GWorks Interviews: Kent Greenfield
In this five-part interview, Kent Greenfield discusses his latest book, The Myth of Choice: Personal Responsibility in a World of Limits (Yale University Press, 2011).
Part One: Constraints: Biology, Neurology, Culture & Choice Describing the book and how biology, neurology and culture affect choice.
Part Two: Constraints Continued: Power, Markets & Choice How power and markets affect choice.
Part Three: Health Care: Choice Implied & Applied Understanding choice generally might affect a public policy issue like health care.
Part Four: A Perfect Game of Choice What a baseball player and Supreme Court justices have to do with choice.
Part Five: Conclusion: The Good, the Bad & The Choice How the idea that choice is constrained relates to our desire to morality and a political climate in which politicians use the threat to shut down government as a bargaining position.
Kent Greenfield is Professor of Law at Boston College Law School, where he “teaches and writes in the areas of business law, constitutional law, decision making theory, legal theory, and economic analysis of law.”
Part One: Constraints: Biology, Neurology, Culture & Choice
|Kent Greenfield (Photo: Justin Knight)
GOVERNINGWorks (GWorks) [00:00:33:20] How do you describe The Myth of Choice?
KG [00:00:37:20] So, The Myth of Choice...is a book about the many ways in which we have limits and constraints on our free will and ability to choose.
Now, one of the things...that is true about me is that I’ve been fascinated by the issue, by the concept of free will and choice for my entire life. I grew up in a small town in Kentucky. My dad was a Southern Baptist Minister. And one of the things...that was always...difficult for me to understand was, how could it be that my...admission into heaven was subject to my choice. That’s what Baptists believe. But also, the God would know ahead of time which way I was going to choose.
So, maybe it was the difficulty of being a smart kid...in a very religious family—not to say that people who are smart can’t be religious. It’s just that it’s...you don’t take everything as a matter of faith always. And so, I’ve always been worried...concerned or interested in what it means to have free will.
Now, then fast-forward 20, 30, 40 years and a few years ago...I was a head of a group of law schools (Forum for Academic and Institutional Rights) that sued Donald Rumsfeld over gay rights issues. This was in the early 2000s. And what was happening was, the Pentagon was...forcing law schools to accept military recruiters onto campuses even though they wouldn’t sign our non-discrimination pledges because at the time, no longer, but at the time they would...discriminate against our gay and lesbian students. So, we took them to court. We said, ‘Look, you’re forcing us to act as your mouthpiece. This is coerced speech.’
So again...the biggest case of my life turned on what coercion meant—whether we were being forced.
And, we got all the way to the Supreme Court.1 We won in the Third Circuit.2 And we got to the Supreme Court. And one of the first questions out of Chief Justice [John G.] Roberts’s mouth was, ‘Look, you’re not being forced. You’re just being required to do this as a condition of funding.’3
So, it raised a bunch of...detailed Constitutional Law questions about unconstitutional conditions. But, really it turned on the nature of choice. When are people being coerced. When is...are people being free. And, when we lost—unanimously—I came back to Boston licking my wounds and thought, ‘You know, I should look into more what people think choice means.’ And that’s...that took me down this road of researching brain science and sociology and psychology and legal theory to figure out what people thought about choice.
And this book really is a triptych of those...of that research and...the things that I learned.
GWorks [00:03:34:02] Does The Myth of Choice have a specific application?
KG [00:03:38:02] The first part of the book really is...cataloguing and talking about the different ways in which we’re...we are limited in our choice-making in ways that we might not always realize. So, I’ve got a chapter about the brain. I’ve got a chapter about markets. I’ve got a chapter about culture. I’ve got a chapter about authority.
And we can...I’m eager to talk about all four of those.
The $64,000 Question always is, ‘So what?’ Right? It’s always the question that ought to be asked of every law professor—in fact, every professor. And, it always the one that is most dreaded. But, the answer is that there are implications for us personally about how we make our own decisions. And there are implications for public policy and law as well. And there’s also implications for political rhetoric. One of the things I realized doing the book is that our increasing political rhetoric about personal responsibility is often misguided for a few reasons. And so that’s another thing that we can talk about over the course of this interview.
But, the bottom line for me is often, perhaps ironically, talking about personal responsibility lets some people off the hook...because personal responsibility focuses on the last actor in the causal chain. ‘People are poor because they chose their situation.’ This is what Herman Cain said just last week.
Herman Cain said, ‘Look if you’re poor, if you don’t have a job, blame yourself. Don’t blame Wall Street Bankers. Blame yourself.’4
And what that does is that it focuses the attention—the political, the legal, the social attention—on the last actor in the causal chain. If you are poor, you’re to blame. And it lets everybody up-chain from that off the hook. The predatory lenders. The derivative traders. The Washington bureaucrats, who put us in this economic mess we’re in. It let’s them off the hook.
GWorks [00:05:32:27] How do neurology and biology affect choice?
KG [00:05:32:27] OK. So, this was one of the areas that was most interesting for me to research. And I’m a law professor...not a neuroscientist, of course. So it has...it has that weakness and maybe it has that strength because I read it as a lay person who’s very interested in it.
