Cato Unbound has an excellent symposium on “libertarian paternalism,” the theory that argues that government should intervene to protect people against cognitive biases that lead them to make decisions that ultimately reduce their ability to achieve their own objectives. Advocates of libertarian paternalism argue that their approach is different from and superior to traditional paternalism, which imposes the paternalists’ own values on those subject to regulation. Overall, I largely agree with the criticisms of libertarian paternalism in the Cato symposium by Glen Whitman (here and here) and Jonathan Klick. However, I wish to focus on a different weakness of libertarian paternalism: the implicit assumption that voters and government regulators are not subject to serious cognitive biases of their own.
It may well be that private citizens acting in markets and civil society often make decisions that they later regret because of cognitive errors. However, regulators and voters are people too. They also might make bad decisions because of cognitive errors. Libertarian paternalist scholars generally ignore this possibility by implicitly comparing perfectly rational regulators with often irrational consumers. But there is no a priori reason to believe that the former are more rational than the latter.
I. The Cognitive Biases of Regulators.
Indeed, there are good reasons to believe that regulators are likely to be more susceptible to cognitive biases than private sector consumers. This is so for at least three important reasons. First, regulators are making decisions for others, not for themselves. As a result, they have less incentive to get them right. If regulators in the proposed Consumer Financial Protection Agency ban financial products that are of great value to consumers, the regulators themselves won’t suffer (unless they happen to want to purchase those products themselves). The less people have at stake in the decisions they make, the less incentive they have to control their cognitive biases.
Second, we are naturally more ignorant of the preferences of others than our own. Regulators have no reliable way of estimating the benefits that consumers derive from potentially risky products. When making decisions for other people, we are therefore prone to the cognitive bias of assuming that what they “really” want is what we ourselves would prefer in their place. It may, for example, be difficult for a health-conscious upper middle class regulator to believe that a consumer might genuinely prefer the pleasures of eating large numbers of cheeseburgers to the health benefits of a more balanced diet. Thus, he will be likely to put down decisions to consume huge numbers of cheesburgers to consumer “irrationality” and favor paternalistic anti-obesity regulations.
Third, regulators will be making decisions for thousands or even millions of consumers. This requires much greater information and analytical skill than the individual consumer’s task of deciding for himself or perhaps also his family. The more complex the task, the greater the temptation of trying to simplify it with cognitive shortcuts that are prone to bias and may well turn out to be misleading.
II. Voters May be Even Worse.
Of course expert regulators aren’t the only people with influence over paternalistic policies. In a democratic society, voters will have a lot influence too. And, as I have pointed out in previous critiques of libertarian paternalism (see here, here, and here), voters have strong incentives to be both ignorant about public policy and highly irrational in the way they analyze the limited political information they do have. Because the chance that any one voter will influence an electoral outcome is infinitesmally small, most voters have little incentive to either acquire much information about the choices before them or make a strong effort to control the irrational biases they may bring to its evaluation. By contrast, when consumers purchase products in the market, they know that their decisions are decisive and therefore have much stronger incentives to make rational choices.
Once we recognize that voters and regulators are also subject to cognitive biases and that they have only weak incentives to combat those biases, the case for libertarian paternalism is significantly weakened. What I find strange, however, is that prominent libertarian paternalist scholars have paid so little attention to this problem. Cass Sunstein, one of the leading academic advocates of libertarian paternalism, has written some brilliant work on regulatory irrationality in other contexts, including his excellent 2002 book Risk and Reason and an important 1999 article coauthored with economist Timur Kuran.
Lastly, it’s important to note that everything I have said above assumes that voters and regulators designing libertarian paternalistic policies have good intentions; that both are genuinely trying to adopt only those regulations that will help people correct their cognitive biases and more effectively achieve their goals. Once we recognize, as Whitman and I have pointed out elsewhere, that regulatory agencies implementing these policies are subject to interest group “capture” and slippery slope effects, the case for such regulation becomes weaker still.
UPDATE: I know some will argue that regulator and voter biases don’t matter much because libertarian paternalists advocate only noncoercive “nudges” that still leave the final decision up to individual choice. However, as Whitman notes in the Cato symposium and here, they in fact advocate many policies that go well beyond that. Moreover, one important consequence of voter ignorance is that voters are unlikely to make fine-grained distinctions between “libertarian” paternalistic policies and more heavy-handed ones. As a result, libertarian paternalist policymakers may find it very difficult to limit the scope of government intervention to the types of “nudge” policies they initially envisioned.
Adam Kamp says:
Okay, maybe I’m missing something, but it seems like the difference between the cognitive biases of regulators versus those of the people is that the regulators are not in the situation at the time. In other words, part of the reason we find ourselves jammed up by the sorts of behavioral traps that “libertarian paternalism” seeks to avoid is because we are right there, in the moment, and the choice is being presented to us specifically.
A regulator may be no more rational than I am, but has one great benefit: s/he is not being presented with the choice that I am, and therefore is able to set up situations so that I am more likely to take the socially beneficial path when I am faced with the choice.
It’s really easy to say that LP is just another form of elitist superiority; that the smart people are deigning to trick the dumb people into making the right choices. But I don’t think it’s true at all; when we have common, well-understood biases, someone who isn’t forced to confront them at that moment can have ideas for helping others avoid them when they do come up.
April 15, 2010, 1:17 amOpenVolokh says:
Professor Somin,
Your criticism does not really get to the issues that behavioral economists are addressing.
A lot of irrationality that people are subject to are a result of not carefully contemplating something. And also because of emotions. Sometimes (obviously not always) the best advice for someone comes from a third-party that has some distance from an issue. That is, the irrationality arises because one is too close.
I for one have been known to give others really good advice based on the best rational and contemplative thinking possible, especially if they happen to be in a conflict with someone else. And then finding it hard to actually follow that advice in my own life in similar situations where I am in a conflict with someone. True rationality is hard, not easy.
The reason regulators would be less subject to irrationality in some situations is precisely because (1) they engage in a reasoned process distant from the emotion of the moment and (2) they are specifically informed of the irrational biases that commonly afflict all people and are specifically trying to counter those biases.
If you confront someone with the fact that something they did or are planning on doing is irrational, it is not uncommon for people to acknowledge this very fact. People are able to recognize their own irrationality when they step away from the immediacy of the situation. It is precisely because regulators do not face the immediate situation and are specifically cognizant and attempting to counteract known predictable biases that their policy prescriptions will not be infected with those same biases.
Let me examine your three arguments against regulators more specifically in turn.
(1)
Regulators don’t have an “incentive” to do their job right, since they do not suffer from the regulations.
But this is often wrong. In many situations, regulators will be subject to their own regulations. Second, the idea that “incentives” meaning money is what motivates everyone is a flawed premise. Many people, believe it or not, want to do the right thing for its own sake. This is often what causes people to want to enter public service in the first place. This is a different sort of “incentive” that you seem to totally neglect.
Another point. Regulators will have a better perspective (as would any third party) on many situation because they are not “in the moment” where the irrational decision is made.
(2)
Rationality is all about preferences, no matter how transient, not interests.
The idea that eating so many cheeseburgers that it damages your health is “rational” is so ridiculous as to be hardly worth responding to. People’s “true” preferences are neither constant nor rational. I can say this with reference to myself. At times, I eat junk food when it is clearly against my long-term preferences and interests. But “in the moment” I have a strong desire for that junk food, perhaps under the influence of a television commercial advertising the fast food in a tempting way and also mentioning how cheap the fast food is. I will readily admit that this behavior by me is not rational. I am not putting myself above anyone when I say that people are irrational. People are irrational, and that includes myself.
Also, when it comes to eating, people have been known to do whatever is simplest. That is, eat whatever is in front of them. That is why sometimes married people gain a lot of weight when the person they are with cooks unhealthy food in larger quantities than they are used to. A lot of us learn to eat everything that is on our plate, whether we want to or not. Also, following the principle that people often unthinkingly tend to take the path of least resistance (even when it isn’t good for them and contrary to both their interests rationally conceived and what they say they truly want) leads one inevitably to conclude that eating habits are not always rational.
If you want, and I am sure you want to, you can ignore the facts that are plainly right before your eyes. But people’s relationship with food is ANYTHING but fully rational. You can tautologically assert that it is “rational” for a person in accord to “true preferences” that are “revealed” by their action in eating cheeseburger after cheeseburger only to later be deeply ostracized by society for being fat and then later to suffer a horrible death at a young age, but this is just nonsense. You need to reconnect with reality. Human beings are animals. We are not only animals, but we are a type of animal. As creatures of evolution, we naturally crave high fat foods that are sources of energy and that would allow us to survive in times of scarcity. Modern society has rendered these instincts counterproductive in most instances, but we are still subject to them.
In fact, I will say this. Your position is so crazy and so contrary to common experience, that I do not believe it is a sincere one. You basically are saying. Here is my position. If you can’t logically prove it is wrong (even though you only have to open your eyes and SEE to know that is wrong) then you must default to a libertarian position. Basically, I doubt the position (that eating cheeseburger after cheeseburger after cheeseburger is rational) is advanced sincerely, but instead as some sort of logic game. But we do not need to logically prove that eating cheeseburger after cheeseburger after cheeseburger until you suffer extreme negative consequences is not really a rational “revealed preference,” something that is logically impossible to do. If you go the “revealed preference” route, then everything we do is rational, which means that saying something is rational is to say precisely nothing about it at all. We only have to observe that this behavior is so destructive as to be the very definition of irrationality.
Humans are a sort of animal. (I am not saying we ARE just like animals in every way.) Some dogs will regulate themselves if you free feed them. Some dogs will not. Here you are saying that the dogs who do not regulate themselves are “rational.” Yeah right. Not under any meaningful definition of rationality. In fact, no dog is rational, in the higher sense in which that term is meaningfully used.
(It should be pointed out that if doing whatever you want is the definition of rational, this isn’t even an attribute unique to humans. Not at all.)
The bottom-line is this. Rationality is about interests, especially long-term interests. It is not about mere fleeting preferences.
A person who enjoys eating cheeseburgers in large quantities now could change their diet in a more healthy manner, and their cravings (their fleeting preferences) will naturally change and adapt to their new diet. It is in our interests to take actions that adjust our fleeting short term interests in favor of our long term interests as we ourselves conceive of them.
(3)
With respect to coordinating information, that is definitely very context specific. If the policy is that we are requiring (through a mandate that is very easy to comply with) is that employers who offer employees 401(k) policies must make the default (nudge) opt-in instead of opt-out, I don’t see that while there is some data to analyze here, that this is exactly rocket science.
Basically, all I have to say is this about your criticisms. They really do not carry much wait against “nudging” in the general case. These sorts of arguments, MIGHT, in particular specific circumstances, lead us to rethink a particular policy. But these general points, which do not in anyway actually engage or encounter actual behavioral economics, are not the silver bullet you want them to be.
Another point. If you are determined to adopt crazy premises (bad eating habits so that you get fat and are mocked mercilessly by society and die an early death is perfectly rational!) then you will come to crazy conclusions (we should be indifferent about whether large number of people in our society are going down this deadly path). As computer scientists say, garbage in, garbage out. No one in touch with actual reality has any reason to agree with your conclusions when your premises are crazy though.
April 15, 2010, 1:34 amOpenVolokh says:
Bingo!
This point is just obvious.
April 15, 2010, 1:35 amIlya Somin says:
The reason regulators would be less subject to irrationality in some situations is precisely because (1) they engage in a reasoned process distant from the emotion of the moment and (2) they are specifically informed of the irrational biases that commonly afflict all people and are specifically trying to counter those biases.
Regulators often have to make policy decisions under time pressure. Political pressures require that. Moreover, distance from the situation makes it more difficult to be knowledgeable about what is going on, not less.
As for being knowledgeable about irrational biases, they may be knowledgeable about some of them. But few people, including policymakers, are likely to be highly reflective about the biases to which they themselves are prone. Moreover, knowing about a bias at a theoretical level doesn’t necessarily mean that it won’t influence you.
Basically, I doubt the position (that eating cheeseburger after cheeseburger after cheeseburger is rational) is advanced sincerely, but instead as some sort of logic game. But we do not need to logically prove that eating cheeseburger after cheeseburger after cheeseburger until you suffer extreme negative consequences is not really a rational “revealed preference,”
Actually, I am perfectly sincere in believing that some people genuinely value eating the food they like more than they value the health benefits of abstention. In some cases, they might well do so even if the health benefits are large. The enjoyment they get from eating their preferred foods might also be large. The fact that you can’t imagine that such people exist is a fairly blatant example of precisely the type of bias that I mention in the post.
April 15, 2010, 1:39 amjuris imprudent says:
… therefore is able to set up situations so that I am more likely to take the socially beneficial path when I am faced with the choice.
I thought the premise (or IMO conceit) is not that this is socially beneficial, but more beneficial to the individual than the choice the individual makes on her own. This presumes that the regulator knows the better choice for all individuals in all circumstances; the only part of this whole equation that is “libertarian” is that it is a nudge and not a push. Of course just what distinguishes a nudge from a push might be in the eye of the person being moved out of the course he would otherwise choose.
April 15, 2010, 1:40 amIlya Somin says:
But people’s relationship with food is ANYTHING but fully rational.
I never claimed that it was. I merely claimed that the individual consumer has better incentives to be rational about his own food consumption than regulators and voters have to be rational about the food consumption of others.
April 15, 2010, 1:42 amIlya Somin says:
Okay, maybe I’m missing something, but it seems like the difference between the cognitive biases of regulators versus those of the people is that the regulators are not in the situation at the time. In other words, part of the reason we find ourselves jammed up by the sorts of behavioral traps that “libertarian paternalism” seeks to avoid is because we are right there, in the moment, and the choice is being presented to us specifically.
However, the regulator is in “the situation” of making decisions for thousand or millions of people of whose preferences he is necessarily ignorant to a large extent. That situation lends itself to severe cognitive biases of its own. Moreover, there are many private sector ways to avoid making decisions “in the moment.” Often, we can choose to wait and think, and do.
A regulator may be no more rational than I am, but has one great benefit: s/he is not being presented with the choice that I am, and therefore is able to set up situations so that I am more likely to take the socially beneficial path when I am faced with the choice.
Not “being presented with the choice that [you] are” is a disadvantage, not an advantage. It makes it less likely that the regulator is aware of the considerations that are important to you in determining the final outcome. Making decisions for other people is generally harder than making them for oneself, not easier.
April 15, 2010, 1:45 amjuris imprudent says:
It is in our interests to take actions that adjust our fleeting short term interests in favor of our long term interests as we ourselves conceive of them.
Or as a good Christian preacher might put it – your eternal soul is your longest term interest.
Paternalism, drawing deep from the well of Puritanism.
April 15, 2010, 1:52 amChris Green says:
“That is, the irrationality arises because one is too close.”
I think there are many situations where this may not apply. However, I can see one situation where this is the case. Gambling . An objective observer can determine pretty easily when the odds don’t favor if he understands the rules. However, when the prize is large, the gambler, almost without fail, ignores the risks, despite the fact that his statistics professor proved to him that, on average, you will lose money gambling in casinos.
The same mentality holds true when it comes buying and trading risky stocks and securities. Banks and individual investors, time and time again, ignore information that tells them the risk (for a particular security, not all securities) is too great, if the potential payoff is large enough. There is something about human psychology that just can’t handle this in a logical manner, when your own money is involved, and your own personal, potential, payoff is large.
April 15, 2010, 2:08 amChris Green says:
Of course you could argue that most people don’t gamble, and most people don’t buy risky stocks, so only the unintelligent, un-disciplined minority are being punished. Unfortunately, this unintelligent, un-disciplined minority seems to have included a lot of managers and directors at large financial institutions, the ones we pay to do our investing for us.
April 15, 2010, 2:15 amTRE says:
The danger is if, like in climate change, we run off regulating in a direction that is not supported by strong evidence, double blind randomized studies, etc. There is more bad science than good science out there.
April 15, 2010, 2:35 amOpenVolokh says:
Ilya Somin thanks for your reply. Some counterpoints.
(1)
Of course, irrationality on the part of regulator is a problem. Rationality is hard, not easy. Rationality is a struggle for all humans.
You seem to be making the elementary error of making the perfect the enemy of the good. The issue is not whether regulators are human, the issue is whether the fact that they are human will prevent them from making effective policy. Well, since effectiveness is on a continuum. The answer is that regulator flaws in character (such as greed, when they are bribed by the individuals they regulate and act to protect competitors instead of the public, for example) will sometimes have a negative impact. But there is a huge improvement possible by intelligent regulation in terms of saved lives, increased healthiness, and happier lives.
I think this criticism has potential. But not in the abstract. It is not enough to say that actions of regulators are not likely to be perfect. Nothing in life is perfect. NOTHING.
So, the only way we can really do anything with this criticism is to apply it to a specific context. Is THIS particular context that would benefit from regulation? Of what sort? You might prefer approach A (a “nudge”) over approach B (a “mandate”) in part because, in that specific context, of skepticism of the ability to make regulation that is optimal for everyone. On the other hand, there are definitely instances where a “shove” is to be preferred over a “nudge” perhaps when the stakes, especially for third parties, are too hard to allow for exceptions.
(2) “Moreover, knowing about a bias at a theoretical level doesn’t necessarily mean that it won’t influence you.”
This is absolutely true. As in, I have a hard time following my own advice when I am in a conflict. However, if I am making policy about how to handle conflicts with knowledge of those biases, I am not going to be affected by that bias while making the policy since the thing that triggers the bias, in this case, imminent conflict, isn’t present.
(3)
There is a certain level of consumption of junk food which might be said to be reasonable. But the levels of consumption that we as Americans engage in is unreasonable, on the whole. (Although we have a large number of very healthy people as well.)
Note a couple of points. Eating slower makes the same meal more enjoyable than scarfing it down. Eating a small amount of chocolate provides nearly as much enjoyment as a large amount of chocolate. Yet a lot of people scarf food down (as do my dogs) due to pure biological instinct — as if some competitor is going to snatch the food away from them if they do not eat it quickly — a very real threat at a certain point in our evolutionary history.
I am not saying that having even one piece of chocolate is irrational. I am saying that the eating habits of many of us are simply irrational. I am saying the person who eats cheeseburger after cheeseburger after cheeseburger and nothing else and isn’t going to soon die of cancer is behaving irrationally and against their long term interests.
