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May 24, 2006

My Kind of Nanny State

Michael Blowhard writes:

Dear Blowhards --

I feel divided about social-behavior legislation. On the one hand: screw the nanny-state. Restaurants and bars should be able to decide for themselves whether to permit smoking. On the other hand, well ... I don't mind some exceptions either. I wouldn't be upset if the city where I live were to ban pit bulls, for instance. It might represent some kind of intrusion on liberty -- but I've also known people who have been horribly injured by pit bulls. If a law were passed requiring all commercial snailmail to clearly indicate a complete return address, I'd be glad for that too: I'd wind up wasting less time opening mail just to make sure it isn't important. Besides, should "liberty" be everywhere and always an absolute? Libertarian absolutism is just another kind of absolutism, isn't it?

Some nanny-state regs even seem unobjectionable in liberty terms. For instance: signing people up for 401Ks. Studies have shown that if the default option offered to employees is not enrolling in a 401K, then relatively few people will sign up, while if the default option is signing up, then many people will. Since we're probably better off if more rather than fewer people are enrolled in 401K plans, and since I can't summon up any objections to making signing-up the default option, I have no trouble with this, happy though I am to agree that it can be hard to know where to draw the line on this kind of thing.

I'll confess something further too: I don't mind a little taste-legislating, at least not when it's done as locally as possible, and especially not when I (ahem) share the taste that's being legislated. An example is fast-food signs. I wouldn't mind never seeing the eyesore variety again. They're a jumble, they're a blight ... The California city of Santa Barbara has a regulation banning garish fast-food signs, at least in its downtown. Here's the result:

That's what a fast-food strip looks like in Santa Barbara. Easy on the eyes, no?

Although I generally prefer a looser ship to a tighter one, tough zoning can sometimes result in places I find more attractive than laissez-faire places. (Laissez-faire places can have their charm too, of course.) I don't want to argue the point, by the way, just to confess that I'm a man of principle when it suits me but an opportunist when it suits me too.

If anyone is tempted to go off on an "aesthetics are just subjective" tangent, let me say quickly that, at least where places (and especially public places) are concerned, I disagree. If a city's downtown is appealing, it's likely to attract people, while an off-putting downtown will make people stay away. And surely aesthetics play a role in explaining why some neighborhoods are more in-demand than others. (See here for a posting I wrote about how an inspired approach to parking played a role in reviving Santa Barbara's downtown.) As to what's considered attractive where places are concerned -- well, history can do a darned good job of informing us about what people respond happily to, as well as unhappily to.

I have a small-t theory about politicians, which is that in many ways they're children. Much as we'd like to, we can't tell them "Do nothing" and then expect them to sit still. That isn't realistic. They have to do something with all that ego, energy, and power, darn it. It's best if they spend their energies correcting past mistakes, IMHO. But if they are going to pursue new initiatives, let 99% of them be minor ones whose consequences suit me.

Hey, did you know that San Luis Obispo banned new drive-through and drive-up businesses back in 1982?

Which nanny-state regs do you not mind? And what are your thoughts and feelings about legislating matters of taste? Permissable sometimes, always, never? Why?



posted by Michael at May 24, 2006


Pit bulls: "According to the Centers for Disease Control, dogs bite 4 million to 5 million Americans every year. Few attacks are fatal (25 in 1996), but serious injuries—everything from a gash in the arm requiring a few stitches to severed hands and fractured skulls—continue to rise and now stand at more than 750,000 annually, up nearly 40 percent from 1986. Dog bites are one of the top causes of non-fatal injuries in the nation.

Children are the most frequent victims, accounting for 60 percent of the dog bites and 20 of the 25 dog-bite fatalities in 1996. Dog attacks are now the No. 1 reason that children wind up in hospital emergency rooms. Incredibly, nearly half of all American kids have been bitten by the age of 12. The Humane Society of the United States estimates that more than $100 million gets spent yearly treating dog bites in the nation's emergency rooms, and U.S. insurance companies paid out $250 million in dog-bite liability claims in 1996.

