California Legislature’s Nanny-ism and the Scientific Method of Legislating

There are brewing concerns about the intrusiveness of the proposals floating around in the California legislature, sparked most visibly by the proposal to ban parental spanking of children. Some critics are calling some of these proposals “Nanny Bills” because they reflect a legislative paternalism; like citizens need a legislative nanny looking over their shoulders. (Nanny-ism was also referenced in this NYT article about requiring walkers to remove their iPod earbuds before crossing the street.)

Not having walked in their shoes, I must confess that I just don’t understand what goes through the mind of legislators. However, as an academic and affected citizen, I remain a little frustrated that legislators don’t seem to appreciate their role as experimenters where each passed law becomes a social experiment–but unfortunately usually the experiment is conducted trial-by-error. (Cf. Brandeis’ defense of federalism because states can act as laboratories of experimentation). As a “scientific” experimentation process, our current legislative system has at least 3 intrinsic but fatal problems:

1) There is often little or no scientific basis underlying the initiatives. Instead, the rhetoric usually relies on anecdotes, intuition and ulterior agendas. But on many questions that legislatures seek to address, there is a rich scientific literature on the question that legislators should consult before making proposals. For example, academics have studied the pros and cons of spanking children. What do they say?

2) There is usually no explicit mechanism to measure the effectiveness of the experiment. Occasionally, laws are passed that delegate efficacy oversight to an administrative agency (for example, Congress asked the FTC for a report on the efficacy of CAN-SPAM), but this is the exception rather than the rule, and we have little evidence that legislatures heed the feedback they get from their “scientific” monitoring mechanisms (as opposed to other mechanisms, like popularity with constituencies or lobbying mechanisms).

3) There are very weak mechanisms to end failed experiments. Legislatures do occasionally repeal laws and more frequently tinker with the laws, but a lot of laws get passed and then left alone forever.

I can offer one possible solution to correct the experimentation process used by legislators: we could require legislators to follow a more rigorous scientific method–form hypotheses, do the research, and then conduct tests to measure the efficacy of various solutions. Unfortunately, this isn’t realistic. Legislators aren’t trained scientists, and legislatures are lousy venues to debate scientific merits. Yet, knowing that legislators are experimenting without following accepted scientific methods, we should hold them more accountable when they ignore the available literature in preference for their own intuition.