Also, people who have a pattern of overeating who change their habits tend to find that they really didn’t need all that food to be happy, after all.
(4)
“I merely claimed that the individual consumer has better incentives to be rational about his own food consumption than regulators and voters have to be rational about the food consumption of others.”
Define incentives? Are you saying that people who devote their career to public health might just not care enough to do a good job formulating regulations? That the will not take their responsibilities seriously? I don’t think you have enough evidence of that.
People have enough incentives already to be healthy. Healthier people are more attractive. More attractive people have better job opportunities and higher incomes. They have more social opportunities. Fat and especially obese people are subject to being made fun of and social ostracism. They are less likely to be treated well by others. They often die at a very young age very painful and unnecessary deaths. Heart attacks are not a pleasant way to die, by any means.
At some point, you realize that the issue is not merely one of “incentives.” The issue is more one of instinctive impulses overriding the incentives that exist.
Look, incentives are important. But you are either overemphasizing them or you have an underinclusive definition. Even CEOs, the most stereotypically mercenary of business people whose pay absolutely must be perfectly aligned with shareholder interests or they will go crazy, actually care about the idea of doing a “good job.” Either the desire to do a “good” job must be considered an “incentive” or incentives are going to be an incomplete explanation of CEO performance, taking as a given their talent, education, and experience.
(5)
Have you ever been in a conflict where you really wanted to use violence? Or wanted to say something really mean and mostly untrue that you know you will later regret, just to inflict emotional distress in someone else? If you haven’t been in either of these situations, you are an angel.
In this situation, we are not good thinkers. Our mind is in “fight or flight” mode. Being a third party in this situation absolutely IS an advantage.
Or what about someone who has insatiable cravings for cocaine. The cocaine makes them happy when they use it, but it makes all the other experiences in their lives that they used to enjoy dull and meaningless in comparison. They are definitely NOT be more happy if they use more cocaine, but they really want it. A third party would be in a better position to judge this.
Or someone has gotten a new job. And you shove a bunch of paperwork into their face. Know there are these important decisions to make. Which health insurance plans should they choose? Should they participate in the 401(k) plan or not? Well, they should participate, but they can’t make that decision right now, because they really can’t decide how much to save. So they procrastinate and never enroll in the 401(k) plan. This is demonstrably economically irrational in the case where an employer match for a 401(k) plan exceeds the amount of the tax penalty even if the money is withdrawn immediately. Yet, people still procrastinate.
Or consider someone talking to a very charismatic salesman. That salesman is so polite and such a nice person. You don’t want to say no, because you don’t want to disappoint that person. Maybe you asked him a few questions that you were curious about, and he provided very detailed and knowledge answers that you appreciate. Maybe you have received a small gift whose value is very small compared to the size of the transaction, but one that is nice. These factors may influence you where an objective third party would inform you that the deal offered by the salesman isn’t as good as what you could if you shopped around a little bit, even taking into consideration the time it takes to shop. You just want to say yes to this nice, helpful, and empathetic person.
You have filed a lawsuit as plaintiff. There is a 1% chance that you will lose. The defendant has given you a lowball take-it-or-leave it offer. The expected value of the lawsuit is much higher than the lowball offer under all even remotely likely scenarios. You have enough capital, so you are not absolutely desperate for money. People’s minds will tend to gravitate towards the extreme result, even though it has a low probability. A third party would be in a better perspective to evaluate this situation.
(6) Making decisions for other people is generally harder than making them for oneself, not easier.
As a lawyer, I have found this to be true from an emotional perspective. If I make a bad decision for myself I am the one that has to live with the consequences. If I advise someone (and people will usually take my advice) and they make a bad decision, they have to live with the consequences.
Somehow, it IS much emotionally harder for me to take responsibility for bad consequences flowing from my decisions or advice that negatively impact others than for myself. Also, even though I am aware of the tendency to focus excessively on extreme events, even if they have a low probability, when a client gets a lowball settlement offer, I still focus excessively on “what if we lose” due to some freak event, even though the case is solid.
Despite the fact that I am not free from bias, clients taking my advice about whether to settle benefit. The reason is that I know how to assign an expected value to a lawsuit to calculate a reasonable amount for which to settle. I have the same feelings they do in terms of focusing on extreme events that are nonetheless unlikely when faced with a lowball settlement offer. But I know how to overcome this bias by doing a mathematical calculation where I assign honest probabilities to every possible outcome with a significant probability.
In some ways, it might be emotionally harder to make decisions for others or give them advice that they are likely to follow, out of fear of disappointing them and the negative consequences that will flow if something goes wrong. But nonetheless, my awareness of my own cognitive biases, ability to counter those biases through mathematical calculations that enable me to make decisions on a more rational basis, and experience all come together to enable me to give them better advice than the decision they would likely make on their own.
So, it may sometimes be emotionally hard to give others advice. But it is easier for me to give them good advice than it is for them to make their own decision without advice.
That said, you are also overlooking the situations that are no brainers. Sometimes it is easy to give advice. For example, if someone is in one of those objectively ridiculous conflicts that we all sometimes find ourselves in, the advice not to do or say anything really stupid is usually much more sound than the natural inclinations of the person who is in the conflict.
–
April 15, 2010, 2:54 amHere is my basic critique. All or most of the points you make are valid sometimes. But they are not valid all of the time.
OpenVolokh says:
Chris,
Well, if people who gamble on stocks or other investments are rare, the people who give this minority of people their money and don’t monitor them while they gamble their money is not. Indeed, very few people would really have the expertise to monitor the actions of a mutual fund or hedge fund manager, even if they wanted to.
April 15, 2010, 2:59 amFub says:
The result of California’s Prop. 65 (1986) might serve as illustration.
The law requires that any item sold in retail which contains any chemical on an ever growing list (available here, PDF) carry a warning label:
WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.
Today, it seems as if every item you buy at any store in California carries the warning. People buy things anyway, of course. The label is generally regarded as a dumb joke if it’s regarded at all.
It’s easy to see why it’s regarded as a joke. Among the chemicals that require a label [my comments in square brackets]:
Alcoholic beverages, when associated
with alcohol abuse
Aspirin (NOTE: It is especially
important not to use aspirin
during the last three months of
pregnancy, unless specifically
directed to do so by a physician
because it may cause problems
in the unborn child or
complications during delivery.)
Carbon monoxide [Duh! Whoda thunkit?]
Safrole [Possibly still found in near unmeasurable quantities in root beer, since the FDA outlawed sassafras root sales and use in consumables in the 1970s. Many generations drank tea from sassafras root. Some of us still dig up our own. They haven't busted anybody for simple possession yet, and there has never been a recorded case of cancer in humans provably attributed to safrole from sassafras tea or root beer, or any other ordinary consumable form.]
The label is just another piece of labeling to tear off and throw in the trash. Estimating how many cubic miles of landfill such discarded labels occupy might make an interesting study.
The real danger is that because some of the chemicals on the list are actually dangerous, people will disregard warnings about those as well. The fable of the boy who cried “wolf” comes to mind.
April 15, 2010, 3:03 amOpenVolokh says:
First of all, I am not one to bash Christianity. I think it contains a lot of important messages and I definitely have a lot of respect for it.
But, in the case of Christianity, the most important long-term interest (salvation) is determined by external criteria not chosen by the believer, but instead by God.
April 15, 2010, 3:05 amRicardo says:
Ilya, it seems to me that Richard Thaler made some very specific points in the Cato symposium and it would do his critics well to provide specific criticisms of those points to advance the debate forward. It seems to me that this post is mostly a rephrasing of your earlier criticisms of libertarian paternalism rather than a rebuttal to any particular argument put forth.
For instance, how to Thaler’s critics address the pervasiveness of the need for default options. Much of the libertarian/conservative economic agenda is providing people with more choices (e.g. in retirement savings, health insurance, electricity supplier, cable provider, etc). Thaler’s point is that many people hate making these choices and if people refuse to make informed decisions in deregulated markets, we will be slow to see the benefits of deregulation. This would tend to work against a political consensus for deregulation in the first place and turn the public against deregulation when it is tried.
April 15, 2010, 3:19 amOpenVolokh says:
Fub,
Even granting the imperfection of the warnings (and they apparently caused you to investigate the properties of the items on this list, which seems like a positive thing), if this is sort of thing is the biggest danger from regulation, I think the vast majority of people can except that for the countless instance where regulation saves or improves lives.
Is regulation perfect? No. But nothing is perfect.
If I wanted to, I could give you a list of stupid things done by businesses which have negatively affected the lives of real people. That isn’t an argument against business, that is an argument against businesses doing stupid things.
One thing I agree with is though is that direct democracy is a really bad idea. When the voters make a stupid decision at the ballot, it is really hard to change. And as a lawyer, when I read my ballot in California, I often have a hard time grasping the implications of the decision I am being asked to make in terms of initiatives. Especially when the initiative calls for spending X amount of money on problem Y. I really have a hard time knowing if the amount that is proposed to be spent is a reasonable amount or not, or the implications that voting yes is likely to have on other parts of the budget. Unfortunately, because the Republicans have so badly fucked up the budget process in California with their mindless obstructionism, I typically feel obligated to vote yes on issuing bonds to spend X on project Y, when I really wish I could leave that to specialists in the legislature who would be in a better position to make allocation decisions with an eye to the budget picture taken as a whole. Reading and analyzing complicated ballot initiatives so I can vote on them in California isn’t something I enjoy. But, if I find it challenging, I am sure that many others find it overwhelming.
Direct democracy is a good idea in theory. But I would take a representative republic over it any day of the week in practice.
April 15, 2010, 3:19 amOpenVolokh says:
Ricardo,
I was for deregulation before I was against it!
More specifically, the devil is in the details. Deregulation itself cannot be considered a principle, as it is stated a too high of a level of generality.
Deregulating the airlines was a really good move, as at the time airlines were deregulated, the primary impact of regulation was to protect incumbent airlines from competition to the detriment of the consumer.
Deregulating electricity, given the way it was implemented, lead to a situation where California ended up being held hostage by people who were manipulating energy markets.
I think the lesson is that considering the conclusions of behavioral economics would be wise for even those who have a deregulatory agenda of some sort (not that I think the idea of deregulation for its own sake — as opposed to a specific reason — is a rational preference) as it would enable them to maximize the positive impact of their agenda.
I hope the idea of deregulation itself never comes into disrepute. I would prefer people were agnostic absent a specific argument concerning a specific context.
April 15, 2010, 3:25 amSteve says:
Libertarian paternalist scholars generally ignore this possibility by implicitly comparing perfectly rational regulators with often irrational consumers. But there is no a priori reason to believe that the former are more rational than the latter.
Well, no reason other than the fact that regulators have expertise in the subject matter, not to mention the ability to spend far more time reviewing and analyzing the available evidence than the typical consumer making a one-time decision. If you forget about those things, then sure, there’s no reason to think regulators are any more likely to get it right.
Apparently, because consumers are physically able to sit down and review the entire body of research and literature before making a decision, we must assume that they will do so, and thus the regulators bring nothing to the table. The consumer has a financial incentive to get it right, after all! Surely he’s more likely to research every detail of a complex financial product than a regulator who collects his government paycheck no matter what he does.
Someone noted above that Ilya is really proving nothing more than that regulators are not perfect. I think that’s accurate. Flip comments like “regulators often have to make policy decisions under time pressure” don’t really prove anything about the cognitive process of regulators as compared to consumers.
I am curious whether Ilya, if he were in charge of the securities markets, would simply get rid of the suitability rule altogether.
April 15, 2010, 4:44 amShelbyC says:
Wow. Making tradeoffs between health and enjoyment is not just irrational, but so clearly so that any suggestion to the contrary is ridiculous?! Wow. Talk about positions that are so crazy and so contrary to common experience, that they cannot be sincere. You need to think through your own positions more and take shots at others less.
April 15, 2010, 4:54 amShelbyC says:
Regulators have more expertise in how badly I want a cheeseburger than I do? I highly doubt that. And in general consumers are able to consult experts to whatever degree they think necessary, so still no a-priori reason to think that the regulator is more likely to get it right.
April 15, 2010, 5:19 amfgmorley says:
And it may well be that they don’t often make decisions that they later regret because they can actually think straight.
The premise here is based on an assumption that we are all really just morons most of the time, and we can’t recover from a bad decision once in a while. Living is a trial and error activity.
To suggest that someone else has a more perfect cognition of reality than each adult/mature individual deciding for him/herself is the trap that all of the statists and collectivists fall into, and try to perpetrate over the masses.
April 15, 2010, 5:19 amBrianMac says:
Sunstein’s basic position is that regulatory decisions should, in large part, rest on formal technical analysis rather than political deliberations. This approach, and the tools it relies on (cost-benefit analysis, risk assessment, etc.), is intended to safeguard policy-making from those biases that influence citizens day-to-day reasoning, by ensuring that decisions are held to some normative standard (e.g. maximisation of expected utility).
It seems to me that if you want to critique libertarian paternalism, you need to deal with that premise, rather than taking the easy way out (“ha, you guys are human too!”).
April 15, 2010, 5:35 amRicardo says:
As far as the libertarian paternalist position is concerned, what is relevant is not whether or not your preference for cheeseburgers is in some sense irrational but whether it is in line with your declared preferences. Most people cannot, off the top of their heads, accurately state how many calories are in their top 5 most common meals nor can they estimate how many calories they consume in a day. You would be surprised at how many people say they want to cut their calories but then continue to eat high-calorie food.
The libertarian paternalist response is to list calories on menus. Yet even that draws a fair amount of derision if not outrage from some people. Most people are quantitatively ignorant about many of the decisions they make in everyday life.
Part of the bias in these internet discussions is that most of the participants are inherently analytical people of above average IQ who genuinely seem to enjoy researching minutia. Most people are not like that and never will be.
April 15, 2010, 5:56 amMichelle Dulak Thomson says:
fub,
I remember our ordering a set of Waterford crystal glasses for my mother-in-law ca. 1990. They shipped direct from Ireland, but the Prop. 65 warning was naturally there on the outside of the box. Leaded crystal, y’know. Dangerous. Do not mix all your baby’s food in your Waterford crystal.
April 15, 2010, 6:03 amMichelle Dulak Thomson says:
Ricardo,
Most people cannot, off the top of their heads, accurately state how many calories are in their top 5 most common meals nor can they estimate how many calories they consume in a day. You would be surprised at how many people say they want to cut their calories but then continue to eat high-calorie food.
Well, of course not. I do not know what the calorie count of my last lunch was, nor my last dinner. Possibly because I cooked both myself. Do I need a number in hand? May I be trusted to feed myself? Or ought private cooking to be regulated, so that we all have accurate calorie counts before us?
Most people can, OTOH, see whether they are gaining weight. If they are distressed by weight gain, they have many means to deal with it. They can exercise more; they can eat less; they can try any one of a gazillion diets laid out in detail in books available at any bookstore for the price of a couple Big Macs.
The libertarian paternalist response is to list calories on menus. Yet even that draws a fair amount of derision if not outrage from some people. Most people are quantitatively ignorant about many of the decisions they make in everyday life.
The derision and outrage are because of the class bias. It is “chain” restaurants that are to put calorie counts on their menus, not the restaurants at which the actual regulators eat. The plea is that chains are serving the same food in the same portions all the time, so that it is easy for them to list calories; whereas independent restaurants are changing things all the time. But every newspaper food section I’ve ever seen includes a nutritional analysis somewhere in each recipe it prints. Don’t tell me it’s impossible for restaurants to do the same.
April 15, 2010, 6:17 amNick says:
What politicians want is a theory that says, “Go ahead. Do what you want. You can’t fail. It’s OK.” If some new version of economics could just explain, scientifically, that there’s nothing to stop the big new plan from doing what its supporters want it to do, then politicians would be so grateful for that.
And if it doesn’t exist, they can pretend that it does.
April 15, 2010, 6:20 amMichelle Dulak Thomson says:
Ricardo,
Out of pure morbid curiosity:
Can you, “off the top of your head” as it were, accurately state how many calories there are in your five most commonly consumed meals? Can you estimate how many calories you typically consume in a day?
April 15, 2010, 6:26 amCalderon says:
Prof. Somin — while I generally think “me too” posts are useless, I do think you’ve really hit the nail on the head on behavioral economics and regulation, which includes traditional regulation as well as “nudges” and so forth. I believe the points you raise about behavioral economics applying to both voting and regulators themselves need to be raised at every point where behavioral economics is used to justify additional regulation.
April 15, 2010, 8:09 amFloridan says:
This post and its comments may be the best argument against libertarianism I have seen in quite some while.
April 15, 2010, 8:10 amChaim Gordon says:
Prof. Somin,
Your well reasoned arguments against libertarian paternalism nonwithstanding, I believe that there are three more basic reasons to reject it. First, there is the basic liberty interest in being allowed to make our own mistakes without government interference. Second, those mistakes help make us better decision makers in the long run. Third, different people make different types of cognitive errors, so those who are less prone to certain errors should not be deprived of otherwise valuable options even if libertarian paternalism would otherwise be justified.
April 15, 2010, 8:15 amPersonFromPorlock says:
All these ‘pro’ comments presume an honest effort by the regulators, but how likely is that? Their rational best interest is to accept bribes to favor parties whose rational best interest is to offer them. Whatever can be said about libertarian paternalism in the abstract (and I tend to agree with IS there), in the real world it’ll be bribery and public piety in about equal proportions – as usual.
April 15, 2010, 8:16 amg.e. Taylor says:
Professors (and Pre-Tenders [like myself]):
Many of these “philosophical and rhetorical melodies” seem to recall the arguments raised, called, and re-raised by the thesis set forth in B.F. Skinner’s utopian “Walden Two“. Though his psychological research had seemingly identified effective principles/practices for behavior modification and served as the basis for at least one attempt to found a community based on the one described in the book (http://www.twinoaks.org/clubs/walden-two/index.html), “behaviorist theories of human psychology were found to be wanting in the popular academics of the time, too “scary” with its implications of mind control, too beyond freedom and dignity to be set forth as guiding principles for any but the followers of Seldon’s Second Foundation.
April 15, 2010, 8:17 amPerhaps we have been, or will be, slipped unaware into such a managed community, where the hope for change is not so fierce. But maybe not this time either.
