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To an extent, such reluctance to choose is reflected at the political level as well; that is, in citizens’ evident preference not to become involved in political decision-making. As Hibbing and Theiss-Morse have documented, “widespread” evidence demonstrates that citizens are disenchanted with politics; they do not like the political process in practice and do not want to be involved with it themselves.26 This, in part, is why even mechanisms to facilitate voter registration (e.g., “Motor Voter” acts or Election Day registration) often do not significantly increase actual participation.27 Hibbing and Theiss-Morse further suggest that citizens want their legislators not to engage in spurious political debate – debate that is seen as simply reflecting jockeying for influence among special interest groups and the politicians they capture – but to focus instead on issues that citizens perceive to be important. Their data suggest that citizens perceive such consensus on those important issues that were legislators to address them, there would be no need for such debate. Although citizens would prefer to “defer virtually all political decisions to government o cials,” citizens do not trust that legislators conduct themselves with the public interest in mind.28 Distrust, disenchantment, and disinclination to participate in the political process result. Indeed, Hibbing and Theiss-Morse argue, citizens would prefer to leave government and political decision-making to “ENSIDs,” or “empathetic non-self-interested decision makers,” expert policy-makers who have the public interest in mind, those “objective” parties whom citizens want to make decisions and “move on” to the important issues.29 Apparently, the public agrees with the long-standing philosopher’s “dream, to replace the politician by the scientist.”30
Although Hibbing and Theiss-Morse do not fully address this, the ENSID model better reflects the process of administrative agency policyand decision-making than the process by which state or federal legislatures arrive at decisions. Agency rule-making typically involves experts in a particular field who are procedurally obligated to consider diverse viewpoints and to make decisions in a transparent manner.31 However, despite the substantial decision-making authority vested in administrative agencies, the public typically has little idea about those agencies’ processes or preferences,32 though in many instances citizens think they do.33
26Hibbing and Theiss-Morse, Stealth Democracy, 3.
27See, e.g., Knack, “Election-Day Registration”; Martinez and Hill, “Did Motor Voter Work?”.
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Hibbing and Theiss-Morse, Stealth Democracy, 159. |
29 Ibid., 224. |
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Durant, The Story of Philosophy, 137. |
31 See, e.g., Criddle, “Fiduciary Administration.” |
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See, e.g., Wood and Waterman, Bureaucratic Dynamics. |
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Harris Interactive, “The Harris Poll #10.” |
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Nevertheless, agency o cials may thus fit the “stealth democracy” model that citizens prefer better than elected politicians, as those o cials more likely possess relevant expertise, are likely less self-interested, and have more constraints in place upon their “pursuit of power.”34
Even more specifically, citizens’ preferences may be captured by the fiduciary model of agency decision-making, which sees agencies (or other policy-makers) as obligated to act in a manner that is other-regarding, purposive, deliberate, and deliberative.35 Under this approach, policymakers’ decisions must be reasoned, objective, and transparent, and must be taken in the interest of their beneficiaries (i.e., citizens).36 This captures citizens’ desire to “avoid government by people who act selfishly, not government by experts and elites.”37 Importantly, however, this decisionmaking in the beneficiaries’ interest does not dictate simplistic adherence to those beneficiaries’ expressed interests. Rather, if beneficiaries have abdicated some decision-making authority to decision-makers they trust to make appropriate decisions (ENSIDs in particular), then under the fiduciary model these decision-makers must conduct themselves consistent with their beneficiaries’ interests, but not necessarily with the beneficiaries’ desires.38 To this extent, the fiduciary model allows for some paternalistic policies and, so long as those policies are enacted through the processes citizens expect – objectively, transparently, and in a reasoned manner, the very means the fiduciary model demands – citizens may be content with those ENSIDs’ decisions.39 Indeed, citizens tend to rate one of the more paternalistic agencies – the Food and Drug Administration, which evaluates and bans food additives or similar ingredients based on the experts’ advice, even though such food sales might otherwise be left to the market40 – consistently highly, with about two-thirds of the public reporting positive ratings over the last several years.41 Accordingly, and as explored further below, citizens may be more content with paternalistic interventions than initially assumed, and more accepting than they realize.
