The second big problem with our fixation on choice is that both the civil libertarians and the Tea Partiers assume that if the government is not involved, what remains is a sphere of freedom, choice, and personal responsibility. But the reality is different. In fact, the most significant constraints on choice come not from government but from a host of other forces.
Or maybe they realized that for a choice to be genuine and for personal responsibility to make sense, you have to have more information and more alternatives than most New Orleans residents in fact had.
For a choice to be meaningful you must have sufficient information and reasonable alternatives. Without these two criteria you could not have done anything different. You had no menu to choose from.
There are lots of reasons why the personal responsibility mantra failed to carry the day. For example, the evacuation order came only twenty hours before the hurricane made landfall. Because of this, as many as one in four New Orleans residents did not hear about the order before the hurricane hit. 8 A majority of those who stayed had no way to leave, and only 20 percent had relatives or friends they could move in with if they did. Most had no financial wherewithal to rent hotel rooms—only 28 percent had usable credit cards, and only 31 percent had a bank account. A signifi cant percentage of those who stayed behind were caring for a disabled person. And, of course, they had been assured of the integrity of the levee system for years. It’s fair to say that many if not most of those who stayed to face Katrina were making a choice only in the most simplistic meaning of that term.
In politics, consent and choice are central but disturbingly ephemeral. In democratic societies, the idea of “consent of the governed” has won adherents since Jean-Jacques Rousseau wrote about the “social contract” in the eighteenth century. He argued that “residence constitutes consent,”
Meaning that anyone who chooses to live within a jurisdiction can be considered to have agreed to whatever laws that jurisdiction puts forth. That is the theory behind electoral politics: if your candidate doesn’t win you still have to obey the laws. It was also the high theory behind the old bumper sticker “America: Love It or Leave It.”
We are well attuned to the fact that some choices are compelled, that alternatives are limited, and that people often do not have the information needed to make good decisions.
A true choice must be informed. But that isn’t enough. One must be made aware of HOW to become aware. Even signing a document may not be enough. The fine print is always how they get you. But the issue is epistemic. Poeple don’t know what they don’t know. They might not even be aware the proper information IS in the document and so may not have even known what to study or why. Thus it could still be deception because you didn’t make them aware of HOW to inform themselves. Black Swan. The unknown unknown. There is still a basis for deception because you didn’t inform them how to become aware of the necessary information. They may not have even known what signing means. Thus your holy grail argument, You chose to Sign, may still fall short.
We also know—at least at some level—that our choices are often manipulated by marketing and fraud, even if we don’t always know how. As it turns out, our intuitions work pretty well, much of the time. We hold people accountable for “real” choices and give them a break when the choices aren’t “real,” or when their situation is more someone else’s fault than their own
This book will also look into why, if choice is so malleable and indistinct, we hear so much about it and its cousin personal responsibility. In f i ghts about issues as diverse as health care reform, gay rights, educational policy, poverty, disaster relief, and abortion, why does so much of the debate turn on arguments about choice and personal responsibility? One answer is the rhetorical power of choice in a culture of individualism. We love to think we all have an abundance of choices and that we should take personal responsibility for the choices we make.
But there is a deeper reason choice is the preferred frame for so many political battles. In most cases, the rhetoric of choice gives the advantage to those in power. It is the rhetoric of the powerful. Saying that “people should bear responsibility for the choices they make” helps the powerful and hurts the powerless more often than not. Choice is a ready-made frame with which to oppose movements fighting for social justice, civil liberties, or economic rights, because opponents can point to people’s existing behavior as representing a choice—whether to work at Walmart, to live on the street, or to live in a country where the government taps one’s phone. In facing such assertions of choice, the person fighting injustice that occurs within the status quo must argue either that people are not really making the choices they seem to be making, that the choices made do not refl ect the true preferences of the actors, or that the choices should not be respected
The point of the commercial is that a choice among bad options is meaningless. At the end of the ad, the barkeep opines: “Choices don’t mean a thing when there’s nothing good to choose.”
Really an important concept. Poeple say you made a choice and the argument is supposed to end there. But this is a great way to say it. What is a choice from a terrible menu? Choice alone doesn’t tell you the whole story or even actually, most of the story. there needs to be good alternatives. To say you chose to give up your money when someone tells you to give them your wallet as they stick a fun to your ribs, is to be accurate in the letter of the statement but not in spirit. Technically true but wildly misleading.
Finally, choice is sometimes overwhelming , making it less likely that people will make decisions at all and increasing the risk of regret when they do. One notable experiment showed this eff ect by comparing two strategies for selling jam—by off ering free sample tastes of a handful of choices or of many choices. When off ered more choices, customers made fewer purchases, mostly because they had trouble deciding. Those who did buy from a bigger selection were less happy with their selection when asked about it later. 5 They worried that perhaps they had not made the best possible choice p.43
Endless choices aren’t great because of this.
It may be bizarre to think that civil rights should turn on whether one’s sexuality is chosen (your religious beliefs are protected even though they are not hard-wired), but that is where the debate stands p.45
The doctrine of “unconscionability” is also related to choice. If a contract is so one-sided and unfair that it looks like the product of coercion, misunderstanding, or the misuse of power, it may be set aside. p.45
A lower court dismissed his complaint but an appeals court reversed, saying that a contract is not valid if it is a product of “persuasion which tends to be coercive . . . which overcomes the will without convincing the judgment. p.45
A good way to articulate a way out of the ceaseless argument of “choice” the blame the victim brigade trot out ever single conversation.
This raises the ques…
This raises the question of how much persuasion is too much, or when a choice is not a choice. As the Odorizzi court said, in language only an appeals court could love: “The diffi culty, of course, lies in determining when the forces of persuasion have overfl owed their normal banks and become oppressive fl ood waters.”
p.46 – 6/16/15 8:56 AM
he court required th…
he court required the jury to be instructed that if Fain was not aware of what he was doing, then he could not be responsible for it. This is still a fundamental doctrine in criminal law. People who are not aware of what they are doing are not acting criminally: if you have not chosen your behavior, you are not responsible for it. 13
p.59 – 6/18/15 1:35 AM
Your basal ganglia c…
Your basal ganglia can put you on autopilot for the basic stuff , while the more highly evolved parts of your brain work on the hard or less familiar stuff .
p.61 – 6/18/15 1:41 AM
Good way to say it
alfour’s choices that morning were fl awed, but in hindsight we can understand what might have gone wrong. The analytic part of her brain was tired and distracted, and the refl exive part of her brain took over with horrifi c results. She was simply too overwhelmed to think straight, let alone actively decide what to do. Certainly what she did was not “intentional” in the way we generally use that word. To say she “chose” to leave Bryce in her car does not capture what really happened and does not do justice to her situation.