Floridan says:
To suggest that someone else has a more perfect cognition of reality than each adult/mature individual deciding for him/herself is the trap that all of the statists and collectivists fall into, and try to perpetrate over the masses.
Are you suggesting that you prefer to decide for yourself if ground beef might contain e coli bacteria, or that the aircraft you are flying has had proper maintenance, rather than having “regulators” establish rules and guidelines to insure a high degree of public safety?
April 15, 2010, 8:23 amChristy Clinton says:
Because of discussions on Volokh Conspiracy and elsewhere, I’ve been reading more about this theory. It seems to me that the difference between a “nudge” and a more “traditional” approach is merely the target.
If I want you to do something or I’ll break your arm, that’s the traditional approach. If I want you do do something, but instead I tell someone else to make you or I’ll break his arm, that’s just a “nudge.” This new style seems to me to be more convoluted, ultimately more restrictive (I have to change more people to get the behaviour I’m seeking), and fundamentally more dishonest than the traditional. It’s probably also harder to fight, because too many people probably don’t mind being manipulated so long as someone else is paying the piper and suffering the repercussions of regulation.
April 15, 2010, 8:30 amNickp says:
I agree that calorie counts aren’t particularly helpful. Listing of fat content and sugar content is somewhat more useful; I had no idea that I could cut the fat content of my BK fried chicken sandwich almost in half just by leaving off the mayonnaise.
A list of ingredients and quantities would be much more useful and much easier for small restaurants to publish. I know precisely how much butter goes into a recipe that I make at home, but I have no idea how much goes into an equivalent recipe in a restaurant. I’m sure the restaurant knows, though.
April 15, 2010, 8:38 amChristy Clinton says:
Still thinking about this, and wanting to rephrase:
“Libertarian paternalism” is the theory that if I want to change your behaviour, it’s somehow more egregious to regulate you, than it is to regulate ‘him’.
April 15, 2010, 8:38 amreadery says:
I also don’t belive the distinction is a sound one constitutionally, although it may be a good academic concept. We all have cognitive biases and values that we are unable to perceive or recognize as such. We may believe our views are the uniquely objectively correct ones, but putting a fancy label on them doesn’t make them so. The world has had many fancy labels, and they didn’t work either.
For just the reasons stated — people have cognitive biases by which what they’d prefer individually or right now is sometimes thought not best for society as a whole or in the long term — I think libertarianism is simply one philosophy among many that has no more special claim to being a basis for the courts’ thinking than any other.
But like any other fervently-believed-in philosopy, it may be right, or it may reflect a cognitive bias. Or both. Not all cognitive biases are necessarily bad things over the really long term, but we won’t be around to know for sure.
April 15, 2010, 8:59 amShelbyC says:
Is anybody reading this a regulator?
April 15, 2010, 9:19 amStephen Lathrop says:
Sure there is. Regulation is intended to be practiced as an explicitly rational undertaking, using debate and structured input. It is done collectively, with the result that multiple intelligences and interests influence the outcome. Implementation may diverge from intentions, but only sometimes sufficiently to make the exercise pointless.
A larger point is that for libertarians pretty much everything gets described as a two-party transaction. On that model, the regulator is just some guy substituting his fallible human judgment for yours. That is just baloney. Sit in on an FAA airspace redesign sometime to see how collective rationality keeps your airline ticket from becoming your death warrant.
Focusing narrowly on two-party transactions, libertarians don’t know or don’t notice that markets produce a collective, standard setting dynamic of their own. Markets establish standards that market participants must honor to participate. The results can be good or bad. If market bargaining makes work place safety too expensive, then there won’t be any safe workplaces in the absence of regulation. In business offices that matters little. In industrial settings it can be a matter of life and death.
In principle, regulation frees market participants to reap collective benefits they can’t get by other means—it works to expand liberty by freeing market participants from prisoner’s dilemmas. In practice, the picture is more complicated, but arguing that the overall effect of regulation is not positive is arguing against the history of public health, transportation safety, reliable financial transactions, and numerous other examples.
April 15, 2010, 9:22 amStephen Lathrop says:
Such as the valuable option of taking advantage of a sucker?
April 15, 2010, 9:26 amAdam J says:
I have a serious problem with this line: “Regulators have no reliable way of estimating the benefits that consumers derive from potentially risky products.” I don’t understand its relevance, if a group of consumers derives a serious benefit from a risky product, then they will “opt out” and use that product. I’m seriously baffled how Ilya seems to constantly forget the libertarian part- if consumers can’t even exercise the decision making necessary to choose something that offers them a serious benefit simply because another choice is the “default”, then it is the libertarian model that is flawed, not the paternalistic one. Ilya’s cheeseburger example is also flawed- while I agree a regulator might disagree on the virtues of eating lots of hamburgers, his paternalistic regulations aren’t libertarian paternalistic if they prevent the consumer from eating his cheeseburgers if he really wants to. It’s a strawman argument that has nothing to do with a libertarian paternalistic regulation.
April 15, 2010, 9:35 amShelbyC says:
See the update, he disagrees that there really is a “libertarian part”. Which is a valid disagreement.
April 15, 2010, 9:43 amAdam J says:
I also disagree with the slippery slope argument- libertarian paternalistic policies would be more libertarian then most current policies- it would be sliding up the cliff, not down it. And frankly there’s a huge difference for me and most people between the government simply picking a default choice for me and government coercively me what to do. And if government is already picking bad defaults for me, I’d be steaming mad and ready to vote some bums out of office when the government decides to take that choice away from me. I think that makes the slope a whole lot stickier then Ilya thinks.
That said, interest group capture is certainly a problem, but if the interest group is capturing regulators to pick the best default, the interest group was probably already picking the default for consumers before government got involved.
April 15, 2010, 9:46 amShelbyC says:
You’re picking your examples, it’s also arguing against a history of mass starvation. But isn’t the argument here just over whether or not any needed regulation should be accomplished via nudges or shoves? Ilya is addressing the argument that we should expand the regulatory state to many things individuals should decide for themselves, like how many cheeseburgers to eat, but that that is OK because we’re nudging people, not shoving them.
April 15, 2010, 9:49 amAdam J says:
ShelbyC- I don’t think it’s a valid disagreement- the theory certainly preserves consumer choice- what I think is a very valid disagreement is that a number of policy proposals called libertarian paternalism don’t really qualify as libertarian paternalism. And I think its great that libertarians point this out- what concerns me is that Ilya and other libertarians want to throw the baby out with the bathwater.
April 15, 2010, 9:54 amMichelle Dulak Thomson says:
Adam J,
Ilya’s cheeseburger example is also flawed– while I agree a regulator might disagree on the virtues of eating lots of hamburgers, his paternalistic regulations aren’t libertarian paternalistic if they prevent the consumer from eating his cheeseburgers if he really wants to.
That’s true, of course. But the libertarian paternalists ought at least to be honest with themselves. The point of putting calorie counts in large type on fast-food menus is not primarily to inform the patrons, per se; it’s to make them imagine someone looking at them making an order and thinking, “Just look at that fat slob! Can’t he see that that’s 900 calories?” It’s not an informational initiative so much as a shaming device. Which, of course, is why it will never be applied to anyone but the sort of people who eat a lot of fast food. No one ordering pâté de foie gras is going to find a boldface calorie warning next to it.
April 15, 2010, 9:57 amMichelle Dulak Thomson says:
Others have brought this up in prior threads, but it seems a good time to raise it again: What happens when the nudge doesn’t work? When people actually take the trouble to disable your new default settings, ignore your calorie counts, or otherwise generally go on stubbornly as they were before? Does the good libertarian paternalist throw up his hands and walk away? Does he try a new, subtler nudge? Or does he shove?
April 15, 2010, 10:06 amAdam J says:
Michelle – I suspect the shame is created by the person being unhappy with his weight and the calorie count making him aware that the burger won’t be helping in that respect. Maybe the shamed person might prefer the number not be there, but frankly I don’t have alot of sympathy for people who want to remain willfully ignorant just so they can avoid shame. That’s just irresponsible living- and besides, if they really don’t want to know they don’t have to read the count. And I’m kind of baffled how the pate issue is relevant- you’re suggesting it is somehow mistreatment of the poor that fast food restaurants have calorie counts and expensive restaurants don’t? Sounds like you’re being a little overly class sensitive to me.
April 15, 2010, 10:23 amKenvee says:
Really? I learned when I was about 10 that mayo is very high-fat and if I wanted to cut fat and calories I could switch to mustard on my sandwich. This stuff isn’t rocket science. It is really not hard to find out the ingredients and often calorie and fat content of most meals. I’ve done that regularly as a dieter. And if it’s someplace I can’t get that information from and it’s important to me, then I don’t eat there.
Any idiot knows or can easily learn how to cut fat and calories from their diet. Why do I need the government requiring companies to spend money (and therefore charge me more) to label everything? If I thought that was important, I could go places that do that already.
April 15, 2010, 10:32 amRicardo says:
Your question is a bit like asking what do we do if parents start insisting their children only drink bottled spring water and refuse to provide fluoride supplements to their children in an effort to preserve the purity of their children’s bodily fluids. Flouride in drinking water is more of a shove rather than a nudge but even there the answer is pretty clearly “nothing.”
I’ll follow up with a question of my own. Suppose your local area deregulates electricity generation tomorrow and provides people with the choice of an electricity provider. What happens to people who fail to make a choice? How does the default rule affect the political consensus for electricity deregulation?
April 15, 2010, 10:37 amMichelle Dulak Thomson says:
Ricardo,
Dude, Dr. Strangelove is older than I am. At least, I hope it is.
You are forgetting that the one doing the nudging really wants something to happen, and is willing to change the law over 50 states to make it happen. Will s/he just give it up with a shrug of the shoulders?
Re electricity deregulation: If it were in my control, I’d make it abundantly clear to every electricity client in the area that if they declined to prefer a provider, they’d be assigned one by lot. And then do it. With, naturally, an easy switch to another if the client had second (or, really, first) thoughts.
April 15, 2010, 10:51 amMichelle Dulak Thomson says:
Adam J,
Sorry the response is so late — lost it to a power glitch and have to start over.
Maybe the shamed person might prefer the number not be there, but frankly I don’t have alot of sympathy for people who want to remain willfully ignorant just so they can avoid shame. That’s just irresponsible living– and besides, if they really don’t want to know they don’t have to read the count.
Oh, no, they have to read the count; it has to be big enough that no one can miss it, and right beside the menu item. You have to rub the puppy’s nose right in his filth, or he’ll never learn his lesson. Right?
Let’s leave aside, for the moment, what constitutes “irresponsible living.” No, wait, let’s not. Who the hell are you to insist that other people live up to your standard of responsibility? Or, worse, to encourage the Federal government to push people into what you think “responsible” behavior? There are a lot of behaviors out there — some legal, some not — that are a hell of a lot more irresponsible than eating fast food.
And I’m kind of baffled how the pate issue is relevant– you’re suggesting it is somehow mistreatment of the poor that fast food restaurants have calorie counts and expensive restaurants don’t? Sounds like you’re being a little overly class sensitive to me.
Yes, actually, that’s exactly what I am saying. If nutritional information is valuable, it must surely be valuable to all. If looking at the calorie counts of your lunch is good for hoi polloi, it ought to be good for everyone. If “OMG that’s 1200 calories” is a salutary shock for the guy who eats daily at Mickey D’s, it is a shock that ought also to benefit the lady lunching at the sweet little high-class restaurant nearby.
April 15, 2010, 11:15 amyankee says:
This is a bit nitpicky and we’ve been over it on another thread, but the class angle here is vastly overstated. The requirement applies to all chain restaurants with 20 or more locations, not just fast food. McDonald’s, Applebee’s, the Cheesecake Factory, and Ruth’s Chris are all equally required to disclose calorie counts.
Even where fast food is concerned, well-off Americans eat fast food all the time. They’re just more likely to get their fast food from mid- or upper-end fast food places like Subway and Au Bon Pain.
April 15, 2010, 11:26 amNickp says:
Kenvee
Really?
Yes, really. At some level I knew that mayonnaise was high fat, but I had never put two and two together and realized that it would be such a high proportion of a sandwich in which the other main ingredient was deep fried.
So, having the nutritional information posted did cause me to modify my behavior. Make of that what you will.
April 15, 2010, 11:27 amMichelle Dulak Thomson says:
yankee,
How many low-end vs. high-end chain franchises do you suppose are affected? And how many of the people who are writing the legislation do you suppose patronize any of them?
April 15, 2010, 11:33 amAbhishek says:
I think Ilya Somin’s criticisms of libertarian paternalism are very pertinent and mirror my own apprehensions about it as a possible policy guide.
However there is another, more philosophical objection to libertarian paternalism that some libertarians make. This was expressed by Todd Zywicki in a previous post as follows: ” [..] if regulators know what is good for people why don’t regulators just compel people to do that?” or by Chaim Gordon’s comment above “there is the basic liberty interest in being allowed to make our own mistakes without government interference.”
This philosophical/slippery-slope objection, however, I don’t understand.
The moral basis behind non-coercion is not that one always knows what’s best for oneself (though this may well be true on average) but that coercion is intrinsically bad.
Let me give a crude example. You are attracted to her. She is attracted to you. You know she wants to sleep with you and you know that the sex will be good. It is perfectly acceptable to propose or nudge her into ‘sex’. But if you decide to tell her “Sleep with me, else I’ll throw you into jail/fine you” she probably won’t. If you proceed to coerce sex upon her despite her refusal, you are a rapist.
My point is, even if regulators know what is best for you, the very act of coercing this good regulation upon someone may automatically make it bad for that person (it certainly will if the person believes as strongly in individual autonomy as I do!).
There is an intrinsic worth to freedom and non-coercion. Grant this and all confusion disappears. And then it is clear why libertarian paternalism (of the pure nudge variety) cannot dissolve into coercive paternalism without crossing a hard moral line.
I made the same point in a comment on Todd’s post, but received no real replies. So I am posting it here in the hope that Prof. Zywicki or someone else who has the same position will respond to this comment.
April 15, 2010, 11:33 amStrict says:
“Who the hell are you to insist that other people live up to your standard of responsibility? Or, worse, to encourage the Federal government to push people into what you think “responsible” behavior? ”
A voter in a democratic society?
For example, I, and many other voters, believe that parents have a responsibility to provide material support for their children. There are federal laws [Bradley Amendment, Deadbeat Parents Punishment Act f/k/a Child Support Recovery Act], created by elected lawmakers, to enforce child support.
April 15, 2010, 11:37 amMark Field says:
Agreed. It also pretty blatantly ignores the much more obvious reason for the distinction, namely the financial burden on small restaurants, especially those with non-standard menus.
You’d think libertarians would applaud that kind of discretion in regulation. You’d also think that any understanding of competitive markets — that they require both parties to have equal information — would lead libertarians to admit that restaurant patrons lack the same information as the restaurants and have no real ability to obtain it.
The dogmatic approach of Prof. Somin does more to discredit libertarianism than any argument I could make.
April 15, 2010, 11:38 amStephen Lathrop says:
If that intuition proves correct, the fast food restaurants will redesign the stores to add extra drive up windows. Then we can all argue whether there is a privacy right involved in ordering fast food.
April 15, 2010, 11:38 ammetro11 says:
Perhaps this – non-paternalistic libertarianism – is another topic about which the Institute for Justice and the ACLU can agree?
http://www.huffingtonpost.com/scott-bullock/end-policing-for-profit_b_534553.html
April 15, 2010, 11:44 amyankee says:
No dispute here that the number of low-end franchises affected is larger than the number of high-end ones, but it’s a definite mistake to act as though the higher-end ones don’t exist and well-off people don’t patronize them.
The people who write legislation are Congressional staffers and lobbyists, who I presume get their breakfast muffins and lunches at the same Starbuckses and Subways that all the rest of D.C.’s office workers do. The same goes for the bureaucrats in the FDA building who will be writing the implementing regulations.
The members of Congress themselves no doubt have flunkies grab their muffins and sandwiches for them on a day-to-day basis, but they probably have to make periodic appearances at chain restaurants in their districts as part of their efforts to fake being ordinary Americans.
April 15, 2010, 11:47 amFederal Farmer says:
I have another issue with respect to regulators that seems unaddressed: It seems that industrial insiders take over the regulatory agency and manipulate regulations to achieve market goals. So they can be incentivized to negatively affect consumers.
April 15, 2010, 11:47 amAdam J says:
Michelle Dulak Thomson – I’m not forcing anyone to live up to my standard of living responsibility- but an argument for libertarianism based on the theory that it can helps consumers avoid true information that will shame them is a pretty laughable. It’s like arguing we shouldn’t expose companies that use legal child labor practices in other countries because the consumers might feel shamed into not buying the cheap clothes. Better information ensures better accountability and better decisionmaking for our actions- heck it’s a cornerstone of an efficient free market.
April 15, 2010, 11:48 amStrict says:
“And how many of the people who are writing the legislation do you suppose patronize any of them?”
Michelle, you’ve made two arguments I’d like to address.
First is that the calorie postings are devices which enable fellow patrons and employees of fast food restaurants to shame other customers at the restaurants. This is not my experience. I was at a Burger King this week – everyone in line is ordering garbage. Other people lined up to order garbage are not snickering at each other, and employees are not snickering at customers [Really, what kind of status standing does a Burger King employee have to make fun of a Burger King customer?].
Second is that the regulators are not patrons of the regulated restaurants. You have no support for this claim. For a famous counterexample, Barack likes to eat burgers at Five Guys. Michelle Obama has also raved about Five Guys. Five Guys is subject to the new calorie regulations [it has more than 20 locations].
April 15, 2010, 11:49 amHoustonSelgin says:
What if the person ordering the cheeseburger really loves cheeseburgers and has just been given 2 weeks to live? Do you feel a little more sympathy for that person now?
Point being, there are folks ordering cheeseburgers mindlessly and getting fat, ordering cheeseburgers because they are Olympic athletes and need the calories, and ordering cheeseburgers because they really enjoy them and have 2 weeks to live, ordering cheeseburgers because …
Regulators and/or “libertarian paternalists” cannot possibly take all the motivations of the cheeseburger eaters into account – I personally do not want them nudging, shoving, or banning cheeseburgers because a small, medium, or large portion of those eaters are making their decision irrationally.