34Hibbing and Theiss-Morse, Stealth Democracy, 156.
35Criddle, “Fiduciary Administration”; see also Criddle, “Fiduciary Foundations of Administrative
Law”; cf. Fox-Decent, Sovereignty’s Promise.
36 Criddle, “Fiduciary Administration.” 37 Hibbing and Theiss-Morse, Stealth Democracy, 141.
38Criddle, “Fiduciary Administration”; Kyritsis, “Representation and Waldron’s Objection to Judicial Review.”
39Will ENSIDs who thus act paternalistically, that is, act in citizens’ interests but not according to their putative desires, be seen as missing the “E” – that is, as not su ciently empathetic? Perhaps not, if the appropriate transparent procedures are followed and, importantly, so long as the ENSIDs are seen as not making rules or decisions in their own self-interest, which is what Hibbing and
Theiss-Morse find citizens are most concerned about.
40 Calcott, “Paternalism and Public Choice,” 39. 41 Harris Interactive, “The Harris Poll #10.”
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will they? can they?
Citizens would often prefer that ENSIDs make decisions for them, even when those decisions may not match citizens’ explicitly expressed preferences. This model seems most appropriate when decision-making authority is vested in expert decisionand policy-makers, as it often is when executive branch agencies are accorded such authority. At least two questions remain, however, in this agency context – whether agency experts in fact can make better decisions than lay citizens, and whether they in fact will do so. That is, are experts in fact better policy-makers than citizens, and will they in fact act dispassionately, neutrally, in the public’s interest rather than their own?
Taking the latter question first, i.e., the tendency of agencies to be “captured,” scholars have documented for several years that the conventional picture of political control over agency decision-making is likely overstated. Macey, Merrill, and Schlozman and Tierney review a variety of empirical evidence to suggest little or “weak” support for the idea of agency capture.43 “Indeed, the checks on agency behavior are so numerous and powerful that some have complained the problem is not agency drift, but agency paralysis.”44 In brief, recent evidence suggests less of a capture concern than was once put forth.45 Accordingly, for the paternalism question, the first question – whether experts in fact can make better decisions than laypersons – may be more relevant.46 Several points might be made.
First, it is clear that in some instances, including risk-perception contexts, third-parties – experts and policy-makers – can assess others’ preferences better than those others can themselves; this is especially true in contexts involving emotionally influenced decision-making.47 However, critics emphasize the “problem” that the alleged experts enacting policies are just as human as those in whose interest they are acting, and are thus subject to the same cognitive, emotional, and other biases that influence decision-making.48
42For a more detailed discussion of experts and paternalism see Blumenthal, “Expert Paternalism.”
43Macey, “Transaction Costs and the Normative Elements of the Public Choice Model”; Merrill, “Rethinking Article I, Section I”; Schlozman and Tierney, Organized Interests and American
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Democracy. |
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45 Criddle, “Fiduciary Administration.” |
Merrill, “Rethinking Article I, Section I,” 2144. |
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See Blumenthal, “Expert Paternalism.” |
47 Blumenthal, “Emotional Paternalism.” |
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48See, e.g., Gillette and Krier, “Risk, Courts, and Agencies”; Prentice, “The Case of the Irrational Auditor”; Slovic, “Perception of Risk”; Sunstein, The Laws of Fear.
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It is true that a long line of empirical findings in the judgment and decision-making (JDM) literature suggests that experts su er deficiencies in decision-making. However, even within this JDM literature, a number of examples of expert superiority exist.49 Expert auditors, doctors, livestock judges, weather forecasters, trial judges, teachers, pilots, accountants, and lawyers all make appropriate, accurate, well-calibrated judgments that are often better than laypeople’s.50 Moreover, just as these critics point to a range of individual di erences as a factor to consider – that is, certain individuals are likely not subject to certain biases, and thus do not need intervention, so any policies will be overbroad – even if experts are susceptible to some biases, looking at that same bell curve of abilities, we intend that central planners fall on the positive tail of that curve and are thus among the least likely to fall prey to flawed decision-making.
