The New York Times believes legislation passed by Congress granting the FDA the authority to regulate tobacco products is an "enormous victory for public health." For reasons I explain in this NRO article, I am not convinced the legislation does much for public health, let alone the public good. Among other things, the legislation could frustrate the development and marketing of reduced-risk tobacco products, impose troubling limitations on commercial speech, and cement Philip Morris' position as the tobacco industry's dominant player. Is it any wonder Philip Morris was a big backer of the bill?
Speaking of tobacco regulation, Henry Farrell has an interesting post considering the near "universal success" in implementing smoking bans in public places in the United States as well as overseas, including places like Ireland and Italy where one might have suspected smokers and pub owners to disregard such laws. Specifically, Farrell suggests:
my best guess in the absence of good evidence would be that the success of the ban reflected instabilities in previously existing informal norms about where people could or could not smoke. Laws that work against prevailing social norms face an uphill battle in implementation – unless people come to a general belief that non-compliers are highly likely to be sanctioned by the public authorities, they are likely to carry on doing what they always do. Hence, for example, the continued failure of the RIAA etc to stop file-sharing – file-sharers who both (a) think that there is nothing wrong with swapping music and movies, and (b) that the chance that they are going to be punished is low, are going to go on sharing files (current US law tries to counterbalance this problem by applying relatively draconian penalties to the few file sharers who are caught, but this strategy carries its own problems). Laws that broadly fit with prevailing informal norms, will, obviously, have few implementation problems.This seems plausible to me. While I'm no fan of smoking bans — I think rules about smoking can and should be made by individual businesses — it is interesting that such prohibitions have not sparked more resistance, and I think it is clear that even us cranky libertarian types generally prefer patronizing smoke-free places.But what we may have seen (if my guess is right) with smoking bans is an unusual case in which prevailing norms (that Irish people can smoke in pubs to their hearts’ content, and that others will just have to put up with it) were much more fragile than they appeared to be, and that the change in law made it easier for those disadvantaged by the prevailing norms to challenge smokers and to shame them into stopping smoking in certain places, hence creating a new set of robust norms.
So let's say Farrell is correct, and smoking bans have displaced an unstable norm that smoking in restaurants is acceptable with a more robust norm that smoking in restaurants is not. What would happen were such bans to be repealed? My best guess is that relatively little would change. When I think about my favorite local restaurants, I cannot see any of them allowing patrons to smoke even if the law were changed. There are one or two local bars, however, that I suspect might allow smoking on the premises, but they would be the exception. So whereas before the smoking ban here in Ohio, most restaurants and bars allowed smoking in a separate room or at the bar, were the ban repealed today I would be willing to bet that most restaurants and bars would remain entirely smoke-free.
What does this all mean? On the one hand, if most restaurants and bars would remain smoke-free, it seems to me the argument for allowing some establishments to adopt different rules is that much stronger. Remove the bans and us libertarian-types can still toast to the free market system in a smoke-free pub. But it is important to acknowledge that this state of affairs exists today because of the initial government intervention. The smoking ban appears to have helped solve a collective action problem that had kept a suboptimal norm in place. So even if a ban limited the ability of business owners to set the rules for their own businesses, it may have also helped them shift toward preferable business practices. Non-governmental efforts may have produced the same result eventually, but it would almost certainly have taken longer. So smoking bans have been beneficial, but it may also be the case that the maintenance of such bans is unnecessary to retain most of their benefits.
UPDATE: More from Megan McArdle and Stephen Bainbridge. My biggest difference with McArdle is that the market does produce non-smoking bars and restaurants -- I can think of several from Northern Virginia (from when I lived there) and in Ohio pre-smoking ban here. The market even produces non-smoking employers (such as the Cleveland Clinic). It simply does not produce either at a particularly fast rate because it typically takes time for norms to change absent government intervention.
Related Posts (on one page):
- Snuffing Out Tobacco Ads:
- Tobacco Regulations and Norms:
Well, what do we have now, after decades of anti-smoking campaigns? No reduced-risk tobacco products, misleading advertising, and Philip Morris as the tobacco industry's dominant player.