April 15, 2010, 11:50 amStrict says:
“Better information ensures better accountability and better decisionmaking for our actions”
Well, her argument is that people will not in fact use the information, much less use the information to their benefit. Thus the information doesn’t serve this free-market purpose, it only serves a shaming purpose.
There is not much proof for that argument. Perhaps it remains to be seen [we might not know how the regulation works until we try it].
April 15, 2010, 11:52 amAdam J says:
Federal Farmer – “I have another issue with respect to regulators that seems unaddressed: It seems that industrial insiders take over the regulatory agency and manipulate regulations to achieve market goals. So they can be incentivized to negatively affect consumers.”
That’s Ilya’s interest group capture argument- one that I agree is a serious problem that isn’t adequately addressed in government these days. Of course, the problems that interest group capture cause are more limited in libertarian paternalism then when government makes a coercive decision that removes consumer choice. And if the interest group benefits less, they have less incentive to try and capture in the first place…
April 15, 2010, 11:56 amMark Field says:
If this is true, then it undercuts all of libertarianism.
April 15, 2010, 11:58 amkiwi dave says:
I think this is a key point. I note that most of the defenses of libertarian paternalism from OpenVolokh and certain others about the heightened rationality of regulators and their ability to determine people’s best interests from dispassionate Olympian heights are by no means specific to libertarian paternalism, and are just as applicable, if not more applicable, to good old-fashioned paternalism.
Aside from the slippery slope argument simpliciter (i.e., the fear that nudge will become shove), I have a separate concern: I fear that the “real preferences” of the individual would end up becoming a mere formality; while paying lip-service to what an individual really wants (and trying to keep him/her away from things that frustrate those goals), regulators will end up deciding what people’s “real” preferences are, a la Juris Imprudent’s comparison to the “eternal soul being your real long term interest.”
If intelligent people like OpenVolokh can deny that trading off long term health for short term gustatory pleasure can ever be a rational decision, then I think we can see that there is a certain inevitability that the regulator will end up replacing “incorrect” preferences with the correct ones. Maybe my preferences system allows me to run a risk of ending up broke or fat – to say that this can never be rational sounds a bit like the Marxist idea of “false consciousness.”
April 15, 2010, 11:59 amStrict says:
“I personally do not want them nudging, shoving, or banning cheeseburgers because a small, medium, or large portion of those eaters are making their decision irrationally.”
What if the irrationality of eating the cheeseburger relates to more serious and immediate health risks [instead of atherosclerosis, the threat is mad cow]? The government should do nothing while irrational consumers eat the risky food? How far does your “government shouldn’t interfere with the decisions of irrational consumers” argument go? I’m curious.
April 15, 2010, 12:02 pmAbhishek says:
“If intelligent people like OpenVolokh can deny that trading off long term health for short term gustatory pleasure can ever be a rational decision, then I think we can see that there is a certain inevitability that the regulator will end up replacing “incorrect” preferences with the correct ones. Maybe my preferences system allows me to run a risk of ending up broke or fat — to say that this can never be rational sounds a bit like the Marxist idea of “false consciousness.”
I completely disagree with people who think that trading off long term health for short term gustatory pleasure can never be a rational decision.
That said, I do not agree that the slippery slope argument is a key point, for reasons I stated in my comment. Despite my apprehensions about libertarian paternalism, I do think it can be a good thing to implement in certain areas, provided two conditions are met: a) the nudge/shove line is drawn hard and some sort of legal device built in so that it cannot be crossed, b) the libertarian component of libertarian paternalism is justified on the rationale that nudge/non-coercion is superior to a shove because non-coercion is intrinsically good, rather than pragmatic/efficient/whatever.
April 15, 2010, 12:09 pmChaim Gordon says:
Two more thoughts:
First, under libertarian paternalism, ordinary people act contrary to their rational self interests. Therefore, the rationale goes, government should regulate suspect activities so that such irrational choices are never made. But this way of thinking is inconsistent with the notions of political accountability and democracy itself.
Consider the following libertarian paternalist arguments: If the people are really incapable of rational decision-making, then how will the people evaluate the efforts of their elected officials? In fact, wouldn’t it be better to leave such regulatory power in the hands of an elite, unelected, unaccountable super-rational band of regulators? If we allow ordinary, semi-irrational voters to get involved, they will most likely not appreciate what was done for them anyway and they will most likely vote out the most rational and capable social engineers and replace them with like-minded, semi-rational politicians.
Second, perhaps the most dangerous thing about libertarian paternalism is that it can be easily abused. That is, by using the behavioral economics at the heart of paternalism, non-libertarian paternalist regulators can regulate far more activity without political repercussions. They can do so because they have now discovered ways of manipulating popular decision making with “less intrusive” regulations. This in turn will only make it more lucrative for the special interests that either wish to rent-seek or to control our lives.
April 15, 2010, 12:15 pmyankee says:
Congratulations, you have vanquished the fearsome and deadly supervillain Straw Man!
April 15, 2010, 12:18 pmBrian K says:
Ilya,
I find you overall argument to be very underwelling. it seems i’m not the only that found this after reading 60some comments.
your argument is largely filled with strawmen (although i don’t find this surprising) and you are largely arguing against paternalism in it’s more restrictive forms and ignoring everything that makes libertarian paternalism different. of course your update arguing they are the same is a blatant falsehood designed to cover up that what you say you are arguing against and what you are actually arguing against are two very different things. (you could have easily also said that people who prefer libertarian paternalism policies in some contexts also prefer libertarian policies in others, but that would undermine much of your argument)
April 15, 2010, 12:21 pmkiwi dave says:
I’m sorry, in what way was this a straw man? I was responding to an actual comment made by OpenVolokh in his very well-considered and lengthy post: “The idea that eating so many cheeseburgers that it damages your health is “rational” is so ridiculous as to be hardly worth responding to.”
I’ve heard many intelligent, well-meaning people voice similar arguments. So I’m not entirely sure how my statement qualifies as a straw-man. Please enlighten me.
April 15, 2010, 12:23 pmAdam J says:
HoustonSelgin- Wow, and I thought Michelle’s argument was weak. How could a calorie count possibly affect the decisionto eat hamburgers by someone who has two weeks to live. How could they possibly feel shamed when it has no adverse consequences? And a calorie count doesn’t even nudge- it just improves information- if someone makes a different decision based on improved information that’s a good thing.
April 15, 2010, 12:23 pmElliot says:
Here’s an excellent nutrition analysis web site from the U of Illinois. You can look up any food and construct menus. All calories and nutritional content are listed individually and in aggregate for your selections and menus.
So, here’s the tool. But I doubt very many commenters here will even bother. Rational behavior?
April 15, 2010, 12:33 pmMichelle Dulak Thomson says:
Mark Field,
It also pretty blatantly ignores the much more obvious reason for the distinction, namely the financial burden on small restaurants, especially those with non-standard menus.
As I’ve said above (and on other threads), somehow newspaper food sections manage to provide nutritional analyses of the recipes they run. If you wanted to exempt small and low-cost restaurants due to the hardship analysis and labeling would cause them, fine; but what possible excuse is there for excluding restaurants that ordinarily take in $100 for a party of two? They can’t afford nutritional analysis?
April 15, 2010, 12:40 pmCalderon says:
There’s an awful lot of pushback in these comments for what seems like a relative modest positition in Somin’s opening post. Let’s focus on some of the language near the end of the OP.
Once we recognize that voters and regulators are also subject to cognitive biases and that they have only weak incentives to combat those biases, the case for libertarian paternalism is significantly weakened. What I find strange, however, is that prominent libertarian paternalist scholars have paid so little attention to this problem.
Before we start encouraging “nudge”-type regulations, wouldn’t we at least want some research into the cognitive biases that go into how voters elect legislators as well as the cognitive biases that affect legislators and regulators? Just like behavioral economics has yielded some surprising results for the “common” people acting in the market, it likely will also yield surprising results about legislators, regulators, and voters.
April 15, 2010, 12:44 pmBrian K says:
This point bears repeating.
I have a hard time believing the lengths that people will go to to avoid seeing the obvious in order to insult the groups they don’t like.
The class distinctions being made above are pretty ridiculous (again, not surprising given the quality of the people making the distinction). what about the higher class chain steakhouses? or the lower class ethnic eateries? they are completely ignored by people attempting to portray something that has nothing to do with class as having everything to do with class.
as an aside: don’t forget that a lot of high end restaurants are owned by the same companies. they might not be seen as chains per say as each restaurant has a different name but, IIRC, they are also covered by the new laws. (although I am not a hundred percent sure on this)
April 15, 2010, 12:44 pmMark Field says:
Several of the commenters are making the same confusion of issues I noted last time. There are two separate and distinct points:
1. Assuming we all agree that regulation is justified in a particular case, should “nudging” be part of the regulatory tool kit?
2. Assuming we agree that more coercive forms of regulation are NOT justified in a particular case, should “nudges” be used instead?
It seems to me that arguing against “nudges” in the first situation is untenable. No libertarian should ever be in the position of arguing in favor of more coercive forms of regulation in preference to less coercive ones.
What I think is happening here is that some people are shifting to level 2, but that will change according to the factual particulars and there’s no right or wrong answer for a general rule.
April 15, 2010, 12:48 pmBrian K says:
This statement is also inconsistent with libertarian paternalism…but accurately portraying the idea apparently is no longer a prerequisite for bashing it.
April 15, 2010, 12:51 pmMark Field says:
I don’t understand the relevance of newspaper articles. Newspapers operate under entirely different cost incentives than restaurants do.
As for high end restaurants, now you’re making the perfect the enemy of the good. Assuming all expensive restaurants make a healthy (pun intended) profit — a bad assumption, AFAIK — there’s still the problem of line drawing and bureaucratic intrusion that we’d all like to avoid. There are so few such restaurants anyway that we can exclude them as trivial to the amount and quality of food eaten nationwide.
April 15, 2010, 12:53 pmMichelle Dulak Thomson says:
Strict,
Michelle, you’ve made two arguments I’d like to address.
First is that the calorie postings are devices which enable fellow patrons and employees of fast food restaurants to shame other customers at the restaurants. This is not my experience. I was at a Burger King this week — everyone in line is ordering garbage. Other people lined up to order garbage are not snickering at each other, and employees are not snickering at customers [Really, what kind of status standing does a Burger King employee have to make fun of a Burger King customer?].
Ah, yes. The only thing lower than a Burger King customer is a Burger King employee. Obviously I am taking class distinctions too seriously.
As Adam J argued above, much of the shaming effect is internalized. “You really shouldn’t eat that, because it’s 1200 calories — says it right there!” You are meant to feel abashed; it doesn’t matter who actually happens to be watching you.
Second is that the regulators are not patrons of the regulated restaurants. You have no support for this claim. For a famous counterexample, Barack likes to eat burgers at Five Guys. Michelle Obama has also raved about Five Guys. Five Guys is subject to the new calorie regulations [it has more than 20 locations].
Barack and Michelle Obama aren’t the regulators, as you know. I confess that I don’t know Five Guys (East Coast only?). But I doubt they go out for burgers on a regular basis.
April 15, 2010, 12:55 pmBrian K says:
Ah, I see. you clearly have no knowledge of how a high end restaurant is run. so what drives your animosity towards them? i can think of a few ideas, but none of them are flattering to you.
April 15, 2010, 12:57 pmFub says:
I just checked out my favorite: tuna fish sandwich. No surprises.
But I must be unusual. I can easily tell if I gain weight, and adjust diet accordingly. Apparently our regulatory overlords think ordinary people are too stupid to notice weight gain and make any rational connection to diet.
April 15, 2010, 1:02 pmStrict says:
““You really shouldn’t eat that, because it’s 1200 calories — says it right there!” You are meant to feel abashed; it doesn’t matter who actually happens to be watching you. ”
Your definition of “feeling abashed” sounds a lot like “thinking rationally/critically” to me.
“The only thing lower than a Burger King customer is a Burger King employee. Obviously I am taking class distinctions too seriously.”
I don’t know if there are clear class distinctions between the two. But your claim that the calorie postings cause Burger King employees to look at customers with scorn, thus “shaming” the customers, is factually unfounded. It just doesn’t happen. They process the order and move on – they don’t stare or judge or make judgmental comments ["I can't believe you just placed an order of fries with me! Awful! Tsk tsk!"].
April 15, 2010, 1:05 pmMichelle Dulak Thomson says:
Brian K,
Ah, I see. you clearly have no knowledge of how a high end restaurant is run. so what drives your animosity towards them? i can think of a few ideas, but none of them are flattering to you.
I have no animosity towards high end restaurants in particular. I have considerable animosity towards people who think nutritional information obligatory for the poor, optional for the rich.
Is there something that makes it impossible for a perfunctory calorie count to be performed on a given dish?
April 15, 2010, 1:08 pmDerHahn says:
I figure they are exempted under the same theory as stores that don’t put price tags on their goods.
If you are worried about whether you can afford it, you shouldn’t be shopping here.
April 15, 2010, 1:13 pmAdam J says:
Fub- “Apparently our regulatory overlords think ordinary people are too stupid to notice weight gain and make any rational connection to diet.” Gimme a break, a regulatory overlord because the calorie count is next to the price on the menu. Gosh, next you’ll complain you read the price before you buy something. Heaven forbid you get information that helps you make a proper buying decision. If an ordinary person wants to make a rational connection between weight gain and diet it might be handy for them to learn the calories of the food about to go in their mouth. I’m sorry you feel so oppressed by this.
April 15, 2010, 1:14 pmPatent Lawyer says:
Heh, I take it they haven’t gone to a Five Guys with a calorie count yet? Makes any of the other fast food burger chains look like diet food by comparison, and contains misleading sizing information and ridiculous portion sizes (i.e., a “hamburger” is a double, a “junior hamburger” is a single, and a regular fries fills their cup and throws another scoop of fries into the bag). Five Guys proves that while fresh generally does mean “tasty”, it certainly doesn’t mean “healthy”.
But Five Guys is usually in trendier neighborhoods and aims at the middle class, and is still kind of rare, as opposed to that unpleasantly ubiquitous but lower calorie McDonald’s food.
Take New York’s experience for you libertarian paternalists–what are you going to do when your little nudge just doesn’t work? Just providing calorie information in NYC hasn’t done a damn thing about obesity or overeating.
April 15, 2010, 1:19 pmMichelle Dulak Thomson says:
Strict,
I don’t know if there are clear class distinctions between the two.
But your claim that the calorie postings cause Burger King employees to look at customers with scorn, thus “shaming” the customers, is factually unfounded. It just doesn’t happen.
I claimed no such thing. Look for it if you like. What I said is that the calorie postings were meant to shame the purchasers. It doesn’t matter whether the shame comes from the co-patrons or the staff or the customer’s own head. The message is: “You have sinned. You’ve done wrong.”
April 15, 2010, 1:20 pmmischief says:
Only if we replace shoves with nudges. In fact, all I have heard of is replacing total freedom with nudges — and, in reality, replacing freedom with nudges and shoves. Maybe “the employee can opt out of the 401K” is a nudge, but “the employer must enroll them and let them opt out” is a shove.
April 15, 2010, 1:24 pmmischief says:
How do you know they have the expertise? How do you know their ability will translate into action? What will happen to them if they don’t?
April 15, 2010, 1:25 pmAllan Walstad says:
Somin’s original post simply lays out the obvious problems with so-called libertarian paternalism, usefully no doubt, because it looks like the points will need repeating while so many are in denial. One of the tip-offs is when you get these references to mad-cow disease and e coli and airliners with no maintenance. It’s reminiscent of when some of us raise concerns about the accumulation of government powers in the “national security” realm, and we inevitably get accused, directly or obliquely, of wanting to leave the country defenseless.
One point that I haven’t seen made so far here is that what counts as a nudge for the worker or consumer is in fact a shove for the employer or business. Perhaps it seems like a small nudge compared to regulations about out-and-out dangers of food contamination and un-maintained jets, but the occasion for it is smaller, too. It’s not as though I’m going to drop dead tomorrow because I didn’t opt for a 401(k).
Slippery slopes, regulatory capture and political gamesmanship combine with the regulators’ own human cognitive biases and lack of specific knowledge of individuals’ circumstances when implementing one-size-fits-all rules (oops, I mean nudges), to justify an abiding skepticism about this latest initiative on the part of anointed do-gooders to manage the decisions of their unwashed and benighted fellow citizens.
By the way, wouldn’t you suppose that the government schools, with 6-7 hours a day, five days a week, nine months a year for 12 years of supposedly educating the young, could have sufficiently impressed upon people the basics of money handling, investing for the future, health aspects of diet, and a whole bunch of other knowledge that would enable free individuals to specify their own choices without further paternalistic intervention?
April 15, 2010, 1:26 pmMichelle Dulak Thomson says:
Adam J,
Gimme a break, a regulatory overlord because the calorie count is next to the price on the menu. Gosh, next you’ll complain you read the price before you buy something. Heaven forbid you get information that helps you make a proper buying decision. If an ordinary person wants to make a rational connection between weight gain and diet it might be handy for them to learn the calories of the food about to go in their mouth. I’m sorry you feel so oppressed by this.
I am happy that someone (namely you) is anxious that I make a “proper buying decision.” Otherwise, I might, you know, make an improper buying decision, and we all know how tragic that would be.
April 15, 2010, 1:26 pmmischief says:
You mean that you have discovered a marvelous means to make them care? To make them take their responsibilities seriously? Hypothesizing that civil servants will not act as civil servants have acted is not something for which evidence is necessary; you must prove that they will not act that way.
Especially as you need absolute probity in all of them.
April 15, 2010, 1:27 pmAdam J says:
Michelle- “I am happy that someone (namely you) is anxious that I make a ‘proper buying decision.’ Otherwise, I might, you know, make an improper buying decision, and we all know how tragic that would be.” An improper buying decision based on imperfect information can be tragic- it misallocates resources in the market- and misallocated resources in a market can cause all sorts of collateral damage.
April 15, 2010, 1:35 pmStrict says:
“It doesn’t matter whether the shame comes from the co-patrons or the staff or the customer’s own head.”
This is called rational thought – utility analysis. Weighing the costs and benefits. Before, the only cost available for the customer to weigh was the price; now there is information on an additional cost [high calories] which the customer can use in his analysis.
