A third theory of paternalism

Michigan Law Review

Volumn 113, Issue 8, 2015, Pages 1295-1336

  Cornell, Nicolas ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 84936098123     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (156)

1. Compulsory seat belt laws are the classic example of paternalistic legislation. For an early discussion of this example
2. Gerald Dworkin, Paternalism, 56 Monist 64 1972
3. Mayor Bloomberg’s proposed ban on large soft drinks has been one of several highprofile contexts in which paternalism has been debated recently. E.g., Bettina Elias Siegel, New York Mayor Bloomberg v Big Soda, Guardian May 31, 2012, 5:38 PM, http://www.theguardian. com/commentisfree/2012/may/31/new-york-mayor-bloomberg-v-big-soda “[F]orbidding people outright to buy the size of soda they desire strikes me as quite paternalistic and intrusive and . . . likely to fuel resentment.”
4. The Affordable Care Act’s individual mandate and requirements for existing plans have been heavily criticized as paternalism run amok. E.g., Charles Krauthammer, Opinion, Obamacare Laid Bare, Wash. Post, Nov. 1, 2013, at A19, available at http://www.washingtonpost.com/opinions/charles-krauthammer-obamacare-laid-bare/2013/10/31/d229515a- 4254-11e3-a624-41d661b0bb78_story.html “Beyond mendacity, there is liberal paternalism, of which . . . forced cancellations [of insurance policies] are a classic case. . . . Sure, you freely chose the policy, paid for the policy, renewed the policy, liked the policy. But you’re too primitive to know what you need. We do. Your policy is hereby canceled.”
5. Simon Rippon, Imposing Options on People in Poverty: The Harm of a Live Donor Organ Market, 40 J. Med. Ethics 145 2014 developing a nonpaternalistic justification for prohibiting organ sales;
6. Seana Valentine Shiffrin, Paternalism, Unconscionability Doctrine, and Accommodation, 29 Phil. & Pub. Aff. 205 2000 developing a nonpaternalistic account of the unconscionability doctrine
7. Jessica Valenti, Editorial, A War on Women: Latest Paternalistic Efforts to Control Female Sexuality Are Part of a Long Pattern, Balt. Sun, Feb. 29, 2012, at 17A, available at http://articles.baltimoresun.com/2012-02-28/news/bs-ed-war-on-women-20120228_1_dem ocratic-women-republicans-contraception;
8. Meghashyam Mali, Paul Ryan: Obama Contraception Ruling Reveals ‘Paternalistic, Arrogant’ Attitude, The Hill Feb. 19, 2012, 4:36 PM, http://thehill.com/policy/healthcare/211579-paul-ryan-obama-contraception-ruling-reveals-paternal istic-arrogant-attitude
9. Michael Tanner, Paternalism and Principle, Nat’l Rev. Oct. 5, 2011, 4:00 AM, http://www.nationalreview.com/articles/279178/paternalism-and-principle-michael-tanner comparing efforts to ban incandescent light bulbs and the Affordable Care Act and arguing that they are similarly paternalistic
10. Cass R. Sunstein, Why Paternalism Is Your Friend, New Republic Apr. 8, 2013, http://www.newrepublic.com/article/112817/cass-sunstein-simpler-book-excerpt-whypaternalism- your-friend
11. Richard J. Arneson, Joel Feinberg and the Justification of Hard Paternalism, 11 Legal Theory 259, 274–75 2005;
12. Peter de Marneffe, Avoiding Paternalism, 34 Phil. & Pub. Aff. 68 2006;
13. Shiffrin, supra note 4;
14. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159 2003;
15. Cass R. Sunstein, The Storrs Lectures: Behavioral Economics and Paternalism, 122 Yale L.J. 1826 2013
16. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 11 updated ed. 2009
17. Sunstein, supra note 8, at 1833–37
18. Thaler & Sunstein, supra note 9, at 5, 252–54
19. Benjamin M. Friedman, Book Review, Guiding Forces, N.Y. Times, Aug. 24, 2008, at BR13, available at http://www.nytimes.com/2008/08/24/books/review/Friedmant. html?pagewanted=all&_r=0 calling most of Thaler and Sunstein’s proposals “the essence of common sense”
20. Anuj C. Desai, Libertarian Paternalism, Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us Toward an “Overlapping Consensus”, 36 Law & Soc. Inquiry 263, 263 2011 “I argue that the book is a brilliant contribution to thinking about policy making, but that ‘choice architecture’ is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making.”
21. Nick Collins, David Cameron Seeks to ‘Nudge’ People in Right Direction, Telegraph Sept. 10, 2010, 7:30 AM, http://www.telegraph.co.uk/news/politics/david-cameron/ 7993366/David-Cameron-seeks-to-Nudge-people-in-the-right-direction.html “While in opposition the Conservative leader was so impressed with the book that he required all shadow cabinet members to read it during their summer holiday.”;
22. Michael Grunwald, How Obama Is Using the Science of Change, Time Apr. 2, 2009, available at http://content.time.com/time/ magazine/article/0,9171,1889153,00.html “ ‘Cass is one of the people in the Administration [Obama] knows best,’ says Thaler . . . . ‘He knew what he was doing when he gave Cass that job.’ ”
23. Thaler & Sunstein, supra note 9, at 3. 18
24. “A choice architect has the responsibility for organizing the context in which people make decisions. . . . Choice architects can make major improvements to the lives of others by designing user-friendly environments.”
