by W.A. Bogart. New York: Oxford University Press, 2011. 396pp. Cloth. $75.00/£45.00. ISBN: 9780195379877.
Reviewed by Richard L. Pacelle, Jr. Department of Political Science, Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu.
If there is a second edition of the book, PERMIT BUT DISCOURAGE, plenty of new examples can be readily found in the news and throughout the popular culture. A number of the recent restrictions seem to come from New York City bearing the clear fingerprints of Mayor Michael Bloomberg. Recently, the city has imposed limits on smoking, even outdoors. Then, there were the famous restrictions on soup served in restaurants because of elevated levels of sodium. These represent further examples of governmental attempts to regulate various private activities that are not illegal. In this interesting and provocative book, W.A. Bogart examines attempts to regulate the use of potentially dangerous products like cigarettes or limit the excessive consumption of unhealthy food or activities like compulsive gambling. The title of the book tells the essence of the basic story, the balance between permitting forms of potentially harmful activity, but trying to limit the scope of that behavior. One of the key themes of the book is the impact of the law and formal legal interventions on such over consumption.
W.A. Bogart is Professor of Law at the University of Windsor and the author of CONSEQUENCES: THE IMPACT OF LAW AND ITS COMPLEXITY (2002), a book which has a similar focus on the potential and limits of law in dealing with complex social and legal issues. Permit but Discourage concentrates on a number of issues in which consumption of some product or participation in some activity is permitted even as external agents seek means of minimizing the negative effects of excessive consumption. Bogart looks at a range of activities from those widely considered illegal like the use of recreational drugs to legal but clearly harmful activities like smoking to drinking and gambling that can become problematic. Bogart also investigates obesity, which is not illegal but can be problematic for a variety of health reasons.
Bogart devotes a section to each of the issues. In the chapters within each section, he traces the evolution of norms and various attempts to regulate the behaviors. The historical analysis often traces the roots of social mores and legal interventions back to England, but the present day discussions concentrate on the United States and Canada. Bogart provides ample examples of the change in norms and mores regarding each of the activities. For instance, smoking was considered glamorous for decades. Popular culture also glorified drinking and “one for the road.” Gambling, on the other hand, was considered a vice and was illegal in most jurisdictions. Through education, evolving public opinion, and reframing our notions of such activities, the norms of society can [*240] change. For instance, the author argues that smoking has been redefined from an acceptable social practice to a disgusting, addictive habit. Similarly, drunk driving and binge drinking have transformed attitudes about alcohol. In general, the author concludes that regulation that discourages excessive consumption has increasing public support.
The last section of the book concentrates on gambling and the unique constraints it imposes (and focuses on the various attempts by provinces in Canada to deal with problem gambling). Internet gambling has pushed a great deal of the activity underground and makes it more difficult to detect. Professor Bogart makes a number of policy recommendations for balancing “permit, but discourage” particularly to combat problem gambling. He rejects what he labels the “old governance,” command and control by the state, in favor of what he calls the “new governance,” a variety of strategies that connect public and private initiatives (pp.61-65).
The problems with regulating consumption can be quite complex. Smoking, drinking, gambling, and unhealthy eating may be harmful activities on some levels, but in moderation are well within the scope of the law. Further complicating matters, there is typically an industry that stands to profit handsomely from the heavy consumption of its products and activities. That industry has a strong financial incentive to limit attempts to prohibit or restrict its products. In addition, these attempts to regulate consumption occur against a backdrop that imposes significant ideological constraints. Americans and Canadians tend to share a libertarian ethos regarding personal behavior and individual choice. They do not want to be told what they can eat and when or how much they can smoke or drink. Increasingly, people do not want government to be dictating personal choice. Attempts to regulate behavior become another example of the oppressive reach of big brother. Finally, local, state, and national governments find themselves in a curious, ambivalent position. The government takes the responsibility of regulating many of these behaviors by imposing age limits for use or banning the advertising of certain products, but government also stands to profit from the exercise of these potentially bad behaviors. Taxes on cigarettes and alcohol provide needed revenues at all levels. Gambling revenues and the profits from lotteries are necessary for the maintenance of public programs. For instance many states have tied lottery and gaming revenues to education. And in a time of economic uncertainty, no state wants industry inside its borders to lose jobs.
PERMIT, BUT DISCOURAGE is a book that delves into fact and misperception about these different activities. The book stresses the problems that government faces in dealing with each of the activities. If smoking or excessive gambling is seen as addictive behavior, public policy and private responses would be different than if it was simply bad personal choices that were in question. Similarly, if obesity is considered a personal problem for someone who will not exercise or eat well, the means of dealing with it has to be different than if someone has a medical problem or a genetic predisposition that affects his/her [*241] weight. The author notes both the similarities and differences between these various activities. Often times, government, industries, or private actors attempt to use past successes and failures as templates for dealing with the extant issue. While there are useful parallels and lessons that can be transplanted in some cases, it is evident that there is not a “one size fits all” to the regulatory activities.
