Libertarian welfarism

California Law Review

Volumn 97, Issue 6, 2009, Pages 1651-1686

  Korobkin, Russell ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77950179397     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (186)

1. See Russell Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CALIF. L. REV. 1051, 1060-66 (2000).
2. Christine Jolls, Cass Sunstein, and Richard Thaler described this evidence as supporting "anti-antipaternalism-a skepticism about antipaternalism, but not an affirmative defense of paternalism." Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1541 (1998). (Pubitemid 128421723)
3. See, e.g., Edward L. Glaeser, Paternalism & Psychology, 73 U. CHI. L. REV. 133, 134 (2006) (claiming that government decision making "is likely to be particularly erroneous" because lawmakers are subject to the same biases as the individual but lack the incentive that individuals have to make optimal decisions) ;
4. cf. Jeffrey J. Rachlinski, The Uncertain Psychological Case for Paternalism, 97 NW. U. L. REV. 1165, 1168 (2003) ("The psychological case for paternalism... must rest on a relative assessment of the cognitive costs of improved decision against the costs of supplanting individual choice.").
5. Colin F. Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism", 151 U. PA. L. REV. 1211 (2003).
6. Id. at 1219.
7. George Loewenstein & Emily Haisley, The Economist as Therapist: Methodological Ramifications of "Light" Paternalism, in THE FOUNDATIONS OF POSITIVE AND NORMATIVE ECONOMICS: A HANDBOOK 210 (Andrew Caplin & Andrew Schotter eds., 2008).
8. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159 (2003) [hereinafter Sunstein & Thaler, Libertarian Paternalism].
9. There are subtle differences between the policy visions laid out by Camerer et al. and Sunstein & Thaler. The former do not absolutely rule out coercion, as long as the cost of coercion is substantially outweighed by the welfare benefits enjoyed by individuals who are less than fully rational. The latter support only regulations that do not prevent any individuals from pursuing their desired course of action and impose no more than a small amount of inconvenience on those who wish to avoid the intervention.
10. RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (Penguin Books 2009).
11. See, e.g., Benjamin M. Friedman, Guiding Forces, N. Y. TIMES, Aug. 24, 2008, at BR 13 (book review) ;
12. Elizabeth Kolbert, What Was I Thinking?, NEW YORKER, Feb. 25, 2008, at 77 (book review) ;
13. Barbara Kiviat, Lured Toward the Right Choice, TIME, Apr. 14, 2008, at 76 (book review) ;
14. Conor Clarke, Special Ideas Report: Get Rid of Polls, ATLANTIC, Jul. 8, 2009, http://ideas.theatlantic.com/2009/07/get-rid-of-polls.php;
15. Paul B. Farrell, Goldman Should Pay Paulson a Fat Bonus, FOX BUSINESS, July 20, 2009, http://www.foxbusiness.com/story/markets/industries/finance/ goldman-pay-paulson-fat-bonus/;
16. Stephen Gandel, A Political Plan to Help Save You More, CNN MONEY MAGAZINE, July 24, 2008, http://money.cnn. com/2008/07/24/magazines/moneymag/ 105711588.moneymag/index.htm;
17. Dahlia Lithwick, Taming Your Inner Homer Simpson, SLATE, May 12, 2008, http://www.slate.com/id/2191156.
18. In the article version of Libertarian Paternalism (although, oddly, not in Nudge), Sunstein and Thaler briefly note the possibility that libertarian paternalism could be complemented by or distinguished from an approach that considers vulnerable third parties rather than the utility of the targeted actors themselves. Sunstein & Thaler, Libertarian Paternalism, supra note 7, at 1162, 1185, 1193. As such, I do not wish to suggest that I have discovered something that these authors, or the other leading proponents of libertarian paternalism, failed to notice. However, Sunstein and Thaler neither flesh out the contours of a distinct complementary category nor compare its merits to those of libertarian paternalism. This article attempts to accomplish these two goals.
19. Thaler and Sunstein put the point this way: "In our understanding, a policy is 'paternalistic' if it tries to influence choices in a way that will make choosers better off, as judged by themselves." THALER & SUNSTEIN, supra note 9, at 5.
