Here’s another on the unwritten rules in competitive institutions, by sometime contributor to this blog, Chris MacDonald.
Here’s another on the unwritten rules in competitive institutions, by sometime contributor to this blog, Chris MacDonald.
Ted Cruz gave a press conference the day after his keynote speech at the RNC, which had ended with a ringing non-endorsement of the party’s nominee, Donald Trump. Some in the audience were upset that he wasn’t being a good “team player,” and was acting like a “sore loser.” Others noted that he had signed a pledge, earlier in his Primary campaign against Trump, to support the party’s nominee in the general election. (See the reporting in Politico.) His response:
“This isn’t just a team sport, we don’t just put on red jerseys, blue jerseys, and yay! This is about principles, ideas, standing for what we believe in.”
And what are the “principles” that justify nullification of his earlier commitment? It is possible that they are the political principles that he takes to be sacred for the Republican party:
“the standard I intend to apply [when he casts his ballot] is which candidate I trust to defend our freedom, be faithful to the Constitution.”
But he seems clearly more emphatic when he cites not political principles but a chivalrous code from everyday morality: you defend your family’s honor!
“I am not in the habit of supporting people who attack my wife and attack my father. And that pledge was not a blanket commitment that if you slander and attack Heidi I’m going to nonetheless go like a servile puppy dog” and stick to the pledge anyway.
“You gotta get over it!” one man in the audience yelled.
“This is not a game … right and wrong matter,” Cruz shot back, as he also argued, “I would note, sir, you might have a similar view if someone was attacking your wife. I hope you would.”
The question of whether defending his family’s honor was reason enough to stay on the sidelines for now was a matter of heated debate in the hallways of the over-air conditioned Marriott outside the ballroom where Cruz spoke.
If “defending family honor” is indeed Cruz’s justification for a bold move that undermines his “team’s” chances of winning an important contest, it is not obvious that this helps distinguish politics from team sports. Who can forget Zinedine Zidane’s infamous head-butt, 10 years ago this month?
This is the biggest Football World Cup controversy ever. It was 19 minutes into the extra time of the final match of the 2006 world cup when Zinedine Zidane, one of the best soccer players of all time, left the whole world in awe. In one sudden move, the French head-butted Marco Materazzi of Italy for allegedly hurling spiteful words at him.
Materazzi admitted to have said, “I prefer the whore that is your sister”. He goes further to note there are more harsh words exchanged between players in the field and Zidane had heard worse of them before. Well, the fatigue felt way into the second half of the extra time was the ultimate trigger for him.
Zidane said the words were too hurting and Materazzi kept repeating them causing him to lose his cool. In that split moment of anger, Zidane turned back, leaned forward and rammed his head into the chest of the player.
Zidane was shown the red card. Without their best player on the pitch when the match ended in a draw, France lost to Italy in the ensuing penalty shoot-out. At the time of posting, the implications of Cruz’s head-butt on the general election result for his party are unknown.
Here’s a great case study on the phenomenon of “gentlemanly” unwritten rules in a sport. Several different examples; justified or criticized on different grounds; enforced in different ways; threatened for different reasons. H/t Chris MacDonald
Our major adversarial institutions are not free-for-all, war-of-all-against-all, slugfests. They are highly regulated competitions, with specific rules in place to encourage desirable outcomes: convicting the guilty but not the innocent (law), creating prices and promoting efficiency (markets), electing competent governments (politics), entertaining fans (spectator sports). The “players” are invited to play to win; but the competitions are not in place primarily for their benefit, but mostly for the benefit of those outside the competition.
This, in a nutshell, is why it always matters who gets to write or amend the rules of these competitions. And why we worry when the “players” get to write their own rules. Especially when a subset of the players — the ones who happened to win the last round — get to write the rules for the next round.
Here’s the problem: letting politicians who won the last election decide future election rules is like letting the team who won the last playoff game decide rules for the next game. There’s an obvious conflict of interest. Electoral rules determine who forms government, and different rules favour different parties.
After surveying the options for a better process of electoral reform, Abizadeh recommends something novel:
how could electoral reform be legitimized? We need a manifestly fair procedure – a neutral body, unbeholden to politicians, that will reasonably evaluate the alternatives.
Fortunately, political scientists have a solution that fits the bill – a randomly selected citizen assembly. The idea is this: randomly select a few thousand Canadians, ask if they are willing to serve, and, from those saying yes, randomly select 100 to 200 to serve on an assembly empowered to determine federal election rules.
Putting regular citizens in charge may initially seem crazy. Wouldn’t citizens with no special experience or expertise make incompetent decisions? But that’s who decides referenda, too. In fact, Canada is a pioneer in using citizen assemblies to make decisions about voting systems.