So, new regulations will continue with the status quo? And no regulations will continue with the status quo (except that companies will no longer be able to make dubious claims regarding the safety of their products)?
Here's an alternative: ban tobacco altogether (this might also mean banning tobacco advertising, as one should not be able to market something that is illegal. It would be constitutional to do so (if the government can ban cocaine, certainly it can ban nicotine).
So, if government can completely ban something, why are regulations on selling and marketing it illegal?
Look, I'm not fond of the habit either, but I think it should strike others as egregious how politicians now obviously look to the proceeds profiting from that addictive habit as a veritable bank to fund their pet projects. This all-pervasive regulation is fundamentally illiberal, and it's morphed into something obviously not for noble ends.
Excellent post, and excellent point.
The government may have sped up the process a bit but at the expense of choice. But if non-smoking establishments were becoming the prevailing norm then the law could reflect public, rather than governmental fiat. Though I suspect is has more to do with lobbyists trying to undercut the innovative electronic cigarette which will disrupt their control of the market. Placing regulatory power in the hands of the FDA edges out e-cigs because they are not technically tobacco and therefore outside of regulatory boundaries, there are now efforts to ban these risk reducing devices. It could also diminish the credibility of the FDA, see here for more: http://www.newsy.com/videos/new_sheriff_in_town
This seems plausible to me. While I'm no fan of smoking bans -- I think rules about smoking can and should be made by individual businesses -- it is interesting that such prohibitions have not sparked more resistance, and I think it is clear that even us cranky libertarian types generally prefer patronizing smoke-free places.
First, it's "we cranky libertarian types generally prefer patronizing" ... (if you're going to presume to speak for libertarians outside your socio-economic circles.)
You must have been too young to diagram sentences, but if you drop off the extras (libertarian types) and try to say that out loud, it might help: "even us prefer patronizing" should ring a bell in your ear. The continued error grates in mine.
Finally -- you post doesn't address that many of the smoking bans are passed under the aegis of protecting workers health in the pubs, restaurants and public establishments. I suspect, again, that who you are informs your limited point of view here. Meaning, your idea of "cranky libertarian types" no doubt includes youngsters who think that smoking is a badge of independence, a way of expressing freedom and showing the man!
I can definitely think of many smokers, older ones, who perhaps understand that while they may be hooked themselves, it's in society's best interest not to capture all that second-hand smoke inside and risk the lungs of others.
OFten, non-smoking spouses and loved ones succumb to cancer first, and still a smoker can't stop. Think they'd support stepping outside to light up, or would they insist more on their "freedoms" still to blow smoke inside in public?
Added for what it's worth: in your posts, sometimes you seem timid. Like you don't take a strong position but have your finger to the wind. Perhaps your writing here would improve if you thought out your position more fully, and possible objections and how other players might view the same set of facts, befor you posted. Then later, you wouldn't have shift and straddle so much.
people who attack the perfectly acceptable grammar of others.
I am not in favor of absolute prohibition given our national experience with other forms of prohibition. I would advocate for some detailed study of the costs involved with a marginal increase in the percentage of non-smokers. Nicotine is powerfully addictive.
In fact, this suggests that one thing that might be tried in similar situations in the future is a sunset provision. Say, explicitly banning an activity for 7 years, and then returning to the previous regulatory regime. That will give the "nudge" a chance to work, while ensuring that people are free to make different choices once the nudge takes effect.
This is my basic feeling about private discrimination law. If public accomodation were repealed today very few businesses would return to the old model.
Of course, the government holds none of this authority as is proven by the ratification and repeal of the 18th amendment, for IF the government held the authority to regulate or ban THINGS, the entire 18th process was moot. Those folks was jest a bunch of dummies. Too bad they wasn't as smart as weuns.
If I do it to myself, IT AIN'T NONE THE GOVERNMENT'S BUSINESS!!!!!!!
Tiocfaidh ar la!
And you don't have to actually smoke to come under direct fire by zealots armed (they believe) with law. Try a simple experiment: In any establishment where smoking is banned by law, whip out a cigar, cigarette or pipe, and a lighter or book of matches. Fiddle around with them, but don't light either the tobacco or the ignition device.