20. For some common examples of paternalistic policies enacted into law, see CAL. VEH. CODE § 27803 (West 2000) (requiring drivers and passengers of motorcycles to wear a safety helmet) ;
21. CAL. EDUC. CODE § 48201 (West 2006) (requiring persons age 6 to 18 to enroll in and attend a full-time school) ;
22. CAL. EDUC. CODE § 48293 (West 2006) (establishing monetary penalties against parents or guardians who do not comply with compulsory education requirements) ;
23. CAL. BUS. & PROF. CODE § 19921 (West 2008) (preventing individuals under the age of 21 years from entering gambling establishments).
24. THALER & SUNSTEIN, supra note 9, at 5-6.
25. Id. at 6 ("[T]he intervention must be easy and cheap to avoid."). Some critics have criticized the concept of libertarian paternalism on the grounds that it is inconsistent with a particular understanding of libertarian philosophy. This criticism misses the point of Thaler and Sunstein, whose argument is that the non-coercive nature of their paradigm should appeal to people who consider themselves libertarians.
26. For a discussion of the various conceptions of rational choice theory, as used in legal scholarship, see Korobkin & Ulen, supra note 1, at 1060-66.
27. See. e.g., Korobkin & Ulen, supra note 1;
28. Jolls et al., supra note 2;
29. Donald C. Langevoort, Behavioral Theories of Judgment and Decision Making in Legal Scholarship: A Literature Review, 51 VAND. L. REV. 1499 (1998).
30. See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 science 1124, 1128 (1974).
31. The likelihood of any two events occurring cannot be greater than the likelihood of one of the events occurring on its own. THALER & SUNSTEIN, supra note 9, at 26-27.
32. Tversky & Kahneman, supra note 17, at 1128-30.
33. For example, studies have shown that laypeople's estimate of the number of African countries in the United Nations is affected by whether a large or small number comes up on the spin of a wheel, id. at 1128, and that real estate agents' estimates of the value of a house is biased by the (only partially relevant) anchor of the house's asking price.
34. MAX H. BAZERMAN & MARGARET A. NEALE, NEGOTIATING RATIONALLY 25-28 (1992).
35. David A. Armour & Shelley E. Taylor, When Predictions Fail: The Dilemma of Unrealistic Optimism, in hEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 334 (Thomas Gilovich et al. eds., 2002).
36. See, e.g., Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098 (1979).
37. See, e.g., David Dunning et al., Ambiguity and Self-Evaluation: The Role of Idiosyncratic Trait Definitions in Self-Serving Assessments of Ability, in hEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT, supra note 20, at 324.
38. See Amos Tversky & Derek J. Koehler, Support Theory: A Nonextensional Representation of Subjective Probability, 101 PSYCHOL. REV. 547 (1994) ;
39. Craig R. Fox & Richard Birke, Forecasting Trial Outcomes: Lawyers Assign Higher Probability to Possibilities That are Described in Greater Detail, 26 L. & HUM. BEHAV. 159 (2002).
40. See Tversky & Koehler, supra note 23;
41. Fox & Birke, supra note 23.
42. On the mathematics of rationally updating probability assessments when new information becomes available in accordance with "Bayes's Law, " see, e.g., ROBERT V. HOGG & ALLEN T. CRAIG, INTRODUCTION TO MATHEMATICAL STATISTICS 208-09 (3d ed. 1995).
43. The term "bounded rationality" is usually attributed to Herbert Simon.
44. See Herbert A. Simon, A Behavioral Model of Rational Choice, 69 Q. J. ECON. 99 (1955) ;
45. HERBERT A. SIMON, Rational Choice and the Structure of the Environment, in MODELS OF MAN: SOCIAL AND RATIONAL 261 (1957).
46. See, e.g., Colin Camerer et al., Neuroeconomics: How Neuroscience Can Inform Economics, 43 J. ECON. LITERATURE 9, 11, 26 (2005) ;
47. Michael Waldman, Systematic Errors and the Theory of Natural Selection, 84 AM. ECON. REV. 482, 483 (1994).
48. See, e.g., Faruk Gul & Wolfgan Pesendorfer, The Case for Mindless Economics, in THE FOUNDATIONS OF POSITIVE AND NORMATIVE ECONOMICS, supra note 6, at 3, 8 ("As its welfare criterion, standard economics uses the individual's choice behavior, that is, revealed preferences.... Hence, welfare is defined to be synonymous with choice behavior.").