We’ve done it twice before, in B.C. and Ontario. Political scientists havestudied both cases, and both were in many respects a great success. Once our fellow citizens received expert advice (about voting systems) and consulted the public, they became well informed, and their deliberations and decision-making were extremely competent and reasonable.
No surprise here: it’s well known to social scientists that under the right conditions, there is intelligence in numbers. The decisions of an assembly of regular but diverse individuals are often more intelligent than decisions by a lone genius or expert.
As they used to say in 1960s sitcoms, that is so crazy it just.. might.. work! It is also not beyond the realm of conceivability that the current Trudeau government in Canada, which promised electoral reform in its last campaign, would consider such a thing.
The probability that anything like this will happen south of 49th parallel, where two parties have successfully colluded to secure a political duopoly for generations, is approximately 0.0. Why think outside the box when the box is just fine the way it is? Why not just hire a consultant…
I discovered this cartoon a few weeks ago, posted it on Facebook, and within days my post had garnered more than a thousand “likes” and more than 2500 shares. Why all the love? Because it is a Perfect Cartoon. Caption unnecessary.
For more wordy reflections on a wider range of ethical issues in political campaigning, see numerous posts on this blog in recent weeks by Isak, below.
Academics argue. That’s what they do. They argue against each other’s theories and results; they propose alternatives they believe are superior; and those theories, in turn, become the subject of critique by their colleagues. Yada, yada, yada, we all get closer to the truth.
Read between the lines and academic argument often sounds pretty passive-aggressive. As if we’re often not sure which kind of argument we are trying to have. The distinction between the two sense of the English word “argument” is, of course, most perfectly explained by those Cambridge philosophers, Monty Python’s Flying Circus:
So how ought we to argue in academia? Politely. Why? Because it works.
I recently came across some advice from the great American philosopher Daniel Dennett on how to write a scholarly critique. (I haven’t yet tracked down the citation, or the larger context in which it was written, but the advice given here is perfect all on its own.)
1. You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.”
2. You should list any points of agreement (especially if they are not matters of general or widespread agreement).
3. You should mention anything you have learned from your target.
4. Only then are you permitted to say so much as a word of rebuttal or criticism.
If I may, I would add a fifth point:
5. Once you have presented a rebuttal or criticism, search the text in question to see if the author has already considered and responded to your criticism; and if he or she hasn’t then it is up to you to formulate the best possible responses to this criticism, given the author’s other commitments. Either way, voice this actual or potential replies to your critique explicitly, and respond to them. Repeat….
So what kind of friendly advice is this? Is it academic etiquette? Academic ethics? Or the key to academic effectiveness?
If the academic community you are in has a sufficient degree of intellectual integrity, then its widely recognized leaders will have convinced a good many of their colleagues that they have discovered flaws with previous theories and findings in the field, and they will have demonstrated this critique, its implications, and possibly a new-improved theory in its place, with a reasoned argument involving clear concepts, evidence, and inferences. (In an academic community without a sufficient degree of integrity, institutional and political power will be the main tools for achieving local, if fleeting, fame.)
In any case, if your chosen field has integrity, then Dennett’s advice unites those three E’s: etiquette, ethics, and effectiveness. If you want to have an impact on the debates in your field (and if not, why are you doing this?), you need to get your critique published. Editors will invite the authors you are engaging with, or others known to be sympathetic with their views, to “referee” your critique. If they think you have simply not understood the ideas you are criticizing; or worse, if they think you have deliberately misrepresented them, then they are highly unlikely to be persuaded by your arguments — assuming they even read all the way to the end of your MS.
On the other hand, if you play nice and follow Dennett’s rules, the Journal editor may well read in the referee’s report not only “I wish I’d put it that way myself,” but also “OMG, I never noticed that gap in my argument/ that ambiguous concept/ that invalid inference/ that inconsistency….! I hope I can fix that, but this critic may be onto something original and important!” As a former editor, I can assure you, we do get those kinds of referees’ reports on papers that are criticizing their own theories. And when when we do, those submissions are usually fast-tracked for publication.
I should underscore that Dennett’s advice runs deeper than mere professional decorum or publishing tactics. If you are not successfully mastering Dennett’s first step, then you are probably not grasping why the theory you are criticizing has been taken seriously. Why it might be smarter than you realize. Similarly, if you don’t consider how an intelligent interlocutor would reply to your critique, then are likely to be ignoring the most obvious objections to your critique — the one’s the referees will not fail to point out.
But if you really are onto something, then bending over backwards to demonstrate the inescapability of your critique in a spirit of intellectual fairplay will only make the critique itself that much harder for your academic community to ignore. You “win” in the nicest possible way.