Second, in a number of instances group deliberation attenuates biases;51 this is more likely in the context of expert decision-making (an appellate court; a government agency). Third, methodological artifacts may lead researchers to findings that suggest deficient expert decisionmaking. This might be by forcing experts to use non-expert thought processes, where it is clear that experts use qualitatively di erent thought processes and strategies. Or the “experts” being studied may in fact not be experts, but rather skilled novices; or researchers may conflate experience with expertise.52 Or researchers may simply be asking the wrong questions; for instance, studies of trial judges may not test the right type of judicial reasoning.53
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Two friends are camping when a bear suddenly comes out and growls. One starts putting on his sneakers. His friend says, “What are you doing? You can’t outrun a bear!” Replies the first, “I don’t have to outrun the bear; I just have to outrun you!”
But perhaps the most important factor in assessing whether experts are better decision-makers than laypeople – even if, in their humanity, they are subject to the same biases as laypeople – involves “outrunning the bear.” That is, the “experts are human” criticism presumes that when experts do show biases, their decision-making is just as severely compromised as
49For reviews see Shanteau, “Psychological Characteristics and Strategies of Expert Decision Makers”; and “Competence in Experts.”
50See, e.g., Korobkin and Guthrie, “Psychology, Economics, and Settlement”; Shanteau, “Competence in Experts”; Westerman, “Expert and Novice Teacher Decision Making.”
51For a review of studies see Blumenthal, “Does Mood Influence Moral Judgment?”.
52Wright, “Audit Judgment Consensus and Experience.”
53Schauer, “Is There a Psychology of Judging?”.
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laypeople’s – that is, an absolute objection. However, perhaps proponents of expert decision-making need not show that experts can outrun the bear – simply that, ceteris paribus, expert decision-making is relatively better than laypeople’s – that the experts can “outrun” the citizen. Even to the extent experts might be vulnerable to bias, their expertise nevertheless makes them less vulnerable, and thus their decisions would be more worthy of e ectuating as policy.54
Substantial research directly comparing elite and lay decision-makers, as well as comparing domain experts and laypeople, has shown just this. Whether elites (executive-level government and industry leaders), trial judges, or other domain experts, participants do make various cognitive errors, e.g., being susceptible to framing e ects or failing to properly consider sunk costs. However, they consistently show significantly less bias than do laypeople on most dimensions of decision-making competence tested, challenging the “experts are human” objection to paternalism.
This is especially, though not exclusively, so in the financial context.55 Kaustia, Alho, and Puttonen used data from surveys involving financiers and university students to conduct three controlled experiments in which they manipulated the background information given to students.56 Both groups, students and professionals, exhibited an anchoring e ect in longterm stock return expectations, but the bias of professionals was substantially smaller. More recently, Zaleskiewicz found that although both financial analysts and laypeople during the 2009/2010 economic crisis made inaccurate predictions about future stock market performance and exchange rates, the analysts were more accurate.57
This is also the case in risk perceptions, one of the focal points for critics of expert performance but also an essential aspect of policy-making. Two decades ago Krier not only noted that expert risk assessors may be vulnerable to heuristics and biases, “though they might be less vulnerable than lay people,” but also emphasized the possibility of structuring or designing regulatory institutions to address the possibility of experts’ mistakes.58 Cass Sunstein, former head of President Obama’s O ce of Information and Regulatory A airs, argued, not unreasonably, that especially in judging the likelihood of risks, “compared with ordinary people, experts are better able to reach accurate information, if only because they have access to
54Cf. Wright, Bolger, and Rowe, “An Empirical Test of the Relative Validity of Expert and Lay Judgments of Risk,” 1109.
