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Public opinion surveys
Finally, one conventional assumption is that American society rejects paternalistic intervention into citizens’ conduct and decision-making. This assumption is borne out by some public opinion, in particular by surveys about the role of government in individual lives. Comparing national polls from 1987 and 1994, for instance, one author identifies an increase in the number of Americans who say “the federal government controls too much of our daily lives,” from 57 percent to 69 percent; similarly, she identifies a decrease in those who say it is the “government’s responsibility to take care of people who can’t take care of themselves,” from 71 percent to 57 percent.93 Longer-term study of American attitudes towards the role of government has shown a significant decrease in those agreeing that the federal government should ensure that every person has a job and a good standard of living, from 57 percent in 1956 to only 21 percent in 2002; this was mirrored by an increase over the same period in those agreeing that the government should “let each person get ahead on his own,” from 27 percent to 43 percent.94
There is some ambiguity in these data, however. First, the drop is much larger than the increase, and seems to be sharpest between 1960 and 1964, staying even in 1968. Perhaps that drop, combined with the smaller increase in the perception that individuals should take responsibility, is less indicative of aversion to paternalism per se and more of distrust of the government. Tentative support for this explanation is that the sharp drop came in the 1960s, when trust in government dropped substantially, as well as the high support for a government role in the 1950s, when trust in government was high.95 Although this early 1960s drop in agreement about government roles in ensuring jobs slightly predated the drop in trust, the longer-term correlation from the 1950s to the 2000s may lend this interpretation some support.96 Stronger support might come from the trend for those who gave “don’t know” or “no interest” answers, with an increase from 17 percent to 18 percent in the 1950s, from 22 percent to 26 percent in the 1960s, to 36 percent in 2002, as shown in Figure 1 (and see discussion below). This ambivalence is mirrored in polls asking similar questions. In a 1979 national poll for the Republican National Committee, 22 percent of respondents were below the scale midpoint, agreeing that
93Postrel, “Paternalism Test.” The article gives no further citation for these data than a “Times-Mirror survey.”
94ANES, “Anes Guide to Public Opinion and Electoral Behavior.”
95 See, e.g., Levi and Stoker, “Political Trust and Trustworthiness,” 478, fig. 1. |
96 Ibid. |
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Figure 1. Perceived Responsibility for Jobs/Standard of Living.
Note: No poll data for the years 1962, 1966, and 1970.
government should see that every person had a job and a good standard of living, while 51 percent were above the midpoint, agreeing that each person should get ahead on his own. Twenty percent were at the midpoint, and 6 percent did not know. Twenty years later, however, percentages were dramatically di erent, with a CBS News poll showing that 45 percent believed the government should take that role, and 48 percent believing people should get ahead on their own; 8 percent did not know or gave no answer. Although the distinction might be due to methodological factors – use of a dichotomous question rather than a scale – it is a striking shift from ambivalence to apparent non-libertarian attitudes towards the government.97
97A similar point might be made for the ANES data. The questions from 1972 through 2000 were presented as a seven-point scale, including a “don’t know/haven’t thought about it” option. Combining the midpoint – i.e., ambivalent – response with the “don’t know/haven’t thought about it” option gives a roughly stable response rate, ranging from a low in 2004 of 27 percent to a high of 40 percent in 1978. Collapsing the options on either side of the midpoint for these years (1–3 preference for government role; 5–7 preference for each person getting ahead on his own) gives
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National data from the 2004 General Social Survey show more ambiguity: 27 percent of those surveyed agree that government should improve living standards (“of all poor Americans”), and 26 percent agree that people should take care of themselves (2 percent did not know). Forty-seven percent, however, agreed with both attitudes, demonstrating the most ambivalence of any of the government role surveys.98
At the level of specific policies, moreover, the evidence is also ambiguous. In the 1980s, for instance, the initial introduction of seatbelt laws in various states elicited objections and grassroots movements against the policy, often as a result of their perceived paternalistic nature.99 As more states introduced such policies, however, public support gradually increased, to the extent that such laws today are largely seen in a favorable light. In the early 1980s, only about 25 percent of Americans supported fines for riding without seatbelts, rising only to about 35 percent two years later.100 By 1988, however, national polls found a roughly even split between support (54 percent) and opposition (43 percent) for a law that would fine a person $25 for not wearing a seatbelt;101 recent polls show support for mandatory seatbelt laws at 87 percent.102 A similar trend occurred with support for motorcycle helmet laws, with 1978 polls showing 57 percent support for allowing cyclists to ride without helmets, but 2001 polls showing that 81 percent of Americans believed helmets should be required.103 And tolerance for regulation of tobacco advertising and cigarette taxes – paternalistic policies designed, in part, to deter smokers from beginning or continuing to smoke – has increased substantially over time.104 Americans today both believe that tobacco companies should be among the most regulated industries,105 and favor sin taxes on cigarettes (as well as alcohol) as a means of reducing the budget deficit.106
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No rounding or other explanation is given for the totals summing to 102 percent. |
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See, e.g., Shapiro, “Courts, Legislatures, and Paternalism,” 530. |
100 Sullum, “Freedom Riders.” |
101Gallup Organization, Survey by Gallup Organization, May 2–May 8, 1988.