25. “A nudge, as we will use the term, is any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives. To count as a mere nudge, the intervention must be easy and cheap to avoid.”
26. “Nudges are not mandates.”
27. I think that Thaler and Sunstein are correct, as a descriptive matter, to say that nudges can still be a form of paternalism. For example, [i]magine the government makes free psychotherapy available to gays and lesbians to help them change their sexual orientation, and that it does so with the aim of helping them to lead happier, more satisfying lives, and that this policy cannot be justified in any other way. Some may think that if the intended beneficiaries do not want this policy, then it is objectionably paternalistic even if it does not, strictly speaking, limit anyone’s choices. De Marneffe, supra note 8, at 74–75. This definitely strikes me as paternalistic, and not even a particularly fringe case. It seems right, therefore, that Thaler and Sunstein accept that even a gentle nudge may be appropriately called paternalistic
28. Sunstein & Thaler, supra note 8, at 1162 footnote omitted
29. “The second misconception is that paternalism always involves coercion.”. Others have noted that paternalism does not necessarily involve coercion
30. N. Fotion, Paternalism, 89 Ethics 191, 195 1979 “The fact is that some philosophers have given paternalism a far worse reputation than it deserves by associating it with coercion by definition and in effect confusing it with coercive paternalism.”
31. Mark Sappenfield, Bad Calls: Top Five Refereeing Gaffes of the 2010 World Cup, Christian Sci. Monitor June 27, 2010, http://www.csmonitor.com/World/Africa/Africa- Monitor/2010/0627/Bad-calls-Top-five-refereeing-gaffes-of-the-2010-World-Cup
32. John Doyle, The Dive, Globe & Mail, June 9, 2010, at E6, available at http://www .theglobeandmail.com/sports/soccer/the-dive/article1372535/
33. A. Thaler & A. Sunstein, supra note 9, at 254 “[W]e resist going further down the paternalistic path. . . . [D]eciding where to stop, and when to call a nudge a shove much less a prison, is tricky. Where mandates are involved and opt-outs are unavailable, the slippery- slope argument can begin to have some merit, especially if regulators are heavy-handed. We agree that flat bans are justified in some contexts, but they raise distinctive concerns, and, in general, we prefer interventions that are more libertarian and less intrusive.”
34. As the physical metaphors imply, the focus here is on brute control. For a contrasting conception of the morally significant idea of liberty, see Peter de Marneffe, Self- Sovereignty and Paternalism, in Paternalism: Theory and Practice 56, 56–58 Christian Coons & Michael Weber eds., 2013 contrasting self-ownership with self-sovereignty
35. Thaler & Sunstein, supra note 9, at 110–11, 177–78
36. Many of the suggested nudges, it should be noted, don’t seem terribly libertarian. For example, Thaler and Sunstein suggest various things that one might require from lenders, even things as small as the ability to automatically pay one’s full credit card bill
37. Thaler & Sunstein, supra note 9, at 146. Although such policies are nudges to consumers, they are shoves to credit card companies
38. Shawn Macomber, The Man Whispers, Am. Spectator, Oct. 2008, at 70 describing Thaler and Sunstein’s Nudge as a book “in which the eminent professors argue for a more sophisticated, subliminal Nanny State led by a less draconian nanny”;
39. Dominique Lazanski, A Nudge Towards Totalitarianism?, Inst. Econ. Aff. Oct. 9, 2009, http://www .iea.org.uk/blog/a-nudge-towards-totalitarianism-0
40. “We should fear a nudge culture, be wary of elitists and continue to shun we-think. Being nudged is not far off from being regulated, and relegated, into a totalitarian society.”;
41. Dahlia Lithwick, Taming Your Inner Homer Simpson: How to Opt Out of Our Own Stupid Choices, Slate May 12, 2008, 7:03 AM, http://www.slate.com/articles/arts/books/2008/05/taming_your_inner_homer_simpson.html
42. “Is it oh-soslightly creepy or socialist to envision a world in which shadowy choice architects are nudging you away from the cashews and toward organ donation?”;
43. Mark D. White, The Manipulation of Choice: Ethics and Libertarian Paternalism 82 2013 “Even if one is comfortable with some paternalism on the part of the government if done openly and transparently, it is unseemly for policymakers to use people’s decision-making flaws to manipulate them, subtly and secretly, into making choices that policymakers want them to make, rather than the ones they would have otherwise made themselves.”;
44. Daniel M. Hausman & Brynn Welch, Debate: To Nudge or Not to Nudge, 18 J. Pol. Phil. 123, 130 2010 “[T]here may be something more insidious about shaping choices than about open constraint.”