55Shanteau, “Expert Judgment and Financial Decision Making.”
56Kaustia, Alho, and Puttonen, “How Much Does Expertise Reduce Behavioral Biases?”.
57 Zaleskiewicz, “Financial Forecasts During the Crisis.” |
58 Krier, “Risk and Design,” 783. |
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more information, making the easily recalled incident a less important determinant of judgment and producing greater accuracy than the rules of thumb on which ordinary people rely.”59
Empirical evidence bears out these theoretical assumptions: A classic study by Slovic, Fischho , and Lichtenstein showed that experts were more discriminating and used more information in a more e ective way than laypeople; indeed, their approach seemed to view risk in a qualitatively di erent way.60 Since that study a number of researchers have documented that experts’ assessments of risk (i.e., the likelihood of hazardous events) are typically lower than laypeople’s; in fact, the consensus has been that experts’ judgments are more veridical than laypeople’s.61 To address the concern noted here, however, that these studies did not address relative accuracy as between experts and laypeople, Wright et al. compared the accuracy of insurance underwriters and students, finding, consistent with the argument here, that despite committing errors, experts were nevertheless “generally, a little better in their risk judgments than the lay persons . . . [although the di erences] were small in magnitude.”62 Finally, looking at probabilities of risk in reverse – i.e., trying to identify causation of past negative outcomes – experts are better at using certain types of probabilistic reasoning than laypeople, and thus are more sensitive to (and thus less susceptible to) certain decision-making biases.63
Conducting JDM research with professional judges as participants is increasingly popular; and a number of such studies have documented judges’ heuristic thinking.64 However, Guthrie and colleagues also documented that judges do notably better than laypeople in dealing with some common biases, consistent with Korobkin and Guthrie’s findings about experienced lawyers.65 Thus, although “still susceptible to framing and the representativeness heuristic, the judges appear less susceptible than other decision makers to these e ects.”66
Finally, as part of ongoing research into leadership and leadership ability at the Harvard Kennedy School, researchers directly compared “elite” and
59Sunstein, “The Laws of Fear,” 1136.
60Slovic, Fischho , and Lichtenstein, “Characterizing Perceived Risk.”
61See Wright, Bolger, and Rowe, “An Empirical Test of the Relative Validity of Expert and Lay
Judgments of Risk.”
62 Ibid., 1118. 63 Ofir, “Ease of Recall vs. Recalled Evidence in Judgment.”
64See, e.g., Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind”; and “Blinking on the Bench.”
65Korobkin and Guthrie, “Psychology, Economics, and Settlement.”
66Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind,” 816.
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lay decision-makers.67 Findings showed that elites (executive-level government and industry leaders) do make various cognitive errors, e.g., making inaccurate risk judgments, being susceptible to framing e ects, or failing to properly consider sunk costs. However, elites show significantly less bias on these decision-making dimensions compared to laypeople, challenging the “experts are human” objection to paternalism.
Thus, empirical findings demonstrate that broadly speaking, experts are less vulnerable to heuristics and biases than are laypeople.68 Such data respond to those critics of paternalism who argue that the data simply show that experts – legislators, agency decision-makers, whoever it is in whose hands we would place a policy decision once it has been taken away from an individual – are human and thus subject to cognitive and emotional biases that make their decisions suspect. The criticism in part misses the point: The question is not whether experts might be subject to biases, but whether they are nevertheless able to make better policy decisions, ones that will better further public welfare, than citizens might make if left on their own. Opposition to paternalism based on the objection that those engaging in paternalistic decision-making are subject to these same biases is thus perhaps too facile – data show that all else being equal, experts are better decision-makers than laypeople, even if we do document biased decision-making on the part of experts as well as laypeople. I do not mean to overstate the claim – data do show that even experts are subject to ordinary heuristics, biases, and a ective influences. However, they are still better than laypeople. Thus, as with earlier objections, the “experts are human” criticism must meet a higher hurdle than has been assumed.
