This is excellent news: “Holder Vows To End Raids On Medical Marijuana Clubs.”

In the comments below, Berger writes of my Nudge review:

this seems pretty caustic…especially when you seem to grant their central premise: there is no such thing as neutral choice architecture.

But who contests it? Constitutional design, law and economics, policy analysis, etc. all rest solidly on the idea that choices are responsive to features of the contexts of choice. Nothing interesting happens if you reclassify policy analysis as “choice architecture.” If you raise the expected cost of driving without a seatbelt, other things equal, you get less driving without a seatbelt. This is not groundbreaking, or even especially interesting. I could say with that the “choice architecture” of the U.S. mortgage and finance system led to the wreckage that is now piling up. But what would you learn by that?

Nor is it especially interesting –not to non-economists at least — that models of the behavior of fictional agents do not predict human behavior. It is interesting to use empirical psychology to refine the economist’s slogan that “people respond to incentives,” which of course is true, but underspecified. Nothing about the slogan tells you how people manage to define the set of options live to them at any given moment, or how they come to rank them. Simply learning more about mind and motivation can do a lot in helping us understand how people will tend to act in various kinds of contexts. Also, human beings are physical systems with bodies, so features of situations that seem irrelevant to “purely rational” evaluation will affect our choices. If you vary only how hungry, fatigued, or warm people are in otherwise identical situations, you will probably get differences in their choices. But we knew that.

If you gave a perfect, slambang sales presentation but didn’t clinch the deal because you forgot to provide a room with chairs for the fine folks from BizCorp to sit in, would you be perplexed? “But sitting down has nothing to do with whether Widgets 3.0 is the only way for BizCorp to save millions!” And people find it boring and taxing to fill out paperwork. Yes! So take that into account when thinking of how to help people do things that ordinarily require some paperwork on their part. But don’t call thoughtfulness or helpfulness paternalism, because it isn’t. It is thoughtfulness or helpfulness.

Not taking away people’s choices is “libertarian” in an attenuated sense. But not taking away people’s choices is also what it is to not be a paternalist. Insofar as you’re not taking away choices, you’re no paternalist. That’s just the way the words work!

Now, this can seem a lot trickier than it is if you are determined to look at things a certain way, and Sunstein and Thaler seem to be determined in precisely this way. They want to point out that there is a way you can subtly reshape people’s choices without ever coercively taking any choices away. But if this subtle reshaping can get the same effect the paternalist seeks by coercively lopping off choices, then why not just see this reshaping as a kinder, gentler brand of paternalism?

You see how that works? Start with a paternalist doing what he was always trying to do by taking away choices. Then show him a way of doing it without taking away choices. And then simply deny that the paternalist, qua paternalist, has thereby disappeared. A choice-preserving paternalist! Likewise, take a Catholic doing what she was always trying to do by means of the Pope, then show her a way of doing it without the Pope. Voila: an non-Papist Catholic!

You and I are speaking fondly under the stars. The warm breeze and my kind eyes make you think you might want to kiss me. Right as you lean in I mention that I bathe in goat’s blood. Insome sense I have just taken away one of your options. Kissing me has vanished from your feasible set, as far as you’re concerned. Suppose I have chosen to disgust you only because I care for you, but know in the end you’ll end up hurt and it will be better for you this way.  That makes me weird for sure, nice maybe, and a paternalist in the same way it makes me a humanitarian: not at all.

My complaint about Nudge is that what is most provocative about it is the way the authors misuse words, and what is most genuinely useful about it — suggestions for policy based on better empirical psychology — is pointlessly burdened with their linguistic shenanigans and  silly “beyond left and right” framing. Indeed, I agree that “choice architecture” — i.e., the idea that everything that affects choice affects choice — matters to choice, and that policy ideas reflecting more realistic behavioral assumptions are desirable. You’d have to be an idiot to deny it. But beyond availing ourselves of better psychology, there no notable methodological or ideological advance there.