Good way to defend against the common argument that you chose to forget something. The claim is overly simplistic and not really accurate.
p.62 – 6/18/15 1:45 AM
Our collective sense…
Our collective sense, refl ected in the law, is that the more intentional something is, the more responsibility the person should bear for it. The moral intuition of the common law therefore lines up with our new understanding about the brain. Defendants are more blameworthy when the more sophisticated parts of their brains become involved in making the criminal choice. “Malice aforethought” is another way of saying that the murderer’s prefrontal cortex was involved. The basal ganglia are capable of no worse than manslaughter.
p.65 – 6/18/15 1:50 AM
nyone living in the …
nyone living in the real world understands that people make decisions for reasons other than their own pleasure. To be fully human is to act with spite, compassion, confusion, love. Economists may not understand this, but the rest of us do.
p.70 – 6/18/15 3:27 AM
What the scientists …
What the scientists learned is that spendthrifts tended to have more activity in the accumbens and less in the insula. Tightwads had the reverse. Neither side made “rational” decisions, coldly weighing costs and benefi ts. Both kinds of shoppers were “guided by instant emotions.” 21 The results were similar for both men and women.
p.71 – 6/18/15 3:28 AM
This is the cutting …
This is the cutting edge of science; we can be excused for being a bit skeptical or failing to recognize our lack of agency in our own decision making. But the science is increasingly clear: we are slaves to our brain chemistry more often and in more ways than we might like to admit. If a marketer is able to trigger our pleasure centers into a craving and suppress the pain center’s response to paying, then psychologically we’re more like sitting ducks than wise owls.
p.73 – 6/18/15 4:09 AM
he numbers on the wh…
he numbers on the wheel had a kind of gravitational pull for those thinking about completely unrelated matters. This is called priming, since the brain is primed to think a certain way, like old water pumps that had to be primed before they worked
p.73 – 6/18/15 4:10 AM
Other times, mental …
Other times, mental contamination can be more serious and can undermine good decision making. One study showed that when students taking a test were primed beforehand by being asked about their race, African American students did worse than when they were not so primed. The negative stereotype of African Americans as poor students was ingrained in the students, and the priming infl uenced them to meet that expectation.
p.75 – 6/18/15 4:12 AM
Another example come…
Another example comes from a mail-order seller of high-end kitchen equipment, which was off ering a bread maker for $279. 34 The bread maker was not selling. So the fi rm added a deluxe version for $429. The company did not sell many of the expensive ones, but the sales of the $279 version almost doubled. One might expect that people looking to buy bread makers would be unaff ected by extraneous information, such as the price of a product they wouldn’t buy. But people’s choices can be manipulated in predictable ways, and marketers take advantage of these irrationalities all the time.
p.75 – 6/18/15 4:13 AM
We have a hard time …
We have a hard time correctly keeping track of what made us happy in the past. The human brain collapses past experiences and stores them as memories in ways that distort their accuracy. According to some studies, humans remember past experiences by condensing them to their salient elements, which tend to be whatever was best or worst about the experience, and whatever happened fi rst and last. 35 This signifi cantly infl uences how people make choices, since their choices about the future are inevitably based on their poor memories of past choices.
p.78 – 6/18/15 4:23 AM
What do we do if it …
What do we do if it turns out that much of what we feel and think is not really intentional? It’s a troubling insight, and one that most of us will rebel against. After all, we do not perceive our decision to buy beer or to prefer one candidate over another as out of our control. You may not experience a lack of free will, and most of the time neither do I. But despite our feelings, brain science is revealing that our decision making processes are much more bewildering than we ever imagined, and that our own perceptions of free will should not necessarily be trusted. Choice is complicated
p.78 – 6/18/15 4:23 AM
Instead of assuming …
Instead of assuming that everyone is completely responsible for his or her decisions, we’d be better off recognizing the complexity of choice, in law and politics and life. We would be more forgiving of our foibles and understanding of others’. We’d be more likely to recognize the limitations we face and the constraints on our decisions, and better able to prepare for the times when decisions really do need to be made well.
p.79 – 6/21/15 6:21 AM
n old joke: A bird …
n old joke: A bird sitting on a branch over a lake looks down and sees a fi sh swimming by. “How’s the water?” the bird asks. The fi sh answers, “What water?” Our cultural surroundings, like the fi sh’s water, infl uence everything we do but often go without notice. They play a large role in constructing our views of possible and impossible, good and evil, luxury and necessity. Culture instructs us about who we can love, what kinds of jobs are open to
p.80 – 6/21/15 6:21 AM
us, what kind of fam…
us, what kind of family we can have, and how we should understand our environment and human nature. Culture teaches us what is “normal” with regard to the roles women and men should play in the family, how thin or fat we should be, what we should wear, how much we should consume, what sports we should care about, how we should spend our time, and which religions it is respectable to observe.
p.80 – 6/21/15 6:23 AM
t is much easier to recognize cultural constraints when they are not our own. Take, for example, the plight of fourteen women who were arrested inside a popular café in an upscale neighborhood of Khartoum, the capital of Sudan, in 2009. Their crime was wearing pants. They were among a crowd listening to an Egyptian singer when members of the government’s public order police burst in and ordered all the women to stand up so the policemen could check what they were wearing. The women wearing trousers were arrested, even though they were otherwise dressed modestly in blouses and the traditional headscarf. The government charged the women with a violation of the country’s indecency laws. These laws are based on a strict interpretation of Islamic doctrine and impose punishment on “those who commit an indecent act that violates public morale; or who dress indecently.” 1 The penalty was severe: for most of the women, a f l ogging, which in this case meant being lashed ten times with a whip.
