Empirical Legal Studies

Does personality motivate job choice among lawyers and law students?

My thanks to Sara Benesh for her kind introduction and for allowing me to guest edit this post.

The government has been preparing itself for the retirement of baby boomers (the “quiet crisis”)--including legions of lawyers.  In 2007, Congress passed the College Cost Reduction and Access Act that, among other things, facilitates loan forgiveness to attract employees who have made 120 monthly payments on student loans while employed in public service.  Is the financial incentive enough to lure lawyers and law students to public service?

Beyond financial incentives, a coauthor and I have been interested in the impact of public service motivation--an intrinsic, measurable personality characteristic--on job choice.  Our articles are based on quantitative analysis of multiple data sets: (Article 1) primary data we collected from first year law students and (Article 2) analysis of secondary data “National Survey of Career Satisfaction” from the American Bar Association.  ELS readers might be particularly interested in the policy capturing design used in the first article.

Very briefly, we find that, among lawyers, public service motivation positively predicts whether one's second job is in the public sector (school debt is probably the guiding factor right out of law school). Among law students, we find that public service motivation is actually a better predictor of job-fit than sector-fit. In other words, regardless of which sector a student plans to enter, students with stronger public service motivation are more likely to accept jobs that emphasize service to others.

For government recruiters, the task ahead seems to be one of attracting applicants using service-oriented work, rather than financial perks like loan forgiveness. 

 

Guest Blogger, Robert Christensen

I am pleased to introduce Robert Christensen, assistant professor in the Department of Public Administration and Policy at the University of Georgia, as a guest blogger this week.  Most of Prof Christensen's work is on the relationship between courts and public agencies and on the impact of anti- and pro-social attitudes/actions on public and nonprofit work groups and organizations. His newest work, which he'll be blogging about, considers a personality characteristic -- "public service motivation" -- and its influence on the job choices of lawyers.  I think our readers will find it really interesting, and we welcome your comments and reactions to it.  Welcome, Rob!

Hello!

Thanks to the Empirical Legal Studies crew for letting me guest blog here. Consistent with the motto of the blog, I hope to use my time with ELS to bring some method to the madness that seems likely to swirl around Sonia Sotomayor’s confirmation hearings this summer.

 

For the past two years I have been compiling a dataset capturing all of the statements made by senators and Supreme Court nominees at the confirmation hearings held by the Senate Judiciary Committee.  The dataset starts with the Felix Frankfurter’s hearing and ends with Justice Alito’s. I have coded by issue area all statements made by the nominees and senators. Each unit of analysis includes information about the political party of the questioning senator, the appointing president, and the committee chair. The dataset also captures instances where a court case was discussed by name, and includes variables indicating whether the statement being coded addressed constitutional interpretation, statutory interpretation, or federalism.

 

I hope to use this data to provide real-time commentary on the confirmation hearings this summer.  Because Supreme Court vacancies occur so infrequently, our discussion of the confirmation process often lacks historical perspective. I hope this data can help rectify that, by bringing concrete information to conversations about what has – and has not – been “the norm” in this process. 

 

I also hope that the ELS community will provide feedback about how to use and improve this dataset. This is in many ways a ‘test run’ of the data, so I look forward to hearing your comments about it. I’m also open to suggestions regarding what type of information you think would be interesting to pull out of the dataset.

 

First up: What makes a confirmation contentious?

