Midyear Meeting

People often make bad choices, but can a 'nanny state' help that?

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Corrected: Many of us don’t save enough money, we often overeat, and we sometimes marry the wrong people, says Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies.

However, that doesn’t mean we need statutory intervention to make better decisions, Olson said at an event sponsored by the ABA’s Section of State and Local Government Law.

“Our church may be the best way of keeping us from overspending … our parents may pull us off the truck when we’re marrying the wrong person,” he said. “The government is not our only alternative.”

Titled “They’ll Take My Big Gulp from My Cold, Dead Hands—Public Health, the Police Power and the Nanny State,” the discussion took place at the ABA Midyear Meeting in Chicago. It often centered on a law proposed by former New York City Mayor Michael Bloomberg that would have banned the sale of sugary beverages larger than 16 ounces per serving. The state appellate court struck down the law in July 2013.

Nothing in the law prohibited New Yorkers from drinking more than 16 ounces of a sugary drink at one time.

“If you really wanted 32 ounces of soda that much, you could go to McDonald’s, get a small soda, and go back and get another one,” said Sarah Conly, a University of Chicago law lecturer and philosophy fellow who also spoke on the panel.

The American Beverage Association, she added, opposed the New York City ban because they thought that “if you had to stand up and walk 10 feet to the counter to get more soda, you wouldn’t want it that much.”

Conly is also the author of the book Against Autonomy: Justifying Coercive Paternalism. For the most part, she said, the government plays a role in keeping people from hurting others. There’s an argument to be made, she added, that the government should do more to keep individuals from hurting themselves.

“For most people, one of their strongest, ultimate goals is to live a long and healthy life,” she said, adding that wanting that and doing what it takes to have that are two different things.

“We’re bad at making decisions. Education is good, but I don’t think it’s sufficient,” Conly added, noting that the United States already regulates items for consumption that may harm individuals, like prescription drugs.

“No one seems upset about that,” she said. “I think we need to recognize that a safe justification applies in a lot more places than we thought.”

George Cardenas, a Chicago alderman who chairs the city’s health and environmental protection committee, also spoke on the panel. He mentioned that portion sizes of food and beverages have greatly increased in the past decade, as has obesity and Type II diabetes.

“No one is really tackling the problem, and everybody seems to be looking the other way,” he said. “I’m all for capitalism and market dictating supply and demand. However, there needs to be checks and balances. Parenting is not what it used to be, and no one is really looking at the overall impact on society.”

Cardenas unsuccessfully tried to bring a city law that would place higher taxes on sugary drinks. But he said lawyers told him that the law would have to be passed on a state level.

“Beverage lobbying was too strong, and we really didn’t get anywhere else on that,” Cardenas said.

Updated at 7:54 p.m. Sunday to fix an editing error to note the correct name of the sponsoring section.

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