Pit bulls and pit-bull crosses (not always easy to distinguish) have caused more than a third of the nation's dog-bite fatalities since 1979 and a comparable proportion of serious injuries. The rising number of attacks, and the unease pit bulls and other dangerous dogs cause in public spaces, have spurred many municipalities to crack down with legislation ranging from muzzle laws to bans on pit bulls and certain other breeds."

A 1999 article:

Posted by: jult52 on May 24, 2006 1:41 PM

I'm pretty libertarian, but I think you can make a decent economic argument for aesthetic regulation. Basically, neighboorhood prettiness is a public good subject to a Prisoner's Dilemma. What I mean is that everyone is better off if there aren't any garish decorations, but every individual owner in that situation has a big incentive to have one huge sign (hey, it'll be the only one, so everyone will notice!), and the situation falls apart. So I think here there is a genuine economic rationale for regulation, apart from "just" aesthetics. (There might be some good argument that doesn't use economics, I don't mean to imply economics is everything, just that one reason to allow that kind of nanny-statism is it might genuinely solve a market problem.)

Posted by: Chris on May 24, 2006 2:23 PM

I'm wondering if your on-the-one hand, on-the-other-hand dilemma in this post isn't caused by an inherently false dichotomy between the "nanny state" and a libertarian state. Both are, well, states. A more libertarian state would rely on a much more detailed and complete private property regime, while a nanny-state would rely on a much more detailed and complete regulatory regime, but either way there's an awful lot for the state to do in setting up and policing the result.

I'm very emotionally friendly to libertarian thought, but I have gradually come to conclusion that its notion of a smallish, night-watchmanish state is not very realistic, unless you favor rule by the physically or financially powerful since such a state cannot actually define or protect property rights in any very meaningful way. For example, I'm stumped by the apparently comon libertarian belief that a legal system could in any way be the foundation of a truly libertarian state. As in, if someone injures you, sue them. Hah! in your dreams, mister. A truly libertarian state would need an enormously more predictable, quick and cheap legal system than the U.S. currently has or ever has had (and, based on the entrenched political power of the legal profession, ever will have). Likewise, "property" rights would have to come in versions where they won't get all fuzzy in the face of common legal uncertainties (e.g., "he said, she said.") Without very carefully crafted laws (utterly unlike the laughably imprecise kind we have today), your right to sue when injured mostly translates into high incomes for lawyers.

I'm also stumped by the question, not often addressed in the libertarian thought I'm aware of, of how to address situations in which the night watchman state itself infringes on the rights of its citizens.

Which is not to give the Nanny state a free pass. The Nanny or regulatory state is most often (always?) at the service of politically powerful groups within the state, so its inherent justification is b.s. as well.

Anyway, at the end of the day I think the libertarian/nanny state dichotomy seems to obscure the real questions in this area and thus isn't very intellectually helpful.

Although I'll grant that, in the absence of a regime of angels, I'd probably vote for a looser regime and really hope my fellow citizens are a thoughtful, self-disciplined and broad-minded crew.

Posted by: Friedrich von Blowhard on May 24, 2006 2:59 PM

Well, I suppose most driving rules are nanny-state regulation---speed limits, stoplights, using blinkers to change lanes. I think those are important. I also think some noise regulations are good---enough noise in the world already. I'm a fascist about guns---I really do think they should check criminal records and there really isn't any good reason for anyone to have an automatic assault weapon outside of the army. I know what you are saying about "aesthetics"---but I also have some friends who couldn't stand condo association rules (and I know that's not "the government") where they couldn't even decide what porchlight to put outside their front door with association approval. It's irritating---it makes people feel like they don't really "own" anything. So, there is a downside. I personally think motorcycles are terrible risks to the cars driving around them, and that they should be ticketed for speed and outrageous lane-changing much more often than they are. One place where the nanny state isn't enough.

Posted by: annette on May 24, 2006 3:05 PM

Those cutesy California towns with their smothering rules and regulations are part of the cause of the economic boom in Nevada, Utah, Idaho, etc.

Save us from nannyism. Inevitably the people who end up on local zoning and esthetic-regulation boards tend to be control freaks rather than thoughtful, laid-back Michael Blowhards. (Michael Blowhard has better things to do.) The libertarians are right on this. If you don't like the idea of your worst enemy running a government agency, don't create the agency.

