HIS GENERATION'S LEARNED HAND (via Brian Boys)

Time For Tubby Bye Bye?: Fat as a public health issue (Ronald Bailey, Reason)

[W]hat, if anything, should the federal government do about America's expanding waistlines? As Michael Jacobson, executive director of the Center for Science in the Public Interest put it, "We live in a culture that supports sloth and gluttony. If the government is not willing to help them, who will?" [...]

Fortunately, AEI invited the always reasonable University of Chicago law professor Richard Epstein to sort through the issues. Epstein first noted that, in general, we resort to the public health rationale when the government wants to stop an activity that can cause harm to third persons who cannot reasonably protect themselves. The classic case is forcibly quarantining someone who has a virulent disease. He then pointed out that it is a misnomer to call the increasing number of fat people an "epidemic," since being fat is not a communicable disease. With regard to nutrition labels, Epstein observed, "Most people pretty much know that eating ice cream is fattening."

So what's his solution? Instead of lawsuits, fat taxes, and endless lists of nutrition information, Epstein suggests that we allow employers, schools, insurers and so forth to "viciously discriminate against any person who is obese." He was joking about the "vicious" part, but his point is serious. First, this policy would impose the costs for being overweight on individuals, giving them stronger incentives to slim down. (I know from personal experience that such policies work. For example, I decided to quit smoking shortly after I got turned down for a job because I was a smoker.) Second, since most employers want a healthy workforce, it would give them an incentive to help employees control their weight, perhaps by doing things like restricting what's served in the company cafeteria, or offering exercise facilities.

It's never going to happen, even though he's one of the smartest and best qualified jurists in America, but Richard Epstein's Supreme Court confirmation hearings would be so amusing it would be worth nominating him and having him voted down--probably 99-0. Posted by Orrin Judd at June 13, 2003 9:07 PM