45. Hausman and Welch make this particularly clear: “What matters is whether the policy- maker is attempting to bring about something against the beneficiary’s will.” Hausman & Welch, supra note 34, at 130;
46. J.S. Blumenthal-Barby, Choice Architecture: A Mechanism for Improving Decisions While Preserving Liberty?, in Paternalism: Theory and Practice, supra note 31, at 178, 191–92 “[D]isclosure and transparency is [sic] not enough to preserve liberty since manipulation . . . occurs not just when a person is influenced without knowing it, but when they are influenced via exploitation of the non-rational elements of their psychological makeup.”. Hausman and Welch’s primary point is that an infringement on autonomy can take on another form than a simple constriction of the set of available choices. I agree with this insight, and I think that Hausman and Welch helpfully draw attention to one way in which the nudging arguments can be overly simplistic. Still, it seems that a policy can be objectionably paternalistic even when it is only attempting to counteract the beneficiary’s foibles and help empower her own choice—which, as Thaler and Sunstein show, can be the aim behind a very many nudges
47. I do not mean to deny that, in many intimate relationships, parties will implicitly or explicitly consent to limited forms of coercion. But it seems a mistake or a fiction to think that the appropriateness of coercive intervention always depends on some implied consent
48. Lest one think that the argument is driven only by the idiosyncrasies of this example, consider another pair of examples. Smoking 1: You are a smoker. You want to quit, and you tried a few times. Most of your friends are smokers too, and this social pressure makes it much more difficult to quit. Your best friend is also a smoker. The two of you sometimes discuss plans to quit together, but nothing ever comes to fruition. You often back out at the last minute, although you always regret it afterwards. Recently, the two of you planned a fishing trip together in Northern Canada, far from civilization. A water plane is dropping you off and picking you up two weeks later, with only emergency contacts. Unbeknownst to you, your friend removes the several cases of cigarettes that the two of you packed
49. Douglas N. Husak, Paternalism and Autonomy, 10 Phil. & Pub. Aff. 27, 38 1981 “The conclusion that paternalistic interferences, qua interferences, are objectionable, isa good deal less interesting than the conclusion that paternalistic interferences, qua paternalism, are objectionable.”
50. Thaler & Sunstein, supra note 9, at 11
51. Gerald Dworkin, Paternalism, in Morality and the Law 107, 112 Richard A. Wasserstrom ed., 1971
52. Shiffrin, supra note 4, at 216 emphasis added. Shiffrin rigorously explicates the concept: I suggest that paternalism by A toward B may be characterized as behavior whether through action or through omission a aimed to have or to avoid an effect on B or her sphere of legitimate agency b that involves the substitution of A’s judgment or agency for B’s c directed at B’s own interests or matters that legitimately lie within B’s control d undertaken on the grounds that compared to B’s judgment or agency with respect to those interests or other matters, A regards her judgment or agency to be or as likely to be, in some respect, superior to B’s. Id. at 218. As de Marneffe points out, Shiffrin’s own project of seeking a nonpaternalist rationale for the unconscionability doctrine seems to be in tension with holding a motive-based approach. de Marneffe, supra note 8, at 70–71
53. Shiffrin, supra note 4, at 217
54. “The motive, I think, is what is central to accounting for why paternalism delivers a special sort of insult to competent, autonomous agents. Even when paternalist behavior does not violate a distinct, independent autonomy right, it still manifests an attitude of disrespect toward highly salient qualities of the autonomous agent. The essential motive behind a paternalist act evinces a failure to respect either the capacity of the agent to judge, the capacity of the agent to act, or the propriety of the agent’s exerting control over a sphere that is legitimately her domain.”. Note that my own account is actually quite similar to Shiffrin’s in important ways
55. I think that Shiffrin is entirely correct in viewing paternalism as objectionable because it represents an “insult” or “a failure to respect.” My difference with Shiffrin is that I do not take the motive to be the important aspect but rather the external meaning of the behavior
56. I share Shiffrin’s view that an action can be paternalistic without being aimed at benefiting the paternalized person
57. It is interesting to contrast this example with the example of Thaler’s dinner party, in which he takes the pre-dinner cashews away from the guests to ensure that everyone retains room for dinner. Thaler & Sunstein, supra note 9, at 40. Even worse than choosing not to serve dessert would be serving dessert and then taking it away upon realizing that guests were beginning to eat too much of it for their own waistlines. So why is retracting food to ensure others enjoy the rest of a dinner party perfectly acceptable, but retracting food to prevent others from putting on extra pounds obviously unacceptable? One plausible answer is that by coming to a dinner party, one surrenders a certain degree of control to the host over how one will enjoy the evening—one tacitly accepts the authority of the host to determine what makes for a good meal or entertaining activities. One certainly does not grant control over body weight issues. But this isn’t the entire story. Imagine that it is not the host Thaler, but another guest who removes the cashews so everyone enjoys the meal. This may often seem acceptable, but it is not because of some delegation of authority. Rather, I think, this is anexample of the way that paternalism may be permissible—it does not express an overall impermissible judgment about others
58. Shiffrin, supra note 4, at 212 “[I]t seems worthwhile to assess what is central in our normative reactions to paternalism and to employ a conception of paternalism that compliments and makes intelligible our sense of paternalism’s normative significance.”. But see Sunstein & Thaler, supra note 8, at 1166 “The thrust of our argument is that the term ‘paternalistic’ should not be considered pejorative, just descriptive.”