Discussing "Bias and the Bar" II

Sara - We definitely need to think more about how we can operationalize some of the features of "judicial temperament." I personally need more time to really think this through, so I instead thought it might be good to write about the question that keeps running through my head as I try to operationalize judicial temperament. The issue I'm struggling with, and which I'd love to hear the thoughts from others, is how we guard against imputing too much to the obvious proxies we'd have to use. For example, to play devil's advocate, I'm interpreting your suggestion of using the Congressional staff variable to reflect the quality of "open-mindedness" as implying that the political nature of the job might actually point towards close-mindedness. The question is whether that is reading too much into what it means - or what the ABA perceives it to mean - when someone has served on a Congressional staff. We thought about it in two terms: (1) an obviously political position, but also (2) a not-always-good substitution for traditional legal experience, especially given the political nature of the job. Put another way, did the person get the nomination because of their political service, or due to their qualifications? However, is the acknowledgement of the political flavor of the appointment and the nominee's background the same as measuring whether a nominee will be viewed by the ABA as "open-minded"? Alternatively, by this definition, our inclusion of the Years as Public Interest Lawyer could be seen as another measure of potential "open-mindedness" or "commitment to equal justice" given the equal justice-nature of much public interest work. But, again, are we presuming too much to suggest that the ABA views such work in this manner? Finally, what are service as a government attorney? The vast majority of people in this category - which we found the ABA viewed positively - serve as some type of prosecutor. Is this a signal of substantial courtroom and/or litigation experience, or could one possibly somehow link such experience - either positively or negatively - to some of the suggested ways of understanding "judicial temperament" in the ABA's guidelines? More broadly, how do we make sure that even our operationalization of these terms does not in and of itself make judgments? For example, does it (or should it) matter who the staffer worked for in Congress? Does it matter what issues the staffer focused on?

Of course, much of this relates back to Sara's initial post about the impact of the ABA's investigations - it's not merely that someone was a judge, but that the ABA attempts to determine whether they really were a fair and impartial judge. The problem, however, is that we have little to work with on the outside. We could obviously attempt to look into the information brought forth by others (i.e., the media, interest groups, senators, etc.), but (a) most nominees receive little attention if any, and (b) the information we hear publicly about is likely to be somewhat biased. In fact, as a side note, a big problem is the lack of information on nominees -- when I was constructing a list of nominees who were opposed by interest groups, there were a surprising number who has zero articles written about their nominations, including passing mentions that they were nominated and/or confirmed. Which brings us back to the issue of how do we attempt to explain something - or some idea - for which we only have limited information and potential proxies?

Thoughts?

Finally, we will certainly work on creating a more nuanced ideology measure. The one question, Sara, is were you referring to the distance between the ABA committee and the nominee or the distance between the Judiciary Committee and the nominee? The issue is that, and forgive me if I’ve totally misunderstood your post, is that I'm just not sure what it would mean to hypothesize that the ABA Standing Committee's ratings are influenced by how ideologically distant the nominee is from the Senate Judiciary Committee. This would in turn have to mean that we believe that the ABA is more likely to rate nominees highly in times of unified government (when the ideological distance would be closer), and rate them less well in times of divided government (when the ideological distance would be farther). And, this would suggest the ABA's ratings are in part driven by the makeup of the Judiciary Committee, rather than based on the nominee's background.  Obviously, if we could create some measure of the ABA Committee's ideology that we could then compare to the nominee's ideology, that would be great.... Last thought: yes, determining whether the bias has switched over time is definitely a worthy question; the issue, as always, is getting the data.

Sara - thanks again for really pushing me/us to think about these issues!

Re: Chris's post yesterday, the only possible response is to say thank you for such a great suggestion, and the reminder to pay close attention to how one describes what their model actually does - and for providing us with all of the information on how to put that suggestion into action! We appreciate the guidance!! And, we'll let you know what we found as soon as we're done.

Welcome Amy Steigerwalt and Rich Vining

I'd like to introduce Amy Steigerwalt and Rich Vining, who will be guest-blogging with us this week about their paper on the ABA ratings, which has been generating a lot of media attention of late.  (In fact, look for Steigerwalt's interview with Fox News Monday morning and coverage of the paper in Fox's Special Report Monday at 6pm EST.)  Their paper can be found here.  They'll start the conversation with an overall summary and discussion of the paper, and then Chris Zorn and I will engage them in some discussion of their research.  Of course, we also welcome comments from all of you "out there."  We thought this might provide a nice venue to discuss the choices we make when we conduct empricial social science, while also discussing a paper that might actually catch the attention of the general public and has immediate real-world consequences. 