102See, e.g., MADD, Survey by MADD, Nationwide Insurance and Gallup Organization, July
26–August 14, 2005. This 2005 national poll by MADD/Nationwide Insurance showed 51 percent of Americans strongly supporting mandatory seatbelt laws as a means of “reducing drunk driving and improving tra c safety,” 36 percent somewhat supporting such laws, and 13 percent opposing them or giving a “don’t know” or no answer.
103Sullum, “Freedom Riders.”
104Mello, Studdert, and Brennan, “Obesity – the New Frontier of Public Health Law.”
105 Harris Interactive, “The Harris Poll #149.” |
106 Harris Interactive, “The Harris Poll #30.” |
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But other polls show similar ambivalence about the role of government in combating health problems such as obesity. Mello and colleagues note poll data showing an even split in the percentage of Americans who see obesity as a problem for individuals to deal with (48 percent) versus seeing it as a problem for society to address (47 percent).107 This perspective, too, though, has changed over time. When, in the late 1970s, the Federal Trade Commission initially attempted to regulate TV advertising of high-sugar food to children, there was such strong industry and public objection that the Commission abandoned its e orts. Over the last three decades, however, public awareness of obesity as a health problem, as well as public attitudes towards the propriety of regulation, have changed, such that a majority of Americans believe it is appropriately the government’s role to fight obesity. At the same time, though, almost half the states in the US have passed so-called “personal responsibility” legislation barring lawsuits against fast-food companies.108
As suggested above, whether such changes derive exclusively from reduced antipathy towards paternalism is hard to disentangle. At least in the junk food and cigarettes context, paternalistic intervention might be seen as appropriate because it is designed to protect children,109 typically one of the few classes for whom paternalism is seen as justified.110 It may simply be that “Americans may be irritated at bureaucratic intrusions into our own lives, but an awful lot of us still want the government to tell other people what they can and cannot do.”111 Green and Gerken, for instance, found that non-smokers are significantly more willing to impose smoking bans and cigarette taxes than smokers.112 In any event, one important consideration in evaluating any interventionist policy is public attitudes.113 As demonstrated here, there has certainly been a move away from rejection of many policies involving government intervention simply because they were perceived as paternalistic, to increased acceptance of those policies.
107Mello, Rimm, and Studdert, “The McLawsuit.” Here, however, it is not necessarily clear what people are thinking about when asked whether “society” is responsible. Support might change if the word were “government.” I thank Danny Hayes for this point.
108Mello, Studdert, and Brennan, “Obesity – the New Frontier of Public Health Law.”
109 Ibid. |
110 See, e.g., Mill, On Liberty. |
111 Postrel, “Paternalism Test.” |
112Green and Gerken, “Self-Interest and Public Opinion Toward Smoking Restrictions and Cigarette Taxes.”
113See, e.g., Sunstein, “Legal Interference with Private Preferences,” 1173.
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conclusion
Traditional objections to paternalism center on individual autonomy and the freedom to choose, on individuals’ ability to learn from their mistakes, and on “knowledge problems” to which central planners are subject. More recently, in response to empirical demonstrations that people are vulnerable to a variety of cognitive and emotional biases in decisionmaking, anti-paternalists suggest that such central planners or experts are just as vulnerable; their interventionist decisions should therefore not be privileged.
Each of these objections, though superficially plausible, nevertheless is challenged by empirical findings in psychology and cognitive science. I presume that a prima facie case for paternalism can be met, so rather than presenting a positive case for paternalism, I have presented here a brief psychological defense of paternalism against the objections. Rather than explicitly arguing in favor of paternalism, I suggest that the hurdles anti-paternalists face to overcome the prima facie case are higher than usually thought.
chapter 11
Libertarian paternalism, utilitarianism, and justice
Jamie Kelly
introduction
In a number of recent publications, Cass Sunstein and Richard Thaler have argued for a novel approach to the design of public policy.1 Their proposal has received a great deal of attention, both within academic circles and the public at large. Drawing upon evidence from behavioral economics and empirical psychology, the authors attempt to demonstrate that the conventional antagonism between libertarians and paternalists within political theory dissolves in conditions that obtain widely in public decision-making. Where free choice and the promotion of individual welfare can coexist, the authors believe that designers of public policy ought to be libertarian paternalists.
