern securities regulation, for instance. Reduce the cases of abuse and you remove the impetus for more restrictions on freedom.

People will never support completely removing Social Security and letting each person fend for themselves in retirement. They may well support (and have in other countries) a system where people can divert some proportion of their paychecks to a list of screened index funds or balanced mutual funds offered by reputable companies in exchange for forgoing SS in the future. Reforms like these need libertarian paternalism to be politically viable.

Not true. Thaler and some of his coauthors advocate numerous policies that actually restrict choices. See here for some examples.

RowerinVA: The “paternalism” argument assumes that government can be automatically assumed to act efficiently, altruistically, and for the benefit of the common man. Good luck.

And, this is based on the fallacy that man is perfect, and not, as we all know, selfish and self-centered. The idea that we can trust the regulators because they are somehow any less self-centered than the rest of us, or somehow so much smarter, is not realistic.

JakeCollinsBut there are others, like pharmaceuticals, where the government needs to step in to prevent the distribution of unsafe products. Anyone familiar with the state of the American pharmaceutical markets in the late 19th and early 20th centuries prior to government regulations would laugh at the blithe and banal praise of “consumer choice” as a miracle cure all.

The problem there is that we have come to a point where there is nothing offsetting the regulators. Sure, maybe someone can quantify how many people were not harmed due to FDA oversight of medicines. But what is always ignored is the question of how many people died because some drug was either delayed, never approved, or, even never brought into formal testing for economic reasons. And, it is likely that that number is far higher than those saved. But in the regulatory state, that statistic is irrelevant. Only the number “saved”.

My view is that we have a much better regulator for product safety, esp. in drugs, in the form of a robust tort system.

Good luck with that. With eBay and overseas purchases via the nets it’s a lot harder to restrict choices these days. I can and have bought plenty of unsafe products on eBay (including a copy of the Button Book – banned by the CPSC) that I donated to Eugene.

Infinite sellers are hard to control.

Why we can even increase our CO2 and other GHG releases if we feel like it and there’s not much the oposition can do about it.

But there’s another element to it, one that I think lies at the heart of liberalism. The liberal pater is offended by the behavior of other people. Liberals suffer pangs of negative externalities when other people don’t behave as liberals think they should. It’s not guilt, it’s anger at having to live with the offense they suffer when other people make free choices.

So, the problem liberal paternalism attempts to solve is that meddlers are trying to resolve their own internal resentments against other people’s choices. They are truly the modern incarnation of that old joke about puritans: Why are puritans so sour? It’s the deep conviction that someone, somewhere, somehow is having a bit of fun.

And that’s what makes a liberal pater. He is offended by the free choices exercised by others. He hates it that someone, somewhere, somehow enjoys the freedom to take responsibility for his/her own actions.

Minor example: for over fifty years, I have shuddered when doctors and others flatly state that everyone should eat a certain amount of green vegetables. You see, I am allergic to them. Not life-threatening — unless I am forced to eat some at every meal, because the allergy involves projectile regurgitation of stomach content. And yes, it is also disgusting, especially in a restaurant that slips something by my attention.

From Dostoevsky’s “Notes From The Underground”:

Advantage! What is advantage? And will you take it upon yourself to define with perfect accuracy in what the advantage of man consists? And what if it so happens that a man’s advantage, sometimes, not only may, but even must, consist in his desiring in certain cases what is harmful to himself and not advantageous. And if so, if there can be such a case, the whole principle falls into dust…You see, you gentlemen have, to the best of my knowledge, taken your whole register of human advantages from the averages of statistical figures and politico-economical formulas. Your advantages are prosperity, wealth, freedom, peace — and so on, and so on. So that the man who should, for instance, go openly and knowingly in opposition to all that list would to your thinking, and indeed mine, too, of course, be an obscurantist or an absolute madman: would not he? But, you know, this is what is surprising: why does it so happen that all these statisticians, sages and lovers of humanity, when they reckon up human advantages invariably leave out one?

The fact is, gentlemen, it seems there must really exist something that is dearer to almost every man than his greatest advantages, or (not to be illogical) there is a most advantageous advantage (the very one omitted of which we spoke just now) which is more important and more advantageous than all other advantages, for the sake of which a man if necessary is ready to act in opposition to all laws; that is, in opposition to reason, honour, peace, prosperity — in fact, in opposition to all those excellent and useful things if only he can attain that fundamental, most advantageous advantage which is dearer to him than all….What matters is, that this advantage is remarkable from the very fact that it breaks down all our classifications, and continually shatters every system constructed by lovers of mankind for the benefit of mankind. In fact, it upsets everything.

