The true subject of this Lecture is the question of why we regulate some things and not others, and then how we might predict future regulation. Let me begin with my conclusion, to be developed at greater length in other work. Its academic novelty will be the notion that a fair amount of regulation is best understood as fostering self-control on behalf of the governed. I will suggest that we add this explanation, or category, of government intervention to the more familiar ones of public goods, coordination, interest group capture, and negative externalities where there are high transaction costs. Its practical or political angle is predicting the future of intervention with respect to our latest perceived crisis, that of American obesity. If we gathered in 1964, my application might have been to the future of tobacco regulation. One question is whether today's obesity is like yesteryear's smoking. ...By "taxing obesity - or perhaps its opposite," I meant two things. First, opposite in the sense of earning rewards rather than paying taxes. And second, privately organized and even voluntary penalties and rewards, as opposed to strong-arm government interventions. Much as safer automobiles have developed because of a remarkable array of government interventions, education, private market maneuvers, consumer decisions, false experiments, traffic police, alcohol taxes, gasoline taxes and spending on better roads, so too more healthy bodies are likely to be formed by more than individual decisions regarding tonight's menu or tomorrow's trip to the gym. As law grows, so do private markets and the ingenuity of their makers. I think we will see that obesity brings about such growth in both legal intervention and in private markets.
Saul Levmore, Taxing Obesity - Or Perhaps the Opposite, 53 Clev. St. L. Rev. 575 (2005-2006)