Monthly Archives: October 2011

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.]

 

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Moving the goal posts… on only one side of the field

The Big Hypothesis motivating this blog is that we can better understand several important institutions by seeing them as regulated contests in which participants who are playing to win will also benefit the public. And sometimes we might get a better sense of what exactly is wrong about some obviously dodgy activity or tactic by looking at the institution in question through this lens.

Case in point: what is wrong with politicians in power changing the rules for elections? And in particular, what is wrong with them changing the rules in ways that will reliably increase their chance of winning the next electoral contest?

Obviously, this strikes us as unfair. But why, especially when this electoral-rule-changing follows all of the legal procedures? Now this blog is non-partisan. We are interested in how best to think about institutional design and ethics across a broad range of institutions. But in America we are gearing up for a long series of electoral contests, and as it turns out, most of the accusations about “tampering” with electoral rules are being directed at Republican lawmakers. My only interest here is to see whether we get a better handle on these debates by focusing on the deliberately adversarial nature of constitutional democratic politics. A couple of weeks ago the editorial page of the New York Times was once again thundering about wide-spread Republican tampering with electoral laws. Their analysis in “The Myth of Voter Fraud” allows us to highlight two rather different rationales for rules in deliberately adversarial institutions. The thunder begins with the following claim (including a link to a recent study):

It has been a record year for new legislation designed to make it harder for Democrats to vote — 19 laws and two executive actions in 14 states dominated by Republicans, according to a new study by the Brennan Center for Justice. As a result, more than five million eligible voters will have a harder time participating in the 2012 election.

Very broadly speaking (– this is a crude working-hypothesis), the various rules that regulate adversarial institutions are justified in two ways: some of them are justified because of the way they “shape” the contest, or motivate the contestants, so that it will produce better overall results in the long run; and some of the rules are justified for reasons that, in some sense, are prior to, or beyond, the contest — say, because they protect fundamental rights. And some rules may be justified on both grounds.

We worry whenever the “players” who are supposed to be regulated by a set of rules also get to set the rules. We shouldn’t be surprised that they will try to justify the rule-changes by appealing to the latter type of principles: the ones that apply “intrinsically” — in this case the proposed rules are supposed to minimize voter fraud, something that would obviously be wrong in any electoral system. But we have to be suspicious if the players changing the rules for such “intrinsic” reasons will also systematically benefit from those changes. The burden of proof for demonstrating that the intrinsic principles really do apply in the particular case must be a heavy one indeed.

The Times is unswayed in these recent cases:

There is almost no voting fraud in America. And none of the lawmakers who claim there is have ever been able to document any but the most isolated cases. The only reason Republicans are passing these laws is to give themselves a political edge by suppressing Democratic votes.

Plenty of jurisdictions (countries, federal subunits, etc) simply don’t allow the players to write the rules for their own electoral contests: they establish non-partisan commissions for electoral law and redistricting. I’d welcome a recommendation for a good comparative study of such things.

Unwritten rules in the sweet science [updated]

In the 8th grade I finished second in my country county in wrestling (in the 99-pounds-and-under category). In the semi-final match, the referee neglected to invite me and my adversary to shake hands before the match began. He just signaled for the match to start. But since a handshake was the usual protocol, the other kid reached out to shake my hand. I grabbed his hand, performed a standard wrestling move (I don’t remember much of the jargon now), and took him to the ground. It was perfectly legal, and I was a total 99-pound asshole.

Recently, with much more than bragging rights on the line, WBC World Welterweight champion Floyd Mayweather did essentially the same thing. Here’s an account from Gordon Marino, a philosophy professor and boxing trainer, writing in the Huffington Post:

Boxing took a pounding on Friday night. The too-much-hyped championship contest between Floyd Mayweather and Victor Ortiz went down in pugilistic infamy at the end of the fourth round.

With only seconds remaining in that stanza, Ortiz had “Money” Mayweather on the ropes and intentionally head-butted him. Referee Joe Cortez deducted a point. The embarrassed Ortiz literally kissed and hugged Mayweather to express his regret. Though Ortiz claims he did not hear him, Cortez instructed the boxers to resume the action and once again “Vicious Victor” went to touch gloves. Mayweather leaned forward as if to do the same and then turned over a left hook. In that instant, a shocked Ortiz made the mistake of turning his head to the ref in protest and just as he did, Mayweather hammered him with a booming right to the chin, turning the black lights on the young fighter and ending the contest.

Most of the crowd at the MGM booed in protest at the advantage that Mayweather had taken. Debates raged all over Las Vegas and I suppose throughout the nation. No one, including Ortiz, questioned the legality of Mayweather’s stealthy move. The new champion defended himself saying that he had been fouled and that fighters are endlessly told “protect yourself at all times.”