59. F.M. Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm 91–129 2007;
60. T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame 20–25 2008;
61. Judith Jarvis Thomson, Self-defense, 20 Phil. & Pub. Aff. 283, 292–96 1991
62. Thomson, supra note 46, at 293–94
63. Assume that Alfred doesn’t have his wife’s consent and isn’t merely trying to relieve her suffering
64. Kamm, supra note 46, at 135 “[W]hat is important for permissibility are the characteristics of the act itself and its effects . . . . When it is impermissible for an agent who intends evil as a means or end to do an act, it will usually be because of some characteristics of the act or its effects or their relation independent of his intention.” footnote omitted; Scanlon, supra note 46, at 23 “[W]hat makes an action wrong is the consideration or considerations that count decisively against it, not the agent’s failure to give these considerations the proper weight.”; Thomson, supra note 46, at 294 “It is irrelevant to the question whether X may do alpha what intention X would do alpha with if he or she did it.”
65. This may be a bit too general. There may be cases in which intention does matter to permissibility. Scanlon, for example, discusses discrimination as an example. See Scanlon, supra note 46, at 69–74. But what generates the impermissibility in such cases is not the intention itself. In Scanlon’s terms, the intention may affect the meaning of the action, and in some contexts the meaning of the action will matter to permissibility. For example, a discriminatory motive makes an action count as discrimination. But if this is right, then it is the meaning of the action, e.g., that it is a racial insult, that determines permissibility, and the intention enters only because it is relevant to determining that meaning. Cf. id. at 72 “[D]ecisions that we call discriminatory are objectionable because they involve a kind of insult—an expression of the view that certain people are inferior or socially unacceptable.”. In this case, it is the insult that matters to permissibility. The intention enters only contingently. For this reason, one can unintentionally discriminate, just as one can unintentionally paternalize
66. “It would be quite correct to say [that what makes an action wrong is the intention] if we were taking the relevant principle in its critical employment and assessing the way in which the agent decided what to do.”
67. One might note that “it would be murder” might seem to count as a reason against a certain action. But this is only because murder has particular legal consequences associated with it. To see this point, notice that the knowledge that one would be found not guilty byreason of insanity would not in any way lessen the reasons against performing the action— except for those reasons related to the legal consequences for you
68. Shiffrin accepts that paternalism need not require an intent to benefit the subject, but even her motive-based account of paternalism requires an intent to remove a certain matter from someone else’s sphere of control. I argue that even this intention is not necessary. Shiffrin, supra note 4, at 217
69. The Supreme Court sometimes misses this point
70. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 1993 “Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to or paternalism towards women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward or indeed any view at all concerning, women as a class—as is evident from the fact that men and women are on both sides of the issue.”. The fact that a policy may not be intended to insult women does not mean that it is not insulting to women
71. Valenti, supra note 5;
72. Mali, supra note 5
73. Ronald Dworkin, Law’s Empire 317–27 1986 describing the impossibility of identifying a single intention behind a legislative act;
74. Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 870–71 1930 arguing that a notion of a collective intent is incoherent because it is virtually impossible that a group of legislators will all have the same discernible intent;
75. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 254 1992 “Individuals have intentions and purpose and motives; collections of individuals do not. To pretend otherwise is fanciful.”
76. There is another way to make sense of contribution. One might consider not whether the paternalistic votes were necessary to the passage of the law but whether there were any atall, necessary or not. The trouble with this view is that it would mean that a completely unnecessary vote could make a law paternalistic
77. Shepsle, supra note 57, at 245 arguing that committee versions of bills skew deliberations in a way that renders them disconnected from legislators’ actual intentions
78. It is not impossible to imagine a situation in which a legislator would be moved by the expected motivations of other legislators, but such a situation provides a useful contrast. Suppose that a legislator believes that a proposed law is motivated by political gamesmanship. She might, in such a case, vote against the law because she refuses to participate in such an action, even though she thinks the law itself is a good one. Note that voting against a paternalistic law is not like this. That a law is paternalistic counts as a reason why it is not a good law, not simply as a reason to avoid voting for it
79. Judith Snyder Jaffe, The Expressive Meaning of a Dance, 12 J. Aesthetics & Art Criticism 518 1954
80. This idea has been discussed in the legal context
81. Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585 1998;
82. Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 1995;
83. Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021 1996
84. Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397, 398–99 1965;
85. Hugo Adam Bedau, Feinberg’s Liberal Theory of Punishment, 5 Buff. Crim. L. Rev. 103, 114–15 2001;
86. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 9 1968 discussing how retribution is the application of the pains of punishment to an offender who is morally guilty
87. Fairlawns Cemetery Ass’n v. Zoning Comm’n, 86 A.2d 74, 77 Conn. 1952 holding that zoning ordinances must be “expressive of a plan which is comprehensive”
88. Francesca Barigozzi & Bertrand Villeneuve, The Signaling Effect of Tax Policy, 8 J. Pub. Econ. Theory 611, 611 2006 modeling the use of taxes to communicate to citizens the effects of certain actions
89. For an excellent study of how a law can have significant expressive content beyond the particular sanction it imposes, see Adriaan Lanni, The Expressive Effect of the Athenian Prostitution Laws, 29 Classical Antiquity 45 2010
90. Sometimes, paternalism is directed more at the other party’s willpower than the party’s judgment. That is, sometimes it may aim to prevent weaknesses of will. In such cases, the paternalism doesn’t express the idea that the other party doesn’t know what’s good for her as much as it expresses that the other party is dysfunctional as an agent. I will generally talk in terms of “knowing better,” but I mean to include cases in which what is expressed is that one is better as an agent
91. I have put this in terms of benefit, but the idea might be modified to incorporate Shiffrin’s point about control rather than benefit. On that view, the account would be: A’s action X is paternalistic toward B if and only if X involves A interfering with B’s control and X implicitly expresses the claim that A knows better than B with regard to the matter at issue
92. Shiffrin, supra note 4, at 216–18
93. The observation that paternalism involves an insult is not a new one. de Marneffe, supra note 8, at 68 “Paternalism seems repugnant because it seems infantilizing. In limiting our liberty for our own good, it seems that the government treats us like children.”;
94. de Marneffe, supra note 31, at 72 “The thought that paternalism is wrong is closely tied to thethought that there is something disrespectful about it, that it is disrespectful to coerce another adult on the assumption that he’s mistaken about what’s best for him.”;
95. Husak, supra note 38, at 41 “[T]he individual acting paternalistically towards another claims superiority by denying the autonomy of the person so treated.” quoting Arthur White, Paternalism 73–74 1974 unpublished Ph.D. dissertation, University of Virginia;