Rich Vining is Assistant Professor of Political Science at the University of Georgia.  He received his PhD from Emory University in 2008, conducting most of his research on the issue of retirements from the bench.  Amy Steigerwalt received her PhD in 2004 from Berkeley and is currently Assistant Professor of Political Science at Georgia State.  Her research most often involves judicial selection and the role of interest groups.  (Their coauthor, Susan Navarro Smelcer, is a doctoral student at Emory.  Her dissertation considers the decision to dissent in collegial courts.)  Welcome, Amy and Rich!  We look forward to the discussion!   

Guest Blogger: Robert M. Howard

I'd like to take this opportunity to introduce and welcome Bob Howard, who will be Guest Blogging with us this week.  Bob is currently Associate Professor of Political Science at Georgia State University and Editor-in-Chief of the Justice System Journal (published by the National Center for State Courts).   Bob holds a JD from Union College, a MA from Suffolk University Law School, and a PhD from SUNY Stony Brook.  His research often involves specialized courts and tax policy.  He's also written two papers with Jeff Segal expressly attempting to operationalize "law" and test for its influence (exploring the effect of originalism and judicial role perceptions, respectively, on Supreme Court decision making).  Hence, he is the perfect person to talk about issues in empirical legal research and its publication, and we are anxious to discuss the issues he raises.  Bob, welcome!

Guest Blogger Joe Doherty

The ELS Blog is pleased to welcome guest blogger Joseph Doherty, who currently serves as Director the UCLA Empirical Research Group (ERG).  Joe has a Ph.D. in political science from UCLA and is an expert in quantitative research design and methods. Through ERG he works with the UCLA School of Law faculty to conceptualize, design and execute empirical research across a broad range of legal fields.  Joe has advised or collaborated with scholars in studies that include bankruptcy, legal aid, administrative law, pollution prevention, tax policy, gay rights, the living wage, campaign finance disclosure, criminal law and immigration policy.  He has co-authored research on bankruptcy with Lynn LoPucki, on the living wage with Rick Sander, and on administrative law with Jody Freeman.  In addition, Joe is leading the new UCLA-RAND Strategic Alliance for Law and Public Policy, a collaborative project between the two institutions that includes research on corporate law and civil justice. 

Joe also specializes in voting behavior and campaign finance. From 2002 to 2006, he served as Project Director of the Campaign Disclosure Project (CDP).  In this capacity, Joe created an online database of state-level campaign disclosure laws and developed an innovative method for measuring the usability of campaign finance disclosure websites across states.  The CDP is a collaborative effort of the UCLA School of Law, the Center for Governmental Studies and the California Voter Foundation, and is funded by The Pew Charitable Trusts.  It has been credited by legislators and activists across the country for providing the impetus to modernize state laws and regulations, and to make more and better campaign finance data available on the internet. 

Finally, among empiricists in the legal academy, Joe is known as a good person who is always willing to offer this time and expertise to fellow researcher.  We look forward to Joe's comments.

Today's WSJ Op-Ed, "Mismatch" Hypothesis, and ELS Blog Forums

Today's WSJ Op-Ed page includes an essay (regrettably, a direct link is not possible w/out a  subscription) that relates to a recent ELS Blog Forum featuring work by Richard Sander (UCLA) and responses to that work by Richard Lempert (Michigan).

Thanks and So Long for Now (Blumenthal guest)

Thanks to the ELS Blog hosts for the invitation to return (and for extending my guest stint), and to readers who checked out my posts and didn't laugh.  I appreciate the opportunity to share some thoughts and look forward to continued discussion about ELS.  Thanks!  ----JB

Last One on ELS and Paternalism (Blumenthal guest)

One last point about ELS and paternalism, on the third objection I identified--that paternalism reduces people's opportunities to learn.  And with this one I'll be brief.

