Economics and Ethics

State judge rejects Bloomberg's ban on large sodas

Mark D. White

Earlier today, a state judge overturned New York City mayor Michael Bloomberg's ban on large sodas, citing their arbitary nature, copious loopholes, and uneven consequences. Of more significant concern are the ethical ramifications of such a ban, as I describe in The Manipulation of Choice--we can only hope that this played a role in his decision as well.

UPDATE: Here is the decision.

New book: The Manipulation of Choice (including free chapter)

Mark D. White

My latest book, The Manipulation of Choice: Ethics and Libertarian Paternalism, was released earlier this month by Palgrave Macmillan in both paperback and hardcover. In the book, written for popular audiences, I discuss the ethical and practical problems with the idea of "nudges" as popularized by Richard Thaler and Cass Sunstein in their book of the same name.

Walter Olson of the CATO Institute writes that "the 'libertarian paternalism' theory promises to use the state to help correct citizens' wrong decisions without asking their consent, yet also without truly entering the realm of coercion. Too good to be true? Indeed it is, as this book helps to show. Mark White gives us the sort of analysis we need to nudge back." Our own Jonathan B. Wight also comments that: "The Manipulation of Choice states that paternalists impose their own values and goals onto hapless consumers and citizens. Hence, public policies designed to correct the imperfections of behavioral irrationality are coercive. This is an important point and one that needs to be debated."

If you're interested, Palgrave has made the first chapter available for free, and I have written several blog posts recently tied into the book, including one at this blog commenting on Cass Sunstein's recent review of another book on paternalism at The New York Review of Books, and a post at Psychology Today on the nudge concept in general. (See also past posts at this blog on paternalism.)

Rationality in Law and Legal Theory: An Ethics Symposium

Mark D. White

Below are details of a fascinating symposium which will be held at Georgetown Law in April:

Rationality in Law and Legal Theory: An Ethics Symposium

April 12-13, 2013

Both the law and legal theory make use of the notion of rationality.  Within legal theory both positivists and natural law theorists have put forward theses about rationality in order to support their accounts of the nature of legality. And the law itself is rife with appeals to rationality — for example, in tort law, to specify the general duty of care violation of which constitutes negligence, and in criminal law, to fill out various standard excuses (duress, mistake, provocation, etc.). The aim of this symposium is to bring together philosophers and legal theorists to examine these notions of rationality within their own disciplines and to consider the relationship between rationality as it is conceived within the law and as it has been conceived in legal theory.  Speakers include Marcia Baron (St. Andrews), Heidi Li Feldman (Georgetown), Claire Finkelstein (Penn), John Gardner (Oxford), Scott Hershovitz (Michigan), and Lewis Kornhauser (NYU).

Sponsored by the Department of Philosophy at Georgetown University and the Georgetown University Law Center

Registration for this event is complimentary, but is required. Please complete our online registration form.

New Stanford Encyclopedia of Philosophy entry on Adam Smith's moral and political philosophy

Mark D. White (channeling Jonathan B. Wight)

Samuel Fleischacker has a new entry at Stanford Encyclopedia of Philosophy on "Adam Smith's Moral and Political Philosophy." (Thanks to Judicial Philosophy for the news.)

Call for papers: Association for Social Economics sessions at 2014 ASSA meetings

Mark D. White

As the program chair for the Association for Social Economics sessions at the 2014 Allied Social Science Associations meeting in January 2014, I am pleased to announce the call for papers:

Association for Social Economics

Call for Papers

Allied Social Science Associations Annual Meeting
Philadelphia, PA, January 3-5, 2014

THEME:  Exploring the Relationships between Law and Social Economics

Social economics has long emphasized the inherent social nature of the economy, stressing that the ties that bind people together in the economy have essential effects on economic outcomes (and vice versa). Law is also a social institution that regulates and influences how people relate to each other, including its effects on economic transactions and other related social interactions. In other words, law should be an integral part of social economics, and this conference theme hopes to enhance and highlight this.

In terms of economics, law is best established within the mainstream traditions of law-and-economics. But there is a need for this paradigm, based almost solely on neoclassical economic principles, to be supplanted by a social economics outlook. There are already efforts on the part of legal scholars to question neoclassical law-and-economics (such as the law and socio-economic movement and behavioral law-and-economics) as well as areas stressing the social aspects of law (such as law-and-society). Social economics has an tremendous opportunity to contribute to this reorientation of economic thinking within the law.