Say you think the falsehood of the homo economicus model provides some kind of special basis for a new kind of paternalism. Does that mean you think people up to now have been making a hash out of their lives? Maybe you do, which is why you think people continue to smoke or get really, really fat. But, look: lots of people manage to live a long time, save enough money for retirement, and even get along with their kids. How do they ever do it? It seems to me that strict rational choice assumptions are false and, also, most people do a fine job of living their lives. So, yeah: false theories of behavior tend not to do a very good job of accounting for lives well-lived. If you had thought that lives could not be well-lived unless some theory was true, then the persistence of good lives after the death of that theory ought to put the thought to rest, shouldn’t it?

In all the dust of last month’s prostitution debate, I somehow missed philosopher Martha Nussbaum’s excellent op-ed, in which she espouses a view almost identical to the Howley-Wilkinson line.

Why are there laws against prostitution? All of us, with the exception of the independently wealthy and the unemployed, take money for the use of our body. Professors, factory workers, opera singers, sex workers, doctors, legislators — all do things with parts of their bodies for which others offer them a fee. Some people get good wages and some do not; some have a relatively high degree of control over their working conditions and some have little control; some have many employment options and some have very few. And some are socially stigmatized and some are not. However, the difference between the sex worker and the professor — who takes money for the use of a particularly intimate part of her body, namely her mind — is not the difference between a “good woman” and a “bad woman.” It is, usually, the difference between a prosperous well-educated woman and a poor woman with few employment options.

[...]

What should trouble us [about prostitution] are things like this: The working conditions for most women in sex work are extremely unhealthy. They are exploited by pimps, and they enjoy little control over which clients they will accept. Police harass them and extort sexual favors from them. Some of these bad features (unhealthiness, little control) sex work shares with other job options for low-income women, such as factory work of many kinds. Other bad features (police extortion) are the natural result of illegality itself.

In general we should be worried about poverty and lack of education. We should be worried that women have too few decent employment options and too little health and safety regulation in those that they do have. And we should be worried if men force women to do things sexually that they do not want to do. All these things are worth worrying about, and it is these things that sensible nations do worry about. But the idea that we ought to penalize women with few choices by removing one of the ones they do have is grotesque, the unmistakable fruit of the all-too-American thought that women who choose to have sex with many men are tainted, vile things who must be punished.

It’s great to see one of the world’s most important public intellectuals getting it right.

I’m trying to get clear on what Sunstein and Thaler mean, and it’s not easy, since they basically make up their own private language, and then act puzzled by the idea that some people might be a little confused by what they have in mind.

So a “choice architect” is basically anyone that organizes “the context in which people make choices.” This is so immensely broad as to be almost useless.

If you design the form that new employees fill out to enroll in the company health plan, you are a choice architect. If you are a parent, describing possible educational options to your son or daughter, you are a choice architect. If you are a salesperson, you are a choice architect.

And if you invite people to a party where alcohol is available, the music is bumpin’, and the lights are low, you are choice arcitecht. Everyone is a choice architect some of the time.

So what’s the relationship between ‘choice architect’ and ‘paternalist’? Is everyone a paternalist, too? It looks like it. According to S&T:

The paternalistic aspect [of libertarian paternalism] lies in the claim that it is legitimate for choice architects [i.e., everybody] to try to influence people’s behavior ino order to make their lives longer, healthier, and better. … In our understanding, a policy is “paternalistic” if it tries to influence choices in a way that will make choosers better off, as judged by themselves. [Emphasis theirs.]

The designers of the user-friendly iPod, whom S&T tag as “choice architects,” presumably leave iPod users better off by their own lights, and therefore count as nudging libertarian paternalists. And who’s against usable interface design?! And if the host of a party turns down the lights, that‘s paternalistic choice architecture if it influences some of the guests’ behavior in a way that makes them better off, as judged by themselves.  This all very weird.

First, this has nothing to do with ‘paternalism’ as English speakers use the word. On their definition, giving someone accurate and easy-to-follow directions to the nearest gas station is paternalistic. But it isn’t, so they are using words wrong. To put it another way, S&T imply that it is not possible to provide helpful guidance to another person without being paternalistic. But it is possible. So they’re speaking literal nonsense. QED.

