No such thing as a free lunch: paternalism, poverty, and food justice.

• Author: Goldberg, Rebecca L.
• Position: III. Paternalism Toward the Poor through Conclusion, with footnotes, p. 65-98

3. PATERNALISM TOWARD THE POOR

   The two policy initiatives analyzed in Part II both fit the definition of "strong" paternalism, in that they involve one party taking action to benefit a second party without the second party's consent, and in a way that is either coercive or involves a restriction of liberty. (209) The literature is thick with debates over whether or not strong paternalism is ever a permissible justification for government action. (210) The argument has typically focused on government actions such as mandatory seat belt laws or anti-smoking laws, which affect broad swaths of the population. (211)

   As Part II set forth, the current discussion about how to promote healthy eating among low-income populations has led to a fierce debate about the appropriateness of paternalistic laws that single out the poor. A number of commentators have argued or implied that such laws present unique cause for concern, regardless of how one feels about paternalistic laws of more general applicability. The main source of the concern, it seems, is a perception that singling out disadvantaged groups for differential treatment is a form of discrimination, and that such laws are therefore contrary to the ideal of equality. (212)

   Rather than starting with the question of whether broadly applicable paternalistic laws such as seat belt laws are ever justified, this Part will begin with the assumption that such laws are sometimes appropriate, and will proceed to an examination of the unique issues that are posed when such laws target marginalized groups such as the poor. The starting point for this discussion is a review of past literature that has touched on the issue of paternalistic laws that target disadvantaged or marginalized groups. The legal scholarship on this topic, which is discussed in Part A, is limited and fragmented, but nonetheless illuminating.

   Subpart 1 of Part A will examine the arguments in the literature against such targeted paternalism, while Subpart 2 will look at the literature's arguments in favor of such paternalism.

   Based on these arguments, Part B will set forth a series of questions that can be used to analyze paternalistic laws that target disadvantaged or marginalized groups. As the later portions of the Article will demonstrate, these questions can help deepen the conversation about this type of targeted paternalism and about specific policies such as the case studies this Article examines. Most notably, these questions can help illuminate the unspoken theories of justice and equality that often underlie these debates. Probing those underlying theories will prove useful for anyone involved in such debates, but in light of the food justice movement's failure--and need--to articulate a coherent vision of justice and equality, it will be particularly helpful to that movement.

   1. Legal Theory

      1. Arguments Against Targeted Paternalism

         The most direct examination of how the debate around strong paternalism--which I will refer to henceforth simply as paternalism--is affected when the subject population is a disadvantaged group can be found in Duncan Kennedy's seminal 1982 article "Paternalist and Distributive Motive in Contract and Tort Law, with Special References to Compulsory Terms and Unequal

         Bargaining Power." (213) Kennedy's general argument--which he makes prior to addressing the issue of laws aimed at disadvantaged groups--is against a principled position of anti-paternalism, and in favor of an ad hoc approach. (214) Specifically, "what we need when we make decisions affecting the well-being of other people is correct intuition about their needs and an attitude of respect for their autonomy." (215) Even then, "[t]here isn't any guarantee that you'll get it right." (216)

         The chances that one will "get it right" decrease when a public decision maker acts on behalf of those outside his social group:

         Since private life takes place in a context of social segregation, if the actor is a white middle class person acting paternalistically, the other is also likely to be a white middle class person. But in his public role, the decision maker will act out of his ignorance, bred of that same personal life lived in segregation, in a context where the others may not be of his group and may have reason to fear and possibly hate him. It is less likely that his intuition of false consciousness will be correct, less likely that his intuition of the consequences of his action will be correct, and less likely that the others will forgive him his aggression if his intervention fails, or even if it succeeds. (217) Kennedy thus expresses two central concerns about paternalistic laws that are aimed at disadvantaged populations: 1) the state actor might lack the knowledge and understanding to make the correct policy decision on behalf of a group that differs from his own, and 2) the target population might distrust the state actor, and therefore be particularly ill-disposed toward being told what to do by the state.