Good Ol Religion. What else but religion could convince grown, intelligent, otherwise lucid human beings that beating women for wearing pants is the best way to run a society. That we are just better off, happier and healthier poeple if you bust into a club, grab perfectly happy poeple who are hurting no one, and beat and scar them because…some invisible fairy that you never hear and you never see amd people only tell you about said it’s bad for these women to wear pants. I thought religion was supposed to provide consequence. But it seems to mostly impel insanity.
p.87 – 6/21/15 9:38 AM
The Myth of Choice
er aspirations at the time—like those of millions of women—were formed in a cultural context that narrowed what she viewed as possible. It would not be meaningful to say that my mother “chose” not to become a doctor any more than I “chose” not to become an NFL lineman. It is not a choice when we fail to do something that never occurs to us to do because we think it is impossible.
Choice is limited to the menu. If you aren’t aware something is possible is hard to choose it.
p.87 – 6/21/15 9:41 AM
view of racial and …
view of racial and gender equality must be based on views about justice, equality, and human dignity that are not founded
p.88 – 6/21/15 9:41 AM
The Myth of Choice
nly on people’s preferences, because those preferences were developed in cultural contexts of inequality and injustice.
The question always asked of Sam Harris. What if Muslim women being forced to dress a certain way are happy? It’s a preference developed inside a very narrow environment. Preferences inside a reason of freedom is a broader preference.
p.88 – 6/21/15 9:44 AM
The Myth of Choice
This means that we should not base decisions about, for example, whether burqas are a sign of religious expression or sexual oppression by asking the women inside them whether they aspire to be outside. To convince someone that they have no choice is the perfect coercion, and the most perfect coercion will appear as choice.
He answered it before I thought of it.
p.88 – 6/21/15 10:10 AM
The Myth of Choice
When looking at other cultures, or at our own culture years ago, it is easy to recognize the constraints on choice created by cultural norms. It is harder to recognize such constraints when we look around us. We are fi sh who do not recognize the water.
p.96 – 6/23/15 2:00 AM
But how often do suc…
But how often do such mistakes occur? Studies repeatedly show that eyewitness accounts are seriously fl awed, in part because as the brain tries to process information in a moment of stress, it takes shortcuts. One of these shortcuts is the use of cultural assumptions to shoehorn what we see into what we expect to see. 21 Our cultural assumptions play on some of the cognitive fl aws described in the last chapter. We often see what we expect to see, not because it is actually what happens but merely because we expect it.
p.103 – 6/23/15 2:19 AM
But the insistence o…
But the insistence on religiosity may be less a product of rigorous search than of multigenerational habit and socialization. No reasonable God would expect that, and no society is well served by
p.104 – 6/23/15 7:52 AM
The struggle for sexual autonomy and independence has been a part of the fi ght for women’s equality for decades if not centuries. One of the touchstones of inequality is the lack of power to decide for yourself with whom you share your sexuality. This lack of sexual empowerment is a badge of inferiority.
In case you ever need it for arranged Marriages
p.116 – 6/23/15 8:13 AM
We might not be able…
We might not be able to say what any particular individual will do, but we have a good idea of what most people will do most of the time. We follow orders.
p.124 – 6/23/15 6:09 PM
Like cultural norms …
Like cultural norms and infl uences, our tendency to obey rules and respect authority undermines our ability to make genuine choices. Without recognizing it, we tend to follow along in situations when we should not. We obey in times when we should dissent. We remain silent when we should speak up.
p.125 – 6/23/15 6:10 PM
am not saying that …
am not saying that the teachers in Milgram’s studies had no choice but to shock the learner, and I am not saying the spiritual warriors in Sedona were coerced by their own psychology into staying in the lethal sweat lodge. What I am saying is that the infl uence of power on our decision making is signifi cant, and it often acts without our recognizing it, often to the detriment of ourselves or others.
p.128 – 6/23/15 10:39 PM
There’s small choice…
There’s small choice in rotten apples. —William Shakespeare, The Taming of the Shrew , c. 1590
p.230 – 6/23/15 10:47 PM
One of the leading c…
One of the leading critics of the conventional wisdom about markets, particularly securities markets, is Lawrence Mitchell. See, for example, Lawrence E. Mitchell, Who Needs the Stock Market? , 1 Accounting, Economics and Law—A Convivium (2010); Lawrence E. Mitchell, The Morals of the Marketplace , 20 Stan. L. & Pol. Rev. 171 (2009); Lawrence E. Mitchell, Fairness and Effi ciency (of What?) , 2 Berkeley Bus. L. J. 153 (2005); Lawrence E. Mitchell, Corporate Irresponsibility: America’s Newest Export (2001); Lawrence E. Mitchell, Stacked Deck (1998).
p.131 – 6/23/15 10:48 PM
ut much conventional…
ut much conventional wisdom about the glory of unfettered markets is simply wrong. 4 We should be less confi dent about the benefi ts of markets bestowing choice, or of choice empowering markets, than economic theory would suggest. The market also limits choices. Rather than being the locus of freedom and individual empowerment, markets may be constrictive, manipulative, and invasive. Perhaps ironically, markets need to be controlled in order for people to enjoy genuine choice.
p.131 – 6/23/15 10:48 PM
At one level, this p…
At one level, this point is mundane. Even the most ardent free marketeer would acknowledge that some limits on markets are necessary. The most uncontroversial of these limits is an insistence on disclosure and truthful information. The price mechanism does not work if market participants can lie to one another with impunity, so anti-fraud laws and disclosure laws are a common market constraint. They are justifi ed by arguments about choice—our market decisions are not genuine unless we know what we’re buying.
p.132 – 6/23/15 10:49 PM
ut it would be a mis…
ut it would be a mistake to depend on disclosure and anti-fraud requirements as a cure-all. Sometimes, information can be overwhelming, so more disclosure of arcane data can hurt as much as it helps. (The best way to hide a lie is to bury it in a mass of inconsequential truths.) Sometimes, disclosure is meaningless, especially if there is nothing you can do with the information. I seem to get disclosures from my credit card companies all the time. Do I do anything about them? No. Could I if I wanted to? Maybe, but probably not. I have to have credit cards to move through this modern world of ours, so my ability to opt out of a credit card agreement is subject to my ability to fi nd another card with better terms. And given the market power of credit card companies and the lack of market power of most credit card consumers, that’s diffi cult. At the very least, it’s diffi cult enough to see that disclosure cannot be a panacea for lack of market choice.
p.133 – 6/23/15 10:55 PM
Private Money and Private stores
Only later did I come to understand that those coupons were what was called scrip, a medium of exchange often used in mining communities. The mining companies would pay the miners in scrip instead of cash, and the scrip was redeemable for goods only in stores owned by the company. Because of the closed system, the company could charge a premium for its products. If a miner ran out of scrip, he could ask for an advance on his wages, which was also paid in scrip. The system often drove miners deep into debt to the company: low wages paid in scrip, scrip used to buy overpriced goods from the company, loans from the company paid in scrip. This cycle created an obligation on the part of the miner to continue working to pay off the debt.