In this paper I criticize their proposal on grounds that the authors are unable to su ciently motivate the paternalistic element of their approach. I argue that the empirical evidence cited by the authors is capable of supporting a number of competing approaches, including what I call libertarian utilitarianism and libertarian justice. Since the evidence that the authors draw upon does not provide us any grounds for selecting between these rival approaches, I conclude that Sunstein and Thaler are unable to provide us with a convincing guide for the design of public policy. In order to show that this is the case, I consider three arguments in favor of libertarian paternalism, and find each lacking. I end with some comments about what we can properly conclude on the basis of Sunstein and Thaler’s arguments.
In constructing their argument for libertarian paternalism, Sunstein and Thaler draw upon a rich and interesting body of empirical results from the Heuristics and Biases literature.2 This literature got its start in empirical
1I will focus on Thaler and Sunstein, Nudge, “Libertarian Paternalism,” and Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron.”
2Major contributions to this research have been anthologized in three volumes: Kahneman, Slovic, and Tversky, eds., Judgment Under Uncertainty; Kahneman and Tversky, eds., Choices, Values, and Frames; and Gilovich, Gri n, and Kahneman, eds., Heuristics and Biases.
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psychology, but has recently had enormous impact upon a number of other disciplines including economics, law, and finance. Most important for our purpose is the portion of this literature that concerns the relationship between individual choice and the framing of decisions.
Since the 1970s, a vast amount of empirical evidence has been accumulated showing that individual choices in a wide variety of domains are not invariant over equivalent presentations of a decision problem. That is, individuals respond in di erent ways to a given choice, depending upon how it is framed. Sunstein and Thaler interpret this evidence as follows:
Our emphasis is on the fact that in many domains, people lack clear, stable, or well-ordered preferences. What they choose is strongly influenced by details of the context in which they make their choice, for example default rules, framing e ects (that is, the wording of possible options), and starting points. These contextual influences render the very meaning of the term “preferences” unclear.3
Drawing on one of the most memorable experiments in the Heuristics and Biases literature,4 Sunstein and Thaler explain:
Consider the question whether to undergo a risky medical procedure. When people are told, “Of those who undergo this procedure, 90 percent are still alive after five years,” they are far more likely to agree to the procedure than when they are told, “Of those who undergo this procedure, 10 percent are dead after five years.” What, then, are the patient’s “preferences” with respect to this procedure? Repeated experiences with such problems might be expected to eliminate this framing e ect, but doctors too are vulnerable to it.5
The authors assert that our susceptibility to framing e ects means that, in a whole host of common situations, we lack stable preferences. In proposing libertarian paternalism, they aim to show that such situations often involve contexts of both public and private decision-making. As a result, they argue that planners ought to design choices in such a way that individuals are “nudged” towards making good decisions, even if they might not do so on their own. One of their central examples concerns Carolyn, the director of food services for a large city school system. In their example, Carolyn must make a decision about how to arrange items in the cafeterias under her control:
3Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 1161.
4McNeil et al., “On the Elicitation of Preferences for Alternative Therapies.”
5Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 1161.
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Here are some suggestions she has received from her usually sincere but occasionally mischievous friends and coworkers:
1. Arrange the food to make students best o , all things considered. 2. Choose the food order at random.
3. Try to arrange the food to get the kids to pick the same foods they would choose on their own.
4. Maximize the sales of the items from suppliers that are willing to o er the largest bribes.
5. Maximize profits, period.6
Sunstein and Thaler claim that the cafeteria director described above cannot help but make a choice that a ects the decisions of her customers. Food must be arranged in some way, and the organizational strategy that is adopted will help to determine what people eat. The reason that this is the case stems from the (in this case, unproven) assertion that food ordering influences food choice. That is, we are invited to imagine that in this situation individuals lack clear, stable, or well-defined preferences about what to eat. Given this lack, an opportunity presents itself: The cafeteria director has the chance to promote better nutrition without having to eliminate any of her customers’ options. For example, should she choose strategy 1, more people might be induced to choose healthy options, but those with a well-defined preference for a cheeseburger and fries will not have had their freedom of choice restricted in any way. This is the sense in which their proposal is “libertarian”: Their aim is to influence decisions without constraining liberty. Thus, no options are to be eliminated, and no significant costs are to be imposed on the selection of these options.
