Category Archives: regulation

Post-Graduate Fellowship in Business, Law, and Human Rights (open to graduating Duke seniors)

The Kenan Institute for Ethics, in which I spend much of my academic life, is pleased to announce a new “adversarial-ethics-related” fellowship open to a graduating senior from Duke. Full details are here. Its adversarial-ethics connection is obvious: international business, especially in less-developed markets, cannot be “civilized” as easily through strong state regulation. One of the many alternatives to hard regulations that is being developed now is a form of “soft law” and “self-regulation” based on internationally recognized standards of human rights that businesses, and not merely governments, should be expected to follow.

The eventual holder of this fellowship will work “closely with the United Nations Working Group on Business and Human Rights (UNWG). The mission of the Working Group is ‘to promote the effective and comprehensive dissemination and implementation of the Guiding Principles on Business and Human Rights.’ The Working Group consists of five independent experts, one from each of the U.N.’s five regional groups, who work virtually with limited support from the Office of the High Commissioner for Human Rights in Geneva.”

Deadline for applications: 2 April. (Full details here.)

Incentives and Rules: Constraints on Individual Autonomy

Posted by KevinJ

In adversarial institutions there are always “rules of the game.” In fact, these rules largely define the institution itself. If you play a game that looks sort of like baseball, but has four strikes and three balls, you are not playing baseball. In adversarial ethics we care about both how to design and evaluate the best rules; and also about what obligations “players” in that institution might have over and above those spelled out in the rules.

But surely there are many different kinds and categories of rules, and we could sharpen our normative theories by distinguishing some of them. Does it matter, for example, whether rules dictate what actors must do or must not do, on the one hand, or whether the rules are structured through the use of incentives to do or refrain from doing certain things, on the other? In a brand new book entitled Strings Attached: Untangling the Ethics of Incentives, Ruth Grant (professor of political science at Duke University) challenges a number of our standard assumptions about the use of incentives in public policy about markets and other domains.

It is commonly assumed, for example, that incentives leave the decision-maker with a free, or autonomous, choice between several options. Of course, even if all autonomous choices are voluntary, not all voluntary choices are autonomous. When given the choice between your wallet or your life, you voluntarily decide to hand over your wallet. But was the choice was not made autonomously.

The same argument could be made for properly created incentives; they place the player in a situation where only one choice is rational. The player voluntarily selects the rational choice, but may not be as autonomous as we would like to believe. Ruth argues that “Incentives ‘strictly speaking’ are a particular kind of offer: (1) An extrinsic benefit or a bonus that is neither the natural or automatic consequence of an action nor a deserved reward or compensation; (2) A discrete prompt expected to elicit a particular response; and (3) An offer intentionally designed to alter the status quo by motivating a person to choose differently than he or she would be likely to choose in its absence.” With each of these qualities, decisions are reached that are not “natural” to the individual.

The upshot: the use of incentives to get someone to do something they didn’t want to do may not be as innocent or uncoercive as we generally assume.

But how do incentives within institutions differ from other kinds of rules and regulations? They both adjust the balance of the costs and benefits of a particular choice and aim to alter an actor’s course of action. Incentives and other regulations may lead to the same end-result — but do incentives do this in a way that is less coercive or more voluntary? Ruth’s answer is: it depends! She looks at a wide variety of incentives used in public policy, and we have different “gut” reactions that are often confirmed by closer ethical analysis. Some we feel perfectly free to take or leave (say, an incentive to file tax returns on time) and some (say, a plea offer to a risk-averse and poor accused man who is in fact innocent) can feel coercive, exploitative, or like abuses of power or authority.

I can’t induce you to read Grant’s thought-provoking and highly readable new book. But I’m pretty sure you will never again assume that incentives are necessarily more freedom-enhancing alternatives to other forms of regulation and rules.

Free trade = more regulation?

