[Rushtalk] It's For Your Own Good!

John A. Quayle blueoval57 at verizon.net
Wed Feb 20 21:26:25 MST 2013



It’s For Your Own Good!




<http://www.nybooks.com/contributors/cass-r-sunstein/>Cass R. Sunstein


1.

In the United States, as in many other countries, 
obesity is a serious problem. New York Mayor 
Michael Bloomberg wants to do something about it. 
Influenced by many experts, he believes that soda 
is a contributing factor to increasing obesity 
rates and that large portion sizes are making the 
problem worse. In 2012, he proposed to ban the 
sale of sweetened drinks in containers larger 
than sixteen ounces at restaurants, delis, 
theaters, stadiums, and food courts. The New York 
City Board of Health approved the ban.
<http://www.nybooks.com/multimedia/view-photo/3678>
sunstein_1-030713.jpg


ConsumerFreedom.com

Detail of a 2012 advertisement protesting New 
York Mayor Michael Bloomberg’s proposed ban on 
the sale of soda in containers larger than sixteen ounces

Many people were outraged by what they saw as an 
egregious illustration of the nanny state in 
action. Why shouldn’t people be allowed to choose 
a large bottle of Coca-Cola? The Center for 
Consumer Freedom responded with a vivid 
advertisement, depicting Mayor Bloomberg in a (scary) nanny outfit.

But self-interested industries were not the only 
source of ridicule. Jon Stewart is a comedian, 
but he was hardly amused. A representative remark 
from one of his commentaries: “No!
I love this 
idea you have of banning sodas larger than 16 
ounces. It combines the draconian government 
overreach people love with the probable lack of results they expect.”

Many Americans abhor paternalism. They think that 
people should be able to go their own way, even 
if they end up in a ditch. When they run risks, 
even foolish ones, it isn’t anybody’s business 
that they do. In this respect, a significant 
strand in American culture appears to endorse the 
central argument of John Stuart Mill’s On 
Liberty. In his great essay, Mill insisted that 
as a general rule, government cannot legitimately 
coerce people if its only goal is to protect 
people from themselves. Mill contended that
the only purpose for which power can be 
rightfully exercised over any member of a 
civilized community, against his will, is to 
prevent harm to others. His own good, either 
physical or mental, is not a sufficient warrant. 
He cannot rightfully be compelled to do or 
forbear because it will be better for him to do 
so, because it will make him happier, because, in 
the opinion of others, to do so would be wise, or 
even 
right.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-1>1 


A lot of Americans agree. In recent decades, 
intense controversies have erupted over 
apparently sensible (and lifesaving) laws 
requiring people to buckle their seatbelts. When 
states require motorcyclists to wear helmets, 
numerous people object. The United States is 
facing a series of serious disputes about the 
boundaries of paternalism. The most obvious 
example is the “individual mandate” in the 
Affordable Care Act, upheld by the Supreme Court 
by a 5–4 vote, but still opposed by many critics, 
who seek to portray it as a form of unacceptable 
paternalism.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-2>2 
There are related controversies over anti-smoking 
initiatives and the “food police,” allegedly 
responsible for recent efforts to reduce the 
risks associated with obesity and unhealthy 
eating, including nutrition guidelines for school lunches.

Mill offered a number of independent 
justifications for his famous harm principle, but 
one of his most important claims is that 
individuals are in the best position to know what 
is good for them. In Mill’s view, the problem 
with outsiders, including government officials, 
is that they lack the necessary information. Mill 
insists that the individual “is the person most 
interested in his own well-being,” and the 
“ordinary man or woman has means of knowledge 
immeasurably surpassing those that can be possessed by any one else.”

When society seeks to overrule the individual’s 
judgment, Mill wrote, it does so on the basis of 
“general presumptions,” and these “may be 
altogether wrong, and even if right, are as 
likely as not to be misapplied to individual 
cases.” If the goal is to ensure that people’s 
lives go well, Mill contends that the best 
solution is for public officials to allow people 
to find their own path. Here, then, is an 
enduring argument, instrumental in character, on 
behalf of free markets and free choice in 
countless situations, including those in which 
human beings choose to run risks that may not turn out so well.



2.

Mill’s claim has a great deal of intuitive 
appeal. But is it right? That is largely an 
empirical question, and it cannot be adequately 
answered by introspection and intuition. In 
recent decades, some of the most important 
research in social science, coming from 
psychologists and behavioral economists, has been 
trying to answer it. That research is having a 
significant influence on public officials 
throughout the world. Many believe that 
behavioral findings are cutting away at some of 
the foundations of Mill’s harm principle, because 
they show that people make a lot of mistakes, and 
that those mistakes can prove extremely damaging.