Central to Sunstein and Thaler’s proposal is their claim that evidence from the social sciences justifies a distinctively paternalistic approach to public policy. I will argue that this claim is false, that this research cannot justify paternalism in particular. In what follows, I will consider three di erent arguments purporting to justify the use of a paternalist approach to public policy. The first argument comes from a series of publications by Sunstein and Thaler written prior to Nudge. Here the authors assert directly that paternalism in public policy is inevitable. The second reconstructs the argument of Nudge, where the authors merely claim that nudges are inevitable. Finally, the third provides a friendly argument of my own, intended to establish that nudges ought to be paternalistic. I show that none of these arguments succeed in establishing libertarian paternalism as the proper approach to the design of public policy.
6 Thaler and Sunstein, Nudge, 2.
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paternalism is inevitable
Starting in 2003, Sunstein and Thaler published a series of articles advocating for a new way of thinking about paternalism. Libertarian paternalism was proposed as a response to standard anti-paternalist arguments concerning government ineptitude and intrusion. Relying upon insights from the social sciences, the authors sought to demonstrate that their form of paternalism was not subject to standard anti-paternalist objections. In particular, in these early publications,7 the authors claimed that the instability of our preferences made it the case that paternalism in public policy is inevitable:
Once it is understood that some organizational decisions are inevitable, that a form of paternalism cannot be avoided, and that the alternatives to paternalism (such as choosing options to make people sick, obese, or generally worse o ) are unattractive, we can abandon the less interesting question of whether to be paternalistic or not and turn to the more constructive question of how to choose among paternalistic options.8
Unfortunately, the authors 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. In the present context, “influence” merely entails that the decisions of public planners have an impact upon the decisions of citizens or consumers. This kind of influence is demonstrated by a large number of studies where the framing of a decision directly influences the rate at which di erent options are chosen.9 It is clear to me that existing empirical evidence is su cient to warrant the conclusion that this kind of influence in public policy is indeed inevitable: It is simply not possible to avoid having an impact upon the expressed preferences of individuals when we go about designing public policy instruments. As a result, I think we should accept this premise.
However, paternalism is not coextensive with influence: There are a great many sorts of influence that do not count as paternalistic. If, in the cafeteria example above, the director were to select strategy 4 (i.e., maximize bribes), she would hardly be attempting to make choosers better o . As such, it should be clear that the inevitability of influence does not entail that policy
7See especially Thaler and Sunstein, “Libertarian Paternalism,” 176–177, and Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 1171–1190.
8Thaler and Sunstein, “Libertarian Paternalism,” 175.
9For a statistically striking example of this impact, see the famous Asian Disease Problem from “Choices, Values, and Frames” in Kahneman and Tversky, eds., Choices, Values, and Frames.
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designers must necessarily act paternalistically. For their part, the authors define the paternalistic element of their proposal in the following way:
The paternalistic aspect consists in the claim that it is legitimate for private and public institutions to attempt to influence people’s behavior even when thirdparty e ects are absent. In other words, we argue for self-conscious e orts, by private and public institutions, to steer people’s choices in directions that will improve the choosers’ own welfare. In our understanding, a policy therefore counts as “paternalistic” if it attempts to influence the choices of a ected parties in a way that will make choosers better o .10
What, then, is going on? Even on the authors’ own understanding of paternalism, it cannot be strictly true that paternalism is inevitable. In order to understand Sunstein and Thaler’s thesis, I think we need to weaken our understanding of “inevitability.” What the authors seem to be claiming is that once we eliminate all the strategies that are morally intolerable, some form of paternalism is the only viable option. That is, assuming that policy designers are even moderately well-intentioned, they cannot but engage in paternalism. Even on this weaker reading, however, Sunstein and Thaler’s claim is false.
The point is only that paternalism, in the form of e ects on individual choices, is often unavoidable. When paternalism seems absent, it is usually because the starting point appears so natural and obvious that its preference-shaping e ects are invisible to most observers. But those e ects are nonetheless there. Of course it is usually good not to block choices, and we do not mean to defend nonlibertarian paternalism here. But in an important respect, the anti-paternalistic position is incoherent.11
Even if we assume that policy planners are well-intentioned, however, the instability of preferences should not lead us to conclude that paternalism in public policy is – in any sense – inevitable. According to Sunstein and Thaler, a policy is paternalistic if it attempts to make choosers better o . It is simply not the case, however, that a planner’s good intentions will lead them to choose policies that promote the welfare of choosers. To see why this is the case, let us examine the predicament of a policy planner from a very abstract level.
Imagine a choice architect who has to present a choice to the public. There are a number of di erent potential frames for the choice, and she knows that her decision about which frame to use will have an influence
10Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 1162.
11Thaler and Sunstein, “Libertarian Paternalism,” 177.