Within minutes, likely some zealot will begin haranguing you that "it's illegal to smoke here". Ignore them. See how quickly they call the cops. Try explaining to the cop that you are not and were not smoking anything.
So far there are no laws against "attempted smoking", and no case law defining what an attempt is, at least that I am aware of. But it's only a matter of time. Moral panics, and the zealots who promote them, always overreach.
Good luck repealing them in the places where they have been passed as part of workplace safety. Either they are constituional or they are not.
And "nudging" or sunsetting is not the role of the courts to play in making legal decisions.
This libertarian has been a smoker and a non-smoker each for about half my life, but my views against these laws have never changed, ever. The problem we have to contend with as libertarians is the tendency for people to support laws for anything they don't like. Then, those who might not care one way or the other don't care about the civil liberties issue (hey, it doesn't effect me if the police have illegal sobriety checkpoints, I don't drink). We all know where that mentality has gotten us.
Dutch researchers have come to the same conclusionCould it be that the tobacco settlement was based on bogus calculations?
I made money buying RJR in 1999, because investors did not read the Settlement, and did not realize that the big tobacco companies actually benefits from it. The stock price went way down, and I bought it on the cheap. By the time the market came to its senses, I tripled my investment and got out.
A Sunsteinesqe "nudge" would be something along the lines of requiring all restaurants/bars to be smoke-free unless they post signs to the contrary.
I agree a change in laws can change norms but you are missing out on the weather vane effect - politicians are more likely to pass a law prohibiting or mandating something when they know which way the wind blows. Mandatory bicycle helmet laws weren't passed in the 70s when they would have been seen as farcical; they were passed in the early 90s when there was already great social pressure to strap a helmet on your kid. Likewise smoking bans were passed when many bars had already gone smoke free. I know in Boston many bars were smoke free before the ban.
[the Boston workplace safety board may have jumped the gun by a couple years. Bars in downtown (which fought the ban) started losing business after the ban and then lobbied for, and got, a statewide ban.]
I don't disagree that the mechanism is different-- that's why I called it "Sunstein style 'nudging'". I do think it is food for thought as to whether there are ways to get the public policy outcomes we want while leaving more room for individual liberty. And that was the impulse behind Sunstein's thinking, even if it went in a somewhat different direction.
Smoke all you want, but with the following provisos:
1. Do not do it inside a building near me or my 7yo daughter whose bald head is not a fashion statement. Same goes for you "freedom" to blare your music from a car outside my house.
2. Do not smoke in confined areas--rooms or plane passenger compartments--where people are trying to earn a living; that is, unless you want to advocate for the complete elimination of OSHA, in which case you will be shoved to the side as a wing-nut.
3. Do not ask me to pay for your medical bills when you contract emphysema or smoking-related cancer.
That's like calling it ironic that an organization which favors laws against bank robbery voluntary chooses not to rob the banks that they use.
Where (in the US) are they banned? I just got some a couple of years ago (in a candy nostolgia pack, with poprocks, necco wafers, etc.) that my wife got me.
Or try another experiment. In a state allowing open carry, bring a pistol into a bankc. Start loading it and unloading it, and looking furtively around.
What do you think the reaction will be?
I want the government to regulate the so-called "do-gooders" who insist on trying to nanny our behaviors: they angry up the blood.
We also need to keep them off TV before 9:00 PM because they shout down and demonize anybody who disagrees with them, which sends the children the terrible message that you can get what you want by bullying anybody who disagrees with you.
I'm doing it for the children, of course.
I'd argue that it's the business owner's right to do with his private property as he sees fit.
Every time I hear somebody talking about "non-smokers 'rights'", I find that what they really mean is the right to tell other people how to run their lives.
Why is it ironic that an anti-smoking group would meet in an anti-smoking restaurant? Would it be ironic if a group seeking to ban abortion met in the office of a doctor who did not perform abortions and none of the members of the group had ever chosen to have an abortion, because, "ironically," this group was trying to take away the legal right for others to choose abortion?
Beyond that, let me second the folks who have pointed out that bans on smoking in bars, restaurants, and similar institutions have a worker-safety rationale.