Here is what happens with your private money. it can only buy certain things, at a premium price protected from competition and market pressures. A closed system devoid of the choice we are told is so prevalent when everything is privatized.
p.134 – 6/23/15 10:58 PM
Privitization, Market Failure, Choice Theory
But notice something. The scrip system was not a market perversion but its perfection. No one was coerced, and economists would say that no one was acting irrationally. The coal miners were not prisoners—they could quit at any time. And because they were acting voluntarily, the theory is that they were better off working for scrip than whatever the alternative was, which probably was not working at all.
Here is your perfection of markets
p.134 – 6/23/15 11:35 PM
This is why economic reasoning often seems obtuse and out of touch. To say that coal miners in the days of scrip and debt servitude were acting voluntarily is a misunderstanding of what “voluntary” means. There was coercion everywhere. Miners were not prisoners marched at gunpoint to the mines. But Abby had to feed his family; there were few other jobs to be had, and no better ones for someone with his skills; he had no way to move on; and the wage came in the amount and form the company offered. “Take it or leave it” is not a real choice when “leave it” is not an option. Abby was in the same boat as Henry Lamson—he of the hatchetin-the-head case in chapter one.
I don’t know if it’s Leavell 10 but it is very good, and a very good treatise on the misuse of the word choice and voluntary. Language is a funny thing. Asking a yes or no question to which you can’t technically say no doesn’t tell you the story. Did someone force Abby to work there? Technically no. but that also does not mean yes, that he chose to work there in the sense that he did so willingly. Choosing between death and a terrible choice doesn’t mean the choice is voluntary. Usain Bolt had never beat me in a race. That doesnt mean I’m a good sprinter. Dilemmas, forks, and binary questions and framings often indicate a shortcoming in context, not a meaningful treatment of circumstance.
p.134 – 6/23/15 11:42 PM
Abby’s example shows…
Abby’s example shows why markets do not necessarily provide a way for people to improve their lot. They simply enable people to engage in exchanges. Those exchanges inevitably benefi t the parties that are already
p.135 – 6/23/15 11:46 PM
ore economically powerful, because they can extract more from the exchange. If you have little economic power, there is nothing inherent in the market exchange that makes you better off than before. All an exchange ensures is that the deal you “voluntarily” agree to is better than your other options. If you have no other options, then an exchange can make you worse off . You can spiral downward, little by little, as the unfavorable exchanges add up. You have to make some kind of deal, and all the choices are bad. There is nowhere else to sell your labor, nowhere else to go, and no way to subsist on air and dirt. In other words, if you’re given a choice between being pushed down an open elevator shaft or pushed down a staircase and you rationally pick the latter, it doesn’t mean that you weren’t pushed, aren’t going down, and won’t get hurt on the way to the bottom.
Thus is Level 10 and one of the greatest passages since 2011. And this points out the simplistic sense in which Conservatives use the word choice. It ignores the realities of the actual world, where the people live.
p.135 – 6/23/15 11:48 PM
Markets are amoral. …
Markets are amoral. There is no good or evil in markets, no just or unjust. There is only “willing and able to pay for” and “not willing and able to pay for.” You don’t get out of markets what you deserve—you get what you can negotiate for, based on the information you have and what you have to off er in exchange. And if you don’t have much or know much, you don’t get much.
p.135 – 6/23/15 11:49 PM
Your wage is not bas…
Your wage is not based on what you need but on what your employer is willing to pay you. And your employer’s willingness to pay may not depend on the added value you create for the company. If markets have their say, your wage would depend not on what you produce but on how much the company would have to pay your replacement. If you’re a coal miner, your wage does not depend on the value of the coal you dig but on what the company would have to pay the guy standing outside the gate looking for work. If you’re an associate at a law fi rm, you make the market rate for associates, not what the fi rm bills from your work. And if you’re a recen
p.136 – 6/23/15 11:50 PM
liberal arts graduat…
liberal arts graduate, you might be lucky to make a couple bucks an hour plus tips at Joe’s Crab Shack. Wages are competitive only in a competitive market, and a worker is not guaranteed anything other than what he or she can get by threatening to walk away.
p.136 – 6/23/15 11:50 PM
This applies whether…
This applies whether we are talking about your labor or your money. What we have to pay for bread and milk is not based on how much we need them but on how much everyone else is willing and able to pay. Just as your wage is pushed down if someone will do your job for less, the costs of things you buy will go up if someone will pay more
p.136 – 6/23/15 11:53 PM
Individualism, Market Failure, Amoral Markets
So markets are not the perfect embodiment and celebration of choice. What we have to pay for things is dependent on others. What we earn is dependent on others. What products are available is dependent on others. What jobs are available is dependent on others. Moreover, an empty wallet is not a problem that markets race to fi x. By defi nition, if you have nothing to trade in an exchange, markets ignore you. If your resources are thin, the market is no longer a source of abundant choices. Since markets allocate even basic necessities according to our ability to pay for them, if you cannot pay then the market does not provide them. The market becomes a way to limit choice.