But, you can’t open a newspaper these days without learning something new about what scientists are discovering about the human brain. You know, the human brain, it’s where we...it constructs our free will. But as we...the more and more we learn, actually, we learn that our free will is subject to a lot of influences, many of which we don’t know about.
So...one of the examples that, sort of a famous example, is the so-called ‘Framing Effect,’ right? Where people can be encouraged to think in a certain way, if another person frames the issue in according to a certain answer.
The most famous experiment about this was using essentially a Roulette wheel, a random number generator. And people would spin the wheel. A number would come up. And then you would ask someone, ‘How many countries there are in Africa?’ ...And the number that they spun on the Roulette wheel had a material statistical effect on their answer of how many countries they believed were in Africa.
So, you can trick people into thinking a certain way...
And marketers use this all the time. You know...the thing that they’re trying to sell you...is...used to be $20 and now it’s $15, so you think you’re getting a deal.
Now, the other effect that I talk about in the book, which is sort of fun to research is the so-called ‘Bikini Effect.’
Now, the Bikini Effect is what scientists call the effect where, everyone of us has a pleasure center in our brain and that pleasure center can be activated in various ways. Now, if you happen to be attracted to women, then it can be activated...by pictures of attractive women. And...so, we always knew that sex sells. But now we know that sex sells because it acts on the brain in a certain way, it activates its pleasure center. And the pleasure center wants to be satisfied. And if it’s not satisfied with the thing that activates the center...then it transfers that desire to something else.
So, that pleasure center can be activated in various ways. Not just by pictures of attractive women but by the smell of brownies or certain kinds of perfume. So, that’s why, when you walk into the mall...you know...the first thing that you are accosted with if you walk into a department store is..are the perfume counters because...it gets your mind acting in certain ways that you...that it wants to be satisfied.
Now, the other thing that’s true about the way the brain works with regard to purchasing decisions is that, the part of the brain that reacts to prices and paying is the part that reacts to disgust. So, you can actually manipulate your brain. If you can reduce the disgust that your brain feels by seeing a price, perhaps by using a credit card rather than cash, or chips in a casino rather than cash. Right? If you go into a casino, the first thing you do is hand over your cash and buy chips. And that means that every time you bet, the disgust that you feel is less than you would if you were actually putting cash down. And you can...up the pleasure...the pleasure center...sort of goose the pleasure center, reduce the disgust center and it will have a predictable effect on whether you buy stuff.
So...so all that is to say that you don’t have free will. But it is to say that your choices to buy things...is a battle ground...is the product...is a product of a battle that goes on in your brain only some of which you are aware of.
GWorks [00:09:27:14] How does culture affect choice?
KG [00:09:31:14] So...so culture is one of these...one of these things where it surrounds us, it informs us, it limits us, it...it points us to acting in a certain way, it tells us what’s possible. And, when I say culture, I don’t mean going to the symphony. I mean...I mean our societal norms. Right? And, I compare it in the book to water to a fish. Right?...One of my friends always says, ‘I don’t know who discovered water but it probably wasn’t a fish.’ So, it is this same kind of thing. We don’t see the influences of culture around us...unless we’re sort of nudged by others.
And this is...And so, one of the examples I talk about in the book is the fact...there was a case that came to the Supreme Court a couple of years ago about a cross that stood in the desert,5 in the Mojave Desert, on public property. And the question was whether that was a violation of the First Amendment’s ban on the establishment of religion. And there were some legal niceties, that Congress actually deeded the five-foot area of land around the cross to a local veterans’ organization so it wasn’t on public land anymore. And this got all the way to the Supreme Court.
But, at the Supreme Court, the debate was about whether the cross itself was a Christian symbol. And so there was an interesting exchange between Justice [Antonin] Scalia and the lawyer [Peter J. Eliasberg] for the ACLU, who happened to be Jewish. And Justice Scalia said, ‘Look, this is not a...it’s a cross but it’s...more precisely...understood as the dominant symbol of commemoration of the dead.’
And the ACLU lawyer said, ‘Look, I’ve been in a lot of Jewish cemeteries; there’s never a cross...on the grave of a Jew.’
And everybody in the courtroom laughs, which makes Scalia a little angry. He’s visibly angry, according to people at the Court. And...so he says, ‘Look, this is outrageous to think that the cross doesn’t commemorate non-Christian dead.’
And, in fact, the opinion eventually comes out to say that..., written by [Justice Anthony M.] Kennedy, that the cross isn’t necessarily a Christian symbol. But, of course...it is the dominant Christian symbol in the world.
So, my point is that culture makes us blind to certain category mistakes. And, if we’re blind about category mistakes...we are blind to certain choices that we could make that we don’t. And we’re blind to choices about religion, we’re blind to certain choices about sexuality or sexual orientation or gender roles. We’re blind to things that limit us. And so, we have less choice because of culture.
Another example is, still, even today, we think...that sex roles...are fluid and are changing. And we...have a world in which equality is the norm. But, if you watch TV, as I have been known to do, almost every commercial about the home still has the wife in the cleaning, care-taking role and you have the husband...in the coming-home-from-work role.