49. Cf. Colin F. Camerer, Wanting, Liking, and Learning: Neuroscience and Paternalism, 73 U. CHI. L. REV. 87, 90-92 (2006) (criticizing the familiar "revealed-preferences view [that] basically equates welfare (experienced utility) with choice (decision utility), as a matter of the definition of welfare").
50. Daniel Kahneman, New Challenges to the Rationality Assumption, 150 J. INSTITUTIONAL & THEORETICAL ECON. 18 (1994).
51. Cf. John Bronsteen et al., Weil-Being Analysis 2 (Ill. Pub. Law Research Paper No. 08-31, 2009), available at http://ssrn. com/abstract=1397843 (arguing that "well-being" is better understood as "happiness or positive affect" than as preference satisfaction) ;
52. Matthew Adler & Eric Posner, Happiness Research and Cost-Benefit Analysis 5 (Univ. of Pa. Inst, for Law & Econ. Research Paper No. 07-15, 2007), available at http://ssrn. com/abstract=999928 (arguing that individual wellbeing "consists in those things that individuals, with full information and deliberating rationally... converge in self-interestedly preferring, " rather than a consequence of preference satisfaction).
53. See generally Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. LEGAL STUD. 199, 230-31 (2006) (discussing the problem of "overshooting").
54. Sarah Lichtenstein & Paul Slovic, The Construction of Preference: An Overview, in THE CONSTRUCTION OF PREFERENCE 1 (Sarah Lichtenstein & Paul Slovic eds., 2006).
55. Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263, 274 (1979).
56. See Daniel Kahneman, Reference Points, Anchors, Norms, and Mixed Feelings, 51 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 296, 298 (1992).
57. See William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Making, 1 J. RISK & UNCERTAINTY 7 (1988).
58. This term was coined by Thaler. Richard H. Thaler, Toward a Positive Theory of Consumer Choice, 1 J. ECON. BEHAV. & ORG. 39, 44 (1980) ;
59. see also Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227 (2003).
60. See Itamar Simonson, Choice Based on Reasons: The Case of Attraction and Compromise Effects, 16 J. CONSUMER RES. 158, 171-72 (1989).
61. See Mark Kelman et al., Context-Dependence in Legal Decision Making, 25 J. LEGAL STUD. 287, 288-89 (1996). (Pubitemid 126406452)
62. Daniel Read et al., Mixing Virtue and Vice: Combining the Immediacy Effect and the Diversification Heuristic, 12 J. BEHAV. DECISION MAKING 257 (1999) ;
63. Shlomo Benartzi & Richard h. Thaler, Naïve Diversification Strategies in Defined Contribution Savings Plans, 91 AM. ECON. REV. 79 (2001).
64. For a clear discussion of these contextual effects, see DAN ARIELY, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS 1-21 (2008).
65. On Amir and Orly Lobel provide an interesting discussion of how the compromise and contrast effects might result from very different mental processes. On Amir & Orly Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 COLUM. L. REV. 2098, 2110-12 (2008).
66. ROBERT B. CIALDINI, INFLUENCE: SCIENCE AND PRACTICE 100 (4th ed. 2001).
67. Different theories of the power of social norms suggest slightly different motivational bases. Robert Cooter theorizes the power of norms comes from their internalization.
68. See Robert Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947, 954-55 (1997). Richard McAdams argues that people comply with norms to earn the esteem of others. (Pubitemid 127445879)
69. See Richard H. McAdams, The Origin, Development and Regulation of Norms, 96 MICH. L. REV. 338 (1997). Eric Posner believes that norms have power because conformance with them generally signals that one is responsible and cooperative, which is valued by others.
70. See ERIC POSNER, LAW AND SOCIAL NORMS (2000).
71. See Claire A. Hill, The Rationality of Preference Construction (and the Irrationality of Rational Choice), 9 MINN. J. L. SCI. & TECH. 689, 707 (2008) ("[P]eople form their preferences [in many situations] based on how they come to understand the choice they are making.... The choice made at a particular time is context-specific. In a different context, the choice may be different.... [I]t is not clear why as a normative matter such preferences should be undesirable.").