Another tack… They express a sufficient condition for paternalism here. They don’t say a policy or action isn’t paternalistic if it doesn’t makes people better off by their own lights, but the suggestion of an “only if” hangs out there, and I think they want it hanging out there. Paternalism is nice! Paternalism cares about getting people’s buy-in. Except… it doesn’t. The attempt to make you better off by my lights, not yours, is what a competent English speaker has in mind if she accuses me of being “paternalistic” — and that’s whether or not she assumes paternalism necessarily involves coercion, an assumption S&T call a “misconception”, despite the fact that most dictionaries and the history of Western thought generally insists on conceiving it that way. If you open up the little box that is the concept ordinarily expressed by the English word ‘paternalism’, you will find indifference to the endorsement or buy-in of those “influenced” by paternalistic efforts. But if you learned the meaning of the word from S&T, you’d think that was wrong!

The tone in Nudge is chummy and agreeable and sunnily ameliorist. Which makes you feel a bit like an axe-grinding killjoy bent on hair-splitting “semantics” when you insist on pointing out that they spend the entire book more or less inverting the normal meaning of certain politically-loaded words. But I really do insist on pointing it out, because these brilliant guys are native English speakers and they’ve got to know that the meanings of words matters. So you’re left wondering why they are so determined to play dumb about their own language.

In comments below, Berger asks this question in response to my concession of the non-neutrality of choice architecture, (which was in fact what I had in mind when posing the cryptic “dissertation topic” question about liberal neutrality at the bottom of the post):

It seems to me that if you concede that there is no such thing as neutral choice architecture then your objection to “libertarian paternalism” can’t really be that it interferes with free choice (because this is now inevitable) but that there’s some sort of intentionality or thought process that’s gone into disposing our architectures one way or another. But given that our various architectures are going to be biased one way or another, why not put some thought into those choices?

I have absolutely no objection whatsoever to “putting some thought” into how the way various rules are likely to frame and bias choice. Indeed, this is mandatory for anyone wishing to act effectively as an individual pursuing her aims, as a business owner, as a manager of workers or players, etc. My position is that, when it comes to politics, putative facts about our psychology that bear on how a candidate rule or institution will actually function should be an input to public deliberation. And there are a lot of other proper inputs. This is also my position about happiness research. A great deal of happiness research makes the somewhat embarrassing mistake of assuming that a scientific politics aims at happiness. But that’s just silly, since it’s not a scientific proposition that happiness is a rationally mandatory individual or social aim. Yet it’s good to know that this or that policy may tend to make us a bit happier. So, sure, let’s take that into consideration and we’ll see how much weight we decide to give it.

Now, a great deal of behavioral economics takes for granted that it is providing a technology for the design of institutions. This is much less silly. (That is, as long as the behavioralist is not smuggling in an under-motivated normative conception of rationality –often the very conception of economic rationality they have just descriptively debunked! — that is thought to uniquely identify the right rule). Institutions — policies, rules, procedures, etc. — do have to be created and implemented, and it is just negligent to refuse to take what we know about human behavior into account.

But it might be useful here to make a James Buchanan-inspired distinction between constitutional and post-constitutional political choice architecture. James Madison, John Adams, Alexander Hamilton, Gouverneur Morris et al were exquisite choice architects who availed themselves of the scientific psychology of their age (which may still be predictively superior to our own in many cases, even if they had the cognitive and emotional mechanisms wrong) when designing the U.S. Constitution. But what we’re doing when we’re doing public policy is quite far from what we’re doing when we’re designing a constitution, which is probably a bit disappointing to people like Thaler, Sunstein, and me.