So, these subtle messages...constrain us and influence us to think of things as neutral and natural when in fact they’re not—like the cross in the Mojave Desert.
—End of Part One—
Part Two: Constraints Continued: Power, Markets & Choice
GOVERNINGWorks (GWorks) [00:00:33:20] How does power affect choice?
Kent Greenfield (KG) [00:00:37:20] Yeah...so...one of the things that I’ve been fascinated about in my work on this book is how obedient humans tend to be to people in authority. Right? And, of course, obedience is important. As a parent, I want my kids to be obedient. And sometimes parents or police officers do...know better and we ought to obey.
The problematic thing is that sometimes we obey without thinking. And we don’t actually assume that we have a choice to dissent when we should.
Now, the most famous experiment about this is Stanley Milgram’s experiments in Yale back in the ’60s. You know, these are experiments that couldn’t really be done in the same way anymore. But, what he had was that he brought people into his lab...two supposed volunteers, one of whom was cast as ‘the learner’ and one was cast as ‘the teacher.’ The leaner was put into a private room, where electrodes were strapped to his wrists. And the teacher was put in a different room. And the experiment was supposedly about the effect of punishment on learning.
So, the so-called teacher|volunteer would read words and...it was basically a memory game. And the learner in the next room, every time he got a word wrong, the teacher would...would shock him with an electric shock. And he...the teacher sat in front of an electronic console. And the shocks were to start with very minimal, a 15-Volt shock and worked up in increments all the way up to 450 Volts, which is lethal. And, in fact, they were labelled such. You know, ‘mild’...’somewhat mild’...you know, ‘severe intensity’...’intense’...and the last three slots on the board were just labeled ‘XXX.’
And, as it turned out, Milgrim...was brilliant in his experimental design because the so-called ‘learner’ was in on the game. He was not actually being shocked. And he followed a certain script. After 270 Volts or so, he would start screaming, ‘I refuse to go on! Let me out of here!’ And he would bang on the door...And, after a while, he would start screaming, ‘I have a heart condition. Please let me out!’ And then, eventually, would fall silent.
And the question was, how far would...how far would the teachers go?
And there was a man in a lab coat and every time someone hesitated, the man in the lab coat would say to the teacher, ‘You must go on; you have no choice.’
And of course...they weren’t being coerced. They could get up and leave any time. It was...it was a test of how they responded to authority. The authoritarian scientist in the...in the obligatory white coat.
So, Milgram asked...a bunch of psychologists ahead of time how many people they believed would go all the way to the end of the board. And, they...they...the answers was, fewer than one in 1000...would go all the way up...who would shock people to the lethal point.
As it turns out, 60% of the...of the so-called teachers went all the way to the top. Eighty percent went beyond the point when the learner...was refusing.
So, we learned in that experiment in the early ’60s that people are really attuned to the orders of authority. And, what’s interesting, going back and reading and watching—there’s actually a film about it—watching the film is how constrained people thought they were.
‘Look. I had no choice. He...the scientist kept telling me that I had to go on, so I had no choice but to shock this individual.’
So...and also Milgram figured out that he could manipulate the numbers. If he had other people in the room with the teacher who went along, he could get the obedience rate over 90%. If he had people in the room that refused to go along, who dissented, he would have...he would decrease the obedience rate to a more...to 20 or 30%.
So, the thing that he learned is that we’re really susceptible to influence...especially of authority figures.
So, one might think, ‘OK. This is the ’60s. It’s a famous experiment...It’s famous in part because it seemed so...so outrageous to people, maybe one could say so shocking to people. But it could never really be replicated now.’
But, as it turns out...it has been replicated in more modern experiments, using...using more modern ethical guidelines. In fact, it was just done France last year. There was a documentary [“Le Jeu de la Mort”] that set up a...a make-believe game show, where they had a person in a sound-proof booth who was answering questions and every question he got wrong someone from the audience would shock him. And over 80% of the...of the contestants shocked the person past the point they thought they were killing him.
So, even today, when we think we’re more questioning of authority, people follow authority, especially in settings where they’re...where they’re encouraged by groups.
The other example I talk about in the book is...is the example of the self-help guru in Arizona, who...who...the ‘sweat lodge guru, so-called.’ And this is an example of where we follow authority, we want the...the approval of authorities even to our own detriment.
So, what happened in Arizona a couple of years ago was that people went to this self-help camp. There were...there were...they paid about $10,000 a piece to...to be trained to take control of their lives. And over a course of five or six days, they went through all these...different routines and different tests to try to figure out how to take control of their lives. But, it ended up with 36 hours in the desert...with no food and water...I guess, be one with yourself. And then he brought them back and put them in a sweat lodge for two hours heated with hot coals and hot rocks. And the...James Arthur Ray, the guru, sat at the tent flap and essentially belittled anyone who would leave.
So, even here, they were so...people were...and as it turned out, people were in grave danger because they were dehydrated, they were hot, they...as it turns out, many people started to collapse...many people started getting sick. But people stayed. He wasn’t forcing them to stay. But, people stayed because they feared walking past him through the tent flap. Three people died. And, as it turns out, James Arthur Ray was arrested and recently convicted for negligent homicide because the jury understood what I’m talking about, which is...which is that his authority sort of overbore their free will...in an important way.