Again, there are at least two reasons to encourage learning from mistakes.  One is so that people come to know an objectively better solution to a particular question or issue or judgment; a second is that such learning can be a rewarding, valuable experience in itself.  I referred to Klick & Mitchell's recent work on paternalism, where they discuss the learning issue; David Shapiro phrased the second theme nicely some time ago, suggesting that "the very ability to choose--which necessarily implies the ability to make poor choices by some objective standard--is critical to the growth of our diverse intellectual, emotional, and volitional capacities."

Of course, for learning to be helpful in either case there must be not only the opportunity, but also the ability and the motivation to learn.  Well-known psychological research (e.g., reviewed here), as well as more recent neuropsychological findings, show that people are prone to confirmation biases or "motivated reasoning," where individuals prefer information that will support already held beliefs or attitudes.  Personality factors (such as dogmatism), knowledge factors, and social factors (such as our perceived similarity to someone who might make a similar mistake) influence whether we learn from our mistakes--the psychologist to whom Klick & Mitchell refer suggests in his review that because of such factors, "learning is by no means automatic when people are shown the errors of their ways."

And, of course, there must be a second chance.  The New Hampshire drivers who suffer fatal accidents because of not wearing a seat belt don't learn to use one the next time.  Some scholars have suggested that paternalism may thus be more appropriate in contexts where decisions can have "irreversible consequences."

I said I'd be brief.  And in the blog context, my goal is more to raise issues for discussion and empirical research than to refute or defend particular lines of argument.  But I would suggest that for the "learning" objection, as with the knowledge-of-preferences and autonomy arguments, empirical research--rather than just ipse dixits--will be helpful in furthering such discussions.

Conference: American Psychology/Law Society

The annual conference of the American Psychology/Law Society will be held on March 5-8, 2008, in Jacksonville, FL.  Announcement here; call for papers (Sept. 21 deadline) should be posted soon.  This year's conference (July 3-8, 2007) is being held in Adelaide, Australia, in conjunction with the European Association of Psychology & Law and the Australian and New Zealand Association of Psychiatry, Psychology and Law.

The APLS conference is a great opportunity for ELS scholars, as the presentations tend to be heavily in certain areas of psychology, and law school academics are often under-represented.  It's also a great way to build interdisciplinary connections.

Empirical Work on Property Issues (Blumenthal Guest)

The variety of topics to which ELS can profitably be applied--as shown, for instance, by the recent AALS conference and by the successful ELS conferences--is, of course, both encouraging and daunting.  As one perhaps atypical example, a month or so ago there was an interesting exchange on the PropertyProfs listserv, looking for examples of empirical legal articles examining property issues.  I am certain there are more than the ones identified, as this request focused on real property--and I hope readers might identify more, please!--but the ones that were mentioned are excellent examples of the sort of useful ELS work that can be done.  Thus, in no particular order, here are the ones mentioned:

• Joyce Palomar, The War Between Attorneys and Lay Conveyancers--Empirical Evidence Says "Cease Fire!", 31 Conn. L. Rev. 423 (1999)
• N. William Hines, Real Property Joint Tenancies: Law, Fact, and Fancy, 51 Iowa L. Rev. 582 (1966)
• N. William Hines, Personal Property Joint Tenancies: More Law, Fact, and Fancy, 54 Minn. L. Rev. 509 (1970)
• Michael H. Schill et al., The Condominium v. Cooperative Puzzle: An Empirical Analysis of Housing in New York City, available at SSRN: http://ssrn.com/abstract=502362
• Vicki Been & Ioan Voicu, The Effect of Community Gardens on Neighboring Property Values, available at SSRN: http:ssrn.com/abstract=889113
• Dean Lueck & Jeffrey A. Michael, Preemptive Habitat Destruction Under the Endangered Species Act, 46 J. L. & Econ. 27 (2003)
• Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 Mich. L. Rev. 101 (2006)
• Ann E. Carlson & Daniel Pollak, Takings on the Ground: How the Supreme Court's Takings Jurisprudence Affects Local Land Use Decisions, 35 U.C. Davis L. Rev. (2001)
• Leigh L. Linden & Jonah E. Rockoff, There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws, NBER Working Paper No.W12253 (2006)
• Robert Ellickson, Order Without Law (1991)
• Ward Farnsworth, Do Parties to Nuisance Cases Bargain After Judgment?: A Glimpse Inside the Cathedral, 66 Chi. L. Rev. 373 (1999)
• Mark D. West, Losers: Recovering Lost Property in Japan and the United States, 37 Law & Soc. Rev. 369 (2003)
• Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, 115 Yale L.J. 356 (2005)
• Max M. Schanzenbach & Robert H. Sitkoff, Perpetuities or Taxes? Explaining the Rise of the Perpetual Trust, 27 Cardozo L. Rev. (2006)
• Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 Ind. L.J. 1231 (2000)
• Lior Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437 (2006).

