Jeremy A. Blumenthal
Syracuse University - College of Law
May 1, 2012
Florida Law Review, Vol. 64, 2012
Scholars and policymakers from multiple disciplines have long debated whether and when paternalistic intervention might be appropriate to guide ordinary decisionmakers choices and behaviors. Recently, the use of empirical data has begun to inform this debate. Some such research has demonstrated that individuals’ susceptibility to cognitive and emotional biases leads to nonoptimal decisions in a variety of areas, including health, finance, and safety, among others. This has led some scholars to suggest a role for third-party intervention to help protect citizens from their own biased decisionmaking.
Critics of this approach suggest that such intervention prevents individuals from learning from their mistakes; that it infringes not only on individuals' autonomy per se but also on their preference for choosing; or that those designing the interventions can truly know what principals' true preferences are. Substantial empirical evidence challenges these claims, however, showing that in many instances people do not learn from their mistakes or in fact prefer to leave choices to others.
Most recently, antipaternalists have challenged experts' ability to develop interventions in the first place, arguing that experts (a) are likely to be captured and act in their own interests, rather than the public's; and (b) are just as susceptible to the same cognitive and emotional biases as ordinary citizens, and thus deferring to their interventionist decisions is unwarranted.
As I have done for some of the earlier criticisms, in this Article I show that antipaternalists' arguments are contested by empirical evidence. First, citizens in fact tend to be more accepting of intervention than is typically assumed, especially when the process by which a policy is adopted is transparent and seen as in the public interest. Second, capture is less of a concern than is traditionally assumed. Third, despite findings that experts do also suffer some biases, most evidence shows that experts are better decision-makers than laypeople, both due to substantive expertise and to a smaller likelihood of being affected by the relevant biases. I show that other antipaternalist criticisms are either overbroad or are based on problematic assumptions about human psychology, e.g., people are often not motivated to learn or to self-correct and do not always act according to traditional rational choice assumptions.
In brief, even when subject to similar biases, experts are relatively better decisionmakers than laypeople. Thus, as with previous antipaternalist objections, criticisms of expert decisionmakers must meet higher hurdles than has been assumed. Paternalistic intervention is here to stay, and debate over the propriety of particular policies should continue, but taking into account its costs and benefits as well as the increasing body of relevant empirical findings.
Number of Pages in PDF File: 37
Keywords: paternalism, experts, agencies, administrative law, psychology, behavioral law and economics, debiasing
Date posted: January 31, 2013 ; Last revised: March 1, 2013