So...so, I think one of the things that...that I say in the book and that I want people...what I learned in the book is that we’re much more obedient to authority figures without even knowing it and that...it’s one of the areas where we have less choice than we actually think.
GWorks [00:07:55:21] How do markets affect choice?
KG [00:07:59:21] OK. So, markets are a source of choice for many of us. Right? We walk into Target or Costco or Safeway...and its you know, overwhelming choice. The typical grocery store has about 45,000 difference items. The marketplace provides us not only a way...to sell our labor...and to buy things we need but also things like...you know, kids’ tread mills, nose hair clippers, therapeutic beds for our dogs. So, there are a lot of things out there that we are...that...that’s available to us...in the marketplace.
The problem with the so-called free market is that it is only free if you’re able to buy. Right? The market...the so-called free market provides resources to people who can pay for them. And if you don’t have resources,...markets are not a source of choice but a source of choice-less-ness. So, if you allocate things according to willingness and ability to pay, if you don’t have something to pay with, then they’re not a source of choice.
So that, in some ways, is an obvious example. But, often it’s denied in the rhetoric about markets.
I talk in the book about this man named Henry Lamson, who was the source of a case here in Massachusetts about one hundred years ago. He was a...he was an axe handle painter. And so, he would stand there all day painting axe handles. And he would stand under a shelf where the axe...axe heads were stored. And he warned his...his boss at one point, ‘Look, I think the shelf is about to fall. Why don’t you fix it?’ And the...and the...boss said, ‘Look, you can choose to work here or not. I’m not going to fix...I’m not going to fix the shelf. But, it’s your choice. Stay or leave.’
And he stayed. And the shelf fell. He was injured by a falling axe. And he sued. And in fact he lost...in Massachusetts courts in an opinion written by Oliver Wendell Holmes, Jr., before he went to the U.S. Supreme Court.
And Holmes said, ‘Look. He made his choice.’1
And my point is that he made his choice in a market in which he was really constrained. He didn’t really have a choice to not go to work because he needed to provide for himself and his family. And that’s true about a lot of people around the world.
I talk about my grandfather, who was a coal miner in Kentucky, who would pay for his groceries with scrip, which is...was a form of money that he was paid with that coal companies used to pay their workers with. And they could only redeem that cash, that form of payment in company stores.
You know, “another day older and deeper in debt, St. Peter don’t you call me ‘cause I can’t go, I owe my soul to the company store.”2 That line is...was the Number One song in America back in...back in 1956, maybe...I have to check that date...because it was true that people were constrained by the marketplace, even though we think about the market being free.
Now, the other point about the market is that...it doesn’t allow us to choose to be insulated from the market.
The one thing that’s true about the market...the market is again like water. Right? It seeps into every corner of our lives whether we like it to or not. It commodifies things that we don’t want commodified, even if we choose not to commodify them.
The obvious examples of this are body parts and sex.
Body parts...there’s actually a thriving market...Black Market throughout the world in body parts. The going rate for a kidney in India is about...you can sell one of your kidneys in India for about $1600. But, the going rate to buy one in developed world is about $150,000. So there’s a big...because of that discrepancy, there’s a big market for organ brokers. And there are such things as organ tourists, who will fly from the United States to India...for a kidney. And people sell their kidneys because they have no other choice to...to raise funds for their family. I quote one individual, one man in India who sold his kidney because his other option was to sell his daughter to provide for his family. And...and that...certainly doesn’t...even though that’s the way the free market would work, if it were left unregulated, it certainly is not free in any robust meaning of that word.
Sex, just to mention, you know, sex trafficking is a real problem in the world. About a million children are trafficked for sex every year, about half of whom are under the age of 16.
So, its...the market, left to its own devices, will commodify everything, whether we choose to commodify those things or not.
—End of Part Two—
Part Three: Health Care: Choice Implied & Applied
GOVERNINGWorks (GWorks) [00:00:33:20] In Part Two [above], we discussed some extreme examples, like 'choosing' to sell a kidney on the Black Market. Does analyzing the extraordinary 'choice' to sell a kidney on the Black Market say anything meaningful about how to understand more ordinary choices?
Kent Greenfield (KG) [00:00:45:20] So, it’s a great question. And, I think there are a couple of things that I can say.
First of all, choice...I do believe that...some choice is good. But I think we probably...fetishize it too much—especially in the West.
I think choice can be easily overwhelming. So, let’s first talk about the choices that...sort of the everyday choices that we go into Target.
One of the things that’s true about humans is that too much choice quickly becomes overwhelming.
I tell a story in the book of my wife and I trying to shop for a vacuum cleaner. And we went into Best Buy. There were literally two aisles of vacuum cleaners. We had...no idea which one to pick. The salesperson wasn’t really much of a help. So, it us...two reasonably smart people...it took us an hour and we still...my wife...and I’m not making this up, threw up her hands, ‘I’m leaving; I don’t know what to do.’