For the ASE sessions at the 2014 ASSA meetings we welcome proposals for papers on all aspects of social economics, especially those dealing with the law. Possible law-related topics include:

• In what ways can social economics offer an improved economic analysis of law?
• How have social economics addressed legal issues in the past, either directly or indirectly?
• How can social economists incorporate legal concepts into their work? Many substantive topics of interest to social economists, such as inequality, poverty, and discrimination have important legal components that affect social-economic outcomes.
• What general topics in legal studies could benefit from a social economics approach? Such as:
  • Contract law (based on promise, consent, efficiency, etc.)
  • Property (individual versus collective orientation, issues of taxation, etc.)
  • Criminal punishment (justified by deterrence, retributivism, rehabilitation, etc.)
  • Judicial decision-making (based on rights, efficiency, social justice, etc.)

To submit a paper or a session, please go to the proposal submission area of the ASE website (under Conferences > ASSA > Proposal submissions). Submission deadline is April 30, 2013.

Individuals whose papers are accepted for presentation must either be or become members of the Association for Social Economics by July 1, 2013, in order for the paper to be included in the program.  Membership information can be found at socialeconomics.org.

All papers presented at the ASSA meetings are eligible for the Warren Samuels Prize, awarded to the best paper that advances the goals of social economics and has widespread appeal. Papers can also be considered for a special issue of the Forum for Social Economics. Details of these opportunities will be sent to authors of accepted papers.

Supreme Court to pronounce on Defense of Marriage Act (DOMA) and California's Section 8

Mark D. White

Just announced: the Supreme Court will decide the constitutionality of the federal Defense of Marriage Act and California's Proposition 8. See the live blog at SCOTUSblog (or upcoming analysis soon, I'm sure) for more.

Needless to say, I'm thrilled about this, given a) my support of same-sex marriage and b) my firm position that the controversy over same-sex marriage should be settled by the courts (see earlier posts such as this one for more).

SCOTUSblog on the same-sex marriage issue

Mark D. White

Lyle Denniston at SCOTUSblog has begun a four-part series on the impending same-sex marriage controversy at the Supreme Court. From the introduction to his first post (discussing the role that constitutional standards will play in any such case):

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

(Thanks to Robert Loerzel and Felicia Yonter on Twitter from the link.)

More on judges, politics, and ideology

Mark D. White

Adam Liptak has a "Sidebar" in today's New York Times titled "'Politicians in Robes? Not Exactly, but..." discussing judges' voting records and the politics of the president who nominated them, citing data that finds a clear link and accusing judges of deciding cases based on "ideology." My comment is below:

Of course judges are ideological, but this does not necessarily translate into naked politics. Each judge has his or her own style of jurisprudence that may appeal more to presidents of one party or the other. A president will nominate judges with judicial philosophies that support his (or, someday, her) policy agenda. From the point of the view of presidents, judges and their judicial philosophies are tools, but to the judges, they are acting on principle. There is little ground for reading a judge's record as political rather then principled simply because his or her decisions are often in favor of the party of the president who nominated him or her.

I have more to say on this theme in this earlier post (written before the Supreme Court decided the Obamacare case, obviously).

Uganda and anti-gay law: This (again) is why you don't put basic human rights to a vote.

Mark D. White

My stomach turns at the news that Uganda is set to pass a law that imposes life sentences and sometimes the death sentence for homosexual acts:

KAMPALA, Uganda (AP) — Uganda's anti-gay bill will be passed before the end of 2012 despite international criticism of the draft legislation, the speaker of the country's parliament said Monday, insisting it is what most Ugandans want.

Speaker Rebecca Kadaga told The Associated Press that the bill, which originally mandated death for some gay acts, will become law this year.

Ugandans "are demanding it," she said, reiterating a promise she made before a meeting on Friday of anti-gay activists who spoke of "the serious threat" posed by homosexuals to Uganda's children. Some Christian clerics at the meeting in the Ugandan capital, Kampala, asked the speaker to pass the law as "a Christmas gift."

This is John Stuart Mill's tyranny of the majority at its ugliest: a majority of citizens using the machinery of government to negate the rights of the minority.