72. See Shane Frederick et al., Time Discounting and Time Preference: A Critical Review, 40 J. ECON. LITERATURE 351, 360-63 (2002).
73. Id. at 361.
74. This is essentially the position of Loewenstein and Haisley.
75. See Loewenstein & Haisley, supra note 6, at 201-05.
76. See, e.g., George Loewenstein, Out of Control: Visceral Influences on Behavior, 65 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 272, 272-73 (1996) (intense visceral factors drive a wedge between decisions and self-interest).
77. See RICHARD DAWKINS, THE SELFISH GENE 57 (2d ed. 1999).
78. See Timothy D. Wilson et al., Introspection About Reasons Can Reduce Post-Choice Satisfaction, in THE CONSTRUCTION OF PREFERENCE, supra note 33, at 471, 472-73.
79. Christopher K. Hsee et al., Lay Rationalism and Inconsistency Between Predicted Experience and Decision, in THE CONSTRUCTION OF PREFERENCE, supra note 33, at 532, 533.
80. Id. at 474-78.
81. The authors conclude their study with the warning that "unbridled claims about the value of introspection need to be tempered." Id. at 485.
82. See generally LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957).
83. See T. D. Wilson & J. W. Schooler, Thinking Too Much: Introspection Can Reduce the Quality of Preferences and Decisions, 60 J. PERSONALITY & SOC. PSYCHOL. 181, 181 (1991).
84. Cf. Ellen Peters, The Functions of Affect in the Construction of Preferences, in THE CONSTRUCTION OF PREFERENCE, supra note 33, at 454, 463 ("[Affect] sometimes may help and other times hurt decision processes.... [T]he presence of affect does not guarantee good or bad decisions, only different information processing.") ;
85. Timothy D. Wilson et al., Introspecting About Reasons Can Reduce Post-Choice Satisfaction, 19 J. PERSONALITY & SOC. PSYCHOL. 331, 339 (1993) ("[M]ore work is needed to specify the conditions under which introspecting about reasons will have deleterious consequences.").
86. THALER & SUNSTEIN, supra note 9, at 85.
87. Id. at 92.
88. Id. at 68-69.
89. Id. at 145. The authors propose similar requirements for mortgage lenders, cell phone service providers, and providers of Medicare prescription drug benefits.
90. See Camerer et al., supra note 4, at 1231.
91. THALER & SUNSTEIN, supra note 9, at 112-13.
92. Camerer et al., supra note 4, at 1227.
93. See, e.g., Brigitte C. Madrian & Dennis F. Shea, The Power of Suggestion: Inertia in 401 (k) Participation and Savings Behavior, 116 Q. J. ECON. 1149, 1184 (2001).
94. Richard H. Thaler & Shlomo Benartzi, Save More Tomorrow: Using Behavioral Economics to Increase Employee Saving, 112 J. POL. ECON. s164, s166 (2004).
95. Id.
96. THALER & SUNSTEIN, supra note 9, at 116-21.
97. Loewenstein & Haisley, supra note 6, at 227-28.
98. See THALER & SUNSTEIN, supra note 9, at 253-54;
99. Sunstein & Thaler, Libertarian Paternalism, supra note 7, at 1184-85, 1187-88;
100. Camerer et al., supra note 4, 1238-47.
101. 16 C. F. R. § 429.1 (2009) (requiring door-to-door sales contracts to provide a three business-day cancellation period).
102. See, e.g., CAL. PENAL CODE § 12071 (b) (3) (A) (West 2007) (imposing a 10-day waiting period before a firearm can be released to a buyer or transferee). Federal law no longer requires a cooling off period, having replaced a 5-day waiting period with a required background check that can be processed immediately.
103. See 18 U. S. C. § 922 (t).
104. See, e.g., CONN. GEN. STAT. ANN. § 46.b-67 (a) (West 2009) (requiring a 90-day predivorce waiting period).
105. THALER & SUNSTEIN, supra note 9, at 105.
106. See generally ARTHUR C. PIGOU, THE ECONOMICS OF WELFARE (4th ed. 1932).
107. Note, however, that such interventions often mandate behavior by the third party who is required to provide or disclose the information, a feature that might in itself be problematic to true libertarians.
