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Broken Scales: Obesity and Justice in America Adam Benforado Santa Clara University School of Law Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 10-1-2004 Broken Scales: Obesity and Justice in America Adam Benforado Santa Clara University School of Law Jon Hanson Harvard Law School David Yosifon Santa Clara University School of Law Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Part of the Behavior and Behavior Mechanisms Commons, Law Commons, and the Social Psychology Commons Automated Citation Adam Benforado, Jon Hanson, and David Yosifon, Broken Scales: Obesity and Justice in America , 53 Emory L. J. 1645 (2004), Available at: http://digitalcommons.law.scu.edu/facpubs/61 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. BROKEN SCALES: OBESITY AND JUSTICE IN AMERICA Adam Benforado,· Jon Hanson,·· & David Yosifon••• INTRODUCTION ........................................................................................... 1648 A. Hidden Costs ... ................... ..... ......................... ..... .................. 1649 B. Getting Behind Causation ......................... ... ........................... 1652 I. THE LESSONS OF SOCIAL SCIENCE .................................................. 1654 A. A Shocking Discovery ........ .. .. ....... .. .......... ....... ........... ............. 1654 1. The Man with the Gun . .... .. ..... .. .......... ... ........ ... ............ 1654 2. Th e Un iversityEx periment ..... .................... ................. ...... 1655 3. Stanley Milgram's Findings ............. ........ ......................... 1656 4. Forgetting Milgram ... ....... ................. ..... ............ ......... .. .. 1657 B. Hu man Mo tivations ........ .. ...... .... .... ......... .. .. ..... ... ... ........ 1658 1. Self-Affirming Mo tive ... ... ..... ..... ...... .............. ... ........... .. ... 1658 2. Group-Affirming Mo tive ..... ... ...... .. ..... .. ..... .......... .... .... 1662 3. Sy stem-Affirming Mo tive . ................ ..................... ............. 1664 C. The Power of Framing ....... ............. ....................... .................. 1668 D. Th e Interior Situation of the Human Eating Sy stem ....... ...... ... 1675 1. The Evolution of the Human Eating Sy stem ...................... 1675 2. The Me chanics of Eating .......... ......... .............. .................. 1678 3. The Experience of Hunger and Misconceptions of Its Meaning .. ............ ............. .................. ............. .... ...... 1681 4. Making SpecificFo od Choices ....................... .. ....... .... 1684 5. Conclusion ......................................................................... 1687 II. BRINGIN THE COMMERCIAL INTERESTS .......................................... 1689 A. Introduction ..... ................................................................. ....... 1689 • J.D., Harvard Law School (2005). ** Professor, Harvard Law School. • •• Visiting Assistant Professor, Rutgers Law School-Camden. We are grateful to Chloe Cockburn, Tracy Conn, Sam Halabi, Aaron Houck, Natasha Kim, Mariko Miki, Thomas Tso, Russell Va ldez, and Andrew Wo ods, for excellent research assistance, and to Carol Igoe for outstanding secretarial assistance. For financial support, we owe thanks to the Harvard Law School Summer Research Fund. We also want to thank Ben Falit, Katherine Pratt, and the participants at the Northeastern University Public Health Institute's First Annual Conference on Legal Responses to the Obesity Crisis, June 22-23, 2003. All remaining errors are the sole responsibility of McDonald's. Finally, we want to express our gratitude and love to Kelly Hogan; Jay, Elizabeth, and Nate Benforado; Kathleen, Emily, Erin, and Ian Hanson; and Paula Noyes. HeinOnline -- 53 Emory L.J. 1645 2004 1646 EMORY LAW JOURNAL [Vol. 53 B. The Great McMi lg ram Experiment ........... ............ .................. 1691 1. Step 1: Controlling the Situation .............. ... .................... 1691 a. Us ing Our Existing Situations ..................................... 1693 b. Ma nipulating Our Situations ....................................... 1694 c. Targeting Childrens ' Situations ...... ........................... 1700 2. Step 2: Dispositionalizing the Situation ............................ 1708 C. Reinforcing the Fast Fo od Me ssage .... ........................ ........... 1711 1. Th e Common Cause ............................................... ............ 1711 2. The BeautyInd ustry: A Mc Milgram Va riation ...... .. ....... 1713 3. Discrimination Against the Obese ... ... ...... ........ ... .... .... ...... 1715 4. Explaining a Paradox .................... .................................... 