In the context of a domestic economy, a call for “free markets” or “free-market solutions” is often a plea not to regulate markets. But international agreements for free trade are by their very nature attempts to regulate international markets. As a deliberately adversarial institution, a free-trade agreement between two or more countries forbids various sharp competitive strategies that any given country can use to create a competitive advantage for itself (e.g. tactics that would allow its goods to be exported while it restricted imports from trading partners). The whole point is to solve a collective action problem between rival countries: when each country is allowed to pursue protectionist policies, say, they will all end up worse off. That is more or  less the point of Adam Smith’s Wealth of Nations. (It was not this point.)

But in today’s New York Times there’s an op-ed pointing out another interesting way to think of international free trade as involving more, not less, regulation. Layna Mosley, a political scientist at UNC-Chapel Hill, has study the way free-trade agreements between developed and less-developed countries seem to generate a regulatory “race-to-the-top” on labor standards.

There is…a more general way in which trade agreements — and the economic ties they generate — benefit workers in developing nations. As Colombia and Panama expand their trade relationships with the United States, workers stand to gain more than just the job creation and higher wages that often come with expanded trade. Research I conducted over the last several years with the political scientists Brian Greenhill and Aseem Prakash suggests that trade with developed nations helps developing countries expand labor rights themselves.

Why? International trade gives producers incentives to meet the standards of their export markets. When developing nations export more to countries with better labor standards, their labor rights laws and practices tend to improve.

With a shout-out to David Vogel’s “California effect” explanation of the way in which the state of California raises environmental standards for other states in the US, she continues:

This California effect works in two ways, both based on global producers’ own calculations of self-interest.

First, multinational companies often carry their management and production technologies with them when they produce goods abroad because, like automakers selling to California’s consumers, they find it efficient to standardize their practices in plants, regardless of location. Those practices — including rules for the appropriate treatment of workers — then set an example for other employers throughout the host economy.

Second, the multinational company knows that many consumers, activists and shareholders in its home country will judge its imported products on whether they were produced in ways that reflect the firm’s public commitment to corporate social responsibility. This spurs multinational firms and importers to press locally owned companies in their supply chains for working conditions that meet internationally recognized labor standards.

So not all unforeseen consequences of regulating contests (in this case, the contest between national economies in international trade) turn out to be perverse consequences. Not all races involving more- and less-regulated economies are races to the bottom.

[Note: click on the "race to the bottom" category link, in the right-hand column, for more posts on this general topic, mostly by star students in my Adversarial Ethics class at Duke in the spring of 2011.]

 

Should responsible regulators follow the letter or the spirit of the law?

We typically expect ethical companies to follow not only the letter of the law, but also the spirit of the law. And in some cases, we would say that they should follow the spirit of the law rather than the letter. For example, if your washing machine breaks the day after the 3-year warrantee expires, you might think that an ethical – or even just reasonable – appliance manufacturer would nevertheless fix it for free.

By the same token, shouldn’t we expect responsible regulators and other government officials to respect the spirit of the law as much as the letter – and perhaps even to let the spirit override the letter some times?

Test your intuitions on the following case.

The Medicines Company engaged in a 9-year legal battle with the FDA and the United States Patent and Trademark Office, on whether it will be allowed to extend the patent on its blood thinner drug Angiomax until September 2014. The legal battle stemmed from the failure of the company to file its application for renewal within the 60 days allotted.

“The Medicines Company, based in Parsippany, N.J., learned of Angiomax’s approval by fax from the F.D.A. at 6:17 p.m. on Dec. 15, 2000, a Friday. It applied for the patent extension on Feb. 14, 2001. That is either 61 or 62 days after the approval, depending on whether the approval date itself is counted.”

Medicines Company contended that since the original fax was sent after 5pm the clock should not have started until the next business day allowing them to fit the law. The company pointed to the fact that the FDA marks anything received by their office after 5pm as received on the next business day. This administrative mistake could have cost the company over a billion dollars, and given its small size (with only one other drug on the market) marked the end of the company.

Big picture here isn’t just about one company’s struggle against the patent office and FDA, it is about the role of regulators in the pharmaceutical industry and the spirit of the law. Do we want our regulators to be inflexible in enforcing written laws or would we prefer some discretion allowed by administrators? Should they look to the spirit of the law, and not merely to its letter?