And so I said, ‘Look, I’m an expert on choice, supposedly. I’m going to choose a darned vacuum cleaner.’ And we did. And I ended up taking it back the next week. So...because it wasn’t the right kind; we didn’t like it.
So, choice easily becomes overwhelming.
There’s this famous experiment about jam...right...the...two stores: One store offered three kinds of jam to sample and...to offer for purchase; and another store provided a couple dozen. And, of course, the store that only offered three, sold more jam because people can choose among three types and it’s much harder to sell among two dozen. And the people who bought from the three, actually were happier with their choices later. They didn’t have as much regret.
So, from that sort of mundane...those profound but sort of small-scale examples, one can make...make extrapolations to broader policy issues like you proposed.
So, for example...now economists would say...neo-classical economists would say, ‘More choice is always better. You can map...with given more options, people can find a product or service that best maps with our pre-existing preferences. And therefore they’re going to be happier.’ Right?
So the economists would say, actually, offer three dozen...offer two hundred kinds of jam and people are going to be able to find it.
Now, the reality is, though, that people are overwhelmed by choice and choice...preferences are often a product of the market rather than driving the market. I noticed in The New York Times article about Steve Jobs last week...Steve Jobs was quoted as saying,...‘It’s not the consumers’ job to know what they want.’
So. And, Steve Jobs was a master at getting us to desire something that we didn’t know we wanted ahead of time. Who wanted an iPod or an iPhone—I hear my iPhone going off—before they existed? And so, he was a master at that.
So, what does this mean for public policy?
It means for public policy that often more choice isn’t always the best idea...Here are a couple of examples.
It may be that we want people to have 401(K) regimes...frameworks...we want to require people to have 401(K)s rather than have it be an option or to have an opt-out regime rather than an opt-in regime for retirement plans. Or, for public employees, we should offer them three choices of retirement plans rather than 30 because we know that if we offer them 30, they won’t choose any at all.
Now, another example I talk about in the book is the current debate over health care and health care...the so-called ‘individual mandate.’
Now, here’s an area where, it’s the biggest issue in Constitutional Law and it may be the biggest issue in politics these days: What should we do with so-called ‘Obamacare,’ with the Affordable Care Act passed by the Congress during Obama’s first term.
Now this fight, in large part, turns on whether the so-called ‘individual mandate’ is good policy and constitutional. So, in a way, this is all about the nature of coercion. Is it coercive to force people to pay for insurance?
So, one of the things that I...one of the implications of my book, perhaps, is that...people...it’s not so jarring to force people to make this choice because actually, if we pursue...if we want people to be responsible, it’s not a bad idea to force them to be responsible.
The other thing is...is that...if personal responsibility is choice, and I think the Tea Partiers often equate personal responsibility as simply being able to choose....that only has meaning when people have to pay for the cost of their own choices.
So, for example...let’s say that I own a motorcycle—I don’t anymore; I used to—and let’s say that I don’t wear a helmet. And, I must admit, I...back in those days, I didn’t always wear a helmet. That was incredibly stupid. Right?
...Is it contrary to personal responsibility to force me to wear a helmet?
And, actually...it’s a harder question than it might first appear.
Now, one would say, if personal responsibility means being mature, being responsible, of course you should wear a helmet and it’s not inappropriate for me to be forced to wear one. If, though, personal responsibility means that I have to pay for my own choices, it’s actually...it’s not so clear that the law should be that I need not wear a helmet.
I think the Libertarian perspective is always, ‘Look. Don’t force people to wear a helmet. Just make them...make them bear the cost of their own stupidity by...it’s their skull that’s going to be broken. ...It affects no one else.
But, there are two responses to this.
One is that every one of us has effects on others. And so, if I lose my skull because of...if I crack open my skull because of my own stupidity, it costs others. And either I am...should be forced to pay for those costs, if personal responsibility means choice, or I should be forced to avoid those costs ahead of time. And there is no dependable way to force people to settle up after-the-fact. So maybe the best way for them to really be responsible for their own decisions is to...force them to wear a helmet or pay ahead of time. And the way you make them to pay ahead of time is to force them to buy insurance.
And here’s my health care point:
It may be the fact that people...let me start again...it may be true that people who don’t have health insurance think that they can pay out of their own pocket for whatever medical care they need. And it may be the case that people who, you know, eat a constant stream of fast food and never exercise and smoke think that they can pay out of their own pockets for all the costs of those bad decisions. But, in reality, most people don’t have the resources to pay out of their own pockets for the health care that they will need over the course of their lives—even if those lives are shortened by bad decisions.
Now, Ron Paul said a few weeks ago, that people who don’t have insurance should simply be left to die...if they get sick or get injured.
I don’t think we live in a country where people should be forced to walk by someone in need—who has run into a tree riding a motorcycle without a helmet and...without helping. And if we are, and we do force people to do that, then that’s a cost to them that we should force them to bear.
So, the question is, how to do we force people to bear the costs of their own bad decisions?
The only way...the only dependable way to do that is to force them to buy insurance ahead of time. And so, in that respect, I think the Affordable Care Act should have been called the Personal Responsibility and Health Care Act.