1719 III. CHALLENGING THE MCMILGRAM EXPERIMENT ................... ........... 1721 IV. ENTER THE PSYCHOLOGICAL THREATS ........................................... 1723 A. Threat to the In dividual ......... ... ............ ................... ................ 1724 B. Th reat to the In -Group . ........ ....... .................. ..... ...... .............. 1724 C. Threat to the System ............................ ................................... 1726 V. COUNTERING THE THREAT TO INDUSTRy ........................................ 1727 A. Th ird-Party Me ssengers ........... .......... ................. .... ................ 1728 B. > The Message . ..... .... :.............................................................. 1733 C. Super Size Me : A Case Study . ... .. .......... ........... ............ ...... 1746 1. The Film ...... .............. ............ .................................. ... ....... 1746 2. The McResponse . ..... ... ....... .. ................. ................ ........ 1747 3. Dispositionism and Critiques of the Mo vie ............. .......... 1750 a. Sp urlock's Dispositionfor Shocking Stunts ........... ..... 1750 b. Sp urlock 's "Irresponsible " Choice To Overeat . ........ 1752 c. Customers ' Disposition To Ma ke the Right Choice ... 1753 d. The Experts-Helping Us Ma ke the Right Choices .... 1755 4. Deep Capture of Knowledge Production ... .......... ........ ..... 1757 a. Competitive Enterprise Institute . ..................... ....... 1758 b. American Council on Science and Health ................ .... 1760 c. Tech Central Station ....... .. ............... ... ........... ......... .... 1763 d. Fox News ........ .................... ..... .......... ....... ... .. ... .... .... 1766 e. Summary ......... .................................. ............ ............... 1768 VI. DISPOSITIONISM IN POLICYMAKING ................................................ 1769 A. A Dispositionist View of Policymakers .. ......... ...... ................ ... 1770 B. Choice, Personal Responsibility, and Lawmakers ................... 1776 HeinOnline -- 53 Emory L.J. 1646 2004 2004] BROKEN SCALES 1647 C. Th e Dispositionist Deference to Markets ........ .......... ......... ..... 1782 1. Administrative Regulation ................................................. 1782 2. "Agricultural Policy " ................ .......... .......... .......... .......... 1791 3. Judicial Regulation .... ...... ........ ........ .......... ........ ...... .......... 1796 D. A Final Th ought: The Regulatory Attribution Error ............... 1798 VII.' THE DISPOSITIONISM EPIDEMIC ........................................ ...... ......... 1802 CONCLUSION ............. .... ................................. ... ........ ............................. ..... 1805 HeinOnline -- 53 Emory L.J. 1647 2004 1648 EMORY LAW JOURNAL [Vol. 53 BROKEN SCALES: OBESITY AND JUSTICE IN AMERICA Is this a broken system that desperatelycries for judicial action? No, it is a super-competitive market where stores jockey for position, trying to please customers and their changing tastes for a more healthful lunch. -Todd Buchholzl I am testifoing . because I am concerned about the direction in which today's obesity discourse is headed. We cannot continue to blame anyone industry or any one restaurant for the nation's obesity epidemic. Instead ... the first step is to put the responsibility back into the hands of individuals. -Dr. Gerard J. Musante2 INTRODUCTION America is fat. For some, the evidence is readily apparent: a cavernous dent in the once-sturdy couch, the belt which grows like kudzu, the cruel reminders in the eyes of strangers. For others, though, the obesity epidemic is something troubling but external, alien even, like the neighbors two streets over who leave old car parts in their yard-best kept away from, or at the very least, complained about in the safety of similarly tasteful friends; a sign of personal collapse and failure best glowered over as a Washington Post editorial or chuckled at as a New Yorker cartoon. When in our Sunday morning ritual of Chi Tea, nectarine, and newspaper, we discover that 64.5% of Americans are overweight,3 perhaps we read it as we read the line, "Body Piercings Linked to Infectious Liver Disease." Not our problem. Not our America. Secure in our I TODD G. BUCHHOLZ, CASE FILE: BURGER, FRIES AND LAWYERS: THE BEEF BEHIND OBESITY LAWSUITS 20 (2003). 2 Quoted in Regina Lawrence, Framing Obesity: The Evolution of News Discourse on a Public Health Issue, 9 PREss/POLITICS 56, 64 (2004), available at http://www.ksg.harvard.eduipresspollResearch_ PublicationsPaperslWorkin/LPapers/2004_5.pdf
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