The key dichotomy here, it seems to me, is not smokers vs. non-smokers, but tax revenue vs. no/decreasing tax revenue. FDA control of tobacco MUST lead to tobacco being declared harmful to the public and access to it becoming very limited.
Look at the states that rely on taxes from cigarettes for various spending boondoggles. What will replace that revenue when you need a medical doctor's prescription before the pharmacist will fetch a pack of smokes for you from his lock up. Isn't that the inevitable result of this shift to the FDA?
The key dichotomy here, it seems to me, is not smokers vs. non-smokers, but tax revenue vs. no/decreasing tax revenue. FDA control of tobacco MUST lead to tobacco being declared harmful to the public and access to it becoming very limited.
Look at the states that rely on taxes from cigarettes for various spending boondoggles. What will replace that revenue when you need a medical doctor's prescription before the pharmacist will fetch a pack of smokes for you from his lock up. Isn't that the inevitable result of this shift to the FDA?
Every time I hear somebody talking about "non-smokers 'rights'", I find that what they really mean is the right to tell other people how to run their lives.
Suppose that a substantial percentage of the population had a habit which consisted of punching a random bystander in the face.
By your reasoning, we should make no laws against this. Instead we should allow business owners to set their own rules. There could be restaurants where you're allowed to punch people in the face and restaurants where you're not. Employees could simply choose another job if they didn't want to get punched in the face when they work. Customers could freely select restaurants that have a no-punching-people-in-the-face policy.
After all, you don't want to tell those people with restless fists and those restaurant owners how to run their lives, right?
How is it anti- (or non-)libertarian to recognize and prohibit obvious externalities?
and are you for the elimination of OSHA?
Anecdotal evidence to be sure, but I know of several small establishments which are either owner-operated or have small staffs who are smokers. They would prefer smoking to be allowed, keeps them from having to go outside for smoke breaks.
Um, supposing, as you suggest, that a substantial percentage of the population did indeed have such a habit, your proposal would make a fair amount of sense, no?
People who never get over the sick, which is to say people who are very sensitive to smoke and react badly to it, become the bulk of non-smokers. For people like that, avoiding smoke isn't just an aesthetic preference. Whether or not secondhand smoke causes cancer, it does seem to increase the incidence of things like respiratory infections in people who are susceptible. Getting something like the flu an extra time every year is not trivial.
It's hard for the two groups to see eye-to-eye, because they don't even seem to be dealing with the same biology. Smokers have trouble imagining how much pain they inflict on non-smokers, and non-smokers just don't get the idea that smoking can be enjoyable.
People who can take pleasure in tobacco (I can't) can do it if they want to, but please not in places that are organized around some other activity. Maybe it would make sense to have two classes of establishment license: a regular liquor license, and a special liquor + smoking license. If pot is ever legalized, we will have the issue of which public establishments permit pot consumption on the premises. Why shouldn't we think this through when we only have two substances to worry about, before we get three.
Oh, and the notion that smokers are a civil rights category is absurd. Smoking is just an activity that has externalities to it. This is about managing those externalities.
Anecdotally, I know workers who don't like wearing certain protective safety equipment, and I've definitely met some employers who aren't keen on supplying such equipment and/or workers taking the time to abide by safety rules. But I don't think such anecdotes are good counter-arguments to OSHA-style laws.
David M. Nieporent:
First, call me Joe. Second, the worker safety rationale was present in at least all the political battles over smoking in workplaces that I'm aware of. One of the first such battles, getting smoking banned on airplanes, was led by flight attendants and their union.
As "Smooth, Like a Rhapsody" said, I guess it's consistent for a libertarian to be against all workplace safety regulations, but that's not going to be a winning political position.
Is that right? Putting aside constitutional issues of course.
The "externalities" you're talking about are all a function of being on someone else's private property. You have the right to leave that property if you don't like what's going on there; you don't have the right to force people to stop doing what they're doing. If I don't want to listen to you preach pro-government sermons in your living room because it raises my blood pressure, I shouldn't get to declare that hypertension an illicit "externality" of your speech; I should go home.Yes. How could any libertarian not be? Freedom of contract, without government nannying, is a bedrock principle of libertarianism. If I don't like the terms of my employment, I should negotiate better terms or find another job, not get the government to force someone to employ me on terms of my choosing.