108. THALER & SUNSTEIN, supra note 9, at 92.
109. Id. at 93-94.
110. Cf. Amir & Lobel, supra note 41, at 2114-15 (observing that requiring merchants to provide clearer information might cause consumers to overemphasize those attributes).
111. See generally Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N. Y. U. L. REV. 630 (1999).
112. See generally, Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. CHI. L. REV. 1203, 1234-35 (2003).
113. See Amir & Lobel, supra note 41, at 2120 ("Thaler and Sunstein's assumption that, absent irrationalities, every individual would agree that future savings and improved long-term health are better than immediate satisfaction and gratification seems problematic.") ;
114. Gregory Mitchell, Review Essay, Libertarian Paternalism Is an Oxymoron, 99 NW. U. L. REV. 1245, 1268-69 (2005) (criticizing Thaler and Sunstein for assuming that central planners can identify objective welfare measures that will satisfy everyone).
115. If these assumptions fail to hold, the analysis becomes slightly more complicated.
116. See generally Ian Ayres, Making a Difference: The Contractual Contributions of Easterbrook and Fischel, 59 U. CHI. L. REV. 1391 (1992)
117. (reviewing FRANK H. EASTERBROOK & DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF CORPORATE LAW (1991)).
118. Even in this case, one might object that the policy maker would need to make some adjustments for risk. If investment returns over a certain period are abnormally high or the average lifespan suddenly increases, savers might report greater happiness with their decision that they would have under the alternative possible circumstances (i.e., disappointing investment returns and shorter lifespans).
119. Loewenstein & Haisley, supra note 6, at 221 ("[E]ven light paternalistic policies should only be put into play when welfare judgments tend to be relatively straightforward.").
120. THALER & SUNSTEIN, supra note 9, at 10, 240, 246.
121. See, e.g., Sunstein & Thaler, Libertarian Paternalism, supra note 7, at 1200 ("We happily grant that planners are human.... Nevertheless,... these human planners are sometimes forced to make choices, and it is surely better to have them trying to improve people's welfare rather than the opposite.").
122. THALER & SUNSTEIN, supra note 9, at 1.
123. Id. at 4-5.
124. Id. at 5.
125. Cf. Hill, supra note 44, at 733 ("That preferences are constructed suggests that there is no clear way for law to respect what people really want-and that trying to respect what people really want ought not to trump other legitimate societal aims.").
126. In what he calls a "libertarian approach to choice-framing paternalism, " Gregory Mitchell suggests a goal that is different than both libertarian paternalism and libertarian welfarism. Mitchell argues that the state should "frame choices in ways that push irrational persons in directions that maximize their liberty or help them retain the greatest degree of future freedom to contract;" for example, by favoring default rules like at-will employment. Mitchell, supra note 80, atp1262.
127. Because true freedom includes the freedom to commit oneself to future actions, I do not think that maximizing future freedom to contract is a normatively defensible objective, even if we assume the primacy of personal liberty on the value hierarchy.
128. See. e.g., A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 7-8 (3d ed., 2003) (defining "efficiency") ;
129. STEVEN SHAVELL, ECONOMIC ANALYSIS OF LAW 1-2 (2004).
130. See. e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 13 (7th ed., Aspen Publ. 2007).
131. See Matthew D. Adler, Beyond Efficiency and Procedure: A Welfarist Theory of Regulation, 28 FLA. ST. L. REV. 241, 244-46 (noting that this requirement of what he calls the "neoclassical" theory of regulation "is a matter of interpretation, or at least sometimes it is-since the neoclassicist's commitment to efficiency... is sometimes implicit or even obscured rather than laid plain to view.")
132. See, e.g., POSNER, supra note 92, at 390;
133. ROBERT COOTER & THOMAS ULEN, LAW & ECONOMICS 510 (5th ed. 2008).
134. See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
135. See Jonathan Klick & Francesco Parisi, Wealth, Utility, and the Human Dimension, 1 N. Y. U. J. L. & LIBERTY 590, 602 (2005) ("Normative economics holds that a law should be judged by its effects in promoting social welfare....").