And so much for your lot in life being all up to you. So much for they’re is no such thing as a society. Every interaction you make in a market is dependant upon thousands or millions of others and the aggregate of their choices. You are not guranteed not to starve even if you work. And for most of the right that’s not a problem. But we don’t live in a works where everyone wants people to starve in the richest country in the world.
p.136 – 6/24/15 12:52 AM
In fact, if we remov…
In fact, if we remove the hazy presumptions of economic deism from our eyes, the world around us reveals the limits of markets. There is nothing magical about markets that raises the living standard of any given person over time. Billions of people are desperately poor and not getting better off as markets reach them. As Jon Jeter notes, “With more cash spinning the globe faster than ever, 1.3 billion people now live on the equivalent of less than $1 per day. Half the world’s population—3 billion people—survive on only twice that, or about 25 cents less than each cow in the European Union receives per day in government subsidies.”
p.137 – 6/24/15 12:54 AM
Meanwhile, working p…
Meanwhile, working people in America are struggling, often working longer, in less secure jobs, for pay that has been largely stagnant in real terms since the early 1970s. More and more working Americans are crushed by f i nancial obligation, and the poverty rate recently hit a new high, with nearly one in seven Americans qualifying as poor. 8 After each day of work, they are another day older and deeper in debt. All this is to say that markets provide choice only if you have something to pay with. Nothing limits choice like scarcity. For millions of people in the United States and billions throughout the world, markets are a source of powerlessness
p.230 – 6/24/15 12:55 AM
ee Edward Luce, The …
ee Edward Luce, The Crisis of Middle-Class America , Financial Times, July 30, 2010, available at http://www.ft.com (“Dubbed ‘median wage stagnation’ by economists, the annual incomes of the bottom 90 per cent of US families have been essentially fl at since 1973—having risen by only 10 per cent in real terms over the past 37 years. That means most Americans have been treading water for more than a generation. Over the same period the incomes of the top 1 per cent have tripled. In 1973, chief executives were on average paid 26 times the median income. Now the multiple is above 300.”). A wonderful resource of economic data is the Economic Policy Institute, http://www.epi.org, particularly its running series entitled “The State of Working America,” available at http://www.stateofworkingamerica.org. For data on inequality, see http:// www.stateofworkingamerica.org/features/view/1. For data on rate of change in income, see Lawrence Mishel, Where Has All the Income Gone? Look Up , Mar. 3, 2010, available at http://www.epi.org. For stagnant incomes, see “When Income Grows, Who Gains?”, an interactive chart available at http://www
p.231 – 6/24/15 12:55 AM
stateofworkingamerica.org/pages/interactive#/?start=1917&end=1918, using as its source Emmanuel Saez & Thomas Piketty, Income Inequality in the United States, 1913–1998 , Q. J. Econ. 118(1) (2003), tables available at http:// www.econ.berkeley.edu/~saez/TabFig2008.xls; also Lawrence Mishel, Another Day, One Less Dollar , June 3, 2010, available at http://www.epi.org. For increase in working hours, see Jared Bernstein, The Rise in Family Work Hours Leads Many Americans to Struggle to Balance Work and Family , July 7, 2004, available at epi.org. For data on debt, see Household Debt Soars in Past Two Decades , available at http://www.stateofworkingamerica.org/charts/view/214. For data on poverty, see Elise Gould & Heidi Shierholz, A Lost Decade: Poverty and Income Trends Paint a Bleak Picture for Working Families , Sept. 16, 2010, available at http://www.epi.org
p.231 – 6/24/15 12:57 AM
ow we understand thi…
ow we understand this phenomenon scientifi cally. Remember the study discussed in chapter three revealing that the part of the brain that anticipates pain lights up when you see the price of a product. If the pain of paying can be reduced—by the use of chips, for example—then you are more likely to spend, or bet, more.
p.138 – 6/24/15 12:58 AM
Casinos are markets …
Casinos are markets perfected, but choice perverted. Rather than being places where people coolly measure their options and make decisions based on the various costs and benefi ts, markets are often places where people make unrefl ective decisions that are the product of manipulation and habit. Manipulation is a genuine source of constraint on choice in markets.
p.142 – 6/24/15 5:30 PM
We can be overwhelme…
We can be overwhelmed by much simpler and more mundane decisions than whether to get a brain scan. You’ll remember the jam experiment I mentioned in chapter two. Some shoppers were off ered a large variety of jams to sample; others were off ered only a few. 15 The shoppers off ered more options actually decided to make a purchase less often. They had more diffi culty choosing. Shoppers off ered fewer choices not only bought more jam, they were happier with the jams they chose. They worried less about whether they might have liked the boysenberry more than the raspberry. Even where our biology and situation give us a good amount of freedom, we are easily overwhelmed by choice.
p.144 – 6/24/15 5:34 PM
Choice of markets
arkets also restrict choice because of their pervasiveness. Markets are so powerful that it is virtually impossible to opt out of them, even for things that our society does not want to allocate based on ability to pay.
You can’t opt out of government? Well I can’t opt out of markets and their outcomes.
p.144 – 6/24/15 5:36 PM
But consider this: t…
But consider this: the change in the town brought about by everyone shopping at Walmart was not a choice in any meaningful sense. It was the result of thousands of individual decisions about where to buy things. The nature of markets is that the decision about what kind of town you want is chopped up into thousands of individual decisions about, for example, whether to get a twenty-dollar hammer at the downtown hardware store or a fi fteen-dollar hammer at Walmart. The ultimate eff ect of the two decisions—you keep a lively downtown with the twenty-dollar hammer and end up with no downtown with the fi fteen-dollar hammer—is invisible until it happens. And then there is no going back.
p.145 – 6/24/15 5:46 PM
arkets allow you to …
arkets allow you to “vote” with dollars (or Euros, or rupees), and that’s fi ne when you’re voting on which hammer off ers the most value. But sometimes, your vote on the hammer is also a vote on the nature of your hometown. That’s not a decision that should be atomized. It should not be the unintended product of thousands of individual purchasing decisions, especially when the cost of each decision is hidden and borne by others. Markets elbow aside collective decision making with their focus on individual decision making. Even if we wanted collectively to object, the market does not off er us a mechanism to voice that objection other than with money. And no one wants to be the chump who spends twenty dollars for a hammer in the hope of saving his hometown if everyone else is buying fi fteen-dollar hammers anyway.
p.145 – 6/24/15 5:47 PM
The Myth of Choice
This problem of markets chopping up big decisions about important things into little decisions about money is known as a “collective action” problem. Markets do not provide ready ways for people to act collectively, to make decisions about big things. There are thousands of other examples. Clean air and water, adequate public transportation, and access ramps for the disabled—to pick just three—are choices that markets simply do not provide. Absent government regulation, a company that pollutes will produce its products more cheaply. Absent government subsidies, public transportation will be too expensive for people to use. Absent a government mandate, no business will spend the money for wheelchair ramps. If we want to live in a society where we have clean air and water, public transportation, and the ability of the disabled to be part of society, we have to elbow markets aside and make those decisions in another way. On its own, the market will commodify everything, including the decision to have a hometown or not, to have clean air or not, or to treat people fairly or not. The “prices” of those decisions will be hidden in products and services all around us, whether we like it or not.