So you want to go out to a bar and not come back smelling like smoke/have headaches for days/be asphyxiated, knock yourself out. There are plenty to choose from. I find irritating the suggestion that you should be able to go to any bar or restaurant and expect not to be exposed to smoke when you have alternatives.
Also, read the smoking ban argument threads on any site and the employee-safety angle is rarely at the heart of the matter. I'm not suggesting that legislation should be flame-war based but as a practical matter the debate tends to be "I want to eat/drink and smoke" vs. "I want to eat/drink without smoke".
I know some friends who used to work at the deli counter. They said they were much quicker at shaving the meat if they could only remove that plastic safety guard that regulates how far you can push the loaf of meat or cheese into the electric slicer. Said many of their coworkers just found the thing cumbersome and annoying too, and were faster workers without it.
Ditto my friends who say you can more clearly see what you're welding without wearing the plastic safety goggles...
It's like nobody cares what the workers think of worker safety rules, eh? And anybody new wants to work at the smoking bars ... they should just abide by the decisions that previous employees made, who CHOSE to work there, right? Damn this OSHA nonsense; let's put these things up for vote.
When my state started pushing a smoking ban, it was justified as a worker safety issue. Over the past 15 years or so, essentially all non-bar resturaunts here had voluntarily gone smoke free. Given the proper financial incentives, I think a number of bars might have gone smoke free proving that it was financially viable. Hell, when the bans were in effect on a county by county basis, I personally voted with my feet and went to places with fresh air. Really, I think it was simply impatitence that instigated the smoking bans. There were absolutely no smoke free bars where one could go for booze and fresh air.
In any case, I think the worker safety rationale is a sufficent justification for the bans on smoking in places of public accomodation, so it doesn't really matter to me that people make other arguments about it.
Of course one could be against all worker-safety laws, as David M. Nieporent apparently is. But as others have pointed out, that ship sailed long ago. I think Stevie Miller gives a pretty amusing argument why that's true.
Once you get government involved this became a civil liberties issue, not just a externality issue. Everybody that exposed themselves to smoking previously did so voluntarily, they may have had incentive to do so, but they did so voluntarily nonetheless. But the imposition of a prohibition is a limitation on liberty regardless of what you think of its merits.
There is clearly something wrong with the fact that someobody can't use their own money to open a bar on their own land, call it Smokey's, and say, "look, I like to smoke while I drink, so come on down and join me if you want, and stay away if you don't, and if you're looking for a job and like to smoke or don't mind the smoke, come on down and drop off an application."
I just wanted to point out, since no one else has yet, than in your first comment, you seem to get Prof. Adler's point exactly backwards, such that your critique of who he hangs out doesn't make any sense. "Perhaps your writing here would improve" if you read posts a second time before commenting on them.
No, they should just abide by their own choices.
Your cigarette or cigar cannot "fire" accidentally. But even if it could, nobody would suffer more than fleeting annoyance. Except a zealot who lacks common horse sense. But I repeat myself.
The city (or county) issues a finite number of licenses that allow smoking. The number of licenses is less than the number of establishments. The licenses can then trade in a secondary market. Those establishments that can really profit from allowing smoking will ultimately be the ones that end up with them. The city gets a fee for issuing the license and a transfer tax when the license sells in the secondary market. Both smokers and non-smokers get served. The smokers will end up paying higher prices reflecting the costs of the licenses. Such a scheme should make everyone happy except for the ideologues who want to control other people's lives.
This system brakes down for very small places with only a few bars and restaurants, but nothing's perfect.
Nothing, not even nicotine, has the addictive strength of that warm, cozy feeling of self-righteousness and power that you have rescued someone from perdition who fought you all the way. That you can now control them proves that you have won their hearts and minds.
Recall that the rationalization for torture in the Inquisition was to save the apostate or heretic's eternal soul by forcing them to confess their sins so they could be forgiven before execution.