Sometimes the courts say, Yes. After 9 years of fighting and over $4 million spent on lawyers and lobbyists, Medicines Company won their legal battle.

 

 

Race-to-the-Bottom Watch: Fishing for Trouble

What’s the most deadly occupation in America? According to the U.S. Bureau of Labor Statistics, it’s fishing. Commercial fishing, to be precise. Why is fishing so dangerous? Fisherman can be trapped in a perfect storm of collective-action problems and, well, actual storms.

The harsh competition in this already dangerous industry is leading workers to labor in ever-worse sea conditions in order for businesses to stay afloat (so to speak). The best fishing grounds are often found in the most treacherous seas, and the clock ticks down quickly in some fisheries (say, the crab fishery off the coast of Alaska) where the seasons last only a few weeks. When one vessel decides to go out in stormy weather in order to get a competitive edge, crews of other vessels are faced with the dilemma of either falling behind the competition or following suit in braving the potentially life-threatening conditions.

This dilemma is only exacerbated by the depleted state of many of the world’s most important fisheries.  In an effort to stem the “tragedy of the commons” of overfishing, authorities have commonly resorted to setting an overall limit of fish that can be caught in a given fishery for a given season.  The approach of giving an aggregated limit breeds intense competition because each fish caught by one fisherman entails one fewer available to all the others.  This creates what has become known as a “race to fish” wherein fishermen are willing to do almost anything in order to nab a greater share of the overall quota before it runs out, including foregoing safety precautions.

So this race to fish is really a race to the bottom. One crew deciding to risk the elements in order to gain a competitive advantage starts the race. But once the other vessels join the competition by going out in perilous weather conditions, the competitive edge that motivated the first mover vanishes, while the risk of death for all of the fishers increases.  Thus, in the race to fish we can see how individuals attempting to act in their own interest, while responding to the actions of others attempting to do the same, can all end up worse off.

Is there any way out of this race to the bottom? Some authorities have replaced the overall quota with individual allocations to prevent such fierce competition.  Critics protest, however, that this solution does not live up to the free-market principles of American capitalism.  However, it is evident that the case of a totally free market for fishing (in which fishers and their customers do not pay the cost of replenishing the fish stock) is likely to lead to overfishing and ultimately the end of any kind of market for fishing. What if the rights of individual allocations were auctioned off in advance?

 

 

For Milton Friedman, life is but a game, sweetheart

(Note: This is the inaugural post by “tiaramer.”)

One big open question for those thinking about ethics in deliberately adversarial institutions concerns how literally or directly we can transplant the vocabulary of sports to other domains. Are markets, for example, just games, or just like games, or only metaphorically and very imperfectly like games?

For Nobel-prize-winning economist Milton Friedman, this question doesn’t seem very open at all. He seems to take it as obvious that not only markets, but life in society in general, is very similar in structure to a game.

The day-to-day activities are like the actions of the participants in a game when they are playing it; the framework, like the rules of the game they play. And just as a good game requires acceptance by the players both of the rules and of the umpire to interpret and enforce them, so a good society requires that its members agree on general conditions that will govern relations among them, on some means of arbitrating different interpretations of these conditions, and on some device for enforcing compliance with the generally accepted rules. As in games, so also in society, most of the general conditions are the unintended outcome of custom, accepted unthinkingly. At most, we consider explicitly only minor modifications in them, though the cumulative effect of a series of minor modifications may be a drastic alteration in the character of the game or of the society. In both games and society also, no set of rules can prevail unless most participants most of the time conform to them without external sanctions; unless that is, there is a broad underlying social census. But we cannot rely on custom or on census alone to interpret and enforce the rules; we need an umpire. These then are the basic roles of government in a free society: to provide a means whereby we can modify the rules, to mediate differences among us on the meaning of the rules,  and to enforce compliance with the rules on the part of those few who would otherwise not play the game.” (Milton Friedman, Capitalism and Freedom, 1962, p. 25; emphasis added)

So for Friedman we willingly, and usually unthinkingly, accept many of these “rules of the game” although we may not know their origins. And if we don’t, there is always an “umpire” there to enforce them anyway!