Once you have a constitution, as we do, post-constitutional choice architecture must follow the rules laid down in the constitution. If we have a liberal constitution, as we do and ought to have, then the constitutional rules will give a large role to democratic representation and public deliberation. The point of liberal constitutional rules is precisely to bias political choice in the direction of liberty. If the population governed by the constitution continues to care about liberty, then they’ll try to protect the integrity of liberty-biased constitutional rules by protecting the authority of the liberal interpretation of those rules. When it comes to post-constitutional rule-making, the public throws the whole kitchen sink of competing values and candidate policies into public deliberation. And this is where libertarian paternalist proposals come in. In a liberal culture, liberal values will be preeminent. And a liberal constitution will bias the outcome in favor of liberty, assuming we’ve been able to preserve enough of the liberal sense of the constitutional rules.

Now, when we’re told that default rules for things like savings and organ donation make more of a difference than we thought in determining the outcome, that’s interesting and we ought to take it into account. But, as I said in yesterday’s post, default rules can have a meaning and tendency of their own that is somewhat independent of the immediate practical consequence of people acting within the frame of those rules (i.e. more savings, more available organs), and we ought to take that into account, too.

“Presumed consent” organ-harvesting rules may well increase the availability of organs. But it may also reinforce an illiberal norm about a presumed lack of self-ownership. Both considerations go into the hopper of public deliberation. Suppose we add the consideration that liberalized markets in organs would do even more than “presumed consent” to make organs available while at the same time strengthening norms of self-ownership. At that point, it’s pretty clear that the behavioralist view about the immediate practical consequence of the default rule is far from a trump. It’s also pretty clear that legalizing banned markets is often an extremely effective form of progressive choice architecture.

Markets in organs are often banned on straightforward hard paternalist grounds. The form of choice architecture that favors not banning mutually advantageous market exchanges might well be called libertarian anti-paternalism, which would be redundant, of course. So maybe we should just call it “libertarianism.”

In the end, we have to fight over what we want, and fight again over the policy mechanism that will deliver it. Libertarian paternalism doesn’t tell us what to want and may in some cases straightforwardly conflict with things we do want. Moreover, libertarian paternalist default rule rejiggering provides just one among a number of mechanisms for getting what we might want, like a greater supply of organs or a higher savings rate (how about Social Security personal accounts instead?!). But libertarian paternalism is not some kind of superspecial framework for scientifically enlightened policymaking. All we’ve really got here is some good new data on how people behave in certain kinds of scenarios. That’s got to be helpful, but it doesn’t tell us what to do.

[Note: I'm reviewing Nudge for Reason and I'll be on a Cato panel with Sunstein and (maybe) Thaler next month, which I'm really looking forward to. So I'll probably keep thinking out loud about this stuff for a while, especially once I get further into the book.]

Everything is what it is. Sex work is different from carpentry and it is different from surgery. It is like carpentry and surgery in that it is a way of renting one’s body. It is like surgery in requiring some hardening and compartmentalization. It is not like surgery in that it involves a different set of skills and different emotional preparation. A distinctive thing about sex is that it involves taking pleasure in ourselves and others as physical things, as objects. Very often we enjoy being objectified. We like to feel sexy, to arouse others, to be wanted qua object. But the danger of objectification is de-subjectification: losing track of the fact that the other person is not only an object, to be used as a means to one’s sexual ends, but is a person — an end in themselves. Sex workers, like models, are paid to be de-subjectified to some degree, to be used as means, and this can come as a blow to dignity unless one has braced oneself against it.

I find it a bit insulting to feel pushed to have to say that children are not prepared to brace themselves in this way. Or to feel pushed to say that parents have deep, special obligations to attend to and protect their childrens’ subjectivity, to cultivate and protect their personhood as it develops, to cultivate and protect their burgeoning sense of dignity. For a parent, of all people, to de-subjectify a child, and to use him or her as an object — as a means for sexual gratification — is a special kind of betrayal and violence. I’m sure we can all agree to that. And from here on out, I’m sure we can all agree that we are not talking about children, but the activities of consenting adults. We are talking about whether paternalistic prohibition of these activities may be justified.

A large part of my point is that adults are not children. Laws that insist on treating women (in particular) as children do not benefit them. Again, it is important to point out the circularity in this perennial form of conservative reasoning. We cannot infantilize a class of people by denying them their full autonomy and then turn around and appeal to the fact that we have done so as justification for paternalism. (Read mid-19th century debates against the abolition of slavery to see the most egregious examples of this form.) We’ve come a long way (baby!) from when women were treated by the law like large children for almost all purposes, but we still have some way to go.