The book is a broader study of using the law as a means of creating or changing norms rather than as a direct modification of activities. Bogart considers a number of questions regarding the reciprocal impacts between law and society. Implicitly or explicitly, he examines how effective the law is in altering behavior and how law functions in a social context. There has long been a temptation to think that the law can solve many of society’s ills, but as Bogart argues it depends whether the law reinforces the prevailing norms. This study ultimately focuses on his notion of “normativity”: the relationship between law and norms (pp.111-121). The chapters are replete with examples of the limits and unanticipated consequences of law related efforts to curb some of these “unhealthy” activities and behaviors.
Bogart freely admits that normativity does not lend itself to precision in theory building or measurement. It is hard to forecast ahead of time, but in the words of Potter Stewart (on a different matter) “we know it when we see it.” The final sections which map out a plan to attack compulsive gambling and sum up Bogart's general arguments add to the general feel of the book. We can increasingly agree there are behaviors that should be modified, but we are not certain how to go about doing so. As the author asks, why should combating societal ills be easier than addressing personal travails? People deal with personal addiction through a mixture of religious, personal, philosophical, psychological, and education remedies. Trying to intervene on a societal scale requires access to all sorts of ideas and approaches and has elements of trial and error.
One of the dominant messages of the book concerns the limits of the law to correct all evils. Indeed, if the book has one unequivocal message it is that the law alone is probably not going to make a significant enough intended impact on discouraging excessive behavior. Bogart finds that legal intervention is both a means of reshaping behavior and achieving a range of policy goals. As the author notes, the law can be used in a number of ways. Most directly and forcefully, criminal sanctions could be invoked (Prohibition, current drug laws, or the patchwork of laws on gaming), taxation (cigarettes and alcohol), regulation (of gaming or control by an agency like the FDA or FCC), or indirectly through tort litigation (against cigarette and food companies). The book is an important reminder that law is nested in a social structure and the law often has unintended consequences.
The use of lawsuits has become a wildcard, both in the United States and in Canada. Activists who want to punish the tobacco companies or the purveyors of unhealthy fast food know that these well-heeled companies can largely limit legislation that would harm their industries. So, they use the courts filing lawsuits using tort law in their claims that tobacco and fast foods are inherently [*242] unhealthy. They bank on turning the minds of a jury of the peers of the plaintiff.
Can litigation aimed at the gaming industry help lessen the incidence of compulsive gambling? Litigation is a blunt instrument, to be sure. Cigarette manufacturers and the fast food industry have felt the wrath of juries. Bogart is unsure because the cause of action and the duty of care of the gaming industry are more tenuous. He argues that the chances that a decision against the industry for luring someone into a life of compulsive gambling would survive an appeal would be remote. But he argues that a compulsive gambler who has been identified as such may win a judgment against the industry if it continues to target him with “comps” and inducements.
The impact of the formal law through taxes, regulations, licensing, mandatory warnings, bans on advertising or targeting, subsidies to encourage, penalties to discourage, and lawsuits can be imposing. In Bogart’s view, the most successful interventions involve a regulatory mix to counteract the market. The most effective mix of interventions typically includes education, government regulation, self-regulation by the industry, and legal intervention, among other carrots and sticks. But this mix of tactics has the best chance of success if it is in concert with accepted public norms. The emphasis is on the mix of approaches and the things that can be used to nudge people into better behavior. To move to more formal and extensive legal interventions, the author argues that it is necessary to change societal norms. There is a need to reframe the issues, redefine the behavior, and alter societal norms. Shifting public attitudes and changing social norms are both causes and effects of legal intervention. The author concludes that “permit but discourage…as an overarching theme does reflect a codependence between norms and regulation” (p.183). The central idea is to advance the notion of a “nudge” in favor of moving people to good choices without impairing their right to choose (Thaler and Sunstein 2008).
While this is a good book that should be recommended to anyone interested in these particular issues, the complexities of constructing coherent public policy, or general notions regarding the effects of law and society and society on the law, it is not without a few problems. The book starts with a broad theoretical panoply, but seldom returns to this overarching context. The most significant problem with the book it is the lack of a comprehensive editing job. The book is just too redundant. In each chapter many of the same points are repeated. The editors permitted, but apparently did not discourage such redundancy.
Bogart, W.A. CONSQUENCES: THE IMPACT OF LAW AND ITS COMPLEXITY. Toronto: University of Toronto Press, 2002.
Thaler, Richard and Cass Sunstein. NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS. New Haven: Yale University Press, 2008.
© Copyright 2011 by the author, Richard L. Pacelle, Jr.