In this way, corporate regulations
banning certain individual behaviors, such as smoking, are simply a response to a
demand from firm stakeholders, such as employees and investors, to reduce firm
costs...............For a social policy with broad support—like reducing smoking incidence in
the population—the relevant question should be which provider of paternalism is
better on the margin at deterring the behavior. While government and firm
nannyism are not necessarily substitutes and can work together, policy makers
should be attune to how best to allocate the burden of nannying. At present, firms
are inhibited from charging smokers the full cost they impose on the firm and its
stakeholders by federal and state law. These barriers should be removed and
allow the cost of smoking, overeating, skydiving, and so on to be set by the
market.
There will inevitably be line-drawing problems, since society can be
thought of as one big subsidy of everyone’s bad behaviors. This recharacterization
of corporate nannyism elides this objection by focusing only on those behaviors
where third-party payors inevitably are involved in trying to reduce the behavior
in question. When comparing corporate nannyism with state nannyism on these
issues—say, reducing smoking or obesity—it is clear that the former may often be
superior. This conclusion is relevant not only for the federal and state law
described above, but also for the ongoing debate about who pays for health care
in this country and how much we all pay. For example, the proposal to move
away from the employer-based health insurance model has many virtues, but this
paper points to a strong counter argument: if paternalism is inevitable for solving
some health care cost problems, firms may be the preferred and more efficient
provider.
Readers with comments should address them to:
Professor M. Todd Henderson
University of Chicago Law School
1111 East 60th Street
Chicago, IL 60637
toddh@uchicago.edu