That's totally legal. There are thousands of bars like that in home basements across America. I hear sometimes there's private gambling involved too...
Just don't operate it as a business unless you're willing to follow the law businesses have to follow.
But there's nothing at all stopping you from have a smoky bar on your own private property, and inviting and hosting anyone you like. See, it's really not all that bad freedom wise.
Stevie Miller--
I just wanted to point out, since no one else has yet, than in your first comment, you seem to get Prof. Adler's point exactly backwards, such that your critique of who he hangs out doesn't make any sense.
Maybe the reason that you're the sole pointer outer, is that your defense is off here?
I believe that Badger and I pointed out the logic, picked up by others, that plenty of this bans have been passed for workers' safety. Thus, as Joseph Slater pointed out, they will continue to stand, absent the abolishing of OSHA regulations.
The original post missed that very relevant point. In fact, his argument -- about how now it's cool to repeal such laws because the nudging or early adoption of these social norms has worked -- fizzles when you consider very relevant fact. (passed not for consumer preference, but workers' safety)
The grammar correction of mind stands. Some of we out here like good grammar, and was hoping the prof. would like to increase their writing skills. Us was wrong, I guess.
Finally, regarding my criticism of his speaking for all cranky libs in suggesting that most in his circle would voluntarily CHOOSE non smoking places, so there was thus no need to pass laws restricting smoking in all places...
I stand by that one too.
Maybe in some circles, having the choice to smoke publically in contained shared air is a sign of liberty. So while the cranky libs in the prof's circles all would choose non smoking, they would apparently fight for the right to have smoky pubs, restaurants as an alternative.
I'm saying that plenty of free people in other socio economic circles, who perhaps have been more affected by smoking than young Jonathan's libby crowd, can continue to choose to smoke, AND support the legal bans on smoking in public places. They use their FREEDOMS to step outdoors, not to advocate to repeal those laws.
Because they understand that people like workers at these places (to complete the circle of logic) would be breathing in second hand smoke toxins that have been proven to cause cancer. They understand that while they are free to continue smoking themselves, it's the rights of workers to breathe freely.
Fake libertarianism, I call those who would "fight for their right" to blow smoke inside at others, including workers there for the whole shift. IF you wanna smoke, smoke already. Just don't think you're fighting for freedoms or sticking it to the man by your "rebel" inhalations.
Jay,
Let me know if you have any other questions about my comment and the resulting thread. I appreciate your asking for clarification about the the points I addressed that were missing in Jonathan's reasoning, rather than misinterpreting because you assumed you knew it all on this topic.
All the best!
No, they should just abide by their own choices.
Well, that will never work. Can you imagine:
New employee hired in Deli... New employee hired in Deli... Everyone one second shift will now revote whether or not to use the plastic safety guard.
Every time a new bartender/waitress gets hired, we revote whether the bar is smoke free or not based on workers' preferences? That seems impractical, if you've got any experience in the workplace where money is time, and employee meetings cost bucks.
Really, some of you must live in LaLaLand to make such crazzzy claims ... or else want a fingertip in your deli sandwich. And your drink waitress coughing up half a lung in your order.
What kind of tip do you leave for that anyway?
Not to mention the poor customers, not knowing from one day to the next whether the establishment is smoke-free.
The reason that bank employees may call the police on someone paying too much attention to his gun in a bank is not mainly the fear that the gun will go off by accident. It's the fear that the gun is to be used maliciously and that the strange activity is a precursor to that. And those fears are probably correct, even if there is a 5% chance that the guy with the gun is just the real-life equivalent of an Internet troll and has no real desire to rob the bank.
The same goes for performing actions in a no-smoking area that any reasonable person would conclude means you're about to start smoking.
Bogus or not, your opinion doesn't matter much if he law is passed specifically under the guise of protecting those in these workplaces. And that seems to be the trend.
Good luck repealing those bans. It matters not how loudly the consumers scream for their smoking rights, it matters more the legislative justification for passing the law in the first place.
But you don't need us to explain that to you now, do you?
What is your basis for disbelieving the worker safety claims? Studies have shown real health improvements for workers at bars and similar institutions after smoking bans have been passed.
