I want to thank the Cato Institute — specifically, Will Wilkinson and Jason Kuznicki — for arranging this exchange. I also want to thank my three respondents for their comments.
I have a lot to say in reply, so I’ll respond to each in a separate post. Here, I reply to Richard Thaler.
In response to my slippery slope fears, Thaler diagnoses me with bathmophobia. But to paraphrase the old saying, “Just because you’re bathmophobic doesn’t mean they’re not out to slip you.”
Prof. Thaler’s response does little to allay my fears — and much to reaffirm them. His generally dismissive tone only underscores the main point of my initial essay: that the new paternalists simply don’t take the slippery slope risk seriously. That, I think, is ample reason for the rest of us to be afraid.
Before replying to Thaler’s specific responses, I’d like to draw attention to all the points from my initial essay that he simply overlooks.
1. He does not address the wide-ranging policy agenda of new paternalism. Instead, he continues to rely on innocuous (private, non-coercive) examples like the placement of food in cafeteria lines. But the new paternalist agenda goes very much further.
2. He does not respond to my charge that the “libertarian paternalist continuum” (constructed by himself and Cass Sunstein) disregards the crucial distinctions between private and public and between voluntary and coercive.
3. He does not address the problem of small-change tolerance, which eases the transition between soft and hard paternalism, especially in the presence of continuum like the one he constructs. (Shane Frederick does address this point; I will reply to his essay separately.)
4. He does not mention the myopia of policymakers, which can lead them to ignore the longer-term potential costs of their policies, including the slippery-slope risk.
5. He does not consider the tendency of policymakers to use oversimplified heuristics and rules of thumb, rather than engaging in careful policymaking based on behavioral economic research.
6. He does not discuss the influence of special interests that will continually push for marginal extensions of certain paternalist laws, such as fat taxes.
Now on to the points Thaler does make.
First, Thaler reiterates his own personal commitment to “maintain[ing] people’s freedom to choose at as low a cost as possible” and to “mak[ing] choosers better off, as judged by themselves.” I’m glad to hear it. The problem is, the intellectual framework that he helped create goes much further and justifies much more. Consider this passage from his Chicago Law Review article with Cass Sunstein:
A libertarian paternalist who is especially enthusiastic about free choice would be inclined to make it relatively costless for people to obtain their preferred outcomes. (Call this a libertarian paternalist.) By contrast, a libertarian paternalist who is especially confident of his welfare judgments would be willing to impose real costs on workers and consumers who seek to do what, in the paternalist’s view, would not be in their best interests. (Call this a libertarian paternalist.) [emphasis in original]
So even if Thaler himself is committed to the libertarian end of the spectrum, there is nothing in his approach that rules out substantially more intrusive policies. I wonder if perhaps Thaler is the libertarian paternalist, Sunstein the libertarian paternalist. In any case, those italics are supposed to do quite a lot of work.
Second, in response to my point about choosing among preferences, Thaler misinterprets my argument. I’m not saying that he and Cass Sunstein and Matthew Rabin all share the same preferences about everything from soft drinks to clothing design. I’m saying that when confronted with an inconsistency of choice, the new paternalists have often — with no grounding in theory or evidence — chosen among competing preferences. And when they have done so, they have unerringly chosen those preferences which are most “socially approved.” Thus, when choosing between more and less patient rates of time discounting, they have always favored greater patience. When choosing between “hot” and “cold” preferences related to purchases, they have always favored the “cold” ones. What gives them license to do this?
There is a serious contradiction here, and it goes to the heart of the new paternalist paradigm. On the one hand, the new paternalists want to say they’re making people better off according to their own true preferences. On the other, they say inconsistencies of choice reveal that people don’t actually have true preferences. They can’t have it both ways! In many of their policy proposals, the new paternalists are in fact picking and choosing whichever preferences they think best.
And therein lies the slippery slope risk: by choosing among preferences, the behavioral economists give the notion that some preferences are better and more rational than others the stamp of “Science.” That attitude, if it takes hold, can generate all manner of paternalistic policies. Thaler might not agree with those additional policies, but they will be the result of an attitude he helped to create.