For example, many of us show “present bias”: we 
tend to focus on today and neglect 
tomorrow.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-3>3 
For some people, the future is a foreign country, 
populated by 
strangers.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-4>4 
Many of us procrastinate and fail to take steps 
that would impose small short-term costs but 
produce large long-term gains. People may, for 
example, delay enrolling in a retirement plan, 
starting to diet or exercise, ceasing to smoke, 
going to the doctor, or using some valuable, 
cost-saving technology. Present bias can ensure 
serious long-term harm, including not merely 
economic losses but illness and premature death as well.

People also have a lot of trouble dealing with 
probability. In some of the most influential work 
in the last half-century of social science, 
Daniel Kahneman and Amos Tversky showed that in 
assessing probabilities, human beings tend to use 
mental shortcuts, or “heuristics,” that generally 
work well, but that can also get us into 
trouble.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-5>5 
An example is the “availability heuristic.” When 
people use it, their judgments about 
probability­of a terrorist attack, an 
environmental disaster, a hurricane, a crime­are 
affected by whether a recent event comes readily 
to mind. If an event is cognitively 
“available”­for example, if people have recently 
suffered damage from a hurricane­they might well 
overestimate the risk. If they can recall few or 
no examples of harm, they might well underestimate the risk.

A great deal of research finds that most people 
are unrealistically optimistic, in the sense that 
their own predictions about their behavior and 
their prospects are skewed in the optimistic 
direction.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-6>6 
In one study, over 80 percent of drivers were 
found to believe that they were safer and more 
skillful than the median driver. Many smokers 
have an accurate sense of the statistical risks, 
but some smokers have been found to believe that 
they personally are less likely to face lung 
cancer and heart disease than the average 
nonsmoker.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-7>7 
Optimism is far from the worst of human 
characteristics, but if people are 
unrealistically optimistic, they may decline to 
take sensible precautions against real risks. 
Contrary to Mill, outsiders may be in a much 
better position to know the probabilities than 
people who are making choices for themselves.

Emphasizing these and related behavioral 
findings, many people have been arguing for a new 
form of paternalism, one that preserves freedom 
of choice, but that also steers citizens in 
directions that will make their lives go better 
by their own 
lights.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-8>8 
(Full disclosure: the behavioral economist 
Richard Thaler and I have argued on behalf of 
what we call libertarian paternalism, known less 
formally as 
“nudges.”<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-9>9) 
For example, cell phones, computers, privacy 
agreements, mortgages, and rental car contracts 
come with default rules that specify what happens 
if people do nothing at all to protect 
themselves. Default rules are a classic nudge, 
and they matter because doing nothing is exactly 
what people will often do. Many employees have 
not signed up for 401(k) plans, even when it 
seems clearly in their interest to do so. A 
promising response, successfully increasing 
participation and strongly promoted by President 
Obama, is to establish a default rule in favor of 
enrollment, so that employees will benefit from 
retirement plans unless they opt 
out.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-10>10 
In many situations, default rates have large 
effects on outcomes, indeed larger than 
significant economic 
incentives.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-11>11

Default rules are merely one kind of “choice 
architecture,” a phrase that may refer to the 
design of grocery stores, for example, so that 
the fresh vegetables are prominent; the order in 
which items are listed on a restaurant menu; 
visible official warnings; public education 
campaigns; the layout of websites; and a range of 
other influences on people’s choices. Such 
examples suggest that mildly paternalistic 
approaches can use choice architecture in order 
to improve outcomes for large numbers of people 
without forcing anyone to do anything.

In the United States, behavioral findings have 
played an unmistakable part in recent regulations 
involving retirement savings, fuel economy, 
energy efficiency, environmental protection, 
health care, and 
obesity.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-12>12 
In the United Kingdom, Prime Minister David 
Cameron has created a Behavioural Insights Team, 
sometimes known as the Nudge Unit, with the 
specific goal of incorporating an understanding 
of human behavior into policy 
initiatives.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/#fn-13>13 
In short, behavioral economics is having a large 
impact all over the world, and the emphasis on 
human error is raising legitimate questions about 
the uses and limits of paternalism.



3.

Until now, we have lacked a serious philosophical 
discussion of whether and how recent behavioral 
findings undermine Mill’s harm principle and thus 
open the way toward paternalism. Sarah Conly’s 
illuminating book Against Autonomy provides such 
a discussion. Her starting point is that in light 
of the recent findings, we should be able to 
agree that Mill was quite wrong about the 
competence of human beings as choosers. “We are 
too fat, we are too much in debt, and we save too 
little for the future.” With that claim in mind, 
Conly insists that coercion should not be ruled 
out of bounds. She wants to go far beyond nudges. 
In her view, the appropriate government response 
to human errors depends not on high-level 
abstractions about the value of choice, but on 
pragmatic judgments about the costs and benefits 
of paternalistic interventions. Even when there 
is only harm to self, she thinks that government 
may and indeed must act paternalistically so long 
as the benefits justify the costs.