Beyond that, I will agree with what Stevie Miller has posted here.
Thank you!
I too have noticed the workplace safety rationale in passing these bans of late, and think it can't be so easily dismissed --- in reality, not "a perfect world" --- in talk of repealing these laws.
Libertarians understand that when their rights interfere with others, their own are not absolutes. (And all those who don't buy the arguments that second-hand smoke -- over continuous exposure, shift in and shift out -- contributes to causing cancer ... are y'all just claiming that to keep your pure libertarian argument clean, or do you honestly believe there's no ill health effect? )
Although I'm not a libertarian, I'm with you on the idea that libertarians, at least in theory, say that they understand secondary effects / externalized costs. But in this case, either they don't believe that smoking is a real health hazard to non-smokers in the workplace (as David M. Nierporent says he doesn't), or they revert back to argument that this issue doesn't apply to the workplace because "the employee can always quit."
That's a pretty unrealistic notion, IMHO. Also, as you noted, it leads to the idea that there shouldn't be any worker safety laws at all, which is a fairly marginal idea.
The libertarian view is that so long as exposures are voluntary, the government has no business intervening. From this standpoint, the decision of an individual to expose himself to risks in the workplace in exchange for compensation is no different than any other voluntary exchange between consenting adults that creates risks for one of the parties involved. All human activities involve risks. Most libertarians believe that the aim of risk policy is to make sure that risk exposures are voluntary.
Does this mean the end of all workplace safety regulation? Perhaps, but there is reason to doubt whether workers would suffer significantly. Workplace fatality rates have declined fairly consistently since the lat 1920s, long before OSHA was around. The death rate per 100,000 workers was 15 in 1928, 6.8 in 1969 (when OSHA was created), and 3.5 in 1992. Indeed, the creation of OSHA appears to have had not effect on the trend. This suggests that factors other than government regulation have been the driving force behind improvements in workplace safety. (For more on this, see here.)
But let's say we still think there should be government intervention, does that mean we need workplace safety standards? Not necessarily. As Thom Lambert has shown, the most plausible "market failure" for which workplace safety regulation could compensate is an information asymmetry, as employers are likely to have better information about workplace risks than prospective employees. Yet if this is the case, the appropriate intervention is not to set a workplace safety standard, but to require the disclosure of information to ensure that any decision to accept a "risky" job -- whether working in a mine, on skyscraper construction, or serving beer in a smoky pub -- is an informed choice.
So if one accepts libertarian premises -- and it is pretty clear that neither of you do -- the case against a smoking ban is quite strong. For more, see these posts of mine, and this paper by Lambert.
JHA
Yep, that's pretty much what I said the libertarian position could be on workplace safety laws. Obviously, I disagree, and we could get into the specifics of laws like OSHA (I would argue the main problem is that it's relatively toothless).
But the fundamental difference is that (most) libertarians start from the premise that there is generally at least a rough equality of bargaining power between individual employees and employers. I don't flatter myself that I can dissuade you from that position, but I think that's wrong. More importantly, it's been rejected by overwhelming majorities of every single industrial democracy for decades (indeed, over a century) as evidenced by all such nations passing a multitude of worker protective laws. You may think these laws are all misguided, but politically that ship sailed long ago.
Still, as I said above, it is a consistent position to oppose smoking bans in workplaces if you oppose all other workplace safety laws. I'm glad you are honest about what it is you are being consistent about.
Because very few externalities are actually obvious.
"Externalities" is too often used as an all purpose justification for whatever the restrictions the person using it supports. As soon as I hear the word I start ignoring the person who used it.
I doubt that norms about where smoking was acceptable were that weak, instead it is a lot easier to move them when you have men with guns (police) on one side.
"suprised such prohibitions have not sparked more resistance.." I live in California. When the ban on smoking in bars passed, some places and patrons actively opposed it. They were targeted for special treatment by the authorities. Very few do it now.
To answer your question about workplace secondhand smoke, the studies I've seen on the subject were either poorly designed or based on ridiculously small sample sizes. (I vaguely recall some studies about flight attendants which might have been more robust, but it was a long time ago that I saw those and I don't remember them well.)