Some good examples of minor market failure. Be careful about the disabled one, it might not be ready or strong enough to pilot, but the others are good. A good refresher on some market shortcomings.
p.145 – 6/24/15 5:50 PM
Markets not only com…
Markets not only commodify decisions that ought to be made in other ways. They also commodify things that ought not be bought and sold at all.
p.145 – 6/24/15 5:50 PM
Markets not only com…
Markets not only commodify decisions that ought to be made in other ways. They also commodify things that ought not be bought and sold at all
p.146 – 6/24/15 5:50 PM
The Myth of Choice
For one example, consider the horrible choice facing Rab Nawas. 16 Nawas is a farmer in rural Pakistan who fell into debt to his landlord. He had asked for a loan because he owed money for his wedding and he needed cash to pay off medical bills for his wife and six children. His poverty would make it impossible for him to pay the bills on his own, so a loan from his landlord was his only option. Then his landlord demanded payment, and Nawas had only two things of any value to sell: his children or his own body parts. He chose the latter. He contracted with a local broker to sell a kidney to a “transplant tourist,” most likely someone from Europe, Australia, or the United States who needed a kidney and was willing to pay. Nawas now sports a foot-long scar on his lower back, acquired at a “kidney center.” In return, he was paid around $1,600. But he’s now less able to work, because his strength and stamina are not what they used to be.
Here is an example of what happens in a “free” market void of government. Can you blame Pakistan’s government for this? Unless you say they didn’t do enough to stop it you really can’t. Left without limits and horizons on the extent of “choices” that can be made, thus brand of “freedom” turns into a nightmare.
Pakistan has a government of course. They may say this didn’t happen under Libertarianism. That it is more cultural than political. But no one denies that bad government is unhelpful. Good government however, prevents this. No one in the US seriously thinks he will have to sell a kidney or his children. If the market is supposed to prevent such horrible decisions from happening (This Landlord would get bad reviews on Yelp) why didn’t it. Opponents have one option. That Government protected his right to do this. That would be impossible to show.
Further research shows Pakistan passed a law banning selling of body parts in 2007. So the Libertarians final Avenue of escape is closed.
p.148 – 6/25/15 12:23 AM
What a market does n…
What a market does not off er is the choice to not have these things monetized. By their very nature, markets cannot give us a choice to protect our most prized and sacred things. And once they become monetized, something important is lost—their pricelessness. We cannot use markets to limit the things markets can buy and sell. We have to use law. In order to have the choice to live in a society where children, organs, or sex services are not sold, we have to limit the kinds of choices people can make in the market.
p.149 – 6/25/15 12:24 AM
There is one choice …
There is one choice the market will not provide: a way to limit markets.
p.152 – 6/25/15 12:26 AM
t is not the respons…
t is not the responsibility of knights errant to discover whether the affl icted, the enchained and the oppressed whom they encounter on the road are reduced to these circumstances and suff er this distress for their vices, or for their virtues: the knight’s sole responsibility is to succour them as people in need, having eyes only for their suff erings, not for their misdeeds.
p.160 – 6/25/15 2:07 AM
This means that with…
This means that without some kind of legal rule, there is no option to insulate my decision from imposing costs on others, even if we believe in personal-responsibility-as-choice. Others either have to suff er the psychological cost of looking at my broken body and doing nothing, or they themselves have to be willing to pay for my care. In other words, a libertarian framework creates a choice for bystanders, but neither choice is good. It is not an answer to this concern to say that any Good Samaritans’ decisions to help me are their own, and they should bear personal responsibility for them. This answer does not avoid the point that absent some kind of governmental or legal intervention, my decision not to wear a helmet will undoubtedly impose costs on any potential Good Samaritan who comes my way. Either they suff er fi nancially from helping me out or psychologically from turning away.
p.161 – 6/25/15 2:10 AM
What does it mean, t…
What does it mean, then, to require me to suff er the consequences of my choice? At the very least, it means I should pay the fi nancial costs of my own care. But medical care is expensive, and few of us could aff ord to pay
p.162 – 6/25/15 2:10 AM
The Myth of Choice
for weeks of hospital care and rehab out of our own pockets. Those costs will quickly make me insolvent, meaning that in fact I will not be forced to suff er the full fi nancial costs of my decision. As a matter of public policy, then, perhaps the best way to make sure I pay for the fi nancial costs of my accident is to require me to buy insurance ahead of time. That way, the cost of my behavior is factored into my decisions before the fact, not afterward, and those who care for me after an accident are more likely to be paid.
You can bitch about it all you want, but poeple simply don’t have the money to pay their own medical bills in these situations. And asking for a society that just wheels poeple out of the emergency room because they can’t pay isn’t going to happen in a world with normal human beings. It is simply an affront to our sensibilities, disgusting, offensive and heartless to the point of near unbelievably. It isn’t a choice we make as a society.
p.162 – 6/25/15 2:10 AM
Notice where we are….
Notice where we are. A respect for choice, if taken seriously, does not translate into the simplistic libertarian prescriptions often trotted out on the heels of personal responsibility rhetoric. It is impossible to have accountability for choices with no legal or regulatory mechanism to enforce it. What’s more, an insistence on personal-responsibility-as-choice means that individuals can be required to buy insurance, to make sure the fi nancial costs of their decisions are not borne by others.
p.162 – 6/25/15 2:14 AM
With the motorcycle …
With the motorcycle illustration fresh in our minds, the fl aws in the personal responsibility argument opposing health care reform become clear. If personal responsibility involves actually being responsible, then it is consistent with that notion to require people to make the mature judgment to purchase health care for their families. If personal responsibility means that people can choose and then pay for their choices, then insurance is the best way that payment can be assured. If people are allowed to make bad health choices and also refuse to purchase health insurance, it essentially forces the rest of us either to foot the bill fi nancially or to live in a society where we are forced to watch our neighbors suff er.
p.234 – 6/25/15 2:18 AM
aws may, in short, r…
aws may, in short, refl ect the majority’s ‘preference about preferences,’ or second-order preferences, at the expense of fi rst-order preferences. This phenomenon—voluntary foreclosure of consumption choices—is the political analogue of the story of Ulysses and the Sirens.