perceptions of paternalism
Despite these potential justifications for paternalistic intervention, nevertheless, as noted above, it is also clear that calling a policy intervention “paternalistic” can easily trigger negative considerations and elicit opposition. Public antipathy towards any intervention is an essential factor to take into account when evaluating the costs and benefits of a proposed policy.69 Steps either to reframe the presentation of the policy, to educate the public about its substance, or to change the policy itself, are all
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J. S. Lerner, Y. Inbar, J. Kusto , P. Litvak, and P. Telpitz, “Leadership Decision Making.” (Poster |
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presented at the Society for Judgment and Decision-Making Conference, Boston, MA, 2009.) |
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Blumenthal, “Expert Paternalism.” |
69 Blumenthal, “Emotional Paternalism.” |
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potential means of addressing such antipathy.70 I thus turn to some recent alternative approaches to “traditional” paternalism, and briefly describe some existing data on public opinion about paternalistic policies.
“Light” paternalism
Traditional or coercive paternalism, of course, intervenes in citizens’ decision-making processes or behavior, under the presumption that individuals do not always know how to act in their own self-interest and thus need assistance. Whether through lack of information, lack of intelligence, lack of willpower, or lack of optimal decision-making strategies, people make poor decisions and government intervenes to restrict citizens’ options, replace their decision-making altogether, or tax or punish nonoptimal behavior. A substantial literature exists evaluating di erent kinds of paternalism and their justification,71 but the fundamental insight is that there is some third-party intervention, usually by government, into citizens’ behavior, choices, or decision-making processes, with the goal of protecting those individuals from the negative consequences of that behavior or those choices or processes.
Recently, legal scholars and some economists who are uncomfortable with such “hard” or coercive paternalism have nevertheless sought to address citizens’ cognitive and emotional shortcomings by developing various forms of “light” paternalism. Chief among these are “libertarian” paternalism72 and “asymmetric” paternalism.73 “Libertarian” paternalism focuses in part on the importance of “default rules,” suggesting that both government and private parties should construct choice frames so that healthier or more beneficial options are either mandated – as in a default rule of automatic enrollment into a pension plan, rather than an opt-in mechanism that individuals might be too lazy or uninformed to choose – or else made particularly salient – as with the company cafeteria manager who should place the healthy food, rather than the desserts, at the front of the line.74 “Asymmetric” paternalism, in related fashion, emphasizes the development of policies that intervene in the decision-making or behavior of those who act non-optimally, while infringing as little as possible on
70Cf. Mello, Studdert, and Brennan, “Obesity – the New Frontier of Public Health Law,” 2607.
71For reviews see, e.g., Blumenthal, “Emotional Paternalism,” 6–8; Pope, “Counting the Dragon’s Teeth and Claws”; and “Is Public Health Paternalism Really Never Justified?”.
72Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron.”
73Camerer et al., “Regulation for Conservatives.”
74Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 1164.
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the autonomy of those behaving more optimally. Automatic enrollment in pension plans applies here as well, as it benefits those who would be too lazy or uninformed to actively enroll, but does not impose much burden on those who would take the time to research and make enrollment choices in any event.75
Concerns with the “light paternalism” approach exist. The most common objection is simply that the suggested interventions are paternalistic – and are thus inappropriate. As suggested above, however, this objection begs the question, simply presuming that because there is intervention in individual decision-making, there is some violation or unacceptable infringement. Other objections emphasize the value of letting people learn from experience, or emphasize the values inhering in autonomous decision-making.76 Again, however, such objections are called into question by substantial empirical research.77 Yet other objections note the practical di culties involved in developing such policies, such as identifying which default rules to have in place78 or calculating how large a bias is and thus what sort of policy to establish.79 Finally, some critics object that Sunstein and Thaler’s approach is actually not “libertarian” at all, because the “choice” that they insist on retaining (e.g., through the opportunity to opt out of default rules) is actually itself constrained by those defaults.80 Thus, the critics object, the proposals are far more paternalistic than libertarian; indeed, they argue, “libertarian paternalism is an oxymoron.”81
“Positive” paternalism
A second line of research seeks to address the discomfort with traditional or coercive paternalism, the di culties of light paternalism, and the challenges (and mistakes) of economists’ anti-paternalism. Recent commentators have suggested an alternative called “positive paternalism” or
75See Loewenstein and Haisley, “The Economist as Therapist,” 214.