More on Grades and Success in Big Firms (Sander guest-entry 3)

I've been slow to post a third entry this week because some of the comments on my first entry made me think more carefully about the table I posted Monday (entitled "White Michigan Grades at Private Firms with 100+ Lawyers) and the conclusions I drew from it.  I went back to the data and offer below a refined analysis.

There are two significant weaknesses in Monday's table. First, I included all Michigan alumni in creating the deciles, but of course many alumni did not return surveys. These non-respondents are part of the "base" on which the rates are calculated. So the author of the first comment, who noted that the proportion of Michigan grades joining firms seemed way to low, had a good point. (Among respondents, about 37% started at firms with 100+ lawyers and 47% started at firms with 50+ lawyers. The numbers would probably be higher today because firms are bigger.) Second, the time periods covered by the first two columns and the third column are significantly different; the first column looks at graduates from 1977 to 1990, while the third (15-year column) looks at grads from 1967 to 1985. Even though I noted the data were not literal attrition rates, many readers took them to be that.

After some thought about these limitations, I concluded that a better way to look at the association between GPA and success at big firms was to look directly at survival rates for big firm associates. The Michigan alumni surveys ask respondents how long they stayed at their first job after graduation, and how many jobs they've had. It's thus possible to see how many grads who started at big firms stayed at the same firm for the next fifteen years (and, in nearly all cases, became a partner at the firm).

The table below summarizes such an analysis. Those tracked here were respondents to the 15-year alumni survey from 1987 to 2000 who reported that their first job after law school was at a firm with 50 or more attorneys; these are divided into grade deciles, and tracked by whether they are still at the same firm. (I used a 50-attorney threshold because many of these attorneys started their careers in the 1970s, when a 50-attorney firm was considered "big".)

(a) Grade Decile	(b) White respondents to 15-year survey who started at firms with 50+ lawyers	(c) Those in (b) who were still with original firm 15 years later	(d) Those in (b) no longer at original firm	% Still at Original Firm (c/b)
1	25	1	24	4%
2	32	3	29	9%
3	58	7	51	12%
4	62	12	50	19%
5	94	13	81	14%
6	136	33	103	24%
7	157	26	131	17%
8	207	55	152	27%
9	236	56	180	24%
10	185	60	125	32%
Total	1192	266	926	22.3%

To illustrate how to read this table, look at the first row of data.  Of 1192 Michigan 15-year alumni who provided information on their first job and who started their career at a big firm, 25 (2%) had grades that put them in the lowest decile of all Michigan students.  Of those 25, only 1 was at the same firm 15 years later - a 4% "survival" rate (reported in the last column, as (c/b).

The last column thus gives us an idea of how grades affect tenure among those at big firms.  The relationship is quite strong -- the correlation of grade decile and the "survival" rate is more than .90.