p.163 – 6/25/15 2:19 AM
President Obama’s pl…
President Obama’s plan could have easily been called the Personal Responsibility in Health Care Act. To allow people to avoid paying for their own health care is inconsistent with both visions of personal responsibility. Purchasing health insurance is not only the responsible thing to do; it is also the best way to ensure that people actually pay for their choices. Instead of defending health care reform as an act of redistribution, cost saving, or altruism, the president should defend it on the grounds that it is the only way to make people take personal responsibility for their health care decisions.
p.163 – 6/25/15 2:19 AM
The Myth of Choice
Respect for choice does not mean an absence of legal or governmental involvement, even for decisions as personal as whether to wear a motorcycle helmet. Most of our actions impose costs on others. Sometimes a respect for the autonomy and choice of others means that lawmakers or regulators need to step in, if only to make sure we pay the cost of our own decisions— either after the fact through judgments or fi nes, or before the fact through insurance. So the notion that personal responsibility means the law or government has nothing to say about our decisions is fl at wrong.
p.167 – 6/25/15 3:00 AM
The Myth of Choice
ut this argument misses something important. Many events have multiple causes and infl uences, and the responsibility for creating them is dispersed. Sometimes responsibility is shared
A good passage to articulate that some things are not as simple as the right makes them out to be. Placing the Blane only and ever on the victim ignores a nexus of contributing and important factors.
p.167 – 6/25/15 3:03 AM
If our dedication to…
If our dedication to personal responsibility focuses our attention on Nicole, that’s fi ne. But if that focus causes us to ignore the role played by others in her suicide, then we’re allowing others who ought to share responsibility for the catastrophe to avoid that responsibility. This is indeed what happens in much of the political discussion about personal responsibility. The last person in the causal chain—the last person to make a “deliberate, intentional” choice—is seen as holding all of the responsibility. To let the last person avoid all responsibility by pointing a fi nger upstream is usually a mistake. But it is also a mistake to allow the choosers upstream to avoid responsibility by pointing at the last chooser.
p.169 – 6/25/15 3:05 AM
If we take personal …
If we take personal responsibility seriously, either in the sense of maturity or in the sense of choice, we cannot let people who make decisions avoid responsibility just because they aren’t the last person in the causal chain. Too often, the rhetoric of personal responsibility is a way for those who ought to admit to shared responsibility to point the fi nger at someone else.
p.169 – 6/25/15 3:07 AM
The emphasis on the …
The emphasis on the last choice in the chain ignores the constraints on those choices, not to mention the choices of myriad others who created
p.170 – 6/25/15 3:07 AM
the situation in whi…
the situation in which people freeze to death in the world’s richest nation. As legal scholar Joseph Singer reminds us, “People do not voluntarily sleep outdoors in wintertime if they have a family to be with or a safe place to go.”
p.170 – 6/25/15 3:08 AM
The rhetoric of pers…
The rhetoric of personal responsibility is often a cover for the avoidance of shared responsibility. A fi xation on the choices of the last person in the causal chain allows us to feel comfortable with a lack of charity springing from our hearts or wallets. It also allows the rhetoric of personal responsibility to provide a cover for simplistic libertarian phobias
p.171 – 6/25/15 3:08 AM
of government regula…
of government regulation, whether of motorcycle helmet laws or health care reform. Too often, the rhetoric of personal responsibility essentially urges the rest of us not to care about our fellow citizens. It avoids any sense of shared concern, of shared responsibility for others. And that’s why I am against it.
p.178 – 6/25/15 9:56 PM
Groups also can fall…
Groups also can fall into habits of thought that reinforce members’ assumptions and insulate them from contrary notions. This is called groupthink, and it can be dangerous. 15 For example, at the beginning of this century most of the fi nance industry believed that housing prices would never, ever fall. They bet the farm—our farm, in fact—on this assumption. We are all still paying the price of that piece of groupthink
p.178 – 6/26/15 4:12 AM
The Myth of Choice
The persistence of error, regardless of our decision making technique, is a symptom of the human condition. It is as certain as death and taxes.
And must be accounted for.
p.179 – 6/26/15 4:18 AM
The Myth of Choice
Sometimes lack of clarity is necessary. Language is inherently limited. It’s not easy to capture certain kinds of obligations in a clear linguistic formula. In tort law, for example, sometimes the best we can urge is to “be careful,” or more precisely, to “not act negligently toward someone to whom you owe a duty to be careful.” In deciding whether someone is liable for an accident, what constitutes negligence depends on the situation. In commercial law, no matter how fi nely negotiated a contract is, the various negotiated terms cannot substitute for the legal duty to “act in good faith.” What amounts to good faith depends on the situation. Another example comes from property law, where the “duty of habitability,” implied in landlord-tenant leases, requires the property to be “habitable.” Habitability depends on the situation. In business law, offi cers of a corporation owe a “fi duciary duty” to the corporation. What satisfi es that duty depends on the situation. A police search is legal only if “reasonable”— which depends on the situation. And so on.
Language can mean what we need it to mean. But linguistics can often simply be inadequate to the task of establishing truth or falisity. interpretation is nesseaey.
p.181 – 6/26/15 6:45 AM
Every time politicia…
Every time politicians talk about judges—especially when the president has nominated someone to the Supreme Court—it seems we are reminded that judges are not to “make law.” But law is made each time it is applied, since (in most cases) there is no way to articulate what the contours of the legal requirement are without reference to the immediate situation. Judges make law all the time, and so do juries.
p.184 – 6/26/15 6:49 AM
The Myth of Choice
Obama’s critics pounced, saying that empathy was code for liberal judicial activism.
Why fuck Libertarians and Republicans. They deride the notion of empathy.
p.188 – 6/27/15 12:58 PM
When the attention o…
When the attention of several offi cers is brought to bear on one civilian the balance of immediate power is unmistakable. We all understand . . . that a display of power rising to . . . [a] threatening level may overbear a normal person’s ability to act freely, even in the absence of explicit commands or the formalities of detention.”
p.191 – 6/28/15 7:55 AM
Are Americans really…
Are Americans really fi ve times more criminal than Brits? Nine times more prone to bad behavior than the Germans? Twelve times more worthy of punishment than the Japanese? Of course not. But we are probably f i ve, nine, or twelve times more willing to translate a cultural insistence on individuality into a basis for punishment. We turn our fetish for choice into a reason to ignore shared responsibility and disparage the full stories of those accused. We end up over-punishing and under-understanding.
p.197 – 6/29/15 4:10 AM
The problem is that choice is sometimes empty, ephemeral, or false. We may experience our behavior as the result of choice and ascribe the behavior of others to the result of choice even when such behavior is largely predetermined by situation or disposition. If neither is under our control, then there is not much choice. What’s worse, our feelings may not be our best guide to whether choice has occurred. In addition, we may be too distracted by the options at our grocery stores and on our television sets to recognize the dearth of choices in our politics and culture, or our inability to choose diff erently.