96. Shiffrin, supra note 4, at 220 “[P]aternalism delivers a special sort of insult to competent, autonomous agents.”
97. T.M. Scanlon, What We Owe to Each Other 251–56 1998;
98. Thaler & Sunstein, supra note 9
99. de Marneffe, supra note 8, at 68 “In limiting our liberty for our own good, it seems that the government treats us like children or that it impedes our development into fully mature adults, but there is no reason to think this is true of every paternalistic policy. Some liberties have a special value in symbolizing the status of adulthood within our society, the freedom to marry, for example. . . . Not every liberty, though, has this kind of significance: the freedom to drive without a seatbelt does not. So there is little reason to think that every paternalistic policy is infantilizing in this way.”. Overall, I am quite sympathetic with de Marneffe, but I think his focus on the type of liberty involved is too narrow. The particular liberty being infringed is, in my view, only one among many factors that determine whether the particular example of paternalism is actually objectionably insulting to one’s agency
100. In making this point, I disagree with Hausman and Welch’s claim that, “[u]nlike constraining someone or substituting your judgment for theirs, providing information and giving advice treats individuals as fully competent decision makers.” Hausman & Welch, supra note 34, at 127. Even merely providing advice or information can count as objectionably paternalistic. If you don’t believe me, try going to your nearest McDonald’s and politely informing everyone in line of the nutritional information regarding their diets. Whether giving advice or information is perfectly respectful of another or not will depend on context. See George Tsai, Rational Persuasion as Paternalism, 42 Phil. & Pub. Aff. 78 2014
101. Thaler & Sunstein, supra note 9, at 47
102. Fotion, supra note 27, at 197 “Providing police and military protection for the citizens on this analysis would not fall under the aegis of the paternalistic model, since one could not expect a person on his own ever to provide these services for himself. Nor would most regulatory functions of the state be classed as paternalistic.”
103. Thaler & Sunstein, supra note 9, at 6 arguing that a libertarian paternalistic policy is any policy that attempts to move people in directions that will make their lives better, without forbidding any options or substantially changing their economic incentives
104. The subtle difference between this and the claim that requiring motorcycle helmets isn’t paternalism is that this is done to reduce public health expenses. See supra Section II.A. The difference, though, is that in the collective action example, the available response can be, “We don’t distrust your judgment at all. You just can’t do it on your own.” Whereas the available response in the motorcycle case doesn’t actually seem to cancel the implication that the parties will make bad choices—it seems to be saying, “We only care about your bad choices because they affect the rest of us,” which is quite a bit more abrasive. This contrast illuminates the difference between an express account and an intent-based account. The motorcycle policy may not be based on a paternalistic intention, but it is still paternalism because of its outward character
105. Whatever that would mean. See supra Section II.C
106. For example, Justice Stevens argued against restrictions on truthful commercial speech. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 1996 plurality opinion “Precisely because bans against truthful, nonmisleading commercial speech rarely seek to protect consumers from either deception or overreaching, they usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.”. When Justice Stevens says that the bans rest on the “offensive assumption” about the public, he is making a point about what justifications are available for the law, not about what in fact motivated its adoption. His point is that no nonoffensive justification is available. Of course, this is not to say that Stevens is right in saying that the existing justification is offensive. Denying that more information is always better for consumers might not be all that offensive, especially in light of the behavioral weaknesses like those Thaler and Sunstein highlight. See supra Section I.A
107. Thaler & Sunstein, supra note 9, at 19 “[The fact of systematic error] does not mean something is wrong with us as humans, but it does mean that our understanding of human behavior can be improved by appreciating how people systematically go wrong. . . . Knowing something about the cognitive system has allowed others to discover systematic biases in the way we think.”
