Deep Capture – Part VII
Posted by Jon Hanson on January 10, 2008
This is the seventh of a multi-part series on what Situationist Contributor David Yosifon and I call “deep capture.” The most basic prediction of the “deep capture” hypothesis is that there will be a competition over the situation (including the way we think) to influence the behavior of individuals and institutions and that those individuals, groups, entities, or institutions that are most powerful will win that competition.
I review the previous posts in this series at the bottom of this post, which provides some illustrative examples of how atypical “regulators,” from courts to hard-hitting news networks, reflect and contribute to deep capture.
(Situationist artist Marc Scheff is providing the primary illustrations in this series.)
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Consider briefly courts. Consider, for instance, the 1979 dispositionist language of then-Chief Judge Irving Kaufman of the Second Circuit:
[N]o one can determine with any reasonable assurance whether one product is “superior” to another. Preference is a matter of individual taste. The only question that can be answered is whether there is sufficient demand for a particular product to make its production worthwhile, and the response, so long as the free choice of consumers is preserved, can only be inferred from the reaction of the market.
Kaufman, in now-common fashion, treats the market as little more than a highly responsive conduit of stable, exogenous consumer preferences. The preferences and free choices of the consumers come first, and the success or failure of the product comes second, depending on its ability to satisfy those preferences. More recently, Judge Frank Easterbrook has expressed a similar deference to markets, adding that, with respect to reducing at least some kinds of personal injury risks, courts should defer to the incentives of the marketplace rather than attempt to fashion judge-made incentives. As he puts it, market incentives, “[i]mperfect as they are, . . . work better than the alternatives the legal system can offer.”
In this vein, too, we could go on. After all, like Judge Easterbrook, many of the most prominent and influential judges today made their careers as academics devoted to promoting the dispositionist views of law and economics and libertarianism, including: Judge Ralph Winter, Judge Stephen Williams, Justice Stephen Breyer, Justice Antonin Scalia, and, of course, Judge Richard Posner. Moreover, some who did not begin as academics nonetheless rose to fame and influence in significant part because hard-core dispositionism was central to their judicial identity, such as Judge Alex Kozinski, Judge Michael Luttig, and Justice Clarence Thomas. Indeed, at this moment in history, it is difficult to imagine that any federal judge will be appointed or promoted who does not substantially embrace the hard-core dispositionism promoted by President Bush, his advisors, and the Federalist Society, which now has immense influence over the judicial selection process.
Dispositionism, as we have already indicated and will return to below, also dominates legal academia. For instance, when, in the mid-1980s, the American Law Institute (ALI) amassed a large, somewhat representative, cast of influential tort scholars to assess the tort system and to recommend possible reforms, those scholars began their substantial work by embracing dispositionism. In their words:
Utilitarian theorists . . . accept as a factual premise that people are generally the best judges of what actions will maximize their own utility. This premise implies that society should strive to let states of affairs be determined by the choices of the individuals affected rather than by public decision makers.
. . . .
We reject hard paternalism here both because we find it unpersuasive and because we think that most Americans do not accept it. Hence, we suppose that, presumptively at least, consumers should choose the accident level.
The idea that consumers “choose the accident level,” might strike some readers as an unfamiliar notion. Few of us are conscious of having much influence over, much less selecting, the accident level. But what the ALI Reporters are indicating, of course, is that through decentralized individual choice, a collective determination or variety of determinations is made by consumers. The belief that consumers best know their own interests and, through choice-based behavior, are best able to act on that knowledge, is sometimes known as consumer sovereignty–the normative principle that the ALI Reporters explicitly endorsed.
The ALI Reporters’ terms are revealing (not to mention, constraining). “Hard paternalism” conjures up notions of considerable governmental interference–something akin to central planning. In underscoring the rejection of such an approach by “Americans,” the Reporters seem again to be implicitly using the shadow of the then-freshly fallen Soviet Union as an important justification for embracing pro-market dispositionism and rejecting any alternative.
Whether the ALI Reporters were in fact making such an analogy, we (and perhaps they) cannot know. But we do know that legal scholars have been explicit in making just that comparison. For example, in a recent article, Robert Lande writes:
An optimal level of consumer choice, which has elsewhere been termed “consumer sovereignty” is the state of affairs where the consumer has the power to define his or her own wants and the ability to satisfy these wants at competitive prices. The concept of consumer choice even embodies some implicit notions about the rights of the individual in the broader society; it is implicitly part of the Western world’s response to Marxism and the other totalitarianisms of the Twentieth Century. Again, the belief in dispositionism appears to be motivated, at least in part, by a fear that any other belief would place us on a slippery slope toward totalitarianism.
But there is more to it than that. If one looks beyond the legal reporters and law reviews, one will encounter many other, far less formal, “regulatory” institutions that seek to promote dispositionism. In these contexts, the goal seems to be to present to consumers a vision of ourselves that we want to hold–a self-affirming image that we are not being moved by the situation. For example, Fidelity Investments tells us:
You are not the kind of investor who blindly reacts to each and every new market condition. You’re informed. You’re involved. You’re focused.
. . . .
Being in control of your financial future has never been more important.
. . . .
THERE ARE BULLS AND BEARS. BUT YOU ARE A THINKING ANIMAL.
In other words, you, unlike all the other animals on the planet, are uninfluenced by situation. You think, you prefer, you choose, and you thereby enjoy dispositional control of your life.
Advertisers do not mind casting the shadow of those un-American totalitarian regimes to drive the self-affirming dispositionist point home. For instance, one cable news network recently placed this ad:
What makes America . . . America? It’s the freedom to have an opinion . . . the freedom to speak your mind. . . . [W]e know you can think for yourself. When it comes to covering the news, we don’t have an agenda . . . and don’t take orders from anyone. Just like every American. Just like you. America’s News Channel MSNBC.