Though this isn’t specifically the message, a lot of the book helps us understand an important thing. Choice from a limited menu means limited choice. You might choose differently if you had other options to choose from. But what if other options don’t OCCUR to you.? How can you choose an option if the option doesn’t occur to you. What you you can’t choose the menu of choices available to you? What if we don’t know how to get more choices to choose from. Like Sam Harris said. Free Will may be an illusion. Since you can’t choose a choice that doesn’t occur to you, and you can’t choose what occurs to you, it isn’t your fault if something happens to you when you couldn’t have chosen differently. This can undermine all of Conservative blame thoery. The best they can do is claim you can become more educated about the options available. But even that requires knowledge that may not occur to you and you may not aven be aware you are missing in order to even know to try to aquire it. So we marry two ideas. Black Swan Epistemology, the unknown unknowns, and Sam Harris choice Thoery, you can only choose what enters your mind and you can’t choose the menu.
p.199 – 6/29/15 8:35 AM
We tend to collapse …
We tend to collapse our memories into a Reader’s Digest version of our history. We’ll remember the fi rst part of an event, the high points and low points, and the last part. If the last moments of a medical procedure are particularly unpleasant, if the last day of a vacation is unusually stressful, if the last moments of an interaction with a friend are awkward, or if the dessert at a fancy restaurant is disappointing, it will disproportionately color our memory of the experience. The quality of our choices about going back to the doctor, saving
p.200 – 6/29/15 8:35 AM
money for another va…
money for another vacation, seeing the friend again soon, or returning to the restaurant will suff er.
p.201 – 6/29/15 8:43 AM
f they make us happi…
f they make us happier and healthier, that’s an advantage. If they make us miserable, less wise, or more physically fragile, they’re a bad thing.
p.203 – 6/29/15 8:54 AM
As I discussed earli…
As I discussed earlier in the book, culture is like water to a fi sh. We live in it and depend on it but aren’t always conscious of its presence.
p.206 – 6/29/15 11:42 PM
The Myth of Choice
Libertarian eras come and go, but even when libertarianism is “in,” as it seems to be now, it is diffi cult to fi nd someone who believes that this category of bans and criminal punishments should be empty. People might disagree on specifi c issues such as marijuana, handguns in the home, or late-term abortions, but all but the most unreasonable believe that the government should occasionally step in and overrule some individuals’ choices. There is an implicit balancing between the desire to protect the autonomy of individuals and the desire to protect individuals from themselves and others. The question is where to draw the line.
Uncontroversial perspective on balance. Use to see if they are willing to agree to a baseline level of reason and government or if they insist on pure extremism and apperently anarchy.
p.209 – 6/30/15 12:07 AM
All in all, I think …
All in all, I think protecting a sphere where people can exercise their choice making powers is a laudable and important public policy goal, because protecting choice can be a good way to build it, and because sometimes even bad choices are better than none. But when we protect this sphere of human choice, we should not delude ourselves that we are preserving a natural space where autonomous individuals revel in their cognitive freedom. We should protect a sphere of human choice despite the fact it is a constructed, contested space where choices are sometimes manipulated and manufactured.
p.210 – 6/30/15 12:42 AM
The Myth of Choice
Answering this question may seem like a fool’s errand. Why should we believe that public policy or legal tools can help people be better decision makers? The answer is that we already do it all the time, and sometimes it actually works. We require every child in the country to attend school, at least until age sixteen or so, in part because we want them to have the tools to make good choices in their lives. We require or encourage people who want to get a driver’s license to take driver’s education classes. We require people who want to be lawyers to go to law school, to develop not only the requisite knowledge but also some semblance of the judgment competent lawyers need.
Same with doctors. You don’t have to make the choice to go to a doctor who learned on youtube. You are guranteed at least a person graduated from med school.
p.210 – 6/30/15 12:44 AM
Foreclosure of terrible choices
First, we should work to ensure that economic need is not a source of coercion. As we think about the range of bad choices people are forced into—to work for an employer who puts employees at risk, to sell sex for money, or to buy cheap, fatty food—many of the most problematic choices are brought about by simple economic need. Remember Henry Lamson from the fi rst chapter, he of the ax-in-the-head case. He knew the risk of injury in his job but stayed anyway. Judge Oliver Wendell Holmes, Jr., said that Lamson should not be able to sue his employer, since he “stayed, and took the risk.” The reason Lamson’s decision does not sound like a real choice to modern readers is that we assume, I think reasonably, that he did not have a lot of other employment options and he had to provide for his family. A safety net for employees who lose their jobs not only would give those employees the choice to leave dangerous jobs but would incentivize employers to off er better jobs in the fi rst place.
We foreclose certain narrow “choices” for broader, more meaningful choices that result in greater freedom overall. Like selling ones kids, performing a blowjob at work, or child labor. Having No government removes the option to forclose on the terrible choices that no one, no one, in the world would say “I am free” if they had to make. Removing certain spurious “Options” from the menu makes it tighter and leaves us never having to worry about choosing that option or death. Finally, a social safety net is choice…it gives you bargaining power in the face of market power and a bad, unsafe environment.
p.211 – 6/30/15 12:54 AM
I recognize that it …
I recognize that it is extremely diffi cult to draw a clear line between choice and coercion when it comes to evaluating a decision to sell one’s body for sex. But some things are certain. The less sex and gender equality in a culture, the less likely such a decision is a real choice. The fewer employment alternatives, the less likely such a decision is a real choice. The more such jobs are occupied by people at the lower rungs of the social, economic, and cultural power structures, the more we can presume the decision comes about as a result of powerlessness rather than autonomy. When these situations create the context of the decisions made, then we can have a great deal of certainty that eff orts to expand economic, social, and cultural choice will be worth the eff ort.