The only way to make sure that people pay for their own bad decisions in health care is to force them to pay for insurance ahead of time.
So, that’s one public policy implication.
—End of Part Three—
Part Four: A Perfect Game of Choice
GOVERNINGWorks (GWorks) [00:00:33:20] How do you reconcile the myth of choice with the American political ideal of individual liberty?
Kent Greenfield (KG) [00:00:39:20] So, this is the $64,000 Question in a lot of ways. Right? And, it’s a question that has...come up for centuries, if not millennia. Right? ...The tension between social freedom, cultural freedom, political freedom and individual freedom. And the dilemma always is, to what extent are...do we...in order to gain social, cultural, political, collective freedom do we need to constrain individual freedom?
Just yesterday, I was teaching Lochner [v. New York 198 U.S. 45 (1905)]1 in my Constitutional Law class. ...If Lochner is about anything, it’s about competing notions of freedom.
You have the Court saying, ‘Look, to ban bakers from working more than 60 hours a week is constraint on the freedom not only of the employers but on the employees.’2 And [Justice Oliver Wendell] Holmes is saying, ‘Look, you know, freedom is constrained all the time by things from...you know...Sunday laws...which at the time constrained businesses from operating on Sundays to any tax regime or what-have-you.’3
So, this is always the tension.
...And my point in the book...of course, it’s...often it’s an unresolvable tension and it’s something people are going to fight about for another thousand years.
But my point is that, I think it’s a mistake to think about it as a conflict between freedom and authority. Or freedom and the State.
It’s different kinds of freedom. And, there’s always got to be a dialogue about what makes the most sense.
Here’s a simple example:
When I commute to work, I am constrained in my freedom that I only can drive on the right side of the road. I don’t have the freedom to drive on the left side of the road. Even if I really, really wanted to and even if I thought that I could do so and manage the risk pretty well...because I’m a pretty good driver. Of course, most people think that they are above average...as drivers. But, in reality, ...my constraint of driving on the right side of the road, makes it possible, makes me free to drive to work because if everybody could choose which side of the road they could drive on, it would be much harder to drive to work and I would be less free than I am now.
So, this is always the tension. Right? When is a constraint on individual freedom on balance worth it in order to gain collective freedom.
So...and I think we’ve always debated about this.
So, a couple of examples.
Think about the...requirement that we add access ramps for the disabled. In a way, it is a constraint on the freedom of businesses, right, that they have to put in ramps, they can’t operate the business as they so choose. But, as a cultural and social and political matter, we want disabled people to be free to enter businesses and we want that even if the market power is insufficient for them to buy that right in the marketplace. Right? If they had the market power to do that, then we would say that businesses would have had the market incentives to put in ramps anyway. But, they probably don’t. But, we think that it is better, and it’s more free, and maybe more just, if not free, to put in the access ramps for the disabled.
So, what does that mean for my book?
I think what it means is that, often, people...I think we fetishize choice more than we should because we...actually are better off with less choice than we think we are. There was a...even though our...some of our greatest philosophers talk about choice, there’s also a reality that people are sometimes happier with...and take pride in things that we have no choice about. Right? I...am very proud of where I grew up. My family. And, I self-identify about things that I have no control over. My sexual orientation. My personality. My...and...maybe other people don’t appreciate my personality but I tend to like it.
So, I think one of the things I have learned about this is that we could all be a little more...satisfied...with the things that we have no control over...Maybe we can be a little more Zen-like with the things we can’t change and we’d all be a little happier. And, as far as politics go, I think the dichotomy between freedom and authority is a false dichotomy. It’s really a competition among different visions of freedom.
GWorks [00:06:09:20] You contrast former Detroit Tigers pitcher Armando Galarraga and retired Supreme Court Justice David H. Souter with Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia. How does this contrast relate to understanding individual and public policy choices?
KG [00:06:21:20] So, here’s the point about Galaragga and Souter:
So, I start one of the chapters talking about the incident that happened in Detroit last summer, I guess, where, I think it was probably the...best example of sportsmanship in my lifetime.
So, Andres [sic] Galaragga was this young pitcher for the Tigers. He was a good pitcher but not a great pitcher. But, he was pitching a perfect game, which is quite rare. There have been more people who have set foot on the surface of the Moon than have pitched a perfect game in the history of Major League Baseball. It’s an extremely rare thing.
He was on his last out. A perfect game is, everybody gets out: twenty-seven batters up, 27 batters down; no errors...no walks...no nothing.
And, he got to his last batter. The batter hits a ball to...first base. The first baseman pitches it to Galarraga, who has raced over to First Base. And...he’s out. He’s...the ball beats the batter by half a step. And, it’s the kind of call that umpires get right...you know....99,999 times out of 100,000.
But, the umpire got it wrong.
And, it was a huge scandal. Galaragga pitched the next guy and got him out. So, actually, it was the first 28-out perfect game in the history of Major League Baseball.
But the thing about it is that Galaragga shrugged and smiled and went along his way and didn’t make a big deal out of it. And the umpire, for his part, apologized. He said, ‘I really screwed this up.’ And they had a meeting at Home Plate the next day. And, it was...on both sides it was an example of something...it was a way of acting that I would hope my son would act or I would act in such a circumstance.