Conly is quite aware that her view runs up 
against widespread intuitions and commitments. 
For many people, a benefit may consist precisely 
in their ability to choose freely even if the 
outcome is disappointing. She responds that 
autonomy is “not valuable enough to offset what 
we lose by leaving people to their own autonomous 
choices.” Conly is aware that people often prefer 
to choose freely and may be exceedingly 
frustrated if government overrides their choices. 
If a paternalistic intervention would cause 
frustration, it is imposing a cost, and that cost 
must count in the overall calculus. But Conly 
insists that people’s frustration is merely one 
consideration among many. If a paternalistic 
intervention can prevent long-term harm­for 
example, by eliminating risks of premature 
death­it might well be justified even if people are keenly frustrated by it.

To Mill’s claim that individuals are uniquely 
well situated to know what is best for them, 
Conly objects that Mill failed to make a critical 
distinction between means and ends. True, people 
may know what their ends are, but sometimes they 
go wrong when they choose how to get them. Most 
people want to be healthy and to live long lives. 
If people are gaining a lot of weight, and hence 
jeopardizing their health, Conly supports 
paternalism­for example, she favors reducing 
portion size for many popular foods, on the 
theory that large, fattening servings can 
undermine people’s own goals. In her words, 
paternalism is justified whenthe person left to 
choose freely may choose poorly, in the sense 
that his choice will not get him what he wants in 
the long run, and is chosen solely because of 
errors in instrumental reasoning.

Because of her focus on the means to the ends 
people want, Conly’s preferred form of 
paternalism is far more modest than imaginable alternatives.

At the same time, Conly insists that mandates and 
bans can be much more effective than mere nudges. 
If the benefits justify the costs, she is willing 
to eliminate freedom of choice, not to prevent 
people from obtaining their own goals but to 
ensure that they do so. Following a long line of 
liberal thinking, and in a way that responds 
directly to potential objections, Conly 
emphatically rejects “perfectionism,” understood 
as the view that people should be required to 
live lives that the government believes to be best or most worthwhile.

Because hers is a paternalism of means rather 
than ends, she would not authorize government to 
stamp out sin (as, for example, by forbidding 
certain forms of sexual behavior) or otherwise 
direct people to follow official views about what 
a good life entails. She wants government to act 
to overcome cognitive errors while respecting 
people’s judgments about their own needs, goals, and values.

For coercive paternalism to be justified, Conly 
contends that four criteria must be met. First, 
the activity that paternalists seek to prevent 
must genuinely be opposed to people’s long-term 
ends as judged by people themselves. If people 
really love collecting comic books, stamps, or 
license plates, there is no occasion to intervene.

Second, coercive measures must be effective 
rather than futile. Prohibition didn’t work, and 
officials shouldn’t adopt strategies that fail. 
Third, the benefits must exceed the costs. To 
know whether they do, would-be paternalists must 
assess both material and psychological benefits 
and costs (including not only the frustration 
experienced by those who lose the power to choose 
but also the losses experienced by those who are 
coerced into something bad for them). Fourth, the 
measure in question must be more effective than 
the reasonable alternatives. If an educational 
campaign would have the benefits of a prohibition 
without the costs, then Conly favors the educational campaign.

Applying these criteria, Conly thinks that New 
York’s ban on trans fats is an excellent example 
of justifiable coercion. On the basis of the 
evidence as she understands it, the ban has been 
effective in conferring significant public health 
benefits, and those benefits greatly exceed its 
costs. Focused on the problem of obesity, Conly 
invokes similar points in support of regulations 
designed to reduce portion sizes.

She is far more ambivalent about Mayor 
Bloomberg’s effort to convince the US Department 
of Agriculture to authorize a ban on the use of 
food stamps to buy soda. She is not convinced 
that the health benefits would be significant, 
and she emphasizes that people really do enjoy drinking soda.

Conly’s most controversial claim is that because 
the health risks of smoking are so serious, the 
government should ban it. She is aware that many 
people like to smoke, that a ban could create 
black markets, and that both of these points 
count against a ban. But she concludes that 
education, warnings, and other nudges are 
insufficiently effective, and that a flat 
prohibition is likely to be justified by careful 
consideration of both benefits and costs, 
including the costs to the public of treating 
lung cancer and other consequences of smoking.



4.