Man everywhere and at all times, whoever he may be, has preferred to act as he chose and not in the least as his reason and advantage dictated. And one may choose what is contrary to one’s own interests, and sometimes one positively ought (that is my idea). One’s own free unfettered choice, one’s own caprice, however wild it may be, one’s own fancy worked up at times to frenzy — is that very “most advantageous advantage” which we have overlooked, which comes under no classification and against which all systems and theories are continually being shattered to atoms. And how do these wiseacres know that man wants a normal, a virtuous choice? What has made them conceive that man must want a rationally advantageous choice? What man wants is simply independent choice, whatever that independence may cost and wherever it may lead. And choice, of course, the devil only knows what choice.

I suppose that would be my rebuttal.

The “bad” and “ineffective” stuff as you define it? A panel of experts? Perhaps we should let someone with a mindset different than yours determine what is “bad” or “ineffective” for you. Everything is hunky dory until the “other guy” is in charge.

Is your whole post a witty bit of sarcasm flying over my head? Please let it be so.

Sheesh, it’s amazing the lengths people will go to have someone control, I mean regulate, their lives when the “right” people are in charge.

Hogwash. It’s precisely because we have good science now, so that we can regulate the good from the bad. In the past, opium was regarded as a tonic (Freud became addicted). Radium was considered a cure. Most potions in the 19th century were either ineffective or harmful — do you really want to go back to a time when anyone could sell anything?

Even if you want to, I think most Americans would agree that the world is much better by regulating the bad and ineffective stuff out of existence, on behalf of the public.

a public health expert probably knows more than I do about the risks of drinking or smoking. But only I know how much enjoyment I derive from drinking a beer or smoking a cigarette

Silly Ilya – don’t you know the whole point of paternalism is not how much enjoyment you have, but how much enjoyment the nannies get out of controlling you for your own good?

My advice is to try them all tonight, and let us know which you want more of in the morning.

For instance, do you think the BENEFITS of smoking — not just the intangibles of personal pleasure, but its health benefit as an appetite suppressant — would ever be given proper weight by the government? Not likely. Hell, anytime some study shows alcohol consumption having some benefit, they practically fall all over themselves qualifying their conclusion and the government won’t let the alcohol companies use any of those benefits in their marketing.

The government just isn’t trustworthy in this area given the extent to which science has become politicized from all angles. Unless we have a cold, unfeeling computer in a dusty basement plugging complete and apolitical numbers into the Hand formula, we can’t even begin to talk about accurate and effective “nudging”.

Splunge: Gosh, who could object to a benign wise man to make all your decisions?

Times have changed. These days people want a wise Latina.

Steve: Smoking is probably the classic example of a risky product where consumers are already well-informed about the risks and can weigh them appropriately. Mind you, one of the main reasons they are well-informed is decades of painstaking efforts by, you guessed it, the government. Absent government intervention, people would still be trying to sort out the truth amidst a plethora of well-funded industry propaganda claiming that tobacco is perfectly safe.

I don’t know, I’m still trying to sort out whether or not cigaretts are more addictive than, say, cheeseburgers, gambling, or sex.

While propoganda has a bad reputation in the U.S, it is only trivially coercive (public funds are used to make it and distribute it that come from taxes). More importantly, it works, really well.

* The U.S. has the lowest levels of tobacco use in the developed world. Almost all of these reductions happened well before the recent bunch of bans on smoking in public places (and those bans, while clearly coercive, were not absolute prohibitions on smoking in all places, and were based on solid scientific evidence that they greatly reduced health harms to non-smokers exposed to second hand smoke, e.g., creating large percentage reductions in pulmonary ER visits for non-smokers). What drove U.S. behavior was propoganda.

* U.S. food recommendations have had major impacts on the American diet. We drink more skim milk, use less butter, and have changed the mix of meats we eat in clearly measurable ways because of them, despite the fact that no formal dietary laws were enacted.

* P.R. campaigns to reduce water use in the Denver Metropolitan area were highly effective, cutting use by large double digit percentages and causing people to rethink their water hungry landscaping even when the cost of doing so far exceeded water bill reductions. While a first year during a drought included some mild penalties followed by warnings, continuing P.R. without penalties for excess water use kept the water thrifty habits put in place alive.

* MADD campaigns were as big a factor in reducing drunk driving as increased criminal penalties which continue to be imposed inconsistently.

Some countries (Japan, for example) make much heavier use of propoganda as a policy tool than we do, to great effect. U.S. policy makers can use P.R. and inconvenience factors to change outcomes with a light regulatory touch as well.

The point isn’t any particular measure, it is the attitude, and where it can lead. What if, despite your ‘nudges’, the masses don’t do what the rule makers want them to. Then what? Do you trust people with the attitude of “I know better than you” and the power of government behind them to stop at ‘nudges’?

When people seriously propose an oxymoron like “libertarian paternalism” it reminds me of the H.L Mencken quote, “The urge to save humanity is almost always a false-face for the urge to rule it.”