But his thorough-going acceptance of the direct parallel between good games and good societies raises more questions than it answers. Even if markets can be quite game-like, what does it mean for life in general to be compared to a game? Are we talking about the same kind of “goodness” when we think about a “good game” and a “good society”? Does a “good” society really require acceptance of rules by all of the citizens?

And what if you don’t want to “play” any more? Is it even possible to pick up your bat and ball and go home?

 

Even if it’s broke, don’t fix it

Should women lacrosse players be required to wear helmets? Should people be allowed to text and drive?

We learn a lot about the dynamics of regulation in deliberately adversarial institutions by looking at the social-science laboratories known as sports. The guardians of heavily regulated competitions in sports and life are presented with an irresistible solution whenever systematic “issues” arise within their contests: tweak the rules.

The guardians of a sport or, say, an industry, get to “play god” with it. But as any fan of science fiction knows all-too-well, those playing god, or accused of playing god, tend to lack god’s omniscience. They have a hard time foreseeing the dynamic consequences of their rule-tweaking. This is especially true when putative solutions involve simple technological fixes. Game-players excel by using strategic rationality, so rule-changes will change behavior, but not always in the direction the regulators intend.

Across the sporting world, the past year has been the Year of the Concussion. The Onion recently satirized the trend with its article on “Puppy Bowl Marred by Tragic Spinal Injury.”

The injury, which occurred only minutes before the Kitty Halftime Show, followed a routine midfield burst of play. Slow-motion footage from the sideline and water-dish cameras show Alvin romping flat out down the sidelines before taking a risky crossing route to come at the football from an angle, at which point two larger puppies, Amy, a golden retriever, and Big Red, a 13-week-old shepherd mix, laid a massive hit on Alvin, who responded with a shrill yelp that was suddenly and ominously cut off.

Dark stuff.

But if competitors can use strategic rationality, so can regulators. A fascinating case study is going on right now in NCAA women’s lacrosse. Unlike their male counterparts (who play a vicious, gladiatorial game), the women play with speed, finesse, and without helmets. And sure enough, they get concussions. A lot of concussions.

Simple solution: make them wear helmets. Or not. As the New York Times reports in a provocative article entitled A Case Against Helmets in Lacrosse, many inside the sport believe that introducing helmets would simply lead to more violent or reckless play — and thus to more head injuries, not fewer.

“It’s hard to absolutely prove, but what we’ve seen is that behavior can change when athletes feel more protected, especially when it comes to the head and helmets,” said Dr. Margot Putukian, Princeton’s director of athletic medicine services and chairwoman of the U.S. Lacrosse safety committee. “They tend to put their bodies and heads in danger that they wouldn’t without the protection. And they aren’t as protected as they might think.”

Of course, this does not show that every regulatory impulse is misguided. Automobile makers resisted installing seat belts for years, and did not work on designing more effective seat belts until relatively late in the game. Eventually, they were forced by regulators in the 1960s and 70s to make seat belts mandatory. But even then many dissenters continued to argue that belts would cause more harm than good: that it would be better to be “thrown clear” of the crash, than trapped inside it. (Yes, thrown clear at, say, 60 mph…into on-coming traffic.) Studies would eventually prove the effectiveness of good seat belts, and by the 1980s their use was becoming mandatory in most jurisdictions. It is doubtful that seat belts led to drivers becoming more reckless because they now felt safer and less prone to injury — though that has surely happened in hockey and American football.

Still, consequences of regulating are often unforeseen and perverse. Not least when the “players” do not observe the spirit of the new rules. There is clear evidence that texting while driving is extremely dangerous. More dangerous than illegal levels of alcohol in the driver’s blood. So many jurisdictions have banned texting while driving. Sensible? Sure. Has it reduced accidents? No: in an effort to escape detection, people are now texting in their laps rather than up over the wheel (where they can hope to see traffic in their peripheral vision), and texting-related accidents are on the rise.