And so the standard question: What are the best examples of this kind of gamesmanship in other deliberately adversarial contexts like business, politics, law, war, etc.?

UPDATE: there was, not surprisingly, a LOT of chatter about this move by Mayweather. Consider, for example, this piece by a blogging pastor in the Huff Post entitled “Floyd Mayweather, Jr. and the Death of the Gentleman, Sportsmanship, and Class in American Society.”

When judges compete

All open hiring processes are competitive, even when the future employees are expected to work as professionals in a relatively non-adversarial setting. So this article from the New York Times describes an intriguing attempt to regulate an adversarial processes, “Judges compete for law clerks on a lawless terrain“:

Federal judges are entrusted with interpreting and applying rules fairly and consistently. Except, it seems, when it comes to hiring their own staff.

The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting. But the process has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.

Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier.

While everyone in the process seems to agree that the competition for recruiting clerks is somewhere between “frenzied” and “insane,” there is not even consensus on whether it can be improved through “NCAA-like” recruiting regulations.

“I’m not into cartels or collective action or things like that,” says Alex Kozinski, chief judge of the Court of Appeals for the Ninth Circuit in San Francisco, who has vocally criticized efforts to regulate the recruiting process. So when does he start recruiting? “At birth,” he says.

There have been several attempts to levy self-enforced rules, similar to those used by the N.C.A.A. for recruiting young athletes, with the most recent system created in 2003. While none of the students interviewing at the federal courthouse in downtown Manhattan that Thursday wanted their names published for fear of jeopardizing their careers, many expressed frustration with the process.

“It’s insane and has been driving everybody nuts for years,” said one student from a top 20 law school who had three interviews in New York that day, and three others across the Midwest this week. “But I don’t really see any way to fix it.”

If largely self-enforced rules can’t hold because the professionals themselves aren’t willing to be self-regulating, the options seem limited. When is the last time you saw judges involved in a prisoner’s dilemma?

Unwritten rules in football

Deliberately adversarial institutions are highly regulated, and closely monitored. But for a variety of reasons there can’t be an effective or enforceable rule against every kind of behavior that seems “just wrong.” So there are generally a lot of “unwritten rules” and various written and unwritten “codes of honor” that participants expect each other to adhere to.

Last week the Dallas Cowboys’ quarterback, Tony Romo, took the unusual step of accusing his opponents of violating one of those rules. Here’s a quote from the NFL.com story, “Romo accuses Redskins of cheating on snap count“:

Cowboys quarterback Tony Romo blamed the Washington Redskins for the problems he had fielding snaps from center Phil Costa in Monday night’s sloppy 18-16 Dallas victory. Costa snapped the ball a number of times before the quarterback was ready.

Romo accused Redskins defenders of yelling out their own snap count, attempting to fool Costa, according to ProFootballTalk.com.

“We’ve got to get the snap thing worked out,” Romo told reporters after the game. “We’ll get that worked out. We’ll tell the league and see if that’s something that can be fixed because you’re not supposed to be able to do that. So we’ll see. But we can’t have that happen. We shouldn’t have been in that situation.”

Now, as it turns out, the NFL does have a rule against this behavior. This shouldn’t be surprising, since the NFL, more than any other major sport, is prepared to try to solve any problem with a new rule and close monitoring. But this is clearly one of those rules that’s difficult to enforce. It relies on players recognizing that this is “not cricket,” as they say.

With any post on “unwritten rules in sport/institution X” we will finish with the same general questions: What examples are there of unwritten rules in other deliberately adversarial institutions that are similar to defensive players in football mimicking the offensive quarterback’s snap count? And why, exactly, is this kind of tactic unseemly?

(Incidentally, there are plenty of examples in nature of predators mimicking signals its prey species uses in order to lure them to their demise. So much for natural justice.)

Redistricting post-Citizens United, y’all

This blog has been sleeping for WAY too long. Let’s try to get it rolling again, at least as a place to continue flagging a wide variety of ethically and politically charged issues that arise within deliberately adversarial institutions.

There have been a few redistricting controversies recently. (Is there actually a “season” for redistricting, or does it happen on different timetables all over the country?) These are always potentially problematic: they amount to changes in the “rules” of the contest that can significantly affect the outcome of the contest — and yet in most states in the US, some contestants themselves (elected politicians) are often in a position to manipulate the rule-change (by changing the boundaries of electoral districts) in ways they help them win. As a strategy for winning elections, it seems a lot closer to bribing the referee than to winning because you are more talented player.

In any case, here is a long story in the New Yorker about an elaborate “plot” (or “strategy,” depending on your political affiliation) by Republican strategist Ed Gillespie, and bankrolled by multimillionaire Art Pope, to gain control of state houses in order to get favorable redistricting for federal congressional elections.