It is not libertarian. It is at best elitist and at worst authoritarian. Splunge in comment #6 has it right, we will be back to the idea that the ‘nobles’ being so much wiser than the peasants, have the right, nay, the obligation, to impose their rule on the peasants.

The absolutely amazing thing is that the “paternalism” argument has gained currency at the very same time that government subsidies and mis-regulation by the last batch of experts caused the massive and nearly worlwide economic slump. Apparently, these “experts” aren’t very good at learning on the fly.

Not that I don’t agree with your general point (as long as you aim it at paternalism generally, not the libertarian kind), but:

Wait, What???

Unless a regulatory agency can see into our souls and discern that weakness of will is the problem, we can’t tell that a tax really makes drinkers better off by the drinkers’ judgment.

There are all sorts of ways you can figure out (a) whether preventing someone from doing behavior B is likely to make them better off and (b) whether someone is doing B because he is akratic or otherwise irrational.

As to (a): Compare the well-being (either self-reported or ascertained in some other way) of those who do B with the well being of those who don’t and of those who’ve quit. Compare the well being of those who suffer the adverse effects of B with the well-being of those who do not (and discount it by the risk that the adverse effects will obtain).

As to (b): Figure out whether those who do B express regret (or feel guilt). Ask those who used to do B (and used to defend doing B) and then quit believe that, when they defended doing B, their defense was sincere. Test whether the considered judgments about the prudence of pursuing some course of action correspond with their decisions (and see whether the decision to do B is appropriately analogous to those circumstances in which decisions typically diverge from what, by the agent’s lights, prudence demands).

It probably isn’t easy to implement these tests. And, by themselves, their results wouldn’t recommend one policy over another. But Crampton’s (and a lot of economists’) glib (“see into our souls”) reaction to the suggestion that we can take halfway sophisticated soundings of people’s practical rationality is unwarranted.

(It’s an interesting question why economists are inclined to dismiss realistic models of moral psychology. The “see into our souls” business provides a clue, viz. they think moral psychology is unscientific / metaphysical, and have a positivist’s prejudice against metaphysics. But it’s not as if economists themselves don’t presuppose a conception of moral psychology / what it means to be practically rational. So, if I’m right, there’s an inconsistency here.)

The “paternalism” argument assumes that government can be automatically assumed to act efficiently, altruistically, and for the benefit of the common man. Good luck.

The absolutely amazing thing is that the “paternalism” argument has gained currency at the very same time that government subsidies and mis-regulation by the last batch of experts caused the massive and nearly worlwide economic slump. Apparently, these “experts” aren’t very good at learning on the fly.

This is trickery but it is designed only to trick those who would likely be tricked by various gimmicks credit card companies use. The chance this actually hurts anyone is small since a simple toll-free phone call or more careful reading of the statement would clear up the actual minimum amount someone would owe.

What if they require the minimum payment if you pay within a week, but the larger payment if you pay within three weeks? After all, anyone who’s aware can pay within the week, so this isn’t stopping anyone. What if they make you go to the bank to make the minimum payment, but you can make the larger payment by mail? Can they say “if you want to make this minimum payment, copy this 1000 character random string exactly”, and consumers who miss an “e” in the middle are required to make the larger payment? After all, any errors in copying the string can be avoided with enough patience, so this doesn’t limit anyone, right?

Is it going to end up like the Hitchhiker’s Guide to the Galaxy, where they can make the minimum payment as long as they go to a locked filing cabinet in a disused lavatory with a sign reading “beware of the leopard”? At exactly what point does tricking the consumer into not making the minimum payment become too strong?

And yet, curiously enough, there are those, for example with PhDs in chemistry, who imagine the failures and follies of the 1890s pharmacopia had more than a wee bit to do with the limitations of scientific knowledge in biochemistry in the horse ‘n’ buggy era, at a time when a substantial fraction of the world’s best scientists still debated whether or not atoms existed.

A story ran recently in the New York Times in which it was noted that flu sufferers in the 1918 pandemic were regularly dosed with 1000 mg of aspirin every 3 hours (25 modern tablets per day!), far above doses now considered safe, and that this may have contributed some unknown fraction to the deaths. No doubt the work of Wild West “unregulated” profit-mad aspirin-mongers! Er…except that these dosages were recommended by JAMA and the US Surgeon General. Almost one might wonder how many additional deaths were caused by having a government imprimatur on dangerously high doses…

But what am I saying? This is just some weird isolated incident. Everyone knows that “regulation” is the magic elixir not subject to the ordinary failings of mere science. When you “regulate” stuff you just declare the proper outcome, and poof! it happens. This messy business of needing to work out means that actually reliably attain the desired ends is for those of little imagination.

I have been exceedingly disappointed in the Volokh-ers purported critiques of libertarian paternalism. Too often they read as knee-jerk deregulators as opposed to considered academic commentary.