For instance, workplace smoking bans, where libertarians believe that the only relevant "right" is the property right of the owner. (The "right" of the employee is to find a different employer, not to compel working conditions that he prefers at the point of a gun. (Similarly, the right of the customer is to find a different establishment to patronize.) Thus, no interference between the parties' respective rights.)
I never disagreed about what the libertarian position was.
And I'm not so sure I see that employees have so much more political power than employers. In any case, most folks who don't particularly identify with either have decided that workplace safety laws are an appropriate way to deal with inequalities of bargaining power on the job.
I could go back and try to find the cites about workplace secondhand smoke as a health hazard, but it wouldn't matter to you even if it was well-established that it was a serious hazard -- because the employee could always quit. Right?
I don't even disagree with the trolling characterization. Internet trolling (as on usenet of yore) in its highest form is used to give fools or evildoers ample opportunity to expose themselves. Granted that most internet trolling is not usually the highest form. But that is true of any art.
An example of the highest modern use of trolling was Captain Edwin Layton's scheme which exposed Yamamoto's task force target as Midway Island.
By the way, even absent OSHA-type laws, wouldn't there be some tort liability for releasing such critters in the workplace?
The guard prevents the worker slicing off his finger tip. This is an activity he would not induldge in away from work.
The bartender (who is a smoker, remember) takes breaks during his work day and goes outside. To smoke.
Sheesh.
JONATHAN ADLER:
Sorry, I don't buy that you speak for all libertarians on this issue. (So if one accepts libertarian premises -- and it is pretty clear that neither of you do -- the case against a smoking ban is quite strong.) (And that's so cute how you cited to yourself to prove that your point of view is the only one that rings true here. You're young, it IS cute in such a sheltered kind of way) Betcha in a few years, you "revise" your paper, like you do with so many of your posts here. (hence my "shift and straddle" comment above>)
And I don't buy that all workers are there "voluntarily" either. Maybe in your socio economic libertarian circles...
Re But let's say we still think there should be government intervention, does that mean we need workplace safety standards? Not necessarily. LIsten, you've got such a long haul with that argument, it's not even worth reading. Repealing OSHA? Never .... will .... happen.
I suspect there's a reason you work in academics, and not out here in the real world. Have fun in Montana, smoke it up!, and enjoy the freedom a vacation will surely bring you.
With such weak examples of "freedom" (I can sit here and not go outside to fire up , dammit!) I suspect you need a looonnng vacation to free your inner libertarian. Must be tough locking him up for the rest of the year like your lifestyle surely forces ya to do, eh?
I think that's where this disagreement between libertarian branches comes in:
Some of us believe in incorporating reality; some of us operate in our own special worlds, where if we don't believe something, it ain't true.
Sorry, but rights conflict. Spin away, and pretend and deny, but often they do. So just go outside to smoke, k, and stop acting as tho you own the label. You don't and plenty of libertarians are leaving your absolute types behind. Because it's better to win a few battles than deny reality and wallow in losing.
But ... not in REALITY, silly. (It's a fun game to play, but doesn't it get kinda old and boring after awhile? "In my head, I'm the King of America and I make the laws. I don't have to follow the social compact that you lessers operate under ... why not just make up your own traffic rules while you're at it? "I need the liberty to move around town quickly. Red lights are for other lessers, and should be voluntary. Says I.")
That's not a mature form of libertarianism, and it's likely not to survive outside the form you define in your heads either. Take care not to damage the label, while you profess to own it, eh?
Oh, and I don't smoke, so I don't need to go outside to do it.
If you know of violations of the 13th amendment, you ought to be reporting it to the police rather than frittering away your time posting insulting and ignorant comments here. But said workers have lots bigger problems than smoking in the workplace.
To say what Stevie said a bit differently, though, your conception of what workplace law should be is not just inconsistent with my sense of reality and justice, but profoundly inconsistent with how law has worked in pretty much every industrial democracy for close to a century. And your vision has zero chance of being implemented.
I guess that doesn't make you "wrong," necessarily, but it does make it hard to know how or what to respond.
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