76See, e.g., Klick and Mitchell, “Government Regulation of Irrationality”; Mitchell, “Libertarian Paternalism Is an Oxymoron.”
77See Blumenthal, “Emotional Paternalism.”
78Huang, “Authentic Happiness, Self-Knowledge and Legal Policy.”
79See, e.g., Whitman and Rizzo, “Paternalist Slopes.”
80See, e.g., Huang, “Authentic Happiness, Self-Knowledge and Legal Policy”; see also Mitchell, “Libertarian Paternalism Is an Oxymoron.”
81Mitchell, “Libertarian Paternalism Is an Oxymoron.” One response is, of course, to acknowledge this power of default rules; indeed, to argue that their “stickiness” is precisely the point of utilizing them to benefit those who would otherwise make poor decisions. A second is to note that simply labeling a policy “paternalistic” need not itself invalidate it.
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“positive parentalism,”82 given its roots in positive psychology83 and virtue theory.84 Here, there is a focus not (or not only) on directly intervening in citizen decision-making and behavior, but on developing policies that would help citizens flourish by helping them develop their own strengths and abilities, by giving incentives to engage in healthy activities or more optimal decision-making, or by encouraging or even mandating engaging in activities that, for instance, elevate mood in order to reap the benefits of being in a positive mood.85 Mandating or encouraging physical exercise might accomplish this,86 as might mandated physical education in schools or incentives or subsidies for financial and tax-planning software in order to encourage financial fitness.87
Some such approaches exist, such as steps taken by some insurance companies and other employers in developing incentive programs for healthy lifestyles. AETNA, for instance, developed a program o ering subscribers rewards and other incentives for joining health clubs or otherwise showing that they engage in healthy conduct.88 Blue Cross/Blue Shield engages in similar programs to address obesity, reporting substantial positive benefits such as almost half of program participants (47 percent) reporting losing weight, 70 percent reporting engaging in better eating habits, and more than half (59 percent) reporting becoming more active.89 In another program, a Colorado employer (Kaiser Permanente) hired a consulting company to develop such an incentive program – e.g., providing nutrition and exercise classes, as well as cash incentives – reporting substantial health gains among participants. 90
These positive paternalism researchers suggest – and hope – that citizens may be more receptive to such positive paternalistic policies.91 Anecdotal evidence suggests that in practice such programs are viewed hesitantly at first, and even seen as an infringement on individual rights; however, individuals acknowledge the beneficial outcomes and may come to recognize the importance of such a trade-o .92
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Blumenthal and Huang, “Positive Parentalism.” See, e.g., Snyder and Lopez, Positive Psychology. See, e.g., Anscombe, “Modern Moral Philosophy.”
Blumenthal, “Emotional Paternalism,” 40. 86 Blumenthal, “Emotional Paternalism.”
87Blumenthal and Huang, “Positive Parentalism”; Huang and Blumenthal, “Positive Law and Policy.”
88AETNA, “Aetna Announces New Weight Management Program at National Summit on Obesity.”
89Center for Health Transformation, “Healthcare That Works.”
90Kaiser Permanente, “Kaiser Permanente Colorado O ers Its Employees incentaHEALTH Weight Loss and Wellness Program for Fourth Consecutive Year.” This web-article, however, appears to be sponsored by the consulting company.
91Blumenthal, “Emotional Paternalism”; Blumenthal and Huang, “Positive Parentalism.”
92See, e.g., Reynolds, “Forced to Be Fit at Work?”.