With this added context, let me make some observations responsive to the posted comments and other emails I've received:

1) I don't contend that high law school grades themselves have a direct causal effect on success in big firms. I contend that high grades measure various things that are related to later success. Those things might conceivably include actual learning in various law classes; more likely, they include facility with legal analysis, cognitive skills and writing ability, and also such things as ambition, drive, lack of a social life, etc.

2) Obviously another factor that affects "survival rates" to partnership are choices about career, family, and lifestyle. Those choices are certainly very different for women and men, and they might vary across racial lines, too. But in The Racial Paradox, I showed that during the early years of associate experience (the years for which the After the JD project supplies good data), white men and white women had essentially identical experiences, while those of blacks and Hispanics diverged dramatically. So for women, attrition due to personal choices or to "glass ceilings" presumably sets in later.

3) Several of those posting comments suggested that minority patterns of attrition must be far higher than those explained by these grade variations. The Michigan data can't really answer this question, because the samples of nonwhites in big firms are very small (a total of 43 nonwhites in the 15-year alumni dataset reported starting at big firms). The numbers we do have for UMLS nonwhites are roughly consistent with those for whites:

(a) Grade decile range	(b) Nonwhite respondents to 15-year survey starting at firms with 50+ lawyers	Proportion of (b) at same firm 15 years later	Comparable rate for whites
1-3	30	10%	10%
4-6	9	22%	20%
7 or higher	4	25%	25%

Again, the sample sizes are far too low to draw conclusions from this second table; the close match of percentages is largely happenstance. And of course the dynamics facing nonwhites are very different. As I observed before, the nonwhites with low grades face two extra obstacles: first, they are likely to be at more elite and challenging big firms than are the whites with low grades; second, they are likely to be "stereotyped" as second-rate even when they are not. On the other hand, minorities may benefit from some affirmative action at the promotion and partnership level -- though clearly, if this happens, it is much less than the use of racial preferences in the hiring of associates.

As this second table suggests, nonwhite hires at big firms have far lower GPAs than white hires; nearly two-thirds of the nonwhites are in the lowest two deciles, compared to 5% of the whites.

The story told in these short blog entries is a brief summary of a more complicated story laid out in The Racial Paradox. I've tried here to grapple with the responses of those skeptical of the data.  My hope (perhaps a forlorn one) is that critics will go beyond mere skepticism to try and develop an alternative explanation consistent with all of the available data.

ELS and Paternalism #2: On ipse dixits (Blumenthal guest)

A second familiar objection to paternalism is based on autonomy: simply put, people's freedom to make choices, even non-optimal ones, should be valued per se.  Alternatively, as a a sort of mixed utility and autonomy argument, we should value people's preferences for the freedom to make choices.  That is, the freedom to choose should also be protected because people value that freedom itself.

The posting title refers to a line from John Robertson, discussing precommitment strategies (i.e., a form of self-paternalism): he suggests that potential gains from such strategies "should not be shunted aside with an ipse dixit about personal liberty."  And empirical research may bring into question this second general objection to intervention as well, in at least two ways (thus preventing an ipse dixit shunt).

First, it seems that in fact, people often prefer not to have to make decisions.  We prefer to leave our options open (to "leave doors open")--that is, to retain the option of changing our minds, even when that approach comes at the expense of decision quality.  In fact, the simple act of considering alternatives and choosing between options can increase the appeal of the foregone option.  We ask others to make decisions for us.  And, of course, we procrastinate--and, despite realizing that we procrastinate, and making efforts to correct that tendency, it seems that self-imposed deadlines are often ineffective.

Second, when we do make decisions, both the preference for choice, as well as having more options from which to choose, can lead to less utility and worse decisions.  Empirical research shows that although people often want a decision to be reversible--that is, they prefer the possibility of changing their mind--they are often less satisfied with their choice when it is reversible compared to when they make a decision and are "stuck" with it.  More broadly, recent findings call into question the traditional assumptions that choice generates utility and psychological well-being.  In fact, too much choice can be conflicting, difficult, and may lead to decreased experienced utility.  Thus, the assumption that people value making decisions is often mistaken; moreover, even when it is correct it can lead to decreased, not increased, utility.  (Indeed, in some instances marketers have picked up on this: Iyengar and Lepper cite an instance of Proctor & Gamble reducing the number of available versions of a shampoo brand from 26 to 15, and then "experiencing a 10% increase in sales."  Provocative but not conclusive.)