Third, Thaler defends his claim that new paternalism is moderate because it lies on a continuum “with anarchy at one pole and totalitarianism at the other.” That’s a pretty wide range. Short of totalitarianism, there are still a lot of bad things governments can do to people. Furthermore, Thaler doesn’t recognize my point that the middle ground shifts over time, so that what appears to be middle ground now comes to represent one of the poles later. This process, grounded in behavioral economics, encourages gradual movement down a slope.
Fourth, Thaler says I neglected the fact that some paternalism is inevitable because default rules must be chosen somehow. I actually did address this point, so I’ll just quote myself: “Instead of positing paternalism as the default standard for selecting default rules, they could have said respecting customary expectations is the default standard for selecting default rules. Or they could have emphasized that in many domains of potential regulation, defaults are not required — and therefore paternalism is not inevitable in these areas.”
Whenever they are challenged, the new paternalists place heavy emphasis on the inevitability argument. Don’t fall for it! It is not inevitable that the state must alter longstanding rules of contract law to reflect political judgments about what people “really” want. It is not inevitable that some opt-outs will be subject to onerous conditions. It is not inevitable that certain kinds of contractual terms will be outlawed entirely. It is not inevitable that the state will impose cooling-off periods on certain purchases, or sin taxes on tempting goods. Again, every one of these proposals appears in Thaler’s own work.
Fifth, Thaler wonders when paternalist slopes have happened before — and to support the idea that they don’t, he offers the bizarre example of Prohibition. Of course, outright prohibition of consumer goods is already the bottom of slope, so I’m not sure what this is meant to prove. As Jonathan Klick points out in his reply, Prohibition was the culmination of many years of paternalistic legislation and activism, so it actually supports my view. Furthermore, many of the first laws against marijuana and narcotics were also passed during that era; those laws and their statutory progeny remain on the books. And if you’re looking for an example of slippery slopes in action, you couldn’t do better than the history of the drug war. Who could have predicted the exigencies of the drug war would lead to the gutting of Fourth Amendment privacy protections, the widespread use of no-knock warrants, the use of civil assets forfeiture to seize property without proof of guilt, the jailing of doctors for prescribing pain medication, ad infinitum?
Thaler says my example of smoking bans doesn’t work because smoking regulations have been driven mainly by externality arguments: “People do not want to fly, eat, or work in smoke-filled environments.” Now, strictly speaking, externalities are not really involved here. The relationship between a bar owner, his employees, and his customers is a voluntary transaction on private property. If a bar owner allows smoking, that is part of the environment I consent to by visiting his bar; if I don’t like it, I can go elsewhere. By intervening, the state prohibits employees and customers from voluntarily accepting certain kinds of working conditions.
But let that pass. The purpose of the smoking example was to support the idea that slippery slopes do happen, and that they may occur via the shifting-middle-ground dynamic I described earlier. So Thaler’s response is simply off target.
Thaler concludes by casting aspersions on slippery slope arguments in general. He seemingly regards the slippery slope as nothing more than a sly debater’s trick: pick any X and Y, announce “X leads to Y,” and presto, you have a slippery slope argument. Yet an extensive academic literature on slippery slopes has documented the various mechanisms by which they occur. If Prof. Thaler is unwilling to trust the conclusions of bathmophobics like myself and Mario Rizzo, then he should consider the work of Eugene Volokh, Frederick Schauer, Douglas Walton, and others (citations below). And based on the examples of smoking bans, alcohol prohibition, drug prohibition, etc., I’d say history offers ample support for the existence of slopes.
In my initial essay, I drew attention to several processes by which slippery slopes could occur in the specific realm of new paternalism. Unfortunately, those are largely the arguments to which Thaler didn’t reply.
One more thing. Thaler wants us to get on with evaluating new paternalism “on the merits.” If adopting policy A increases the likelihood of adopting bad policies B and C later, I think that’s pretty obviously one of the demerits of policy A. But even if you don’t buy the slippery slope argument, plenty of other criticisms have been made, by myself and others. In order to keep this forum on-topic, I’ve resisted going into them. But they certainly exist, and I’m sure more will come up before we’re finished here.
Frederick Schauer, “Slippery Slopes,” 99 Harvard Law Review, 1985.
Eugene Volokh, “The Mechanisms of the Slippery Slope,” 116 Harvard Law Review, 2003.
Douglas N. Walton (1992). Slippery Slope Arguments. Oxford: Oxford University Press.