“I claimed no such thing. Look for it if you like. ”
Ok. I found it. You did claim that customers will be shamed by Burger King employee disapproval of the customer and the customer’s choices.
On March 24, 2010, you wrote
April 15, 2010, 1:35 pmChrisTS says:
1) No one has suggested it is ‘impossible’ to provide a calorie count.
April 15, 2010, 1:35 pm2) ‘Perfunctory’ is misleading; real – reliable – calorie counts for hand-made meals are difficult. One point of focusing on chain restaurants is that their portions and ingredients are highly standardized. The can get a meal analyis done once and for all by professionals (the expense of which is offset by scale).
ChrisTS says:
I would like to add something about this notion of wanting to shame people.
I imagine there are many who do enjoy seeing others shamed or think that others deserve to be shamed (I suppose we all think that about murderers). But I do not understand the implication that this is what those who favor nudging want.
There actually is evidence that lots of people will think twice when relevant information is staring them in the face. This is why we have warnings on cigarette packages and bottles of liquor, as well as one over the counter meds and garden products. Will some folks ignore the warnings and go ahead with the risky conduct? Sure. But some will not, or will engage in it less often. And some who really did not know the facts will choose differently the first time they see the information.
Other than general antipathy to these kinds of consumer information efforts, I cannot see why anyone would assume that they are motivated by a desire to shame people rather than to inform them.
April 15, 2010, 1:42 pmOpenVolokh says:
Looking through the comment from those who agree with IS, a few points pop into mind:
(1) People are in denial about rationality. As in, if people wanted a healthier diet , they could do X, Y, and Z. That is of course true in theory and in practice for those who do X, Y, and Z. But if it were so easy, why is obesity increasing in America? Why is childhood obesity increasing?
The idea that people have a rational relationship with food is just incorrect in many cases.
(2) It is not all about tradeoffs! If you stop drinking soda for several weeks, your desire for soda will dramatically decrease. What we crave is a function of our existing diet. In light of that, you can have your cake and eat it to, as long as your cake isn’t really cake. That is, by changing your diets and habits, you can align your cravings with your long term interests.
(3) Libertarians with a philosophical objection to regulation are not going to be persuaded by mere arguments or rational discourse. The philosophical commitment is not merely intellectual (and thus susceptible to change in response to new information and argument) but also emotional.
This sort of intellectual inflexibility is hardly unique to libertarians. This observation is not meant as an insult. The point is that we humans are not fully rational, although we can aspire to be as rational as possible.
April 15, 2010, 1:44 pmMichelle Dulak Thomson says:
Strict,
Bravo. You found words out of my own mouth to contradict me, from three weeks ago. My bad.
But if you think that a fast-food clerk is incapable of expressing disapproval of what someone is ordering, you are mistaken.
April 15, 2010, 1:58 pmStrict says:
“But if you think that a fast-food clerk is incapable of expressing disapproval of what someone is ordering, you are mistaken.”
I don’t think that.
Cheers,
April 15, 2010, 2:02 pmShelbyC says:
I just can’t believe that we’re seriously arguing over whether we need regulators to tell us what to eat.
April 15, 2010, 2:06 pmMichelle Dulak Thomson says:
ChrisTS,
1) No one has suggested it is ‘impossible’ to provide a calorie count.
Point taken.
2) ‘Perfunctory’ is misleading; real — reliable — calorie counts for hand-made meals are difficult. One point of focusing on chain restaurants is that their portions and ingredients are highly standardized. The can get a meal analysis done once and for all by professionals (the expense of which is offset by scale).
As I’ve said multiple times before, newspapers’ food sections do seem capable of coming up with nutritional analyses of their recipes. Granted that sometimes they do hedge; the SF Chron won’t put a calorie count on anything involving a marinade, for example.
We don’t need “real — reliable,” so much as a guesstimate. Put a number beside every item on every menu, and be prepared to defend it. Why not?
April 15, 2010, 2:07 pmOpenVolokh says:
That is interesting. I didn’t think that was what the argument was about. I wonder how you came to this conclusion.
April 15, 2010, 2:11 pmMichelle Dulak Thomson says:
Strict,
“But if you think that a fast-food clerk is incapable of expressing disapproval of what someone is ordering, you are mistaken.”
I don’t think that.
Cheers,
Are you sure you aren’t zuch?
April 15, 2010, 2:11 pmOpenVolokh says:
That is interesting. I didn’t think we were. I wonder why you think this.
April 15, 2010, 2:14 pmAdam J says:
ShelbyC- Apparently you can’t appreciate the not so subtle distinction between being told what to eat and being told what you are eating.
April 15, 2010, 2:20 pmCalderon says:
The argument against 1, as well as against 1 and 2 being separate is the slippery slope. In general, I don’t buy it, but presumably the argument works as follows. Suppose there are two categories where the government wants to hard regulate: category A where people accept hard regulation, and category B where they reject hard regulation but would allow for nudges. If you reject nudges, then A is hard regulated and B is unregulated. If you allow nudges, then B becomes regulated by nudges. Under the slippery slope argument, because the nudges are in place for B, people’s attitudes about B change and they come to accept hard regulation for B. Alternatively, to the extent government need not be responsive to public attitudes, the slippery slope argument is that using nudges causes legislators to become more willing to use hard regulation. Thus, by allowing nudges you end up with hard regulation for A and B, whereas if you had rejected nudges you would have had only hard regulation of A. Generally speaking from a libertarian point of view, more regulation is worse and thus we’re better off by not allowing nudges in the first place.
As a general matter, I’m skeptical of the slippery slope argument here which assumes that passing a nudge law will cause people to become more accepting of other regulation on that issue. That said, there’s probably some huge sociological and poli sci literature that I’m never going to read about how laws affect people’s attitudes and vice versa.
April 15, 2010, 2:23 pmMichelle Dulak Thomson says:
Adam J,
ShelbyC– Apparently you can’t appreciate the not so subtle distinction between being told what to eat and being told what you are eating.
So long as everyone is to be “told what s/he is eating,” I, for one, have no problem whatsoever with it. Why not make that universal?
April 15, 2010, 2:28 pmOpenVolokh says:
I think for an answer to that question, you would have to look at evolution.
Understanding the motives of others, whether or not logically relevant, is a very important for survival. If someone has bad motives, your ability to identify that and act accordingly is important. That definitely remains true today in modern society.
Here, there is a proposed regulation. That is, to provide calorie counts. Proponents, of course, say this is to provide people with information. But, people don’t always accurately state their true motives.
The thing is, motivation is something we usually have to infer based on limited evidence. We very rarely have direct evidence of motive. In this context, we can think of at least two possible motives for a regulation publishing calorie counts.
(1) To provide information.
(2) To shame customers.
Actually, one can think of many more. For example, maybe the regulations are motivated by a general desire to harm the restaurant industry, but this is the only politically feasible way to do it. But, lets just take these two possible motives.
Well, given incomplete information, people are going to gravitate towards the more negative explanation of motive. And I think this would be due to our evolutionary heritage. Say someone has made some unpleasant physical contact with you, which could either be an accidental or intentional. Well, with incomplete information, it would have been better for survival to assume that it was intentional. If you take a club and immediately kill that person who may or may not be a threat or take other less drastic action in self defense, you will survive even if you are wrong about whether they are really a threat. In contrast, if you assume good motives, you are in big trouble if their motives actually are bad. So, I think we a bias, probably rooted in evolution, to assume bad motives in others.
Here, of course Michelle doesn’t have any real evidence that the true motives of those who want calorie counts published is to shame people. But, she is gravitating towards the more negative inference concerning motives, probably due her volutionary make up. Also, I would tend to infer that shame associated with food has been some sort of recurring theme in her personal life, whether directed at her or those close to her. This would explain her gravitation to this particular negative explanation of motive, as opposed to some other negative explanation, such as a malicious desire to harm chain restaurants for its own sake.
I personally would not have even thought of the shaming issue before she brought it up in a previous thread. So, it is interesting how the motives we project onto others are often partially a product of our own personal experiences.
April 15, 2010, 2:36 pmAdam J says:
Michelle – “So long as everyone is to be ‘told what s/he is eating,’ I, for one, have no problem whatsoever with it. Why not make that universal?”
Gimme a break, I’m a lawyer- I know an obstructionist when I see one. First you think its unnecessary, then you’re worried about folks feeling shamed for eating big calorie meals, and now you have no problem with it so long as its universal. Seriously?
April 15, 2010, 2:48 pmOpenVolokh says:
I agree. Sort of.
It might be more feasible for a chain restaurant, which can divide the cost over many more restaurants, to calculate calorie counts scientifically.
For smaller restaurants, the costs of calculating calorie counts scientifically for their menu might be prohibitive. Perhaps to lower the cost for these smaller firms, it would make sense to allow them to make “guesstimates” based on their ingredients. Of course, these really would be guesstimates. If you have watched Diners, Drive-Ins, and Drives on the Food Network, you would note that many of the chefs are not always precise with the exact amount of an ingredient they use and seem to use rough estimates rather than precise measurements when cooking.
Another problem that might crop up is if people are using more informal guesstimates, some might try to game the system by being a little dishonest in calorie counts. That is, they would report lower calorie counts than those who make an effort to be more honest, and might gain some sort of competitive advantage. I think I am overstating this concern though.
I think that if calculating calorie information were free to do with complete accuracy, you would be right that it should be universal. But it isn’t free. Maybe you are right that it should be universal anyway, but I am a little hesitant to impose new burdens on small business. The large chains can spread the cost over many restaurants and there menu tends to be the same across many restaurants, so it isn’t nearly as much of a burden for them to calculate calorie information. Should calorie information be allowed to be determined by more informal guesstimates? I am not sure about that.
April 15, 2010, 2:55 pmyankee says:
The straw man is that OpenVolokh originally said one particular tradeoff between health and enjoyment is too irrational to be worth responding to, and you then criticized the view that all tradeoffs between health and enjoyment are irrational. This is a pretty common straw man: take an opponent’s claim about one particular case and characterize it as a universal claim about all cases.
April 15, 2010, 2:56 pmMark Field says:
I know I’m piling on here, but absolutely nobody is arguing this.
You must be right; I’m at a loss to explain it otherwise. Beyond my usual skepticism of slippery slope arguments, I don’t buy this one at all.
April 15, 2010, 3:08 pmOpenVolokh says:
Adam J,
I think Michelle is perfectly sincere.
Here point about universality is related to her concerns about class and shame. Her idea is that chain restaurants are primarily utilized by the lower or middle class (I don’t think this is true — especially in non-urban environments — but that is what she believes). Therefore, the regulators, who are all upper middle class (I think she has in mind members of Congress and obviously not their staff and also not bureaucrats implementing the law) are trying to impose something they would never accept for themselves.
I think that Michelle’s concerns are definitely due to what I view as an incorrect and even off the wall attribution of motive for these regulations as being motivated by the desire to shame.
Her concern about universality is completely logically consistent, given her premise. If it was universal, then upper middle class lawmakers (who apparently never eat at chain restaurants) would be affected by the regulation too and this would reassure Michelle concerning their motives.
The only issue I have with that, is I think that having smaller restaurants have to calculate calorie counts in a scientific way would be unduly costly and would even drive some restaurants out of business. Also, it would make it very expensive to change the menu. Of course, when a big chain makes a change to the menu, it is already a very big decision. Calculating calorie counts for that change is a reasonable thing to ask a big chain to do. But, making it a big decision for a smaller restaurants to add or delete something to their menu is probably unduly burdensome.
April 15, 2010, 3:08 pmMichelle Dulak Thomson says:
Adam J,
Gimme a break, I’m a lawyer– I know an obstructionist when I see one. First you think its unnecessary, then you’re worried about folks feeling shamed for eating big calorie meals, and now you have no problem with it so long as its universal. Seriously?
Yes, seriously. If this were applied to all restaurants, everywhere in the US, I really would have no problem with it. Partly because the people who would have to consider their caloric intake while looking at the menu wouldn’t be just the patrons of chain restaurants.
April 15, 2010, 3:11 pmMichelle Dulak Thomson says:
OpenVolokh,
That is an amazing feat of psychoanalysis at a distance. I congratulate you.
I think that Michelle’s concerns are definitely due to what I view as an incorrect and even off the wall attribution of motive for these regulations as being motivated by the desire to shame.
I’m open to correction. I would say, though, that if there’s no element of shame in there, the “nudge” is pretty well doomed to fail. People don’t naturally think of cheeseburgers as health food.
If the “nudge” does anything, it is to make the fast-food consumer ashamed of himself. If it doesn’t do that, it does nothing at all. And you’d best move on to “shove.” But don’t pretend that shame isn’t what you want.
April 15, 2010, 3:30 pmyankee says:
I think you’re overstating just a bit. I wouldn’t dispute that the lower or middle class use chain restaurants more frequently on average, but where I disagree with Michelle is her implied claim that that people in higher income brackets don’t eat at chain restaurants, or do so only very infrequently. I think Michelle is completely wrong about this: members of the upper-middle class eat at chain restaurants all the time. Millions of upper-middle-class office workers get a latte or muffin at Starbucks every morning and buy a hurried lunch from Subway between client meetings. And who does Michelle think is buying the hot meals they sell at Whole Foods?
Contra Michelle, I think the extent to which members of Congress do or don’t eat at chains has more to do with their unusual lifestyle than with their income bracket. They’re very busy, they have sit-down meals with lobbyists, they have interns who grab their lattes for them, they typically don’t get to see their families very frequently, and have a need to fake being an ordinary person when they’re back in their district. All this stuff distorts their eating choices compared to other people in the same income bracket, but I don’t know how.
April 15, 2010, 3:33 pmyankee says:
We’ve been over this on another thread, but I think the major benefit is to help people distinguish actual health food from fake health food. There’s a lot of stuff that’s designed to make people think of it as healthy but that’s just as bad as the obviously unhealthy stuff. People think of salads as healthy, but they may not realize that the amount of cheese and dressing on a particular delicious salad gives it even more calories than the cheeseburger. This kind of marketing is distressingly common.
Ingredient labels are also valuable for the same reason. A lot of so-called “nutrition bars” have the same nutritional value as a Milky Way, and there are “low-fat” and “sugar-free” versions of products with just as many calories as the regular versions. The ingredient labels help people who want to distinguish healthy from fake-healthy.
April 15, 2010, 3:41 pmFloridan says:
This thread is making me hungry.
April 15, 2010, 3:41 pmMichelle Dulak Thomson says:
Enh. I’m not accustomed to being discussed in the third person, but whatever.
I think Michelle is completely wrong about this: members of the upper-middle class eat at chain restaurants all the time. Millions of upper-middle-class office workers get a latte or muffin at Starbucks every morning and buy a hurried lunch from Subway between client meetings.
Yeah, I’ll buy that. Though does Starbucks actually have to post the calories in a latte, or just in a muffin?
And who does Michelle think is buying the hot meals they sell at Whole Foods?
Oh, they have those in DC?
(Not trying to be funny, at least not much. My town is getting a Whole Foods, opening next week, and I will be grateful for it.)
April 15, 2010, 3:47 pmmischief says:
The idea that people have a rational relationship with rationality is just incorrect in many cases. Like, say, this one here.
Rationality and obesity are not antonyms. Sorry.
April 15, 2010, 3:47 pmmischief says:
Like, for instance, frustrated citizens deciding tar and feather the insolent regulator who didn’t care enough to find out why they were doing something? (One can dream of such collateral damage.)
April 15, 2010, 3:49 pmFub says:
My country used to be,
Sweet land of liberty.
‘Til the bloated bureaucracy
Said that simply must not be,
And forced us to count calories.
Of Thee I sing.
Land where I used to dine,
On good cheap food and wine.
Now the adipose complain and whine,
Their gluttony’s your fault and mine,
So no fat should grace your own fork’s tine,
We must walk their line.
Come diners everywhere,
Let’s revolt and not despair,
We’ll mandate exercise and air,
For every overweight horse’s rear,
Who’d tell us how to live.
Let’s make them run and sprint,
‘Til their calories are spent,
‘Til they wear clothes instead of tents,
And once more freedom rings.
Deepest apologies to Samuel Francis Smith, but somebody had to say it.
April 15, 2010, 4:03 pmOpenVolokh says:
First, you are engaged in psychoanalysis when you attribute motives to others. As I said, the idea of shame never crossed my mind before you brought it up.
Second, I will agree that psychoanalysis as applied to specific people is based on inference. My guesses about the origins of your attribution that people who are in favor of publishing calorie counts are speculative. But I do know this with complete certainty. You did not come to this attribution from a process of pure logic. This attribution has emotional origins, because logically, your attribution is far from the only possible motive for the regulation. Therefore I assume that your gravitation towards that particular explanation and elimination of other explanations has origins arising from your disposition.
I suppose there is another explanation. That there is simply a logical hole in your reasoning. But I think if the problem were merely logic, it would have been resolved by now. Disagreement based on faulty logic are usually much easier to resolve than disagreements with more emotional origins.
Shame is an emotion pretty foreign to me. As you can see by my shameless attempts to psychoanalyze you. Here is another way that such information could influence people.
Imagine the following scenario. Say that I have learned that based on my personal situation I have decided that a calorie budget of 2000 calories will help me achieve whatever goal I have in mind.
But, since I have eaten fairly healthy today, I decide I deserve a junk food treat. I go to Carl’s Jr. I know I shouldn’t eat hamburgers too often, but I am in the mood for one now.
I find that The Original Six Dollar Burger I intended to order has 890 calories. Wow! I didn’t really realize it had so many. I am surprised, but not ashamed. That large order of large “Natural-Cut French Fries” that I like to order when I indulge is another 500 calories. That large coke is another 500 calories. If I eat this one meal, I will be consuming nearly my entire calorie budget for the day.
I will tell you what. Based on this information I realize that I ate a salad for lunch is not going to make up for this sort of meal. So, I either decide to not eat at Carl’s Jr, or I at least get a smaller burger, a smaller order of fries, and a smaller drink. This has nothing to do with shame or what anyone else thinks. This has to do with me achieving my own goals.
–
Now, that you have brought up the subject of shame and acknowledging that not everyone is exactly like myself, I hardly doubt that there will be people who feel shame when they see these calorie numbers on the menu. I would prefer that they didn’t. I would prefer that they were more intrinsically motivated to eat well for themselves rather than externally motivated to please others. But, I realize not everyone is like that.