Posted by: Jonathan on May 24, 2006 3:14 PM

Jult52 -- Yowch, tks. Living in NYC, where most people (at least in "nice" neighborhoods) keep 'em on a leash, I tend to forget how much of the country lives in terror of free-running, badly-trained dogs. Away from NYC but ever off taking a walk, I'm forever having scary moments with big barking dogs. Those are high injury figures.

Chris -- I'd love to see a study of how/when/why policies that depend too much on purely economic considerations wind up being self-defeating, because in the end no one *likes* the results. Examples of where cost-cutting drives customers away, for instance, or where offloading burdens onto customers turns them into non-customers. But maybe such studies are done all the time. Hey, you'd know: are they?

FvB -- It's funny to take note of your own predilections (in my case, for generally less rather than more governing) and then the exceptions you make too, isn't it? Frightening to think that everyone else does this too -- has general rules and exceptions. Hard to know how to balance the more-vs-less-govt question too, isn't it? My own preference is to keep politics out of the hands of anyone who might be interested in politics. But I have a hunch that that idea isn't going to go far.

Annette -- Noise regulation is a good one! There isn't much that bugs people more than unwanted noise. NYC, with people crammed in so tight, is a great place to watch the noise dramas play themselves out. "Rights" arguments seem to go nowhere. Should a dance club have the "right" to keep throbbing until 4 a.m.? Or is that right superseded by the right of neighborhood residents to enjoy a peaceful night's sleep? No matter what, the lawyers always wind up making a buck, darn it.

Jonathan -- Not a coincidence that Santa Barbara has virtually no industry: it's a little make-believe city that depends on being a tourist center and a retirement destination for its money. That said, it's interesting, isn't it, that the more money people make the more they tend to move into highly-regulated neighborhoods and towns. I'd think libertarians would want to wrestle with this phenomenon a little more than they do.

Posted by: Michael Blowhard on May 24, 2006 3:28 PM

Sign regulations are interesting in that they don't absolutely forbid something (such as smoking).

What they do is limit everyone (in this case, shops, restaurants, etc.) to exactly the same extent (I assume no qualifications such as signs taking up X percent of building frontage, etc.). In other words, a level playing field where no business is advantaged or disadvantaged. And a condition where signs are not prohibited. (Banning signs altogether would be the extreme case of creating a playing field where no one could seriously play, and the community might suffer economic harm.)

Where it is known that people can be injured by creatures such as pit bulls (who, through a defect in our educational system, cannot read "Biting Children is Naughty" signs) then a reasonable public-safety case can be made for their restriction.

At some point, rule-making can go too far. But that's a gray area where debate and politics necessarily come into play. Messy? Yes: but is there a better alternative?

Posted by: Donald Pittenger on May 24, 2006 3:47 PM

Government intrusion into private life is odious. Nevertheless, exceptions must be made. There should be a strict regulation against using the expression "at the end of the day," except in a completely literal sense.

At the end of the day, it's all about language pollution.

Posted by: Rick Darby on May 24, 2006 5:17 PM

That's a very good question, Michael, and to my knowledge there haven't been studies of it. I think a fair number of economic studies to support policy proposals are fairly bogus. For example, the studies that proponents of building professional sports stadiums put out are almost always ridiculous, and often the analyses supporting subsidies for industries (property tax exemptions and the like) are flawed as well.

And yet people keep coming out with them, and politicians keep touting them, and voters keep buying it. My suspicion is that people can come up with an economic study to support virtually any proposition under the sun, so they end up not mattering all that much. So yeah, you're definitely right, I'd be very suspicious of people who come up with economic studies that see this or that regulation "pays for itself". But then again, Santa Barbara does look lovely there.

Posted by: Chris on May 24, 2006 5:18 PM

My old animal control boss used to put it this way: People are on a behavior spectrum. At one end are people who will do the right thing automatically -- they self-monitor, are intelligent about what they do, and consider others.

Then there are people who will do what's right if someone will define it for them -- they have trouble figuring out what bugs others.

And the people who will do the right thing if they get punished or criticized for doing the wrong thing.

And then come the people who will do the wrong thing if they can get away with it. They know it's wrong and do it anyway.