136. The proponents of liberal paternalism might claim that inherent in their specific policy proposals is the limiting condition that the state should not nudge actors to significantly reduce social welfare. The pure theory of liberal paternalism, however, is indifferent to social welfare.
137. 40 C. F. R. § 600.306-08 to.307-08 (2008).
138. CAL. HEALTH & SAFETY CODE § 43200.1 (West 2007).
139. A score of 5 signifies that a car's emissions will have an impact on Global Warming equivalent to that of an average new vehicle. A higher score denotes a car that is "better for the environment." See New Calif. Cars to Sport Greenhouse Gas Labels, MSNBC, June 20, 2008, http://www.msnbc.msn. com/id/25284062/.
140. See Ian Ayres & Barry Nalebuff, Charity Begins at Schedule A, N. Y. TIMES, Apr. 15, 2003, at A17.
141. Leslie Kaufman, Utilities Turn Their Customers Green With Envy, N. Y. TIMES, Jan. 30, 2009, at A1.
142. Id.
143. See, e.g., Ann E. Carlson, Recycling Norms, 89 CALIF. L. REV. 1265 (2001).
144. The portion of solid waste recycled in the United States increased from 10 percent in 1990 to nearly 30 percent in 2000, and this is due, at least in part, to the advent of curbside recycling programs.
145. See Thomas C. Kinnamon, Policy Watch: Examining the Justification for Residential Recycling, 20 J. ECON. PERSPECTIVES 219, 219 (2006)
146. (citing BioCycle's annual The State of Garbage in America study for 2004) ;
147. see also Ljupka Arsova et al., The State Of Garbage In America, BIOCYCLE, Dec. 2008, at 22-23, available at http://www.jgpress.com/archives/-free/001782. html.
148. Carlson, supra note 104, at 1275-78.
149. Id. at 1266.
150. Id. at 1290.
151. Russell Korobkin, "No Compensation " or "Pro Compensation ": Moore v. Regents and Default Rules for Human Tissue Donations, 40 J. HEALTH L. 1, 18 (2007).
152. 793 P.2d 479 (Cal. 1990).
153. Id. at 480-85.
154. National Organ Transplant Act, 42 U. S. C. § 274 e (a) (2006).
155. Korobkin, No Compensation, supra note 109, at 9-10.
156. 264 F. Supp. 2d 1064 (S. D. Fla. 2003).
157. See Korobkin, Endowment Effect, supra note 37, at 1228-29.
158. Korobkin, No Compensation, supra note 109, at 20.
159. The plaintiffs' goal was to ensure affordable access to diagnostic tests. Greenberg, 264 F. Supp. 2d at 1066-67.
160. THALER & SUNSTEIN, supra note 9, at 177-84.
161. See, e.g., Michelle Oberman, When the Truth is Not Enough: Tissue Donation, Altruism, and the Market, 55 DEPAUL L. REV. 903, 938 (2006).
162. See Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives?, 302 SCIENCE 1338 (2003).
163. THALER & SUNSTEIN, supra note 9, at 179-81.
164. As of September 7, 2009, the exact number was 103, 247.
165. See United Network for Organ Sharing (UNOS), National Data Reports, http://optn. transplant.hrsa.gov/latestData/step2.asp (last visited Sept. 7, 2009).
166. Craig R. M. McKenzie et al., Recommendations Implicit in Policy Defaults, 17 PSYCHOL. SCI. 414, 414 (2006).
167. See Carmen M. Radecki & James Jaccard, Psychological Aspects of Organ Donation: A Critical Review and Synthesis of Individual and Next-of-Kin Donation Decisions, 16 HEALTH PSYCHOL. 183, 183 (1997) (noting that beliefs about organ donation are influenced by the consequences of choosing to donate, including confronting the issue of mortality).
168. Margareta Sanner, Attitudes Toward Organ Donation and Transplantation: A Model for Understanding Reactions to Medical Procedures After Death, 38 SOC. SCI. & MED. 1141, 1146 (1994) (discussing discomfort with a dead body being cut and the organs removed as a motive for individuals' reticence towards organ donation).