So, I recognize, after you mentioned it, that shame will be something that some people will experience. But, I hardly think that this counts as a real reason to not do have calorie counts published. The sort of people who feel shame in this situation are the sort of people who are going to feel shame in a lot of other situations. I do not think we are exposing people to calorie information is somehow inherently degrading. I think basically these are personal issues having to due with excessive sensitivity. While in an ideal world I would like to protect all people’s sensitivities, that is not practically possible.
That you go so far as to assert that shame is the ONLY reason for this information to have an affect as opposed to it being something that both surprises people and reminds people of what they already know in the back of their mind I think is a conclusion you have arrived at based on your personal experience rather than logic. But, you should realize that your personal experiences are not universal. I could easily imagine having calorie counts published on the menu where it would bring what I “sort of” know (this sort of food has a lot of calories isn’t good for you) to the forefront of my mind. It would influence my behavior, but not because I care what the guy or girl (unless she is really hot!) at the fast food counter thinks, but because it is more aligned with my own goals.
April 15, 2010, 4:15 pmMichelle Dulak Thomson says:
yankee,
People think of salads as healthy, but they may not realize that the amount of cheese and dressing on a particular delicious salad gives it even more calories than the cheeseburger. This kind of marketing is distressingly common.
You are saying that people are buying and eating more food than they thought they were paying for. You do realize that there are whole continents’ worth of people who wish they had our problems, yes?
April 15, 2010, 4:15 pmOpenVolokh says:
Michelle,
I agree that we are lucky to live in America. But, tell someone who has had a couple of heart attacks due to having a bad diet and too little exercise that these problems are not real.
April 15, 2010, 4:25 pmkiwi dave says:
Actually, I think you missed my point, although it’s probably my fault for not being clearer. I did not mean to imply that people like OpenVolokh think that all instances of trading off future health for present enjoyment are always irrational, as I’m sure that’s not true, but rather that there are certain species of trade-off (in this case, wolfing down cheeseburgers) that right-thinking people like OpenVolokh will regard as always irrational, which I am pretty sure is supported by what I quoted to. My point is that there will always be a very fine line between the regulator trying to coax out the “real” preferences of an individual, and the regulator substituting his own preferences for those of the individual. I think you’d probably agree with that.
Generally, I think one of the problems of this debate is the lack of an agreed working definition of rationality. I might generalize that people who are in favor of paternalism tend to adopt a fairly objective view of rationality, whereas libertarians tend to take a highly subjective view (i.e., outside of very extreme cases of mental incapacity, if you want to do it, it is by definition rational). I think supporters of libertarian paternalism tend to take a view between those two.
April 15, 2010, 4:34 pmPatent Lawyer says:
OpenVolokh:
I agree that we are lucky to live in America. But, tell someone who has had a couple of heart attacks due to having a bad diet and too little exercise that these problems are not real.
I assume all premature deaths in the U.S. are due to overeating. Presumably that’s why my upstairs neighbor, at the ripe old age of 26, was found dead in his apartment in a black latex suit, gas mask, and handcuffs. Damn fast food!
Or is your point that this is the easiest problem to work on. If so, you’ve got a weird definition of easy, since we have absolutely no idea what to do about obesity on a national scale, and barely have any idea of what to do on an individual scale.
Fub:
Now the adipose complain and whine,
Their gluttony’s your fault and mine,
So no fat should grace your own fork’s tine,
We must walk their line.
As far as I can tell, very, very few fat people are pushing these regulations for their own self protection. On the other hand, a lot of former fat people, concluding that everyone else is the same as they are, are pushing these kinds of regulations so that the rest of us can enjoy the wonders of starvation and thinness that they are. Take up your mallet against them, not the fat people who just want to be left alone.
April 15, 2010, 4:36 pmMichelle Dulak Thomson says:
OpenVolokh,
I agree that we are lucky to live in America. But, tell someone who has had a couple of heart attacks due to having a bad diet and too little exercise that these problems are not real.
Urgh. Speaking as someone rather badly out of shape myself, I am not going to blame my “too little exercise” on anyone but myself. And my diet is also what I make it. At present it is absurdly easy to tot up your daily calories, &c. If you rely on pre-packaged food, you can read the box. If you actually like to cook, you may have a more difficult time.
April 15, 2010, 4:38 pmyankee says:
Yeah, it’s very much a first world problem. That doesn’t make it a non-problem.
April 15, 2010, 4:46 pmMichelle Dulak Thomson says:
yankee,
Yeah, it’s very much a first world problem. That doesn’t make it a non-problem.
Indeed not. But it does suggest some frickin’ perspective. Our problem is that we have too much food. We have the first underclass in human history that is suffering because it has too much to eat.
April 15, 2010, 4:54 pmOpenVolokh says:
Michelle,
While you and I as individuals are of course responsible for our own health, if as a society we could make it easier to make it easier for individuals to make good decisions for themselves, we should do so.
And it is not as though people live in a bubble. Our society as a whole has become more sedentary and individuals are susceptible to influence by that. We feed our children unhealthy food at school and have vending machines with soda and other unhealthy foods that make eating unhealthy much more convenient than eating healthily in our schools and set eating patterns that are very hard for individuals to break later.
If we can make it easier for individuals to make good decisions, we should do so. For example, I think it makes sense to make gym memberships tax deductible or even subsidize them. Also, it probably would make sense to have public universities require that people take 4 years of physical fitness classes, so that people do not go through this big transition between high school (where physical education is required) and college (where unhealthy eating and drinking combine with a more sedentary lifestyle for many students) and people develop bad habits.
There is obviously a limit to what government can do to encourage these things. And it is a personal responsibility. But that it is a personal responsibility doesn’t mean it isn’t also a social responsibility to support the individual in achieving their own aspirations.
April 15, 2010, 5:03 pmOpenVolokh says:
Patent Lawyer,
For a patent lawyer, you are being very illogical. Try take what you do every day when you execute patents to this argument.
This is highly irrational. That people also die from cause X would not imply that we shouldn’t try to prevent unnecessary deaths from cause Y.
That said, your upstairs neighbor sounds like a very interesting person! I don’t know what kind of neighborhood you live in, but I take it that it is very lively. And I thought patent lawyers lived boring lives!
Do you file patents for only scientists who have solved the easiest problems? I will admit that the problem is not easy and there is a limit to what can usefully be done.
We do know this. Obesity in this country is rising, including among children. We need to think about this problem and devise creative solutions. (Not as in solutions that create a perfect utopia, as in solutions that ameliorate the problem.)
But given that heart disease is the number one killer of Americans, killing over 450,000 of our fellow Americans a year, I think it is worth some very careful thought.
(1) What do you think of the following policies?
(2) Tax deductions for gym memberships?
(3) Subsidies for gym membership?
(4) Physical education requirements for graduation from public universities?
(5) Getting rid of vending machines that serve junk food out of public schools and replacing them with vending machines that serve healthy food and beverages?
(6) How about serving our kids healthy food during lunch, instead of the garbage that is often served?
What are your ideas?
I am sure with the logical mind of a patent lawyer, you can think of something.
April 15, 2010, 5:17 pmDesiderius says:
“The idea that people have a rational relationship with rationality is just incorrect in many cases.”
We have a winner.
Interesting that I stumbled on a similar point in rereading Niebuhr recently. From The Nature and Destiny of Man:
“the very effort to estimate the significance of his rational faculties implies a degree of transcendence over himself which is not fully defined or explained in what is usually connoted by “reason”. For the man who weighs the importance of his rational faculties is in some sense more than “reason” and has capacities which transcend the ability to form general concepts.”
Following in “The Easy Conscience of Modern Man”:
“A culture which underestimates the problem of freedom and necessity in nature is bound to depreciate the reality of freedom in man. The modern man is, in short, so certain about his essential virtue because he is so mistaken about his stature. He tries to interpret himself in terms of natural causality or in terms of his unique rationality; but he does not see that he has a freedom of spirit which transcends both nature and reason. He is consequently unable to understand the real pathos of his defiance of nature’s and reason’s laws. He always imagines himself betrayed into this defiance either by some accidental corruption in his past history or by some sloth of reason. Hence he hopes for redemption, either through a program of social reorganization or by some scheme of education.”
In other words, to follow the logic of the behaviorists another step, why would one not seek to meta-nudge the individual into making more decisions that the individual might otherwise avoid, in order to develop the capacity of the individual to make better choices by exercising her reasoning over time? Could baking (ostensibly) more rational decisions into the cake for the individual (such as, I don’t know, Prohibition) not attenuate that capacity over time, leaving the populace less reasonable, or at least less able to reason? See, for instance, the movie Wall-E for a more artful presentation of this critique.
In addition, the problem with libertarian paternalism is not just it’s juxtaposition of terms that are as sure to jar a libertarian as “liberal fascism” does your average liberal, and for similarly good reason, it also presents a pretty poor picture of parenthood. As portrayed by the behaviorists, it could perhaps more accurately be called “libertarian helicopter parenthood”.
If we are to relate to one another for some purposes as parent to child, a dubious proposition to begin with, we’d do well to look to how best a parent relates to a grown child, not an infant. In considering our experience with such matters, one notes that the best such parenting is very light on unsolicited advice, let alone “nudges”, and works hard to encourage the grown child to make a life for himself, not to cling too tightly to the apron strings.
April 15, 2010, 5:19 pmBC says:
What’s truly remarkable about this thread, to me, is that so many otherwise-intelligent VC readers have evidently convinced themselves that regulators are by-and-large these professional, highly-educated, dedicated public servants who arrive at conclusions through a robust deliberative, collaborative process of reason informed by a sincere desire to improve the commonweal.
I’ve dealt with BATF and public health regulators on approximately a weekly basis for more than ten years. This Platonic ideal of a regulator has been exemplified by exactly no one I have ever encountered over that time. The average regulator is, in my experience, an insufferable good-government type whose worldview amounts to a psychodrama in which he and his fellow regulators heroically save the (implicitly: idiot) masses from themselves, and from exploitation by the Forces Of Darkness. Most have been living embodiments of the Peter Principle, “educated” only in the technical sense of possessing a degree in a relevant area of study, but largely unencumbered by practical knowledge of what they’re supposed to be regulating. They smuggle political and normative judgments into their decisionmaking as a matter of course, and deal with inconvenient questions or criticism by either ignoring or bullying the questioner or critic.
I have no particular reason to imagine that the regulators I’ve dealt with are atypical. And so aside from the philosophical response to the “libertarian” paternalists (i.e., “What part of ‘leave me alone’ don’t you would-be commissars understand?”), there’s also the more practical objection alluded to by Ilya: regulators simply aren’t more competent than Joe Sixpack at arranging the defaults of Joe’s existence to comport with what’s good for Joe, because they have no idea what’s good for Joe and, frequently, don’t care.
April 15, 2010, 5:30 pmPatent Lawyer says:
This is highly irrational. That people also die from cause X would not imply that we shouldn’t try to prevent unnecessary deaths from cause Y.
But it does imply that, “But think of the horrible death that a person has from cause X!” isn’t a compelling argument for doing something about cause X, when there are much worse deaths from cause Y to do something about. I suggest bringing back sodomy laws, to reduce the plague of autoerotic asphyxiation deaths*
But given that heart disease is the number one killer of Americans, killing over 450,000 of our fellow Americans a year, I think it is worth some very careful thought.
Something’s going to be the number one killer of Americans. If that something is heart disease or cancer, both primarily diseases of aging, then we’re doing pretty well. Not everyone can die at 100 of unexplained causes in their sleep. The alternatives are things like “violence”, “smallpox”, “other trauma”, and “occupational diseases”.
Now, if we’re talking about communicable diseases, then there’s room for government intervention. But outside of communicable diseases, it’s generally none of the government’s business.
What do you think of the following policies?
(2) Tax deductions for gym memberships?
(3) Subsidies for gym membership?
(4) Physical education requirements for graduation from public universities?
(5) Getting rid of vending machines that serve junk food out of public schools and replacing them with vending machines that serve healthy food and beverages?
(6) How about serving our kids healthy food during lunch, instead of the garbage that is often served?
2-3 aren’t libertarian paternalism, they’re just paternalism–stealing from one set of taxpayers to give to another that do things we like. Also unlikely to work–if most obese are poor, they already don’t pay net taxes (or would it be a credit)? Is that little marginal reduction in cost what’s going to get people to not only join a gym, but use it at the high frequency necessary to lose weight? Seems extraordinarily unlikely.
4 is paternalism, but applied to college students who are apparently still children these days. Just silly if applied universally, offensive if applied only to fat students (which is what at least one university has done). Colleges are supposed to be training adults, which is why college students aren’t regimented into 8 hours a day of classes, study halls, etc. Mandatory Phys.Ed. doesn’t fit into a college education, unless we’re going to turn college into grades 13-16 of high school.
5 will be completely ineffective, but I won’t stop you. I also have no problem with 6. This is because they apply to public institutions that serve children who are usually forced to attend. But neither are libertarian paternalism; they’re again just paternalism, because kids are forced to go to public schools unless circumstances align to allow them to attend a private school or homeschool.
Now, what I don’t mind the government doing is research on medical procedures and interventions that would help cure or alleviate heart disease. That’s a lot more effective and less damaging to freedom than putting big warning labels on chips or banning salt.
* This was a joke, people.
April 15, 2010, 5:35 pmPatent Lawyer says:
regulators simply aren’t more competent than Joe Sixpack at arranging the defaults of Joe’s existence to comport with what’s good for Joe, because they have no idea what’s good for Joe and, frequently, don’t care.
Exactly. A line I would suggest:
“Assume an unbiased, benevolent, expert regulator” should be as embarassing a line for policymakers as “Assume a spherical cow” is for physicists. Though my physicist friend pointed out that a spherical cow is a far more accurate model than an unbiased, benevolent, expert regulator.
April 15, 2010, 5:38 pmOpenVolokh says:
Desiderius,
I start from the premise that no one, especially not myself, is fully rational. That rationality is hard, not easy. That rationality is something to aspire towards. I do not think that members of Congress are exactly rational.
As far as allowing people to make and learn from their mistakes, there is something to be said for that. But, not as much as you would have it. A lot of people who make major life mistakes (i.e. become alcoholics, for example) never fully recover. It is much better to be the sort of person who is not inclined to over consume alcohol in the first place than the sort of person who “partially” learns to overcome this mistake.
Also, if you look at human behavior, people tend to repeat what they have done in the past. I have seen people make the same self-destructive mistakes over and over and over again. When people follow a certain path, they may not be making mistakes that they learn from, but instead establishing a pattern of behavior that they will repeat.
Another point along this line is look at what sometimes happens when people from low socioeconomic backgrounds get in trouble with the law and those from high socioeconomic backgrounds do. The person from the high socioeconomic background is often bailed out by mommy or daddy, get a really expensive lawyer, and is better able to present themselves to the judge as a person worth redeeming. The person from the lower socioeconomic background does not get bailed out, gets a lawyer at public expense (which, depending on the jurisdiction can be really good or really really bad), and is less able to present themselves to the judge as a person worth redeeming.
Now, you based on the theory that it is best to pay for your mistakes, you would think the lower socioeconomic person would be better off! After all, they are more likely to pay a higher penalty for their mistake and are not shielded from negative consequences. But, I think the person in the higher socioeconomic position is not only better off in the short run partially avoiding the negative consequences of their behavior, but better off in the long run too.
Anyway, I am being long winded. I don’t want to mask the degree to which I actually agree with you. It is important that people learn from their own mistakes. BUT don’t take this point too far. Sometimes people are not going down a path where they will learn from their own mistakes, but instead establishing a pattern of dysfunctional behavior that will harm themselves and others throughout their entire lives.
A final note. The term “paternalism” is sort of stupid. Calling something “paternalistic” is more a way of signaling emotional distaste with a policy, rather than a rational critique of the policy in terms of cost/benefits or other criteria.
Why isn’t it paternalistic for the government to come help you when you are the victim of robbery? Why isn’t it paternalistic for the government to help you if you are the victim of a contract breach? It seems to me that whenever the government does anything to someone with any problem whatsoever, one could emotionally call that action “paternalistic.” That is, rather than the label “paternalist” being a rational policy critique, it is merely an childish emotional move.
April 15, 2010, 5:44 pmMichelle Dulak Thomson says:
OpenVolokh,
It is the people calling for these nudges that are calling what they’re doing “libertarian paternalism.” Where you been, dude?
April 15, 2010, 5:53 pmkiwi dave says:
I think this supports my earlier statement of differing conceptions of rationality. I think your use of that term is similar to what others would call “wisdom,” the result of a long period of detached consideration. When libertarians refer to rationality, they are referring to a much more limited concept of actions that do not directly frustrate a person’s own subjective intentions. That kind of rationality isn’t some rarely-realized aspiration, it’s something that regular people exercise every day.
Not true. Paternalism is when the state (or another authority figure) “helps” you by preventing you from doing things that are bad for you. If the state tries to protect you from someone who robs you or breaks a legally-binding contract with you, the state is protecting you from harm caused not by your own folly, but by another person’s malfeasance. Big difference.
It’s a pretty clear distinction, and one that I’m surprised you don’t seem to be able to make .
April 15, 2010, 5:53 pmOpenVolokh says:
Patent Lawyer,
You ARE logically challenged.
Let us say that X is the easier problem to solve. It wouldn’t follow that ALL resources should be allocated to X. Even if you were engaged in cost-benefit analysis on the margin (which is more theoretical than real, since actual costs and benefits are both speculative and difficult to measure when choices are arbitrarily identified — and it isn’t even possible to identify all possible choices, which are infinite) then you would only allocate resources to the “easiest” problem while the marginal dollar had the most benefits there.
You might say that determining whether policy X is a good use of resources is hard to do. But this is true for ANY policy, mainly because of the severe limitations of cost-benefit analysis.
Your a priori assumption that efforts to combat heart disease by influencing behavior is simply neither logical nor justified, but instead purely ideological.
–
More significantly, you label the establishment of public schools as paternalistic.
Are you for or against public schools? If you are a libertarian who is opposed to public schools, then there is no point in further conversation. Your value system is so different than mine (I would say out of whack) that there is no point in further discussion.
