The White Whale of Comprehensive Reform

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. At this blog Frank Pasquale has for several years now eloquently and passionately provided us with ample reasons for the necessity of comprehensive health care reform, so I’ll not rehearse them (although I subscribe to Daniel Goldberg’s belief that the focus on ‘health care’ as such will not accomplish the myriad public health purposes and goals many of us cherish as part and parcel of living in a would-be democratic polity). In this case, the stated alternative is a preference for “incrementalist” social change of the variety favored by self-described conservatives and pragmatists (some conservatives are not pragmatists and many pragmatists don’t view themselves as conservatives). The problems with such trial-and-error or piecemeal social engineering have been discussed by the likes of Jon Elster and Robert Goodin, social scientists of uncommonly philosophical temperament whose work often displays the virtues of both analytical prowess and full-fledged appreciation of the proverbial big picture. It is the remarks on this topic of the latter that I’ll share here.

    With sufficient justification, Goodin terms incrementalism a “preverse and pervasive doctrine,” indeed, it’s what often passes for “common sense,” the default position of the unimaginative and timid (often with a dose of affected modesty) who have elevated an anti-theoretical and simple-minded pragmatism into an overweening ideology that is neither as experimental nor practical as they assume or insinuate nor, in the end, theoretically defensible. Incrementalism has been an overwhelming success in one sense: it well-describes the existing state of affairs: “Most policymaking surely does proceed incrementally, if only because the power relations and organizational routines underlying it themselves vary slightly from one period to the next.” In other words, while incrementalism seems inevitable in practice and is thus descriptively on the mark, this does not necessarily mean we should elevate it to a normative principle for policymaking in general:

    “The prescriptive case for incrementalism rests on twin foundations. First is the claim…that we cannot anticipate the real effects of social interventions prior to actually experiencing them. Second is the claim…that even if we could anticipate the outcomes we could not anticipate our evaluative response prior to actually experiencing these outcomes. Underlying all this is a more fundamental presupposition concerning the possibility and necessity of theory for policymaking: ‘analytical problem-solvieng’ (‘intellectual cognition’) is shunned because our social theories are too infirm to form the basis for policymaking; and incrementalism…is championed as a reliable method of policymaking in the absence of such theories. If either half of the proposition fails, the case for incrementalism fails with it.”

    Goodin discusses three types of incrementalism, “each with distinctive goals, strategic imperatives, and rationales,” although each “employs basic procedures similar to produce a family resemblance among all the varieties.” For a persuasive case against the various species of incrementalism the interested reader should see chapters 1 and 2, “Anticipating Outcomes; Overcoming the Errors of Incrementalism,” and “Anticipating Evaluations: Saving People from Their Former Selves,” respectively, in Goodin’s still invaluable book, Political Theory and Public Policy (1982): 19-56. As Elster so ably puts it, “By requiring initial and local viability of institutional reform, the incremental method neglects the fact that institutions that are viable in the large and in the long term may not be so in the small and short term.”

    Critiques of incrementalistism and piecemeal social engineering of conservative inspiration can likewise be gleaned from two very different but equally pungent and persuasive works: Albert O. Hirschman’s The Rhetoric of Reaction: Perversity, Futility, Jeopardy (1991), and Ted Honderich’s Conservatism: Burke, Nozick, Bush, Blair? (2005 ed.).

  2. Some readers may not know who Daniel Goldberg is, so please see here: http://www.medhumanities.org/

    And as to why Daniel and I are hoping at some point there will be an appreciation of the limits of “health care reform” as such and a corresponding appreciation of the role of broader (and more intransigent) socio-economic variables, please see the post and bibliography available here: http://ratiojuris.blogspot.com/2008/11/health-law-ethics-social-justice-basic.html