Conly’s argument is careful, provocative, and 
novel, and it is a fundamental challenge to Mill 
and the many people who follow him. But it is in 
less severe tension with current practices than 
it might seem. A degree of paternalism is built 
into the workings of the modern regulatory state. 
Under long-standing law, you have to obtain a 
prescription to get a wide range of medicines. 
The Occupational Safety and Health Administration 
forbids people from working in unsafe conditions 
even if they would willingly do so. Both the Food 
and Drug Administration and the Department of 
Agriculture regulate food safety, and you are not 
allowed to buy foods that they ban, even if you 
are convinced that they are perfectly safe. One 
of Conly’s points is that the government already 
makes many decisions for us, and she believes that is just fine.

A natural objection is that autonomy is an end in 
itself and not merely a means. On this view, 
people should be entitled to choose as they like, 
even if they end up choosing poorly. In a free 
society, people must be allowed to make their own 
mistakes, and to the extent possible learn from 
them, rather than facing correction and 
punishment from bureaucratic meddlers. Conly 
responds that when government makes (some) 
decisions for us, we gain not only in personal 
welfare but also in autonomy, if only because our 
time is freed up to deal with what most concerns us:
It is very important to my continued existence 
that my car be safe, but I do not want to have to 
come up with a reasonable set of auto safety 
standards
. If the government were to do the 
research and ascertain that trans-fats are bad 
for my health and then remove trans-fats from my 
diet options, I’d be grateful.

She adds that if we are genuinely promoting 
people’s ends, and allowing paternalism only with 
respect to means, the claims of autonomy are 
sufficiently respected. As we shall shortly see, 
however, this suggestion raises questions of its own.

Conly is right to insist that no democratic 
government can or should live entirely within 
Mill’s strictures. But in my view, she 
underestimates the possibility that once all 
benefits and all costs are considered, we will 
generally be drawn to approaches that preserve 
freedom of choice. One reason involves the 
bluntness of coercive paternalism and the sheer 
diversity of people’s tastes and situations. Some 
of us care a great deal about the future, while 
others focus intensely on today and tomorrow. 
This difference may make perfect sense in light 
not of some bias toward the present, but of 
people’s different economic situations, ages, and 
valuations. Some people eat a lot more than 
others, and the reason may not be an absence of 
willpower or a neglect of long-term goals, but 
sheer enjoyment of food. Our ends are hardly 
limited to longevity and health; our short-term 
goals are a large part of what makes life worth living.

Conly favors a paternalism of means, but the line 
between means and ends can be fuzzy, and there is 
a risk that well-motivated efforts to promote 
people’s ends will end up mischaracterizing them. 
Sure, some of our decisions fail to promote our 
ends; if we neglect to rebalance our retirement 
accounts, we may end up with less money than we 
want. But some people who often rebalance their 
accounts end up doing poorly. In some cases, 
moreover, means-focused paternalists may be badly 
mistaken about people’s goals. Those who delay 
dieting may not be failing to promote their ends; 
they might simply care more about good meals than about losing weight.

Freedom of choice is an important safeguard 
against the potential mistakes of even the most 
well-motivated officials. Conly heavily depends 
on cost-benefit analysis, which is mandated by 
President Obama’s important executive order on 
federal 
regulation.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/?page=2#fn-14>14 
It is also a crucial means of disciplining the 
regulatory 
process.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/?page=2#fn-15>15 
But the same executive order emphasizes that 
government agencies must identify and consider 
approaches that “maintain flexibility and freedom 
of choice for the public.” Officials may well be 
subject to the same kinds of errors that concern 
Conly in the first place. If we embrace 
cost-benefit analysis, we might be inclined to 
favor freedom of choice as a way of promoting 
private learning and reflection, avoiding 
unjustified costs, and (perhaps more important) 
providing a safety valve in the event of official errors.

Conly is quite aware of the many difficulties 
that would be associated with efforts to prohibit 
the manufacture and sale of alcohol and 
cigarettes, but here the problems seem to me more 
significant than she allows. True, smoking 
produces extremely serious public health 
problems­over 400,000 deaths annually­and it is 
important to take further steps to reduce those 
problems.<http://www.nybooks.com/articles/archives/2013/mar/07/its-your-own-good/?page=2#fn-16>16 
But any ban would raise exceedingly serious 
difficulties, not least because it would be hard 
to enforce. A full analysis would have to 
consider such difficulties, as well as the claims 
of free choice. Black markets in cigarettes are 
not exactly what the United States most needs now.

Notwithstanding these objections, Conly 
convincingly argues that behavioral findings 
raise significant questions about Mill’s harm 
principle. When people are imposing serious risks 
on themselves, it is not enough to celebrate 
freedom of choice and ignore the consequences. 
What is needed is a better understanding of the 
causes and magnitude of those risks, and a 
careful assessment of what kind of response would do more good than harm.



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