Anyway, you and I come from fundamentally different premises. You think it is okay for private corporations to “nudge” people by showing them television commercials that encourage an unhealthy lifestyle, but apparently think it is somehow horrible for the public, through their representatives, to encourage people to live a healthy lifestyle.
I should point out as well that as a patent lawyer, you are basically a leech off of public policy and the coercive power of government. All intellectual property rights are artificial restrictions on the freedom of individuals. It is every bit as paternalistic to impose intellectual property rights on all individuals in order to protect the market power of the inventor or to foster invention which we speculatively assume will not occur without this very coercive government intervention.
Every time you file a patent, a small part of you should die as you snuff out human freedom and bring about the enormous coercive power of government to bear upon behalf of your client. You monster!
April 15, 2010, 6:03 pmOpenVolokh says:
Michelle,
Do I have to agree with the labeling decisions of Cass Sunstein and Richard Thaler upon which I had no say? No, I do not have to agree with those labeling decision and nor do I.
I think it is a bunch of cuteness intended to indicate how they are so radically in the middle between two extreme epithets. I think the phrase is ridiculous. I read Nudge anyway, and it was a pretty good book, lame labeling notwithstanding.
April 15, 2010, 6:07 pmPersonFromPorlock says:
Let me pose a few questions to see if they might have some resonance: do you appreciate being nagged, so long as the nagger’s right? Should we encourage nagging as a social grace? Is there a more annoying statement than “I’m only telling you this for your own good…?”
April 15, 2010, 6:12 pmFub says:
I thought the target of my modest mallet was obvious: only those who blame others for their own actions.
In case that was not obvious, I retract the original couplet and replace it with this:
Some adipose complain and whine,
Their gluttony’s your fault and mine, …
I have no objection to any person’s being as heavy or as light as they choose. I do object to blaming others for one’s own dietary choices.
[This is my third attempt to post a response to this point with no result. Some technical thing apparently failed. Or maybe I've been banned. Oh well. It would be nice if someone posted an explanation. I tried to be conciliatory to those who took exception to my words.]
April 15, 2010, 6:13 pmBC says:
Yep. This isn’t to say that I don’t resent being badgered by corporations into buying their products, but I resent even more being badgered by public-health nannies using my tax dollars to tell me to live what they think, today, constitutes “a healthy lifestyle”.
Nobody asked you.
The world would be immeasurably improved if more people would simply mind their own damn business and leave their neighbors alone.
April 15, 2010, 6:16 pmPatent Lawyer says:
OpenVolokh: And YOU are grammatically challenged:
Your a priori assumption that efforts to combat heart disease by influencing behavior is simply neither logical nor justified, but instead purely ideological.
This is not a sentence.
Anyways, you’re attacking a strawman; I was merely pointing out that your appeal to horror (“But heart disease is so painful!”) is illogical and unpersuasive. Obviously the better answer is to look at a cost-benefit analysis, but let’s remember to put “loss of freedom” on the cost side of the legislator. Pro-regulation types like you frequently forget to do so.
–
Are you for or against public schools? If you are a libertarian who is opposed to public schools, then there is no point in further conversation. Your value system is so different than mine (I would say out of whack) that there is no point in further discussion.
I’m for publicly funded education with choice (i.e., vouchers and open enrollment within administrative unit). It is wrong to force a parent to send their children to a specific school; it is reasonable to force a parent to educate their child.
You think it is okay for private corporations to “nudge” people by showing them television commercials that encourage an unhealthy lifestyle, but apparently think it is somehow horrible for the public, through their representatives, to encourage people to live a healthy lifestyle.
Who is the public? Is it you?
Private corporations can’t force me to do anything. Burger King can’t send the King to my apartment to handcuff me, drag me to a BK, and make me buy a Whopper. All they can do is persuade. The government, on the other hand, inherently does more–even if all they’re doing is advertising, they’re doing so with money taken from taxpayers who may have disapproved. And the policies you want–tax deductions/subsidies for gym membership, mandatory P.E. for public college students (and note, wealthy folks can afford to send their kids to a private college, while the poor can’t get out of your mandate)–are significantly more imposing than a mere public service announcement.
Where you go wrong is in equating the “nudge” of a Burger King ad with the “nudge” of a mandatory college P.E. class. They’re not equally intrusive just because you call both a “nudge”. And the policies you’ll have to go to to stop obesity when your little “nudges” don’t work will be even more offensive to freedom than that.
You’ve essentially crossed the line into a “property is theft” argument here, and I don’t find that worthy of argument. Government action to protect a private party’s right to property ownership, or to free speech, or freedom from violence, is qualitatively different than government action to force a private party to take action to fit some unrelated person’s desires.
April 15, 2010, 6:19 pmOpenVolokh says:
kiwi dave,
First of all, if you are going to define rationality as merely as doing whatever you feel like doing, then everything is rational. The actions of my dog are every bit as rational as my actions. The word “rational” isn’t a very useful word if it doesn’t allow us to distinguish between things, is it? Any definition of rationality that is so all-encompassing is a very poor definition of rationality.
That said, under my more stringent and useful definition of rationality, it is still something that people do everyday. Just not perfectly.
As for the difference where the state protects you from an outside threat and not from your own folly, I think the distinction is pretty close to meaningless. It is your folly that you went into that particular neighborhood at that time and got robbed. It is your folly that entered into a contract with someone you couldn’t trust to keep their promises. It is your folly that you were so weak and unprepared that you got robbed. It is your folly for not having more persuasive power so that you could convince the person who broke the contract not to live up to their promise. It is your folly that you put such unreasonable terms in the contract for the other side that most people would not have kept their promises. It goes on and on.
Basically, there is no reason I as a taxpayer should have to pay for police to investigate a crime committed against you because YOU were so stupid. Because YOU did not know how to defend yourself. Because YOU entered into a contract with someone who broke their promises to you. It wasn’t ME who robbed you. It wasn’t ME who broke a contract with you. Why should I pay be coerced to pay taxes to pay the salaries of police officers or the court system to help YOU, who only suffered these things because of your own imperfections. That is PATERNALISM.
Perfect people are not robbed. They are very street smart. They are trained in all manner of self-defense. They do not go into the wrong neighborhoods at the wrong times. Perfect people are good judges of character. They know who to trust and who not to trust. Perfect people don’t enter into contracts with people who will break their promises in the future.
Perfect people never need the help of government or anyone.
I am sorry that you think the distinctions you have manufactured are “real” instead of products of an arbitrary socially constructed system that happens to suit your preferences. There is more than one way to frame the world in terms of who is at fault.
April 15, 2010, 6:22 pmBC says:
The mind reels.
April 15, 2010, 6:41 pmOpenVolokh says:
Patent Lawyer:
The word “is” is a verb. The subject is your assumptions. It is a sentence. I will admit that I do not focus on grammar too much on blog comments. It is not worth my time. But THIS was a sentence with a subject, verb, and object.
Well, I can’t speak for other “pro-regulation types,” but I happen to value my freedom a whole hell of a lot. And if you want to find out if that is true, why don’t you come try to burglarize my house where you will find yourself on the other side of my gun.
Maybe the issue is not with “pro-regulation” types but with your uncharitable assumptions about them? I am not defending every whacko liberal, but don’t think that freedom is just “your” thing. You freak! And I mean freak in the nicest possible way! =)
Great. I agree with vouchers. Keep in mind that the taxes to pay for vouchers are involuntary.
I am only for vouchers because I believe it will improve education. I also think parents should be able to opt out and be able to homeschool their children, but if they do their voucher should be drastically reduced to that needed to pay for books and basic supplies.
I don’t think it is wrong for public education to be compulsory. My beliefs in favor of vouchers and homeschooling are more pragmatic.
Well, it is true that as a lawyer, I have often fantasized of stepping into court and yelling in an authoritative voice to the judge. “But I am the law!”
What if the King did come to your apartment, handcuff you, take you to Burger King and force you to buy a Whopper? You would expect ME to pay to protect you! Why should I have to? Your argument that government shouldn’t do good things because taxes are involuntary is a bunch of bull. It is only because you are wimpy patent lawyer who can’t defend his own property that you think everyone should chip in to pay to protect it! =)
Tax subsidies for a gym membership are more imposing than a public service announcement? Let’s consider. Both would be funded by involuntary taxes. Neither would force anyone to do anything… I am not seeing it.
As far as public universities “hurting” poor students by requiring them to exercise, all I have to say is “the horror! the horror!” Those rich kids “get” to have unhealthy habits. What a “privilege.”
First of all, I never said I always prefer nudges. I never said it and I never will. I did use the word mandatory, didn’t I? I never said mandatory PE class was a mere nudge.
I do think it is a perfectly reasonable requirement for me to advocate for such a requirement at public universities which use MY tax dollars to pay for the education of students. No one is forcing anyone to get a college education. You can always go work at Burger King where you get to kidnap people and force them to be buy Whoppers! With a job like that, who needs college anyway?? It may not pay very well, but it is pretty damn exciting.
Really? Protect your own damn property! You say that it is different only because you LIKE these sorts paternalistic government services for yourself. Because you know, between the two of us, I am stronger than you and I would take your property if the big bad government weren’t there to protect you, using money involuntarily taken from taxpayers. Just like you LIKE public education. Just like you LIKE to file for patents so that your clients can use the full power of government to push people around.
(I am kidding. I wouldn’t take your property. In fact, I would probably have to hire a bunch of patent lawyer thugs to protect my property if the government didn’t protect it!)
April 15, 2010, 7:00 pmOpenVolokh says:
Small minds often do!
If you put your house on the beach and suffer from damage from a hurricane, are you the “innocent” victim of the hurricane, are you the idiot who put his house on the beach in a hurricane zone? If you live in Oklahoma and your house is torn up by a tornado, why isn’t it your own fault for building or buying a house in a tornado zone? If you get robbed, why isn’t it your own fault for not being able to defend yourself and also not exercising common sense in terms of your activities?
Whenever we decide to help anyone, we do it DESPITE the fact that they are flawed and imperfect. Not BECAUSE they are perfect.
April 15, 2010, 7:16 pmOpenVolokh says:
PersonFromPorlock,
I am only telling you this for your own good. But nagging is good for you!
*cackles gleefully*
April 15, 2010, 7:24 pmBC says:
Depends. I imagine the foreseeability of a hurricane striking that particular location would probably enter into the “idiot or innocent?” calculus, somewhere.
I’m sure this is going somewhere, eventually…
To a certain extent it might well be. But there’s a pretty basic difference between the weather and a robber in that the weather lacks agency. Somebody who loses property to the weather and somebody who loses property to a robber may both be idiots, but the latter is also a victim of force or fraud perpetrated by another individual.
What does “perfect” have to do with anything? I’m not perfect, and I still don’t want “the public” sticking its snout into my affairs, unwarranted, subsidized by my tax dollars.
April 15, 2010, 8:19 pmOpenVolokh says:
The threat in one case may be from a human and in the other case from a natural source. But why does that mean I should be FORCED to pay to protect from one threat and not the other?
The point is, the argument is often made that people who have problems because they are imperfect should not receive support or help in accomplishing their goals. Instead, they should take personal responsibility. But at the same time, people don’t think people should take total personal responsibility in other contexts, but instead should receive help.
The point is simply this. The boundary of what is solely a matter of personal responsibility and on what matters individuals should receive support or help is not objectively ascertainable. People who act as though it is a simple matter and that the government should simply NEVER take taxpayer money and use it to help people who are imperfect in some way are not really making a very good argument. When you start talking about taking services that help THEM, then they suddenly think it is just dandy to use taxpayer money for that purpose.
You don’t want to help people by requiring that restaurants publish calorie counts. You think it is none of the governments business. But you do want to help people using taxpayer dollars for other purposes. But I do want the government to help me determine what is wise to eat by requiring restaurants to publish calorie counts on their menus. And maybe I don’t think taxpayer dollars should be spent on the things YOU think they should be spent on. You can’t say your preferences are better than mine. Your saying that it is none of the government’s business is just a different way of saying you have different preferences, just in an especially self-righteous way. By framing it that way, you are trying to put yourself in a superior position than those with a different opinion.
April 15, 2010, 8:35 pmAmerican Psikhushka says:
OpenVolokh-
But we do not need to logically prove that eating cheeseburger after cheeseburger after cheeseburger until you suffer extreme negative consequences is not really a rational “revealed preference,” something that is logically impossible to do. If you go the “revealed preference” route, then everything we do is rational, which means that saying something is rational is to say precisely nothing about it at all. We only have to observe that this behavior is so destructive as to be the very definition of irrationality.
What’s wrong with a cheeseburger? The meat? Atkins has shown us that meat and animal fats are not bad. The bun? The “food pyramid” tells us that breads and grains are OK. But Atkins says these are bad – and population studies show that societies that ate lots of meat and animal fats and were healthy developed Western levels of heart disease within decades of adopting a Western diet high in breads, grains, and sugar. (This all assumes normal people whose metabolisms aren’t being crippled.)
Calories are just one factor in the complex field of nutrition.
The problem is your definition of “irrationality” is just as subjective as your claims about other people’s preferences. So you just substitute your opinion and agenda. Also, your claims about regulators are laughable seeing as how susceptible our current system is to lobbying and manipulation.
Now the example discussed is not that bad – calories are pretty easily and scientifically measurable. (Although redundant, anyone interested in counting calories can do so without forcing the restaurants to post.) But hypothetically if we had a measurement methodology that was very flawed and problematic – for example indicating that a taco at Taco Bell had 1000 calories while an identical taco at Mighty Taco had 500 calories – it is pretty easy to show that throwing those numbers around would be pointless, misleading, and discriminatory. Especially if that kind of measurement system involved something other than food and were coupled with policies that were exploitative, profiteering, racist, oppressive, etc.
Are you for or against public schools? If you are a libertarian who is opposed to public schools, then there is no point in further conversation. Your value system is so different than mine (I would say out of whack) that there is no point in further discussion.
Nice emotional manipulation. You realize that high taxes weaken the private economy and increase unemployment and poverty, right? Can we say you are pro-unemployment and pro-poverty? That’s very out of line with my value system.
It is every bit as paternalistic to impose intellectual property rights on all individuals in order to protect the market power of the inventor or to foster invention which we speculatively assume will not occur without this very coercive government intervention.
Wrong. Intellectual property rights just allow someone to profit from their creation. You are free to create or buy your own intellectual property and compete. It’s a lot like real estate – just because the government will keep other people off your property doesn’t mean they are “protecting” your market, other people are free to buy or homestead their own property and compete.
Why isn’t it paternalistic for the government to come help you when you are the victim of robbery? Why isn’t it paternalistic for the government to help you if you are the victim of a contract breach? It seems to me that whenever the government does anything to someone with any problem whatsoever, one could emotionally call that action “paternalistic.” That is, rather than the label “paternalist” being a rational policy critique, it is merely an childish emotional move.
First of all, as noted above those advocating “libertarian paternalism” created the term themselves.
Generally police, fire, and emergency services are considered part of the services for which we pay taxes. If they stop providing them they should refund and stop collecting the taxes that funded them. Nannying and busybodying generally aren’t recognized as part of those services, even though certain interests are trying to make them so.
As other posters have mentioned, generally “libertarian paternalism” involves the government trying to control behavior that isn’t violating anyone else’s rights, whereas the situations you mentioned were cases where the government was preventing or remedying violations of someone’s rights. Very different situations.
April 15, 2010, 8:40 pmBC says:
You shouldn’t be. Next question?
Watch me.
April 15, 2010, 9:13 pmOpenVolokh says:
American Psikhushka,
First of all, I agree that a useful definition of rationality is not completely without subjective content. Without subjective content, all rationality would be is that you do whatever you want, which would make animals “rational” as mentioned earlier.
The way to determine what is “rational” goal is through democracy. I believe that an overwhelming number of people would agree that overeating (and I was not trying to single out meat), also known as gluttony, is not calculated to advance one’s serious long term interests, but is more a matter of satisfying a much more fleeting preference.
You may say that subjectivity in the definition of rationality is a problem. I disagree. A definition of rationality that does not include any contestable opinions is not very useful.
In a totally objective world, we are nothing more than a collection of atoms. And you can’t say anything about anything. In that world, murder is nothing more than something that changes the arrangement of atoms in the universe in a manner that would have occurred anyway. There is no such thing as a wholly objective view of rationality, in terms of what is rational and what irrational. At least not one that is very useful.
Of course. But many people who would be interested or surprised by this information do not actively seek it out. Not being perfect about processing information might be a flaw, but it is a flaw that we all share. Making it easier for people to process relevant information is a good thing.
Of course calorie information isn’t everything. No one said it was everything. But it is something.
This is a real problem. I think I already noted that. But I think that most people who go into public service genuinely want to do a good job. I also think we can design systems to partially overcome their flaws, whether those flaws consist of bias or greed. What I am not arguing is that there will ever be a utopia.
I agree with this.
Well, I certainly can see instances where excessive taxes would increase poverty. But to act as though taxes always increase poverty regardless of what purpose they are used for seems off. If this is what you believe, I can easily see why you would have different policy preferences than I do. But I think this view is much too mechanical.
I think the idea that taxes always increase poverty would come from a “assuming everything constant” point of view. But if you look at the evidence, you will not find that countries with higher tax rates do not always or even usually have a higher poverty rate. A lot of things that government does is GOOD for the economy. For example, creating the Internet.
The difference between real estate and intellectual property is that real estate is naturally and inevitably rivalrous. That is, my use of a piece of real estate for a farm would naturally prevent your use for the same purpose. Intellectual property is naturally nonrivalrous. That is my use of an idea does not naturally exclude your use of the idea. So, in some sense, physical property is a concept that will exist in nature even without government. (Even animals have the concept of territory.) Intellectual property, in contrast, is basically an entirely artificial and coercive institution designed to benefit society. That is, government coercively takes the natural liberty of the individuals to use ideas, all for the better good of society. I happen to agree with intellectual property, because I really do believe innovation would be stifled without it and having innovation is good for society. But I am under no illusions of that the good of greater innovation is achieved by coercing individuals in an artificial way.
Right. And that is only because a majority prefers that these services be provided by government and funded through taxation that is voluntary for the society, but coercive for individuals who dissent. If I think that government should provide a service that it doesn’t now provide, say a free college education to everyone who achieves a particular GPA in high school, it is my right to advocate for it, just as it is your right advocate for ending the public provision of fire services.