Many Americans rejoiced at the success of same-sex marriage referenda in last Tuesday's election, and certainly there was tremendous cause for celebration. But why should gays and lesbians have had to wait for a majority of the electorate to "come around" and "grant" same-sex couples the same access to civil marriage that straight people have? Before this election all same-sex marriage referenda were voted down--a far cry from what Uganda is doing, to be sure, but the spirit is the same, a majority deciding what rights a minority may have.

As I've argued several times on this blog (here and here, for instance), it is a poor validation of basic human rights to have the majority of the electorate vote for them (as encouraging as it may be in reflecting changing attitudes). Gays and lesbians shouldn't have to have their basic rights be "granted" to them by the electorate. They should be recognized as having existed all along by the only institution that can do that: the courts.

The court in Brown v. Board of Education didn't say that "now" segregation is wrong--it said it had always been wrong. The court in Loving v. Virginia didn't say that "now" laws against mixed-race marriage are wrong--it said they have always been wrong. And when the Supreme Court decides that same-sex couple should have the right to marry, they will not say that "now" same-sex couples have that right, but that they have always had that right--and it just took a while for the law to catch up. 

Special issue of Health Economics, Policy and Law on end-of-life care

Mark D. White

The latest issue of Health Economics, Policy and Law (7/4, October 2012) is a special issue on th topic of end-of-life care, stemming from a workshop held by the London School of Economics/Columbia Health Policy Group in December 2010:

Introduction (Adam Oliver)

Comparing the United States and United Kingdom: contrasts and correspondences (Rudolf Klein)

The conventionally antithetical stereotypes of the United Kingdom and United States health care systems needs to be modified in the case of the elderly. Relative to the rest of the population, the over-65s in the United States are more satisfied with their medical care than their UK counterparts. There is also much common ground: shared worries about the quality of elderly care and similar attitudes towards assisted death. Comparison is further complicated by within country variations: comparative studies should take account of the fact that even seemingly polar models may have pools of similarity.

Evidence and values: paying for end-of-life drugs in the British NHS (Kalipso Chalkidou)

In January 2009, Britain's National Institute for Health and Clinical Excellence (NICE), following a very public debate triggered by its decision, six months earlier, provisionally to rule against the adoption by the National Health Service (NHS) of an expensive drug for advanced renal cancer, introduced a new policy for evaluating pharmaceuticals for patients nearing the end of their lives. NICE's so-called end-of-life (EOL) guidance for its Committees effectively advises them to deviate from the Institute's threshold range and to value the lives of (mostly) dying cancer patients more than the lives of those suffering from other, potentially curable, chronic or acute conditions. This article tells the story of the EOL guidance. Through looking at specific EOL decisions between 2009 and 2011 and the reactions by stakeholders to these decisions and the policy itself, it discusses the triggers for NICE's EOL guidance, the challenges NICE faces in implementing it and the policy's putative implications for the future role of NICE in the NHS, especially in the context of value-based reforms in the pricing and evaluation of pharmaceuticals, currently under consideration.

Valuing end-of-life care in the United States: the case of new cancer drugs (Corinna Sorenson)

New cancer therapies offer the hope of improved diagnosis to patients with life-threatening disease. Over the past 5–10 years, a number of specialty drugs have entered clinical practice to provide better systemic therapy for advanced cancers that respond to few therapeutic alternatives. To date, however, such advances have been only modestly effective in extending life and come with a high price tag, raising questions about their value for money, patient access and implications for health care costs. This article explores some of the key issues present in valuing end-of-life care in the United States in the case of advanced cancer drugs, from the difficult trade-offs between their limited health benefits and high costs to the technical, political and social challenges in assessing their value and applying such evidence to inform policy and practice. A number of initial steps are discussed that could be pursued to improve the value of advanced cancer care.

Setting priorities in and for end-of-life care: challenges in the application of economic evaluation (Charles Normand)

Health technology assessment processes aim to provide evidence on the effectiveness and cost-effectiveness of different elements of health care to assist setting priorities. There is a risk that services that are difficult to evaluate, and for which there is limited evidence on cost-effectiveness, may lose out in the competition for resources to those with better evidence. It is argued here that end-of-life care provides particular challenges for evaluation. Outcomes are difficult to measure, can take place over short time scales, and services can be difficult to characterise as they are tailored to the specific needs of individuals. Tools commonly used to measure health care outcomes do not appear to discriminate well in the end-of-life care context. It is argued that the assumption that units of time of different quality of life can simply be added to assess the overall experience at the end of life may not apply, and that alternative perspectives, such as the Peak and End Rule, might offer useful perspectives.