And the reason why that’s important in the book is that...after I talk about all the limits on choice, one of the things that I realized was that what we do when others fail is really a matter of our own understanding of the constraints on other people’s activities and other people’s actions and other people’s choices. People make mistakes. It’s very...you know...everyone of us is human. Everyone of us...one of the things that’s true about humans is that we make mistakes. And so, you’ve got to be empathetic about that.
The reason I talk about Souter is that when Souter resigned a couple years ago, President Obama said he wanted to replace Souter with someone who was empathetic...with a judge who was empathetic.4 It was a big scandal at the time. The Right said, ‘Oh. You know, empathy is just another word for result-oriented judging. You can just choose a side you’re more sympathetic to and choose that side.
Now...conservatives are right about that, that empathy means sympathy, it’s probably right, they’re probably right.
But, I think empathy and the way...the reason why I think Obama was correct to talk about empathy in relation to Souter’s retirement is that empathy is more of an intellectual practice—one that I believe Souter engaged in.
Empathy means, being broad-minded enough to put yourself in the other person’s situation and...be understanding about the constraints of situation in judging their behavior.
And so, a couple of examples I use...one of which was about...a so-called consensual search on a bus.5 A Greyhound bus is traveling from New York...I’m sorry, from Florida to New York, stopped in the middle of the night in Georgia on the side of the road, three police officers get on board, one stands at the rear, one stands at the front, one walks up and down the aisle, asking people whether they would consent to have their bag searched. Of course, people consent and, in this case, they found cocaine in a...two men’s duffel bags. And, as is turns out...the case was whether this was consensual or not. It gets to the Supreme Court. The Court says, ‘Yes, this was consent.’ And, Souter writes a dissent, saying, ‘Look, the reality of the situation is that these people felt coerced, felt forced to consent to the search. And so, his empathy...his ability to put himself in the situation of someone who was completely unlike him, in a situation in which he had never been, is a good practice for judges and it is a good practice for us as individuals. And, it takes note of the power of situation, which is one of the key themes in the book.
Now, why this has public policy implications and implications for the law, is my thinking... pondering in the book that maybe what we need is to take account of the fact that oftentimes that law needs to have rules and guidelines that allow judges and juries to take account of the situation—not only to let people off the hook but, perhaps, to put some people on the hook that should be.
And my criticism of Roberts, when he says, ‘Look, judges are just like umpires, they call balls and strikes,’6 is that is doesn’t take into account the huge contextual obligations of good judging. You have to know the situation. And, good law allows people to tell their stories and good judges and juries allow those stories to influence their decisions.
—End of Part Four—
Part Five: Conclusion: The Good, the Bad & The Choice
GOVERNINGWorks (GWorks) [00:00:33:20] How does morality and the desire to choose (or not) the good relate to the constraints on choice?
Kent Greenfield (KG) [00:00:39:20] So, one of the things I realized during this book is that...and I don’t end up being as cynical as the title of my book might suggest. It is actually possible to do better at decision-making and choosing, both personally and collectively, than we often do.
But, the reality is...is that choice is like any other...choice is like a muscle. It gets flabby, if you don’t exercise it and exercise it well. And I’m not just talking about choosing between, you know, Coke and Diet Coke or Diet Pepsi and Diet Coke.
It’s about knowing your own limitations and getting...being prepared for when you’re being constrained and influenced.
So, one metaphor that I use is that in a sense our choices are the product of a battle going on in our brains and our biologies. And oftentimes the battle is being fought on a battleground with a bunch of armies put there by other people. By culture, by marketers, by people who want to sell you things or sell you candidates. And, unless we know that that battle is going on, we don’t have any influence on the battle.
I don’t think we are completely a product of our situation and context. But, we are more a product of our situation and context than we...might think. And the best way to protect ourselves and build that choice is to take note of it.
So, one thing I might say is that, I think as individuals and as public policy experts or lawyers or people interested in culture, if we think more about situation, and less about individual, atomistic decision-making, we actually will do better.
One quick example.
The obesity epidemic in the United States is raging. Right?
Now, about one-third of Americans are obese, about two-thirds of Americans are overweight. And these numbers are...growing and we’re at historical high levels. And, it’s the biggest health care risk in America today.
Now, we can deal with this in...a number of ways. But, one way we could deal with it is we could say, ‘Well, this is a failure of personal responsibility. It’s a failure of each atomistic individual when they choose to eat a Big Mac and drink a Coke rather than eat a salad and drink water.’
And, part of the reason that...many of us carry more pounds than we should, including me, is...that is part of it, right? ...That we should make better personal choices.
But, it’s not all of it. And, may not even be most of it. If we think about the situation that creates the environment where people are now more obese than ever before...it opens our eyes to ways to deal with this epidemic more than just chiding people who are overweight.
We can think about, well, actually maybe we should stop subsidizing corn so we don’t have High Fructose Corn Syrup being the cheapest way to sweeten things, which makes a Happy Meal cheaper than fruit, vegetables and lean meat...and which makes it cheaper to feed your family at McDonald’s than at your supermarket.