108. This example has many similarities to Husak’s argument that paternalistic intervention may be acceptable if a vice is shared and that, as a result, “it would be peculiar to say that . . . paternalistic treatment betrayed a lack of respect for me, or was evidence of [an] attitude of moral superiority.” Husak, supra note 38, at 45. I share Husak’s intuitions. But Husak defends only the weaker position that paternalism may be permissible where there is no implication of superiority or shortcoming. I think this line of thought goes further. In my view, permissible paternalism may imply superiority of judgment or a shortcoming on the part of the subject. This is because limited assertions of superiority “I have less of a sweet tooth than you” or limited assertions of shortcomings “Baked goods are your great vice” are still compatible with overall respect and equality. Paternalism becomes objectionable not when it implies superiority, but when it begins to imply wholesale superiority
109. de Marneffe, supra note 8, at 80 “Errors in practical judgment are normal, though, whether they are about what is best for oneself or about what is best all things considered. So the supposition that someone is wrong about what is best for him with respect to a particular decision does not imply that he is stupid. It implies only that his rationality is imperfect, and so is open to the kinds of error we all are.”. In this regard, I am in total solidarity with de Marneffe; de Marneffe, however, focuses only on the type of liberty involved
110. John Rawls, A Theory of Justice 219 rev. ed. 1999 “It is also rational for [the parties] to protect themselves against their own irrational inclinations by consenting to a scheme of penalties that may give them a sufficient motive to avoid foolish actions and by accepting certain impositions designed to undo the unfortunate consequences of their imprudent behavior.”;
111. Dworkin, supra note 40, at 119 “Parental paternalism may be thought of as a wager by the parent on the child’s subsequent recognition of the wisdom of the restrictions. There is an emphasis on what could be called future-oriented consent—on what the child will come to welcome, rather than on what he does welcome.”
112. Recent empirical work by Sunita Sah, Dena Gromet, and Richard Larrick suggests that, in fact, people are less likely to find nudges objectionable if their own weaknesses are made salient to them. Sunita Sah et al., Transparent Nudges: How Knowledge of a Nudge Can Increase Its Acceptability unpublished manuscript on file with author. That is, when we recognize our own failings, we are more likely to tolerate instances of paternalism
113. I think the argument from humility relates to another argument for paternalism that I find somewhat convincing. This argument points out that there is a distributive aspect of paternalism—that some people, through no fault of their own, are more apt to make poor choices. Arneson, supra note 8, at 274–75. When this distributive dimension is considered, I think a blanket objection to paternalism looks even less persuasive. That is, I should be humble about the fact that I may be a bad decisionmaker in this context, and even if I am a good decisionmaker, I should be reticent to object to a policy that may help others. I disagree here with Kennedy, who claims that “[f]or an intervention to be paternalist, the distributive effects have to be ‘side effects’ rather than the purpose of the initiative.” Kennedy, supra note 88, at 625. The claim that Kennedy makes here is representative of the problems with intent-based theories of paternalism
114. Ryan Bubb & Richard Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1595 2014 pointing out that there is a significant tension between the evidence from behavioral economics and the emphasis placed on noncoercive policy proposals. “[I]t would be surprising if the main policy implication of the mounting evidence documenting the failure of individual choice was a turn toward regulatory instruments that preserve individual choice.” Id
115. Kennedy, supra note 88, at 645–46 “The single most important piece in the quilt of arguments in favor of ad hoc paternalism is the pervasiveness of compulsory terms, in contract, in tort and in statutory schemes. . . . Paternalism everywhere, coming out of the woodwork, suggests that the satisfying clarity of one’s initial anti-paternalist reaction is made possible only by excluding most of the problem from consideration.”
116. Sunstein &Thaler, supra note 8, at 1164 “The first misconception is that there are viable alternatives to paternalism. In many situations, some organization or agent must make a choice that will affect the behavior of some other people. There is, in those situations, no alternative to a kind of paternalism—at least in the form of an intervention that affects what people choose.”
117. This argument is based on the famous ought-implies-can principle. The imagined objector says, “You ought not affect my choices.” Thaler and Sunstein respond, “We cannotnot affect you choices.” With the implicit ought-implies-can premise, this is taken to refute the imagined objector
118. Jamie Kelly, Libertarian Paternalism, Utilitarianism, and Justice, in Paternalism: Theory and Practice, supra note 31, at 216, 219 “[Thaler and Sunstein] appear to be running together two claims here: The first is the claim that some sort of influence is inevitable; the second is that the appropriate response must be paternalistic.”
119. George Eliot, Middlemarch: A Study of Provincial Life 113 1872
120. It is perhaps noteworthy that Dorothea does have a sufficient fortune to live on, albeit more modest than Casaubon’s. See 1 Eliot, supra note 96, at 5
121. Dennis F. Thompson, Political Ethics and Public Office 150–51 1987 “Inequalities that are initially quite independent of the paternalistic intervention may come to affect its character, and it may in turn reinforce the inequalities. Even if itself isolated or sporadic, the intervention can generate paternalistic effects that persist in time and spread in social space . . . .”