The point seems to be not just that Americans are situationally independent (able to think what they want to think and speak what they want to speak), but also that MSNBC is uninfluenced by outside forces.
MSNBC’s competitor, FOX News Channel, takes the dispositionist view a step further and credits its own success to the free-choice-making dispositions of its viewers:
Thanks to the American people. You’ve made FOX News Channel the most watched, most trusted name in news. As active participants in the American experience, you ensure a free and fair press for all.
We Report. You decide.
For the 3 out of 4 Americans who believe the news is biased, we present something quite rare: a news network dedicated to providing fair and balanced coverage. It’s cable news for the independent thinker, 24 hours a day.
This practice of portraying the consumer as nobody’s fool is extremely widespread. According to some analysts, two of the most common themes of cigarette advertising historically were “choice” and “autonomy.” The Marlboro Man, as we will highlight below, was nothing if not free and autonomous. And this imagery was not exclusive to men. The demise of the taboo against women smoking, and the concomitant doubling of potential cigarette consumers, was reinforced by a clever public relations campaign devised by Edward L. Bernays. To cap off that campaign, Bernays enlisted the cooperation of feminist Ruth Hale to organize a contingent of ten cigarette-puffing women to walk down New York’s Fifth Avenue in the 1929 Easter Parade. The feminists’ involvement was billed and reported as an act of protest and a call for equality. And the cigarettes were, themselves, described as “torches of freedom.” So it was that American Tobacco managed, through public relations, to promote smoking in the name of liberation and autonomy. A look at Virginia Slims’ more recent advertising campaign slogans from 1968 until today reveals that the beat goes on: “You’ve Come A Long Way, Baby,” “It’s a Woman Thing,” “Find Your Voice,” and “See Yourself as a King.”
The similarity of “seeing yourself as a king” and “consumer sovereignty” is hard to miss and may not be an accident. The message not only encourages consumers to purchase cigarettes, it also suggests some of the larger possible stakes that commercial interests have in dispositionism. After all, if the consumer is king, then it is hard to justify making manufacturers pay for simply following orders. And this ability to place responsibility squarely on consumers–to say in a tort case, for instance, that they “assumed the risk” of their actions–has been fundamental to the tobacco industry’s success in selling a product believed to cause more than 440,000 premature deaths per year in the United States alone. Thus, an important reason that sellers might embrace and encourage dispositionism is their hope of shifting responsibility and avoiding costly regulation or liability.
A recent Pfizer Forum advertisement echoed that message: “Medical professionals must help patients understand that in return for greater power, control, and choice over the services and treatments they receive, they must bear greater responsibility for their own care.” The pharmaceutical company’s message, which comes at a time when it seems to be facing growing threats of liability, taps into a well-established human tendency: where we see the ingredients of autonomous, volitional, preference-satisfying disposition, we place responsibility.
And so we see countless instances of groups latching on to consumer sovereignty in order to meet the threats of heightened regulation and liability. Take, for example, the Center for Consumer Freedom, “a nonprofit coalition supported by restaurants, food companies, and consumers working together to promote personal responsibility and protect consumer choices.” The group is one of several created by Berman and Company, a public relations firm headed by Richard Berman, whose numerous projects have been heavily funded by the tobacco, alcohol, and restaurant industries. The Center for Consumer Freedom has, among other things, published and broadcast numerous advertisements purporting “to stand up for common sense and personal choice”–by which it seems to mean, stereotypes and dispositionism. In one advertisement, the group warns:
YOU ARE TOO STUPID . . . to make your own food choices. At least according to the food police and government bureaucrats who have proposed “fat taxes” on foods they don’t want you to eat. Now the trial lawyers are threatening class-action lawsuits against restaurants for serving America’s favorite foods and drinks. We think they’re going too far. It’s your food. It’s your drink. It’s your freedom.
To those suggesting that the food industry is partially responsible for the obesity epidemic, the Center for Consumer Freedom maintains its hard-line dispositionism: “We need individual solutions for individual problems. And the best individual solution is personal responsibility.” And just behind that dispositionism lurks the totalitarian bogeyman. Richard Berman, for instance, describes those with whom he disagrees as
aggressors [who] are a blend of self-anointed “food police” activists; overzealous public health “experts” who’d like to raise our children for us; advocates of “Twinkie taxes”; lawmakers who use the cudgel of government to appear “enlightened” enough to be re-elected; and, yes, those trial lawyers who smell a payday where most of us just smell dinner. And to underscore the point, the Center for Consumer Freedom labels a recent book criticizing the food industry’s role in contributing to the obesity epidemic as a “‘Big Brother’ Manifesto.”
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The next post in this series reviews some cross-cultural evidence of deep capture.
Part I of this series explained that our “deep capture” story is analogous to the (shallow) capture story told by economists (such as Nobel laureate George Stigler) and public choice theorists for decades regarding the competition over prototypical regulatory institutions. Part II looked to history (specifically, Galileo’s recantation) for another analogy to the process that we claim is widespread today — the deep capture of how we understand ourselves. Part III picked up on both of those themes and explains that Stigler’s “capture” story has implications far broader and deeper than he or others realized. Part IV examined the relative power (measured as the ability to influence situation) of large commercial interests today, much like the power of the Catholic Church in Galileo’s day. Part V described other parallels between the Catholic Church and geocentrism, on one hand, and modern corporate interests and dispositionism, on the other. Part VI laid out the “deep capture hypothesis” a bit more and began loosely testing it by examining the role that it may have played in the “deregulatory” movement.