Maybe it means that we need to build more parks that...where it’s safe for kids to exercise. You know, there are kids where...there were several kids murdered in Boston this summer out in parks. So, if I were a family living in that neighborhood, I wouldn’t want my kid to go exercise in the park. So, what do they do? They sit at home in front of the TV.
So, obesity is not just a sign of bad personal responsibility; it’s a sign of bad environment and bad situations that creates the context in which people make bad decisions.
GWorks [00:04:55:14] Do your ideas about choice work in a political environment in which politicians seem willing to shut down government?
KG [00:05:01:14] I think my voice and the voice of this book is a voice that needs to be heard these days. Again, I’ll return to what Herman Cain said last week: ‘People who are poor, people who are unemployed...should blame themselves.’ Right? And this is essentially the Tea Party mantra: People choose the situation they’re in; so, if they’re unemployed, if they’re poor,...then they are really to blame and we shouldn’t ask anybody else to help.
So, when...the mantra of personal responsibility puts people who are victims of the situation and the world in which we live...blames them...then it relieves the rest of us from doing anything about it. So, what I would suggest is that people start talking about shared responsibility rather than personal responsibility. And, the more we talk about shared responsibility, I think the better off we’ll be.
—End of Part Five—
—End of Part GWorks Interviews: Kent Greenfield—
ABOUT GWorks Interviews: Kent Greenfield
GOVERNINGWorks conducted this interview on Wednesday 12 October 2011. GWorks produced and edited this video and its transcript.
GWorks would like to thank Professor Kent Greenfield for his generous participation in GWorks Interviews and Professor Greenfield, Yale University Press and Sabrina Dax, February Partners, for providing a Reviewer Copy of The Myth of Choice: Personal Responsibility in a World of Limits for this interview.
GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.
1 Donald H. Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006).
2 Forum for Academic and Institutional Rights v. Donald H. Rumsfeld 390 F. 3d 219 (2004).
3 A transcript and an audio recording of oral argument in Rumsfeld v. FAIR is available at Oyez.
4 Herman Cain, The Big Interview, The Wall Street Journal (6 October 2011).
“Don’t blame Wall Street. Don’t blame the big banks. If you don’t have a job and you’re not rich, blame yourself.”
5 Salazar v. Buono, 559 U.S. ___ (2010). A transcript and an audio recording of oral argument is available at Oyez.
1 Henry O. Lamson v. American Axe & Tool Company, 177 Mass. 144; 58 N.E. 585 (1900, Mass.)
“The plaintiff, on his own evidence, appreciated the danger more than any one else. He perfectly understood what was likely to happen. That likelihood did not depend upon the doing of some negligent act by people in another branch of employment, but solely on the permanent conditions of the racks and their surroundings and the plaintiff's continuing to work where he did. He complained, and was notified that he could go if he would not face the chance. He stayed and took the risk.”
2 Sixteen Tons. Originally recorded in 1946 by Merle Travis, the song became a hit in 1955 for Tennessee Ernie Ford.
1 The so-called Lochner Era, named after the 1905 Supreme Court case, Lochner v. New York, 198 U.S. 45 (1905), describes the time at the end of the 19th and the beginning of the 20th centuries during which the Supreme Court understood almost any economic regulation by government as an unconstitutional interference with individual freedom. For example, in Lochner, the Court held unconstitutional New York State’s attempt to limit the work week of bakers to 10 hours per day, 60 hours per week.
The Lochner Era came to an end in 1937 after the failure of President Franklin D. Roosevelt’s Court-packing Plan and the Court’s decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), upholding the State of Washington’s establishment of a minimum wage for women.
For more, please see “Lochner Era,” Legal Information Institute.
2 “The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker.” See, Lochner, 198 U.S. 45, 57 (Justice Rufus W. Peckham).
3 See Lochner, 198 U.S. 45, 75 (Justice Oliver Wendell Holmes, dissenting). “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.”
4 Watch President Obama announce Justice Souter’s retirement and list criteria for selecting Justice Souter’s replacement: “I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their own homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
One might note that Professor Greenfield clerked for Justice Souter during the Supreme Court’s October Term 1994–1995.
5 United States v. Drayton, 536 U.S. 194 (2002) (Justice David H. Souter, dissenting). “The police not only carry legitimate authority but also exercise power free from immediate check, and when the attention of several officers is brought to bear on one civilian the imbalance of immediate power is unmistakable. We all understand this, as well as we understand that a display of power rising to Justice Stewart’s ‘threatening’ level may overbear a normal person’s ability to act freely, even in the absence of explicit commands or the formalities of detention. As common as this understanding is, however, there is little sign of it in the Court’s opinion.”
6 Watch now-Chief Justice John G. Roberts, Jr. deliver his Opening Statement at his Confirmation Hearing before the Senate Committee on the Judiciary (12 September 2011) (Chief Justice Roberts’s statement begins at 03:29:30).
“...A certain humility should characterize the judicial role. Judges and Justices are servants of the law not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical; they make sure everybody plays by the rules. But, it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the Judicial Oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the Bench.”