Next the people who are so calloused and dense and sociopathic that they have to be really seriously punished -- like repeat drunk drivers.

At the extreme are people who will do what they want to with absolutely no thought for consequences, other people, or even damage to themselves. These people cannot be controlled and ought to be imprisoned for life or just rubbed out.

I expect the people on this list are way over on the high end. They become victims of the people who make law after law after law -- all of them unenforceable -- in an effort to force the world to be nice. Or the cynical people who make laws expecting them to be broken some percentage of the time, like speeding or income tax cheating.

All dogs bite. The trouble with the big "guard" breeds like pit bulls is that when they DO bite, the consequences are a disaster. If you're bitten in the ankle by a teacup poodle, you probably won't die. (And will probably send the little beast sailing.)

Prairie Mary

Posted by: Mary Scriver on May 24, 2006 8:38 PM

All dogs bite. Heh, heh. An apt metaphorical analogy thingy.

Less intrusion, please. What people like about those California towns with all the regulations is sterile and unhelpful and inconvenient to me. Give me a zoning-free Houston over that same bland faux-stucco, looks-just-like-the-last-one any day.

My theory is that if we stopped endorsing our Elected Betters as "lawmakers", then they'd stop, duh, making laws. I mean, they (seem to) actually think that's their job -- making more laws. None of them seem to want to steward anything forward anymore...they all want something on the books with their name on it, and that means codification of junk laws into statutes, which impinge more and more on Joe Sixpack seven ways to Sunday.

Posted by: Scott Chaffin on May 24, 2006 10:24 PM

I feel inclined to write a dystopian fantasy about a libertarian state becoming an oligarchy of the legal profession. Anyone who speaks out against it is sued for libel. Then, when our scrappy protagonist rises up in arms against the lawyers his fellow gun-toting citizens gun him down -- Trying to use violence to thwart the law, eat lead sucker!

Posted by: . on May 25, 2006 1:10 AM

This article by Malcolm Gladwell about pit bulls and profiling is pretty interesting and suits me as I happen to own an "American Staffordshire Terrier," as the breed is properly known. That's right, a liberal with a pit bull. Anyway, our dog is gentle and sweet and HIGHLY tolerant of our kids and all that, etc. etc.

Posted by: the patriarch on May 25, 2006 10:45 AM

As in, if someone injures you, sue them.

It sounds to me like you're confusing garden-variety libertarians with anarcho-capitalists. The "night-watchman state" includes police.

I'm also stumped by the question, not often addressed in the libertarian thought I'm aware of, of how to address situations in which the night watchman state itself infringes on the rights of its citizens.

It's a serious problem, but is it any worse with a small state than a large one? At least a small one would be easier to keep track of.

Posted by: L on May 29, 2006 12:27 AM


Police also function within the constraints of the law (as well as constraints of budgets, manpower, etc.) At least in their current form, I'd say the police are kinda useful against criminals who are stupid and have low impulse control. (Which is to say, they catch such criminals--e.g., burglars--about 1% of the time.) That, however, describes only the a fairly modest proportion of the unlawful activity in the world. Police are obviously fairly useless against intelligent or even simply well-organized criminals, let alone against, say, 'legitimate' companies who spew carcinogenic chemicals over entire regions. In short, without laws that are much more tightly defined that today's laws, the average citizen's rights not only easily infringed, but that infringement is only rarely (and unpredictably) redressed. This is not meant as a knock on the police, BTW--they work within a system they didn't design, after all.

Posted by: Friedrich von Blowhard on May 29, 2006 8:35 PM

I think I understand what you're saying now, that regulation is an end-run around disfunctional courts.

Libertarians should worry about why courts are so lousy, and how they can be made better, but that doesn't seem like a theoretical problem about libertarianism. One who does is the anarcho-capitalist David Friedman, in his book "the Machinery of Freedom." He talks about arbitration bodies as a similar end-run, and envisions them taking over. It's hard to imagine them taking control of pollution, but they demonstrate that courts can be efficient.

Also, when push comes to shove, regulatory bodies have to go through the courts. The EPA spent the last 20 years to establish that coal plants in IL had done enough upgrades not to fall under grandfather clauses.

Posted by: L on May 31, 2006 1:17 AM

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