I have blogged elsewhere about why I think a contest that does not involve defensive tactics barely qualifies as a sport. Or at any rate, in the aesthetics or connoisseurship of sport, the highest ranking sports are those for which good defensive play and strategy is as satisfying for the spectator as good offense. That’s why most events in the Winter Olympics — ice hockey and curling aside — will never rank highly in my pantheon of great sports. But I digress before I have even started.
When using sports in the service of understanding the ethics of competition in other adversarial realms (law, business, politics, war, etc) it is worth paying attention to the extent to which “defense” is a permissible, or even admirable, feature of the competition. Is it acceptable to try to win by thwarting an opponent’s offensive tactics (the way one does in hockey, American football, or chess)? Or is the competition the kind in which the only permissible winning strategies involve making yourself perform as well as possible (as a sprinter runs as fast as she can, or a pianist competing for a prize plays his heart out, or a law-school applicant presents a dossier with her highest possible grades and test scores, etc)?
Competitions that do not involve “defense” tend to present fewer challenges for adversarial ethics. Competitors can still cheat — by puffing or fabricating their alleged achievements, plagiarizing, bribing judges, using banned performance-enhancing substances (say, cocaine for LSATs). And if such cheating is widespread, or believed by the competitors to be widespread, it is especially problematic in an adversarial realm, because it strongly incentivizes all competitors to cheat. But when there are no opportunities for defensive tactics (a law school applicant has no way to make her rivals look worse — the way a politician, lawyer, or salesperson can), there is less directly adversarial behavior to have to regulate or monitor.
Of course, when competitors find a way to undermine their rivals in a competition that does not permit defensive tactics, that can lead to grave, and often super sleazy, ethical violations. In his seminal paper on this topic, Joe Heath reminds us of the time one figure skater, Tonya Harding, tried to improve her chances for an Olympic medal by having her ex-husband and a hired goon kneecap her main American rival, Nancy Kerrigan, at the US Figure Skating Championships in 1994. There is no playing defense in figure skating. And certainly not that kind. (Harding plead guilty to a felony. The USFSA — figure it out — booted her out for life, citing her “clear disregard for fairness, good sportsmanship and ethical behavior.”)
Teachers who grade on a curve hear similar blood-curdling tales of classmates who hide books in the library, mess up their classmates’ lab experiments, and refuse to cooperate in study groups, so that they can climb over their fellow students and claw their way higher in the curve.
Anyway, all of this is a rather pretentious set-up for a totally low-brow, and misleadingly advertised bit of clickbait from the Onion’s Clickhole entitled
Put it this way: nobody’s going to jail for any of these revelations. Nobody is going to have to make a living in their post-athletic careers through professional wrestling, celebrity boxing, or selling sex tapes (Harding’s fate). But the concept of “sabotaging a competitor” — especially in adversarial realms that don’t allow any defensive tactics — remains a critical and controversial one in adversarial ethics.
Presidential Primaries are a game. So here’s some more elementary game theory — on the game known technically as “chicken” — to predict the Rubio-v.-Kasich endgame. This is brought to you by the brilliant graphics editor at The New York Times, Kevin Quealy. Here’s the conclusion:
The chance to be your party’s nominee for president comes along only every four or eight years, even for the very luckiest candidates. If the candidates lived in a universe in which they could run for president hundreds of times, they might agree that, on average, their shared interests were better served by cooperating. Once in a while, Mr. Kasich might try to win the contest outright against long odds, but, on average, he would probably agree that cooperating, including alternating victories, was the best way to serve his and Mr. Rubio’s shared interests. Game theory shows that initerated dilemmas, played many hundreds or thousands of times, cooperation is a very stable strategy — one reason it is so common in nature.
But this is not an iterated dilemma. It’s a one-time-only dilemma with a tremendous payoff for the winner. As much as Mr. Kasich might think about his legacy, the good of the party or even his own chances in 2020 or 2024, the future is very far away.
Ultimately, they risk an outcome neither he nor Mr. Rubio wants. As Daniel Diermeier, the dean of the public policy school at the University of Chicago, notes, “A very important lesson of game theory is that sometimes the world is a grim place.”
Then again, the Presidential Primaries aren’t just a game….
We count democratic politics on this blog as one of the Big Archetypical deliberately adversarial institutions. Power in the state is not given to a person or group who is carefully determined to be able to use it to run the most just government. It is given to the winners of a highly regulated — and also ritualized — contest; otherwise known as an election.
It is easy for us to see and feel the “game” of politics during elections. In America right now we are consumed by it, and it is covered by the news media in almost exactly the same way the sports media covers professional and college sports leagues. But elections are only part of the game of democratic politics. The next most visible political competition happens openly in legislative assemblies, and then in the maneuverings — partly public, but often in “back rooms” — that precede the debates and votes that take place in the legislatures.