122. While traditionally disadvantaged groups like women, the poor, or racial minorities are especially likely to be relevant, other groups may also feel the sting of paternalism in this way. Consider a penetrating exchange in NBC’s The West Wing: Sam Seaborn: “I am so off-the-charts tired of the gun lobby tossing around words like personal freedom and nobody calling them on it. It’s not about personal freedom and it certainly has nothing to do with public safety; it’s just that some people like guns.” Ainsley Hayes: “Yes, they do. But you know what’s more insidious than that? Your gun control position doesn’t have anything to do with public safety, and it’s certainly not about personal freedom. It’s about, you don’t like people who do like guns. You don’t like the people. Think about that the next time you make a joke about the South.” The West Wing: In This White House NBC television broadcast Oct. 25, 2000. Gun safety and control is, I think, an example in which those who object on grounds of paternalism are not especially worried that, e.g., mandatory safety locks or waiting periods are especially burdensome to their personal freedom, but rather are concerned that the policy is insulting to their values, judgment, and way of life generally
123. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 1995 Thomas, J., concurring in part and concurring in the judgment “[T]here can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”;
124. Frontiero v. Richardson, 411 U.S. 677, 684 1973 plurality opinion “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” footnote omitted
125. Thaler & Sunstein, supra note 9, at 204–05 noting that low-income parents made “[m]uch better” school choices when provided with a fact sheet with information about test scores and acceptance rates at available schools
126. generally The New Paternalism: Supervisory Approaches to Poverty Lawrence M. Mead ed., 1997 [hereinafter The New Paternalism] discussing the trend in welfare policy toward requiring individuals receiving assistance to work or stay in school in exchange for government aid
127. Peter Edelman & Barbara Ehrenreich, Opinion, Why Welfare Reform Fails Its Recession Test, Wash. Post, Dec. 6, 2009, at B1, available at http://www.washingtonpost.com/wpdyn/content/article/2009/12/04/AR2009120402604.html
128. “The Urban Institute’s analysis showed that 42 states have rules that discourage enrollment, such as requiring an extensive job search, even when there are obviously no jobs to be found. For a person without a car or access to public transportation, a requirement to apply for dozens of jobs before an application for welfare will even be considered, as some states and counties mandate, can be a dealbreaker. In some states, according to Kaaryn Gustafson of the University of Connecticut law school, ‘applying for welfare is a lot like being booked for a crime.’ There may be a mug shot, fingerprinting and lengthy interrogations as to the true paternity of one’s children. Word gets around, and, even in the face of destitution, many people will not undergo such indignities.”
129. President William Clinton, Announcement on Welfare Legislation July 31, 1996, available at http://www.nytimes.com/1996/08/01/us/text-of-president-clinton-s-announcement- on-welfare-legislation.html
130. To Review Outcomes of 1996 Welfare Reforms: Hearing Before the H. Comm. On Ways & Means, 109th Cong. 20 2006 statement of Newt Gingrich, Founder, Gingrich Group, and Former Speaker, U.S. House of Representatives.
131. Gingrich viewed the use of incentives rather than coercion to be an important feature of the legislation’s appeal. See id. at 23 “Americans are very responsive to incentives and very hostile to penalties or punishments.”
132. The New Paternalism, supra note 103
133. Cong. Rec. 20, 901–02 1996 statement of Sen. Moynihan “[I]t is not easy to change human behavior. Notwithstanding this fact, the premise of this legislation is that the behavior of certain adults can be changed by making the lives of their children as wretched as possible. This is a fearsome assumption. . . . I have pointed out that the principal— and most principled—opponents of this legislation were conservative social scientists who for years have argued against liberal nostrums for changing society with the argument that no one knows enough to mechanistically change society. Typically liberals think otherwise; to the extent that liberals can be said to think at all.”
134. This not to say that there might not be some avenue to explain the objection, but it would have to involve some explanation. Professor Thompson suggests that autonomy concerns generate something like conditional paternalism constraints: if one is to have paternalistic welfare policies, then they should be the least restrictive policies available. Thompson, supra note 99, at 172 “Any welfare system based on a paternalistic rationale should begin with the least restrictive policy on the continuum, and move to more restrictive ones only if they are necessary to make the system just, and only if they are consistent with the other criteria for justifiable paternalism.”. Thompson leverages this argument to suggest that paternalism concerns press against in-kind welfare. Id. at 170–72. Perhaps a similar argument could be made against work requirements
135. Frances Fox Piven & Richard A. Cloward, The Breaking of the American Social Compact 170 1997 “Logically, but not in the heated and vitriolic politics created by the attack on welfare, a concern with the relationship of welfare to dependency should have directed attention to the deteriorating conditions of the low-wage labor market. After all, if there were jobs that paid living wages, and if health care and child care were available, a great many women on [AFDC] would leap at the chance of a better income and a little social respect.”; Michael D. Tanner, Ending Welfare as We Know It Cato Inst. Policy Analysis No. 212, 1994, available at http://www.cato.org/sites/cato.org/files/pubs/pdf/pa212.pdf “As for providing an incentive for recipients to get off welfare, the conservative idea is based on the stereotyped belief that welfare recipients are essentially lazy, looking for a free ride. But as seen earlier, the decision to go on welfare is more likely a result of a logical conclusion that welfare pays better than low-wage work.”
136. Kenneth J. Neubeck & Noel A. Cazenave, Welfare Racism: Playing the Race Card Against America’s Poor 139 2001 “This welfare ‘dependency’ notion was built around the racist stereotype that lazy African Americans used welfare to avoid work. . . . This stereotype was often linked with yet another racist stereotype, which held that poor African- American women bore children to gain or increase their welfare benefits.”
