HB 2320: Should the Law Require Life Jackets?


By Eric Shierman

There is a bill sitting in the Oregon House Committee on Transportation Policy that will, among other things, mandate wearing life jackets on nonmotorized boats. Last week I challenged you to dwell a bit on your normative first principles; so let’s use this possibly imminent new regulation to serve as a case study in understanding why you feel the way you do about regulations in general by choosing and applying a criterion of normative reasoning.

When assessing the need for a new regulatory rule, do you base your decision on deontological or consequentialist grounds? Do you reject a regulation due to the inherent good of freedom itself? Or do you reject a regulation only if the costs exceed the benefits?

A couple of years ago I had a great conversation about this with Cascade Policy Institute board member Michael Barton at an event put on by Representative Julie Parrish at the Oregon Zoo that involved a nice dinner followed by a panel discussion on education reform. Whenever I go to such events I usually look for the Cascade table so I can sit with the smartest people in the room.

Perhaps it’s my training in economics, but I tend to view public policy questions from a consequentialist perspective. I’ll accept new government policy if the evidence shows a significant net benefit. Barton asked a really good rhetorical question to challenge that: if the benefits of a seatbelt law were shown to outweigh the costs, would I support it? Then the event suddenly started, depriving me of an opportunity to reply.

I’ve thought about his question at times because I generally oppose these kinds of laws that lack a victim. Barton’s question makes me wonder if my tendency to reject having the government protect people from themselves is a priori rather than just a rule of thumb.

Here’s how I reconcile consequentialism with a rejection of these kinds of safety laws. When someone’s behavior imposes a harm on other people, we measure those costs objectively, because we are upholding the legal standard of what a reasonable person would expect other people’s preferences to be on average. We then have something to weigh against the proposed rule’s cost. Within that average, there might be some people who were actually indifferent to the harm, but this error is necessary when dealing with the prevention of injury inflicted on other people.

For example, water traffic laws that restrict our freedom to pilot waterborne vessels in any way we choose so as to prevent collisions that would threaten other people’s lives reasonably use a different standard than laws that only affect our own water survival. There may be someone out there more willing to let others navigate in a dangerous fashion, but for negative externalities, we generally have to impose one legal standard on everyone.

When the only harm is that which is inflicted on ourselves by the consequences of our own choices, there’s no longer a need to fill in an average preference, because the costs can now be measured subjectively. On the individual level, utility preference is idiosyncratically personal, and a reasonable person can infer that an agent’s judgment regarding his own safety accurately reflected his efficient maximization of utility under the constraint of uncertainty.

So whether we are talking about seatbelts or life jackets, an adult’s choice to wear one depends on the following condition:

(the disutility from wearing it) < (the probability of harm)x(the disutility of the harm).

I don’t think this evidence exists to justify the passage of HB 2320. Human action is too diverse in purpose and meaning for policymakers to make judgments about what level of a precautionary principle the government should impose regarding individual adult choices about their own personal safety.

As I’ve already mentioned, there remains much more to HB 2320 than just wearing life jackets. If this bill gets a sponsor, I’ll write more about its fee structure.

Eric Shierman lives in Salem and is the author of A Brief History of Political Cultural Change.