Thus, empirical findings raise questions about another aspect of the autonomy argument.  Again, these questions do not mean the argument is invalid, or that paternalistic policies necessarily trump any claim to individual autonomy.  The data simply suggest that the standard objections must meet higher hurdles than have heretofore been set, in order to fully persuade.

ELS and Paternalism (Blumenthal guest)

As I mentioned, I think there are at least three categories of objections to paternalistic intervention, and I wanted to identify empirical research relevant to those objections.  The first centers around the traditional claim that people know their own preferences and, as a result, are best able to identify those preferences and make their choices--certainly better than a third party.  Oft-repeated, the objection is, of course, associated with John Stuart Mill: "[W]ith respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else."

A facile response is one used to justify intervention in the first place--"look at the bad decisions people make!"  In the health context, the prevalence of obesity has doubled over the last 30 years.  Smokers underestimate their risk of dying from lung cancer, despite overestimating the link between smoking and cancer.  In the market context, cognitive biases may allow sellers to manipulate buyers; erroneous estimates of the likelihood of one's own breach, or that of the other contracting party, may lead to parties bearing risks that they did not fully consider, or to failure to consider appropriate remedies for breach.  And, of course, many people make poor financial decisions in the context of pensions or investing.

But an anti-paternalist responds--among other things--that perhaps people are not being irrational; they in fact are identifying their preferences, and deriving pleasure even from objectively detrimental activities.

One reply points to the burgeoning literature on affective forecasting.  Substantial empirical research (recounted lucidly and entertainingly by Dan Gilbert in Stumbling on Happiness) shows that people are surprisingly inaccurate in identifying their emotional reactions to future events, both positive and negative, and as a result have difficulty knowing what makes them happy or unhappy.  This research is becoming more familiar in the law, and has been imported into the paternalism discussion (as well as a number of other contexts).  Briefly, though, such findings "challenge a fundamental assumption that [supports various] forms of autonomy in decision-making . . . , namely, the assumption that people are able to make choices in their own best interests."

Simply saying that people don't always know what's best for them isn't dispositive, of course, nor does it address the Millian notion that "I know my preferences better than someone else."  But there are empirical reasons to think that in some cases, experts--or simply third parties--do better.  This may particularly be so in the context of risk perception.  For instance, ordinarily, third parties over-estimate the risk preferences of others.  However, particularly in the context of negative events, individuals' over-optimism tends to reduce their perceptions of self-relevant risks.  In a sense, the over-estimation by third-parties could in fact be relevant to bring estimates closer to the truth.  More directly, Hsee and Weber's research shows that when the target of a risk judgment by a third-party is made salient--made visible, for instance, even without actual interaction--the over-estimates become more accurate.  Thus, it may be that simply identifying the target individual to the third-party may ameliorate over-estimation by that third-party, and may result in more accurate risk estimation than when the judgment is left to the individual.  Finally, of course, is the likelihood that a third-party may be less susceptible to immediately experienced factors that bias decisions (such as mood).  More objective, "calculation"-based decision-making tends to ameliorate emotion-based "probability neglect," and might warrant placing decisions in the hands of third parties less susceptible to such immediate emotional biases.

Of course, none of these findings mandates paternalism, nor do they conclusively refute objections to paternalistic intervention.  But they are helpful in moving the ball forward and incorporating more ELS information into the discussion.  To the extent affective forecasting research suggests that we in fact do not know what makes us happy, and to the extent the risk perception research suggests that perhaps third parties can do better, the Millian criticism of intervention must say more.