According to Law Professor and former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein, a new book addresses the intersection of recent findings on human behavior with the paternalism many Americans equate with “big government” regulations, such as New York City’s restrictions on the size of sugar-sweetened beverages. Sarah Conly’s Against Autonomy: Justifying Coercive Paternalism contends that John Stuart Mill was wrong about the competence of human beings to know what is good for themselves and thus government’s consequent lack of legitimacy to coerce people to prevent harm to themselves. “We are too fat, we are too much in debt, and we save too little for the future,” she states, insisting “that coercion should not be ruled out of bounds.”

Sunstein sums up Conly’s approach to paternalism by noting the four criteria she would require to justify government coercion: the activity “must genuinely be opposed to people’s long-term ends as judged by people themselves,” the “measures must be effective rather than futile,” “the benefits must exceed the costs,” and “the measure in question must be more effective than the reasonable alternatives.” Conly apparently approves of New York’s ban on trans fats under her criteria, while remaining ambivalent about Mayor Michael Bloomberg’s (D) effort to persuade the U.S. Department of Agriculture “to authorize a ban on the use of food stamps to buy soda.” Sunstein contends that her “argument is careful, provocative, and novel, and it is a fundamental challenge to Mill and the many people who follow him. But it is in less severe tension with current practices than it might seem. A degree of paternalism is built into the workings of the modern regulatory state.”

He concludes, “Conly convincingly argues that behavioral findings raise significant questions about Mill’s harm principle. When people are imposing serious risks on themselves, it is not enough to celebrate freedom of choice and ignore the consequences. What is needed is a better understanding of the causes and magnitude of those risks, and a careful assessment of what kind of responses would do more good than harm.” See The New York Review of Books, March 7, 2013.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.