Legal Commentary

I?m fortunate to have the opportunity to participate this week in a workshop at Bowling Green State University, ?Freedom, Paternalism, and Morality,? a Workshop in Applied Ethics and Policy sponsored by the Philosophy Department.  Keynote speakers are Douglas Husak (Rutgers) and Richard Arneson (UCSD).

I?ve written a little about paternalism and the implications of contemporary research in psychology?cognitive heuristics and biases, emotional biases, affective forecasting, behavioral economics?for paternalistic interventions.  It is of course a touchy subject, highlighted by the fact that proponents of behavioral economics and the theories underlying such interventions?especially ?nudges??are prominent members of the current administration.

As many people have pointed out, much of the heuristics-and-biases research, as well as other research demonstrating poor (non-optimal? irrational? self-injurious?) decision-making does make a case for some sort of intervention into citizens? decision-making in order to protect them from negative outcomes.  Anti-paternalists object that such intervention infringes on autonomy; people should be free to learn from their mistakes; and constraining options is detrimental.  And the problem with leaving decisions to government experts is first, that experts are human too (gasp!), and are thus subject to the same human frailties as are laypeople, and second?as Bentham and Mill and Hayek famously argued, and modern economists are reasserting?experts simply don?t know the citizen and his preferences as well as the citizen does.

My take, initiated in some of this earlier work and developed a little more in the workshop paper, is that these objections themselves are challenged, if not rebutted, by further empirical findings in psychological research.  Autonomy isn?t the be-all and end-all it is made out to be; we don?t always prefer to make decisions; we are actually less satisfied with outcomes when we ?leave doors open;? and we?re not always so good at learning from mistakes (especially the really serious ones!).  Moreover, experts are?well, expert.  They?re less susceptible to the biases charged against them than are laypeople, and DO know citizens? preferences better in some situations.  And there?s some evidence that citizens prefer to have government experts make decisions, so long as they?re not acting solely in their own interests but have the public welfare in mind.

That?s my sketchy take, but more important, this looks to be a really exciting Workshop.  The philosophical discussions will be way over my head, but I?m looking forward to participating and learning.  If you can get to Bowling Green, it should be fun!