April 15, 2010, 9:18 pmOpenVolokh says:
BC,
You can say your preferences are better than mine. You can say anything you want. But you aren’t going to convince me of that. =)
I am forced to help people who are robbed when I pay taxes to support police services and a court system that is used to protect such people. That is, even if I dissent as an individual from the decision of the majority to provide such services, I am still coerced to pay taxes in order to pay for those services. You can’t insist that I must pay for this at the level you prefer, and then assert that if I assemble a democratic majority that wants to provide a different good, that we cannot do likewise.
Now, you may be of the opinion that I should not have to pay for anything that I do not personally support. But that is just a recipe for anarchy. Also, in such a situation, national defense would be impossible and we would find our government overthrown and those of us who survived would be subject to coercion from a different government. Anarchy, whatever its theoretical appeal, is simply impractical.
April 15, 2010, 9:27 pmBC says:
I’m of the opinion that theft is morally abhorrent, whether it’s done in person or via the terrible proxy of democracy.
Assumes facts not in evidence.
April 15, 2010, 9:51 pmDesiderius says:
Keep on truckin’, MDT. Don’t let the man (or men) get you down.
BTW, the Nanny State is bad enough, but mostly harmless, if costly.
The bigger problem is the continuing emergence of the Lenny State. It will love you to death.
April 15, 2010, 9:58 pmOpenVolokh says:
I am of the opinion that an anarchist utopia is morally abhorrent, however well-intentioned. =)
To move from anarchy to order, one must accept taxes for the greater good. And then, what does or does not constitute the greater good is open for debate.
You may say that taxes for anything which you do not personally approve is theft out of one side of your mouth, but then say I must pay taxes for national defense even if I don’t approve out of the other side of your mouth, but I am not buying it.
You are entitled to your own personal morality. But you aren’t entitled to impose it upon anyone without democratic consent.
April 15, 2010, 10:13 pmAllan Walstad says:
As Patent Lawyer pointed out to you awhile back, OpenVolokh, there is a fundamental difference between being taxed to pay for defense of liberty versus being taxed to subsidize others’ living expenses or mistaken judgments, or being subject to casual coercion or coercive manipulation of your choice structure with regard to, say, 401(k)s and calorie lists. You may disagree that people have a right to liberty, but there is no inconsistency in a libertarian position that notes the necessity of defending liberty and the possibility that the maximal maintainable level of liberty will be less than 100%, precisely because some infringement may be necessary in order to deploy the resources needed to head off far worse infringement. When it comes to defense we hang together or hang separately to a degree that does not generally apply to other goods and services, although perhaps it does to some.
Some of the supposed libertarian paternalistic recommendations seem rather innocuous, and might even make sense on a case-by-case basis. But the clear lessons of history are that every new rationale for more government meddling eventually gets pushed as far as the pols and bureaucrats dare, and that those pols and bureaucrats aren’t necessarily more rational, overall, than the rest of us.
April 15, 2010, 10:32 pmBC says:
It’s nice that you think so. I will not, however, be holding my breath waiting for you to actually produce some evidence that this is the case.
It’s cute watching you put words in my mouth. I didn’t say that you must pay taxes for national defense. Rather, I pointed out that your claim (that absent government coercion we’d be unable to pay for national defense and would quickly be conquered by God-only-knows-who) is unproven.
You’re quite confused. I’m not interested in imposing anything on anyone. I simply want — no, demand — the same courtesy, and I’m completely unimpressed that you managed to get 50% + 1 of the relevant population to agree that it’s okay to not leave me alone.
April 15, 2010, 10:52 pmOpenVolokh says:
Allan Walstead,
Are these taxes in “defense of liberty” coercively gathered in violation of my liberty? Why should I therefore believe they are liberty enhancing? Also, I have a more broad definition of liberty than you. I do not believe that those who live in a state of poverty and dependence have as much liberty as those who live in a more economically prosperous state.
Just as you think that coercively taking taxes from me in order to protect your property might, on balance, increase liberty (even though it clearly decreases my liberty in an immediate sense when I have to pay taxes for a level of police services that I may very well think is excessive) I might think that coercively taking taxes from you to pay for education or other means that I believe decrease poverty will, on balance, increase liberty (even though it decreases your liberty in an immediate sense when you have to pay taxes for a level of education services that you may very well think is excessive).
And why do you have to tax me to pay to protect your property anyway? It is because you are imperfect. If you were perfect, you could defend your own property. So, I really am not merely paying just to protect your liberty, I am paying to fix a problem that arises only due to your imperfect nature.
If you are willing to listen to and give a fair hearing to specific ideas on a case-by-case basis, I don’t really think anyone can reasonably ask any more of you. The real question is whether you can be fair or whether preconceptions will end up weighing too heavily. I don’t mean to single you out. I think we all have to ask ourselves this question concerning our biases.
April 15, 2010, 11:00 pmOpenVolokh says:
BC,
Are you sure you’re not an anarchist?
What makes you think any society could persist without national defense? Or is there some reason that you think national defense does not require taxes?
April 15, 2010, 11:04 pmDesiderius says:
OV,
“Also, I have a more broad definition of liberty than you. I do not believe that those who live in a state of poverty and dependence have as much liberty as those who live in a more economically prosperous state.”
See Berlin, Isaiah, from Two Concepts of Liberty:
“What troubles the consciences of Western liberals is, I think, the belief, not that the freedom
that men seek differs according to their social or economic conditions, but that the minority who
possess it have gained it by exploiting, or, at least, averting their gaze from, the vast majority who
do not. They believe, with good reason, that if individual liberty is an ultimate end for human
beings, none should be deprived of it by others; least of all that some should enjoy it at the expense
of others. Equality of liberty; not to treat others as I should not wish them to treat me; repayment of
my debt to those who alone have made possible my liberty or prosperity or enlightenment; justice, in
its simplest and most universal sense – these are the foundations of liberal morality. Liberty is not
the only goal of men. I can, like the Russian critic Belinsky, say that if others are to be deprived of it
- if my brothers are to remain in poverty, squalor and chains – then I do not want it for myself, I
reject it with both hands and infinitely prefer to share their fate. But nothing is gained by a confusion
of terms. To avoid glaring inequality or widespread misery I am ready to sacrifice some, or all, of
my freedom: I may do so willingly and freely; but it is freedom that I am giving up for the sake of
justice or equality or the love of my fellow men. I should be guilt-stricken, and rightly so, if I were
not, in some circumstances, ready to make this sacrifice. But a sacrifice is not an increase in what is
being sacrificed, namely freedom, however great the moral need or the compensation for it.
Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human
April 15, 2010, 11:39 pmhappiness or a quiet conscience. If the liberty of myself or my class or nation depends on the misery
of a number of other human beings, the system which promotes this is unjust and immoral. But if I
curtail or lose my freedom in order to lessen the shame of such inequality, and do not thereby
materially increase the individual liberty of others, an absolute loss of liberty occurs. This may be
compensated for by a gain in justice or in happiness or in peace, but the loss of freedom – ‘social’ or
‘economic’ – is increased.”
OpenVolokh says:
Desiderius,
I am not talking about equality. The distinction you are making here might make sense if I was. I am talking about some basic level of material well-being that allows some level of independence from others. Also, some level of education so that the choices you make are meaningful.
Basically, I believe that true liberty requires some minimal degree of positive liberty (the ability to make choices) and does not merely consist of negative liberty (the right to be left alone).
I should point out that those who do not have some level of access to economic resources do not even have the right to be left alone. Not in reality. Homeless members of our society are constantly harassed by police and authorities, not to mention subject to various other abuses by private citizens, because they do not have anywhere to go where they are seen as belonging.
My basic definition of liberty is the ability to make choices. The less ability you have to make choices, the less free you are. Lack of economic resources directly translates into less freedom to make certain choices.
The issue of regulations is precisely there limitation of the choices of those who are regulated.
On the other hand, I could care less about economic equality. It doesn’t really matter to me that most people cannot afford to travel by private jet.
At some point, any disagreement with my definition of liberty is simply pointless. It is just a matter of using different words for the same thing. You can say there are tradeoffs between types of liberty to some degree, and I would agree with that. Or you can carve out certain types of liberty and label them differently and say there are tradeoffs between liberty and X, whatever you call it. The only thing about X, is there is no good word for it. X is not equality. X is not fairness. X is not justice, not exactly. (One could say that a deprivation of liberty is an injustice and one could say that deprivation of X is injustice, but X itself is not justice any more than the other types of liberty are justice.) X is definitely not just culture and it definitely is not just happiness. X is the ability to make choices with a reasonable degree of independence from interference (from anyone, public official or private citizen) and pursue one’s own path in life. The best word for that, it seems to me is liberty. But if you disagree about the word, I don’t see that as particularly important. It is the concept that concerns me.
April 16, 2010, 12:08 amBC says:
What makes you think a robust national defense couldn’t exist without coercive taxation?
April 16, 2010, 1:17 amOpenVolokh says:
What makes you think it could? You are the one proposing a change to the status quo. Don’t try to shift the burden to me. =)
April 16, 2010, 1:54 amRicardo says:
That could be applied to just about every single political debate within the United States. Don’t like ACORN or corporate campaign contributions and think it corrupts the political process? Compare this to the Maguindanao massacre in the Philippines where 57 people associated with a gubernatorial candidate were gunned down in cold blood by the incumbent governor’s family. Or study the history of armed gunmen blatantly stuffing ballot boxes in Bihar, India. Or you want to complain about how high taxes are on business? Be thankful you can even operate a business in the U.S. without routinely paying far larger sums of extortion money to gangsters or local politicians (often one in the same) and that you don’t have to worry about your children being kidnapped for ransom. Etc.
If we’re going to compare every political issue to the reality of life in much less well-off countries, both sides of every political debate would very quickly run out of anything that they want to change.
April 16, 2010, 3:50 amjuris imprudent says:
There is more than one way to frame the world in terms of who is at fault.
Spoken like a personal injury lawyer!
April 16, 2010, 3:59 ammischief says:
Yes, just like jumping up and down on libertarian paternalism — in jackboots if necessary — to keep it from being put in place is better than letting it be put in place and then going about the wearisome business of removing it, where even if we succeed, we still have to suffer in the interim while it reigns, and
April 16, 2010, 12:16 pmspherical cowsunbiased and benevolent experts try to push us around like chess pieces (and are agape with horror every time their nudge doesn’t produce the result expected).BC says:
Uh, no. You’re the one making all these wild-ass predictions of armageddon, invasions, dogs and cats living together, and mass hysteria if government ceases stealing from people. I’m not denying that altering the status quo would cause some upheaval; I’m simply demanding that you substantiate your various auguries.
Re: national defense. You seem to think it’s pretty important and valuable. Do you have any reason to doubt that yours is a widespread sentiment, such that an extraordinary number of people, if given the option, would refuse to fund it voluntarily?
April 16, 2010, 2:34 pmAmerican Psikhushka says:
OpenVolokh-
Without subjective content, all rationality would be is that you do whatever you want, which would make animals “rational” as mentioned earlier.
Not quite. The whole concept is subjective and depends on context and usage. Generally, libertarians regard it as doing what one wants as long as they are not violating anyone else’s rights.
The way to determine what is “rational” goal is through democracy. I believe that an overwhelming number of people would agree that overeating (and I was not trying to single out meat), also known as gluttony, is not calculated to advance one’s serious long term interests, but is more a matter of satisfying a much more fleeting preference.
If you are advocating we “police” how much or what types of of food people should be “allowed” to eat: No, that would be expensive, intrusive, childish, insulting, and controlling. It’s no one’s business, collectively or individually. I think if a lot of people understood what taxation actually does to the economy things like this would be rejected as government concerns. These kind of efforts survive because the vast majority of the population don’t understand that above a certain very low level for essential services every dollar of taxation taken from the private economy weakens it. That means less jobs, more poverty, and less overall wealth as a society.
Note this would not be the end of doing good works for the common good. Those who are really concerned about health, nutrition, etc. could still write books, start charities, start businesses, volunteer, fund ad campaigns, fund research, etc. aimed at helping people with nutrition and health. Society would be better off because the economy would not be weakened. Liberty, freedom, and rights would not be infringed. And people could still undertake voluntary efforts to help the common good.
Of course. But many people who would be interested or surprised by this information do not actively seek it out. Not being perfect about processing information might be a flaw, but it is a flaw that we all share. Making it easier for people to process relevant information is a good thing.
Great. Get together with the other people concerned about the issue, start a charity, and produce websites, ad campaigns, smartphone apps, handouts, etc. that provide the information. Don’t weaken the economy by using taxpayer money for it.
This is a real problem. I think I already noted that. But I think that most people who go into public service genuinely want to do a good job. I also think we can design systems to partially overcome their flaws, whether those flaws consist of bias or greed.
Very, very doubtful. Not the intentions – yes, most in public service do generally want to do a good job. But many in public service don’t understand that taxation (beyond a very low level for essential services) weakens the economy. And it can be tempting for some to spend money that isn’t theirs. Especially if they can get benefits for the spending now and defer any negative effects until later.
The best alternative is to educate everyone about the harmful effects of taxation so everyone is encouraged to push for smaller government and lower taxation.
Well, I certainly can see instances where excessive taxes would increase poverty. But to act as though taxes always increase poverty regardless of what purpose they are used for seems off. If this is what you believe, I can easily see why you would have different policy preferences than I do. But I think this view is much too mechanical.
It actually is pretty mechanical. Countries with the highest tax rates would be the communist/socialist countries. Basically the taxation there is 100% – the government basically takes everything (except from a very small elite political class) and redistributes it. North Korea is probably the closest thing to true communism/socialism. The Economic Freedom Index rated it last out of all rated countries.(War torn or collapsed countries aren’t rated.) The CIA World Factbook estimates its GDP per capita at $1,900.(For comparison US GDP per capita is $46,400.)
Just scanning those two websites will show you that there is a pretty pronounced mechanical relationship. The countries of the the EU are generally more taxed than us, resulting in the phenomena of Eurosclerosis.
I think the idea that taxes always increase poverty would come from a “assuming everything constant” point of view. But if you look at the evidence, you will not find that countries with higher tax rates do not always or even usually have a higher poverty rate. A lot of things that government does is GOOD for the economy. For example, creating the Internet.
Generally the lower taxed countries are more prosperous. But note that you don’t get to see the benefits from the wealthier society that would have resulted from lower taxation rates. See Bastiat’s essay on the “Seen and Unseen”. We don’t get to see the wonderful inventions that the private sector would have created. This is basically an unseen tragedy – think of all the wonderful things inventors in the USSR and other communist countries would have created had their economies been more free. It’s not as extreme in other economies, but make no mistake – the money taken in taxes would have resulted in more innovation, invention, and increased living standards had it been left in the hands of the people who earned it.
The difference between real estate and intellectual property is that real estate is naturally and inevitably rivalrous. That is, my use of a piece of real estate for a farm would naturally prevent your use for the same purpose.
Theorhetically in all but the smallest plots of land there is a lot of unused space in real estate. We as a society have just decided to enforce exclusion to encourage people to invest and make a market in real estate and be able to more effectively profit from that investment.
Intellectual property is naturally nonrivalrous. That is my use of an idea does not naturally exclude your use of the idea.
Depending on your use, it may infringe on my ability to profit from my idea. So profitable use of ideas can be rivalrous. We have simply chosen to recognize the right of exclusion so creators and their licensees can profit from and make a market in the creation of intellectual property. Much like real estate.
That is, government coercively takes the natural liberty of the individuals to use ideas, all for the better good of society. I happen to agree with intellectual property, because I really do believe innovation would be stifled without it and having innovation is good for society. But I am under no illusions of that the good of greater innovation is achieved by coercing individuals in an artificial way.
Actually, from my point of view the government is just recognizing the creator’s right to exclude from uses of their creation. Rarely is anyone else being genuinely “coerced” – they are free to create or purchase their own intellectual property and compete.
Right. And that is only because a majority prefers that these services be provided by government and funded through taxation that is voluntary for the society, but coercive for individuals who dissent. If I think that government should provide a service that it doesn’t now provide, say a free college education to everyone who achieves a particular GPA in high school, it is my right to advocate for it, just as it is your right advocate for ending the public provision of fire services.
Basically. Although each service that you add will weaken the economy, increasing unemployment, slowing growth, etc. If more people understood this they would tend to reject the addition of new services. Your initiative would also tend to be destructive of capital, unless you had guaranteed jobs for all your graduates. There are already a lot of unemployed and underemployed degreed people. (More evidence that we need to cut taxes and spending to get the economy growing and creating jobs again.) Without some tight controls aimed at certain areas, you would just be manufacturing educated, unemployed people. If that money were left in the hands of the people that earned it the economy would grow and create new jobs, and people could save and go to school for the jobs they wanted.
Firefighting is an essential service, I generally don’t have a problem with the generally low tax amounts used to pay for it.(Of course if you had some corrupt firefighters that were stealing from people and doing other things that didn’t have anything to do with fighting fires I wouldn’t think twice about prosecuting them, suing them, and seizing the money.)
April 16, 2010, 10:14 pmAmerican Psikhushka says:
I wrote above:
Depending on your use, it may infringe on my ability to profit from my idea. So profitable use of ideas can be rivalrous. We have simply chosen to recognize the right of exclusion so creators and their licensees can profit from and make a market in the creation of intellectual property. Much like real estate.
and…
Actually, from my point of view the government is just recognizing the creator’s right to exclude from uses of their creation. Rarely is anyone else being genuinely “coerced” — they are free to create or purchase their own intellectual property and compete.
Or, to put it in a simple slogan:
Duplication does not equal creation.
April 17, 2010, 4:18 amTim Hulsey says:
In The Argument Clinic, by Richard Thaler, April 16th, 2010, at Cato Unbound, Richard Thaller says, “I likewise do not understand the big distinction Whitman makes between government vs. private use of libertarian Best Guess [paternalism].” The distinction is the same one the Founders recognized. Centralized government will take every opportunity it can to stretch its power, and, therefore can not be trusted to limit use of ANY controls or nudges!
April 17, 2010, 11:11 amg.e. Taylor says:
Is there any expectation of when the second volume in Czar Sunstein’s Trilogy will be released? I understand that the working title is “Libertarian Authoritarianism“.
April 19, 2010, 12:32 am