169. Id. at 1148 (discussing individuals' fear that death will be hastened for the sake of someone more highly regarded who is in need of organs).
170. Cf. Tracy Weber & Charles Ornstein, Death in San Louis Obispo Organ Donor Case is Ruled Natural, L. A. TIMES, Mar. 9, 2007, at B5 (discussing allegation that an organ donor's death was hastened by doctors for the benefit of the presumptive donee).
171. In 2006, 130, 266 individuals were on the waiting list for an organ donation. Of those on the waiting list in 2006, 7, 245 died. U. S. DEP'T OF HEALTH & HUMAN SERVS., ANNUAL REPORT OF THE U. S. ORGAN PROCUREMENT AND TRANSPLANTATION NETWORK AND THE SCIENTIFIC REGISTRY OF TRANSPLANT RECIPIENTS: TRANSPLANT DATA 1997-2007, at tbl. 1.6 (2008), http://www.ustransplant.org/ annual-reports/current/106-dh.htm.
172. To be fair, Thaler and Sunstein recognize in the article-version of their argument that the organ donation example is inconsistent with many of their other policy examples (in that the benefits of a presumed consent default flow to third parties rather than the choosers) and call the consequence of organ donation "libertarian benevolence." Sunstein & Thaler, Libertarian Paternalism, supra note 7, at 1192-93. Puzzlingly, this distinction is not made when they elaborate on organ donation and recommend a presumed consent default in Nudge.
173. N. Y. CITY HEALTH CODE § 81.50 (2008).
174. KING COUNTY, WA, BOARD OF HEALTH CODE, ch. 5.10 (2008).
175. CAL. HEALTH & SAFETY CODE § 114094 (West 2009). The calorie-posting requirement in California doesn't take effect until in 2011.
176. Editorial, Chewing the Fat, WASH. POST, July 25, 2009, at A16;
177. Stephanie Saul, Conflict on the Menu, N. Y. TIMES, Feb. 16, 2008, at C1.
178. Timothy Egan, Nanny Nation, N. Y. TIMES OUTPOSTS, Aug. 6, 2008, http://egan. blogs.nytimes.com/2008/08/06/nanny-nation/.
179. See George Loewenstein & Ted O'Donoghue, "We Can Do This the Easy Way or the Hard Way": Negative Emotions, Self-Regulation, and the Law, 73 U. CHI. L. REV. 183, 186, 190 (2006).
180. Cynthia L. Ogden et al., The Epidemiology of Obesity, 132 GASTROENTEROLOGY 2087, 2090-91 (2007).
181. Ceci Connolly, Obesity Gets Part of Blame for Care Costs, WASH. POST, Oct. 20, 2004, at A03.
182. According to one study, in 1998 the public sector was responsible for financing nearly half of medical spending attributable to excessive weight. Eric A. Finkelstein et al., National Medical Spending Attributable to Overweight and Obesity: How Much, and Who's Paying?, HEALTH AFF., May 14, 2003, at 223-24.
183. Another found that nearly one-fourth of Medicare spending in 2002 was attributable to obese patients. Kenneth E. Thorpe & David H. Howard, The Rise in Spending Among Medicare Beneficiaries: The Role of Chronic Disease Prevalence and Changes in Treatment Intensity, HEALTH AFF., Aug. 22, 2006, at 384 (2006).
184. In 1995, Medicare and Medicaid paid $50 billion, or about 56 percent, of long-term care expenditures for the elderly. The Congressional Budget Office has projected this figure will rise to $126 billion in 2020, or about 61 percent of total long-term care expenditures for the elderly. CONGRESSIONAL BUDGET OFFICE, CBO MEMORANDUM: PROJECTIONS OF EXPENDITURES FOR LONG-TERM CARE SERVICES FOR THE ELDERLY 2 (1999), available at http://www.cbo.gov/ftpdocs/11xx/doc1123/Itcare.pdf.140.
185. See Hill, supra note 44, at 708.
186. See Carlson, supra note 104, at 1294 (noting that so-called "bottle bills remain politically contentious" and that none have been enacted by a state since the mid-1980s).