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06/18/2012

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Howard Knopf

Somehow, I'm sure that there are some class action lawyers somewhere beginning to salivate over this issue.

AlSeen14

There are so many issues with this law.

1) Nothing stops you from getting free refills or more than one cup.

2) What about movie theaters? I share a drink with my wife.

3) This requires a complete repackaging of soda. 20oz bottles will no longer be allowed to be sold. Even the 500 ml bottles are too large (16.9oz)

4) I find the belief that consumer choice is a "shallow" criticism to be sad.

zhaoxi

Dear Judge Posner, I am a law student from China, I have a question on my paper and I really need your opinion. I have send you a email to [email protected], and I am really really looking forward to hearing from you. If you can spare a little time to have a look at my question, I will be very grateful, with all my respect.

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Terry Bennett

For tonight's performance, the role of Mikhail Gorbachev will be played by Judge Posner, ably defending an idea that is intellectually beneath him (as I think someone said at the time).

The externalities inflicted by large sodas can be adequately addressed by taxing large sodas. Every smoker I've talked to in the past 20 years has cited the high cost of cigarettes as a more significant deterrent than the vague and far off health risks, which merely add cachet to the act of smoking, both identifying and self-identifying the willing smoker as someone courageous and ready to live in the moment. I would also point out, in stark contrast to smoking, that a kid standing next to me drinking a big soda is not going to make me fat.

And whose fault is it anyway that these externalities exist? We could elect as a society to let these people boldly face the consequences just as they boldly choose to defy the known risks. My neighbor thought he was so cool drinking in high school, and he is alive today only because we paid for something he could not possibly produce enough to afford - a team of doctors to extract the liver of a recently departed and use it to replace his own. Would it not be rational to conserve resources and let this guy die? The fact that he can't pay for his own transplant is proof enough that it's going to cost us more to keep him alive than we're going to get back on that wasteful investment.

If we had rational actors, it might make sense to allow drunk driving, and simply charge those who then kill with their cars as first degree murderers, having contemplated the act by choosing to drink and drive. One problem with that is alcohol's celebrated effect of combating rationality, so in fact I do support drawing the line farther up the hill where it is not too late to avoid the harms.

While I have elected to do the work and make the choices to maintain a respectable waistline in my 50's, my mother has been carrying a significant excess for as long as I can remember, and her explanataion is not only rational but refreshing: "I like to eat." Her body-double sister just died at 94. Who is someone else to say that the delight of biting into a pastry today must necessarily be traded for the socially mandated hedonistic ecstasy of being alive and wheelchair-bound in 2034?

The politics of the post-WWII era (and probably earlier) can be summed up as follows: "Hello, we're from the Democratic Party. We know more than you do, and all you need to do is hand over your freedom to us and we'll make your life better." It may well be that every word is heartfelt. I still am moved to quote both the words and the animus of Clint Eastwood in Gran Torino: "Get off my lawn!"

Christina

Michelle Obama's attempt at fighting obesity is much more appropriate than mayor bloomberg's. Educate the people! It costs virtually nothing and in the end is going to be much more rewarding (and it is also much more governmentally ethical). If people want to drink sugary sodas after tha, well, let them. The government should not support people who still only follow their short term benefit instead of their long term longevity.
Part of the whole cigarette campaign was to tell people "hey, this stuff is really really bad for you". Then came the high taxes. Education first, then taxation. Knowing how had this stuff really is for you really discourages use. Not enough, but it is a start.

Edgar K. Browning

Obesity does not generate negative externalities. The consequences referred to as externalities are not externalities at all. See "The Myth of Fiscal Externalities", Public Finance Review, 1999.

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Joe

Judge,

Your point about homo sapiens being a social animal is particularly apt with regard to high sugar foods. We have a biological impetus that is hard to counter rationally. Sugar drinks are a supernormal stimulus, and we are hard-wired to consume them in a way.

"Our sweet tooth is an evolved and instinctual preference for high-energy food. It wasn’t designed for chocolate cake. Chocolate cake is a supernormal stimulus. The term is owed to Niko Tinbergen, who did his famous experiments with gulls, where he found that that orange spot on the gull’s beak -- if he made a bigger, oranger spot the gull chicks would peck at it even harder. It was a hyperstimulus for them, and they loved it. What we see with, say, chocolate cake is it’s a supernormal stimulus to tweak our design wiring. And there are lots of supernormal stimuli. . . ."

Dan Dennett: Cute, sexy, sweet, funny, TEDTalks, http://www.ted.com/talks/dan_dennett_cute_sexy_sweet_funny.html.

TANSTAAFL

Bennett's post above is a breath of fresh air. Well stated.

To approach the issue on other grounds, why don't the folks who complain about the supposed negative externalities of obesity blink an eye at hyperaggressive EPA regulations that would exalt environmentalism over 400 years of industrial development that lifted mankind out of poverty? As a practical matter, it is hard to imagine any greater engine for spawning negative externalities than a witless government bureaucrat.

Consider also the irony of a federal judge, with constitutionally guaranteed life tenure and compensation, lecturing the citizenry about negative externalities.

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Jonathan

Excess sugar in the diet is just the latest excuse for ever more intrusive government and burdensome regulation. Consumer freedom has consequences admittedly, as some consumers make self-destructive choices and spread the cost of their choices to others through instruments such as health insurance. Such externalities are exacerbated by government regulation of the economy, especially government welfare programs and regulation of health insurance markets. Forced socialization of the costs of self-destructive consumer choices is what should be curtailed, and not the free and voluntary exchange of value between private parties. Federal subsidies for sugar production should also be ended.