         However, Kennedy points out that the dangers of taking action must be weighed against the dangers of inaction. (218) "A decision maker who will not take the risk ... because he doesn't feel confident about what the poor 'really want,"' (219) is in some situations "acting to deepen their incapacity by treating them as entitled to their mistakes." (220) Kennedy proposes two solutions for the would-be paternalistic public actor: Getting to know the target population, so that he can act with a better understanding of their situation; and mobilizing the target group to encourage its group expression, so that the target population can engage in active dialogue with the decision makers, and eventually hold positions of power. (221) Kennedy's emphasis on dialogue between policymakers and the target community recalls one argument made in favor of Los Angeles's zoning ordinance: that it was made in consultation with the community, and with the support of many in the community. (222) In light of the importance Kennedy places on community involvement, the above second argument against paternalistic laws that are aimed at disadvantaged populations can be modified to state that the target population of such a law might distrust the state actor, particularly in situations where the target population was not part of the decision-making process.

         Kennedy's reservations about these types of laws recall arguments made by opponents of the proposals discussed in Part II. Most notably, with respect to the use of SNAP benefits for sweetened beverages, the prominent anti-hunger group Food Research and Action Center (FRAC) argues: "Too often such 'singling out' of the poor ... emanates from a stereotypical belief that the culture or behavior among the poor is different and dysfunctional." (223) To refute this stereotype, FRAC points to statistical evidence that SNAP users buy and consume similar amounts of unhealthy food as non-SNAP users. (224)

         FRAC's argument relates to Kennedy's point that decision makers do not always have a full understanding of disadvantaged populations. But FRAC's argument also explicitly raises the specter of stereotyping and prejudice, which is implicit in Kennedy's argument and which hangs over many of the arguments made by opponents of the two proposals discussed in Part II. Often this specter is hinted at through a vague assertion that there is something problematic about targeting the poor; (225) this assertion seems to relate to a belief that the poor are often the subject of stereotypes and prejudice. Thus, the critique of New York City's proposal to ban the use of SNAP benefits for sweetened drinks as "smack[ing] of paternalism, implying that low-income people cannot be trusted to make their own decisions," (226) appears to be grounded in a belief that low-income people are often incorrectly stereotyped as being poor decision makers (or that racial minorities, who make up a significant portion of New York City's SNAP recipients, (227) face that stereotype), (228) and that the need to fight against that stereotype renders the proposal more objectionable than a proposal that calls into question the general population's ability to make its own decisions, or a proposal that targets one group that lacks a history of such stereotyping. (229) In the battles over seat belt laws, one was not likely to hear outraged cries of "Do you think people who ride in cars are stupid?"

         This concern about playing into stereotypes about disadvantaged groups is distinct from Kennedy's two stated concerns, and represents a third argument against this form of targeted paternalism. It seems to be an equality-based argument, insofar as it assumes that differential treatment of a disadvantaged group is likely to be a pernicious form of unequal treatment, particularly when it arises from or perpetuates negative stereotypes. This assumption has colored debates within the environmental justice movement about whether justice is better served by (paternalistically) fighting against the siting of environmental hazards in low-income, minority communities, or by letting those communities decide to accept such hazards if they choose. Those who take the paternalistic approach have been accused of racism for assuming that minority community leaders cannot make their own decisions. (230)

         A fourth rationale for being wary of paternalism toward the disadvantaged is implicit in the argument, advanced most thoroughly by Jonathan Klick and Gregory Mitchell, that paternalism can inhibit the development of the target population's decision-making skills. (231) Klick and Mitchell's critique of paternalism has the interesting feature of being itself quite overtly paternalistic, in that it suggests refraining from (paternalistic) action in order to help the would-be target of that action by conferring a benefit--improved decision-making skills--that might not be of high priority to the target group. In that sense, Klick and Mitchell's...