There is nothing unique about work that requires those who do it to cultivate distinctive emotional strategies that make it possible to do things that might otherwise be off-putting while leading a completely healthy, normal, happy life. Some people find cultivating certain attitudes easy, and others don’t, which is why not everybody is cut out for every kind of work. Personally, I think I would probably find it easier psychologically to sell sexual services (in a world in which this was legal and not despised) than to sell cars, since I find the kind of subtle manipulation one must practice in order to be a successful salesman completely intolerable, but I don’t particularly mind being treated as a piece of meat. I’m sure there are a lot of sex workers who aren’t particularly well cut out for it, and who find it really taxing, but who do it anyway because they don’t have better options. I feel terrible for those people, but I certainly don’t think we would be hurting them by making their profession legal and less despised.

I wanted to reply to Ross’s post on the so-called Wilkinson-Howley worldview, but I had to go to L.A. for a little political theory conference at UCLA, where I am now. Let’s see if I can clarify a few things. Ross writes:

Given the premises of the pro-prostitution worldview, what’s so abusive and damaging about incest and molestation in the first place? If there’s no moral distinction between giving a handjob in exchange for twenty dollars and getting paid twenty bucks to wash dishes or mow lawns, then why is there a moral distinction between a father who teaches his daughter how to pound nails and one who teaches his daughter to do something more intimate and (to go all wisdom-of-repugnance on you) disgusting? I understand that the kids involved aren’t “consenting adults,” but if selling sex is just like selling labor, and adults force kids to perform all kinds of menial tasks as part of their education, why can’t adults force kids to have intercourse too – especially if they’re safe about it? If selling sex is no big deal because sex itself is no big deal, what’s the big deal about incest?

I found this comment … vexing, to say the least. I think Andrew’s reply to Ross’s previous post suggests the obvious response Simply reformulate Ross’s question to see how immensely tendentious and confused it is:

If there’s no moral distinction between one man giving a handjob to another man and a woman giving a handjob to a man, then why is there a moral distinction between a man giving a handjob to small boy?

I think we can all grasp that it possible to reject some moral distinctions and accept others. In this case, it would seem that Ross understands the answer perfectly well. Children are not consenting adults. So there you have it.

Since he had the answer, I do wonder why he asked the question. Ross’s subsequent chain of reasoning is a disaster that does very little to help him out. I think it is fair to reconstruct the argument like this.

(1) Selling sex is a form of work. (By stipulation)
(2) It is permissible for parents to make their children labor as part of their education. (By convention)

Therefore, (3) It is permissible for parents to make their children do sex work as part of there education. (By fallacious inference)

But (4) Obviously (3) is repulsively absurd.

So, (5) What?… Selling sex is not a form of work? (Reductio!)

Forgive me if I do not understand this argument. In order to derive (3), Ross would need (2) to say that parents may make their kids do any kind of work as part of their education, which is obviously false. We all know that there are many things it is not OK for kids to do, or for adults to do to kids, that it is OK for adults to do, and to do to each other. Sex is one of those things. This needn’t be difficult. And, since no one was previously talking about children, again I have to wonder why Ross brought it up. I mean, I don’t think he’d stoop so low as to insinuate that people who think adults are capable of making rational decisions about their own welfare, and should not be subject to paternalistic interference, cannot see what’s wrong with fucking their own children. So what was that about?

Sex work is work. It is not always pleasant work. It is very emotionally complicated and requires some degree of emotional compartmentalization and the selective hardening of certain natural human sentimental dispositions. Surgeons, hospice workers, police officers, lots of people, must learn how to cabin off certain sentiments and to develop a bit of a callous in order to do their jobs. This takes some degree of emotional maturity, which is one reason why we encourage kids to sell lemonade, but not to perform surgery on people gushing blood from a gunshot wound, or practice their sexual technique with Uncle Ralph.