But even without reducing other government interference in the economy, whatever harms are caused by excess sugar consumption might be reduced without government regulation, by recognizing the role of certain market actors in promoting sugar consumption under a product liability theory. Courts might enable civil liability for inequitable promotion and sales of a product that can be harmful only when consumed to excess, via a private right of action. For example, if Company 'X' promotes and sells sugary drinks in an inequitable way, and an ordinary consumer or class of consumers is reasonably influenced by the promotion and therefore consumes an excessive amount of X's sugary product, causing such consumer material physical harm, then Company 'X' could be made liable to pay damages to the consumer or class for the harm. A few successful lawsuits would undoubtedly decrease national sugar consumption without imposing any government regulations whatsoever.

NEH

affl, Moving from a Crypto-Anarchist mode to Red-Herrings, Strawman and Argumentum ad Hominems? No wonder the "New Right" just can't seem to get it right...

Mitchell K.

Posner's post is a bit peculiar considering his previous criticisms of other laws that have been justified on the basis of its symbolic value or its value as codified disapprobation of undesirable social behavior. Robert Bork and other social conservatives have been branded as busybodies by Posner in his previous writings for their tepid support of laws regulating sexual behavior (laws restricting homosexual sodomy, same-sex marriage, the production and distribution of hardcore pornography, no-fault divorce, fully nude striptease dancing, etc.).

However, laws regulating sexual behavior can be justified using the same kind of rationale outlined by Posner for Mayor Bloomberg's soda law; sexual permissiveness is an "epidemic" that imposes costs on society via higher rates of STD transmission and larger numbers of out-of-wedlock children that are partially supported by the state; children who grow up in a sexually permissive society acquire bad habits (creating a vicious cycle); humans are social animals who want to blend in with their peers, and if there are more promiscuous people then those who exercise sexual restraint are likelier to appear prudish, "unattractive, even unhealthy."

My point is not that laws regulating non-coercive sexual behavior are desirable but that it is odd for Posner to find virtue in Bloomberg's proposal even when it rests on shakier grounds than those that can be found in defense of Bork's social conservatism.

If one were to reread Posner's post with the word "obesity" replaced with "promiscuity," soft drinks replaced with premarital sex, and restrictions on container size replaced with quotas on birth controls pills, the parallels become much clearer.

Mayor Bloomberg's soda law proposal is yet more evidence of how social liberalism is no cure for government as a busybody. Social conservatives worry about the moral implications of who sleeps with whom but are mostly indifferent about people's dietary habits; social liberals are unconcerned about sexual promiscuity but fuss about what people eat (or drink, in this case). Does Bloomberg believe that abortions should be available on demand in New York City but that soda consumption should be monitored?

NEH

Mitchell, You know what I find amusing; that "Social Conservatives" are the first to complain about the power of the State to Coerce, but are the first to use that power of the State to advance their ideological agendas. Whereas "Social Liberals" accept the power of the State to Coerce and then utilize it in the Public Interest...

By the use of simple substitution, the worst can be made to appear the better, good as evil, right as wrong and virtues can be made into vices. And vicy - versy...

Terry Bennett

Dear NEH,

I don't doubt for a minute that the left means well. The problem goes far deeper than that. Throughout the centuries, human nature has been continually observed to bubble to the top and thwart the best of intentions. When it is said that "power corrupts", this is not a criticism of a person. It is an expression of a force of nature, to which all humans are subject, akin to "Speed kills" or "No good deed goes unpunished."

If we "accept the power of the State to Coerce", we necessarily accept the power of the State to Coerce for both beneficent and malignant reasons. The Founders considered it categorically foolish and ignorant of human nature to expect that anyone, from the right or the left, would be immune to the deleterious effects that inevitably accompany any grant of power. Their solution of choice was to limit State power in the first place. I am still burning mad on behalf of Roscoe Filburn.

TANSTAAFL

"By the use of simple substitution, the worst can be made to appear the better, good as evil, right as wrong and virtues can be made into vices. And vicy - versy..."

Nihilism? Or NEHilism? Is there a difference?

Gordon Longhouse

While government intervention to prevent obesity can be justified the manner and form such intervention should take is far from clear. Bloomberg's proposal is likely to do no good and its eventual failure will limit the credibility of other perhaps more effective intervention proposals.

Smoking is not a good analogy. Nicotine is known to be an addictive drug; there is no known similar addictive agent at the heart of obesity. Second hand smoke is a negative externality of smoking; there is no similar externality for obesity.

The fact is that we don't know enough about human eating behaviour and effects to know how to intervene to prevent its worst effects. Until we obtain more information any intervention beyond information campaigns cannot be justified.

NEH

affl, Once again, you've proved the point!

Terry, Yep... "Power corrupts and absolute power corrupts absolutely". The secret to good government lies in the ability to recognize, modify and revise as various programs or policies become ineffective or outright failures (Bloomberg's attempt at control, which may be misguided, but it is an attempt to deal with a serious social/medical/health problem). To paraphrase an old saying, "It's time to think anew and act anew - free of ideological constraints and cant"...

Cardozin

Corporate mayhem, perhaps?

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While government intervention to prevent obesity can be justified the manner and form such intervention should take is far from clear. Bloombergs proposal is likely to do no good and its eventual failure will limit the credibility of other perhaps more effective intervention proposals.

Smoking is not a good analogy. Nicotine is known to be an addictive drug; there is no known similar addictive agent at the heart of obesity. Second hand smoke is a negative externality of smoking; there is no similar externality for obesity.

The fact is that we dont know enough about human eating behaviour and effects to know how to intervene to prevent its worst effects. Until we obtain more information any intervention beyond information campaigns cannot be justified.
+1

Anne Roberts

I agree with Christina's post. The first lady's approach is much more scalable and cost-efficient. Bloomberg should rethink his approach.

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