137. Barbara Ehrenreich, TANF, or “Torture and Abuse of Needy Families”: Top Ten Misconceptions About TANF, 1 Seattle J. Soc. Just. 419, 423–24 2002 “Many saw and still do see welfare reform as part of a moral crusade; a moral crusade against those evils of promiscuity, ‘illegitimacy,’ single-mother households, and so on. When you carry out a moral crusade against female sexuality and female-headed households, you are carrying on a crusade not just against poor women, but against all single mothers, ultimately against all single women, and against any woman who happens to be independent-minded. More affluent women must understand this. The rhetoric that denounces poor women, as the rhetoric against welfare has continually done, is an attack also on the rights and freedom of all women.”. Notice how the objection here is framed in terms of the policy’s rhetoric
138. Stu Jordan & Nolan McCarty, Welfare and Paternalism 4 Mar. 2, 2010 work in progress, available at http://www.princeton.edu/~nmccarty/paternalism9.pdf. For what it’s worth, it’s not clear that Jordan and McCarty’s model actually tracks genuine paternalism at all. What it tracks is the benefit each person receives from the fact that other poor people are working. Id. at 11 “mc reflects a paternalistic benefit that the individual derives from having the poor participate in the work requirements and/or submit to other forms of behavioral regulation.”. In other words, it tracks the way in which increased work among the poor may be a public good, which has only a tangential relationship with the paternalistic reasons for endorsing a work requirement
139. Thompson, for example, suggests that the individual model of paternalism can be misleading when applied to government policies
140. Thompson, supra note 99, at 149 “The liberal paradigm of paternalism usually presents a relationship between two individuals, who interact personally for a specific purpose. . . . What the paradigm obscures are two features of the power that inheres in paternalism—its contestable and systematic character.”
141. Benjamin Hochman, Jazz Doing Oscar Proud: By Hook or by Crook, Utah’s Players Are Adept at Drawing Calls for Offensive Fouls, Denver Post, Apr. 23, 2010, at CC1, available at http://www.denverpost.com/sports/ci_14941562 internal quotation marks omitted
142. Thompson, supra note 99, at 159
143. Arneson, supra note 8, at 271 “To be administratable [sic], laws must be coarsegrained. The social planner designing laws for a society must reckon with possibilities of maladministration and corruption in the implementation of any proposed law by government agency and with possibilities that the effect of the law on the operation of a society filled with imperfectly rational, not well-informed, and generally self-interested people will be bad in ways hard to anticipate. For these familiar reasons, argument about legal paternalism by example and counterexample is almost bound to end up uncertain and tentative. Decisive victory on this terrain is hard to win.”
144. Thompson explicitly endorses something like this view. See Thompson, supra note 99, at 157 “[T]he requirement that the constraint on liberty be limited at least entails that society should choose the least restrictive alternative consistent with the purposes of the intervention.”
145. To emphasize a point that has already been made several times, I do deny that restricting citizens’ liberty is a pro tanto reason against a particular policy. All things being equal, a state should adopt a less restrictive policy. But failure to do so does not, contra Thompson and other coercion-focused views, necessarily make a policy more objectionably paternalistic. The individually tailored policy may be less restrictive, and yet more paternalistic. It is also worth noting that the generality of government policy raises distributive concerns
146. Arneson, supra note 8, at 274–76. If any paternalistic government policy were objectionable because it applied to someone who did not need the help, then that would handcuff the government from providing help to those who do need it. This distributive complexion provides another reason why generality may make government paternalism less objectionable. An interference should be less insulting if one knows that it is helping some people who need it
147. White, supra note 34, at 113–19 arguing that government paternalism is unlike paternalism among intimates because government cannot care for citizens in the same way
148. Kennedy, supra note 88, at 647 “State action is not intrinsically more violent than private. But what makes it seem at least conceivable that the state official should be more chary of paternalism than the private actor is that the state official acts on people he doesn’t know, which is just a euphemistic way of saying that he acts on people who belong to class, racial and sexual groups different from his own.”
149. Thompson, supra note 99, at 148, 150 “Like parents, public officials sometimes make us act against our own will for our own good. . . . The locus of paternalism refers to the relationship between those whose liberty is restricted and those who impose the restriction.”
150. Husak, supra note 38, at 43–45 describing paternalism toward oneself as a less problematic form of paternalism
151. Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 1996 Scalia, J., concurring in part and concurring in the judgment “I also share Justice Stevens’s aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them. On the other hand, it would also be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them.”
152. This mitigating factor is clearly at work in the first smoking example, supra note 37
153. de Marneffe, supra note 8, at 68 “Some liberties have a special value in symbolizing the status of adulthood within our society, the freedom to marry, for example.”
154. Sarah Conly, Against Autonomy: Justifying Coercive Paternalism 2013;
155. Jeremy A. Blumenthal, A Psychological Defense of Paternalism, in Paternalism: Theory and Practice, supra note 31, at 197;
156. Kalle Grill, Anti-paternalism and Invalidation of Reasons, Pub. Reason, Dec. 2010, at 3; Sunstein, supra note 8