Delivering better end-of-life care in England: barriers to access for patients with a non-cancer diagnosis (Rachael Addicott)

The End of Life Care Strategy (Department of Health, 2008) radically raised the profile of end-of-life care in England, signalling the need for development in planning and delivery, to ensure that individuals are able to exercise genuine choice in how and where they are cared for and die. Research has indicated that there have been continuing difficulties in access to high-quality and appropriate support at the end of life, particularly for patients with a diagnosis other than cancer. This article uses research findings from three case studies of end-of-life care delivery in England to highlight some of the barriers that continue to exist, and understand these challenges in more depth. Access to high-quality and appropriate end-of-life care has been a challenge for all patients nearing the end of life. However, the findings from this research indicate that there are several interrelated reasons why access to end-of-life care services can be more difficult for patients with a non-cancer diagnosis. These issues relate to differences in disease trajectories and subsequent care planning, which are further entrenched by existing funding arrangements.

US health care: the unwinnable war against death (Daniel Callahan)

For well over 40 years, the United States has struggled to improve end-of-life care. This effort, heavily focused on living wills, hospice and improved doctor–patient communications and palliative care, has been a modest success only. Both doctors and patients are often unwilling to accept the fact that death is on the way – only 25% of Americans have an advance directive. Advances in medical technology have provided more ways of keeping dying patients alive, making the line between living and dying harder to discern. The way physicians are paid promotes the use of technology not for talking with patients. Underlying these practical problems is a culture of American medicine with deep historical roots: that medical progress should be unending and is a moral imperative, that death is the greatest enemy and that cure, not care, is the primary goal. A better balance between care and cure is needed.

Stealing on insensibly: end of life politics in the United States (Lawrence D. Brown)

Because the United States often seems (and seems eager to present itself as) the home of the technological imperative and of determination to brand all challenges to it in end-of-life care as a descent into death panels, the prospects look unpromising for progress in US public policies that would expand the range of choices of medical treatments available to individuals preparing for death. Beneath this obdurate and intermittently hysterical surface, however, the diffusion across US states and communities of living wills, advanced directives, palliative care, hospice services and debates about assisted suicide is gradually strengthening not so much ‘personal autonomy’ as the authority, cultural and formal, of individuals and their loved ones not merely to shape but to lead the inevitably ‘social’ conversations on which decisions about care at the end of life depend. In short, the nation appears to be (in terms taken from John Donne's mediations on death) ‘stealing on insensibly’ – making incremental progress toward the replacement of clinical and other types of dogma with end-of-life options that honor the preferences of the dying.

End-of-life care for patients with dementia in the United States: institutional realities (Michael Gusmano)

Few are satisfied with end-of-life care in the United States. For families and friends of people with dementia, end-of-life care is particularly frustrating. Providing better end-of-life care to people with dementia is urgent because the prevalence of the disease is increasing rapidly. Dementia is currently the seventh leading cause of death in the United States and fifth leading cause of death among people aged 65 years and older. By 2050, there will be around 19 million people with Alzheimer's disease. This article reviews ethical and policy challenges associated with providing end-of-life care for people with dementia in the United States. I explain how disagreements about the meaning of futility lead to poor care for people with dementia. Most people agree that we should not provide care that is futile, but there is little agreement about how futility should be defined. US policies and politics clearly tip the balance in the direction of treatment, even in the face of strong evidence that such care does more harm than good. Although we may never reach a consensus, it is important to address these questions and think about how to develop policies that respect the different values.

Dementia, death and advance directives (Jonathan Wolff)

This article considers the ethics of advance directives, especially in relation to conditions such as dementia. For some choices, such as over whether one's life should end at home or in a hospice, advance directives can be very enlightened and helpful. For others, such as those to end the life of an autonomous subject, against their will, have no moral appeal and would rightly be ignored. In a wide range of intermediate cases, given our typical lack of insight into how changes in our health condition will affect us in other ways, we should be very cautious indeed in promoting the use of advance directives in end-of-life decisions, at least where a reasonable quality of life remains. There may be some reasons for giving priority to the earlier autonomous self over a later, contented but non-autonomous self, but these reasons seem far from compelling.