One of the principal complaints about the legislative game, from the point of view of adversarial ethics, is that it has become in the US a so-called “permanent campaign” — legislators between elections are primarily concerned about what they can do (or avoid doing) in the legislature in order to win the next election. If they ever care the slightest about the design and justice of policies, bills, and laws, it is only insofar as public perceptions about these things will influence the next election. (See the criticisms of Mitch McConnell discussed here a few days ago.) This is the heart of the satire in the greatest just-slightly-fictional political comedy ever, the BBC’s Yes Minister (and its sequel Yes, Prime Minister), not to mention the now-sharked House of Cards.
This post, however, is less about the “permanent campaign” than about a much more visible manifestation of politics-as-sport (even bloodsport, on occasion). Every legislature has its own written and unwritten rule, conventions, and rituals of debate. And no legislature has had more time to develop these than the British House of Commons, where the Prime Minister and the Leader of the Opposition debate face-t0-face on an almost weekly basis. It you were designing from scratch the rules by which a deliberative body would be most likely to develop and enact sensible legislation (what political philosophers do when they theorize about “deliberative democracy“) you would not end up with something like the House of Commons. To say nothing of the House of Lords or the Monarchy.
That said, in the UK, it is what it is. All MPs know the rules, written and unwritten. For example, they never address each other directly, but carry on the debate as if everyone were trying to convince the Speaker. Although outsiders may be aghast at the seemingly buffoonish behavior of British MPs in the House, the MPs themselves are expected to know how to deal with it if they are to have any chance of “winning” the day during Question Period.
Which brings us to the clip-of-the-day in my Facebook newsfeed. Comments on Facebook and Twitter from many of my American friends and friends-of-friends suggests they don’t really know how British politicians, especially the PM and the Leader of the Opposition, are expected to play this game. What is obvious, however, is that virtually every MP on both sides of the isle knows who won and who lost this round.
I see that many British commentators (well, some of my British Facebook friends, at any rate) have all sorts of sinister explanations for the irrepressible smiles of Jeremy Corbyn‘s colleague Andy Burnham, the Shadow Home Secretary, seated behind Corbyn, on his left. I am too ignorant of Labour Party intrigue to psychoanalyze him from this clip alone. It seems to me that Burnham knows the rules of the game, knows that his leader has just been blown up by his own pompously lobbed petard, and done so because of the kind of quick wit one usually sees only on scripted shows like Jon Stewart’s old Daily Show. Burnham seems to be tipping his hat for a move well played by his opponents. Normally, that is one of the hallmarks of good sportsmanship. Corbyn’s inability to do the same, and to immediately change course and attempt to seize rhetorical advantage in a way he had not planned, is also a sign that he either does not understand the game he is playing during Prime Minister’s Questions or, more likely, that his game as a parliamentarian is just not that good.
According to a huge recent survey conducted by Gallup, student athletes beat their non-athletic former classmates at the game of life-after-college.
Former student-athletes who received a bachelor’s degree between 1970 and 2014 are leading other college graduates in four out of five elements of well-being that Gallup studied. These former student athletes are more likely than non-student-athletes to be thriving in purpose, social, community and physical well-being. In the element of financial well-being, former student-athletes are just as likely to be thriving as their non-student-athlete peers
For those interested in methodology — and who isn’t? — the survey and the correlations it finds, are pretty credible, as far as these things go:
Results for the Gallup-Purdue Index, which the study used for comparison purposes, are based on Web surveys conducted Feb. 4-March 7, 2014, with a random sample of 29,560 respondents with a bachelor’s degree, aged 18 and older, with Internet access, living in all 50 U.S. states and the District of Columbia. These respondents included 1,670 former NCAA student-athletes. The Gallup-Purdue Index sample was compiled from two sources: the Gallup Panel and the Gallup Daily tracking survey.
Of course, these results are merely correlations. We cannot infer from correlations alone the direction of causation: did participation in athletics improve students’ life skills and well-being, or do the kinds of students who go in for athletics already have those skills to a greater degree than other students? Or is it, as NCAA researcher Tom Paskus argues, a little bit of both?
This kind of data may be relevant nonetheless for deeper philosophical debates about the nature of the good life. Some find competitiveness, and the need or desire to express oneself in zero-sum competitions where your winning means someone else loses, as an inherently less desirable character trait, disposition, or way of living. At the very least, this survey suggests that a very intense period of competition in sports during a person’s formative years (a college athlete will have had sports as their major non-scholastic activity from their pre-teen years until their early 20s) does not make them a worse, less happy, or less successful person afterward.
Check out the more detailed results by asking for the report in pdf form from Gallup at the link above. Or check out the summary in this article Money magazine.
This blog is about to wake up big-time: there’s a new seminar on Adversarial Ethics at Duke full of eager bloggers — and it’s election season in the US. The neverending Presidential-election season provides us not only with a hyperactive example of one of the classic “deliberately adversarial institutions,” namely electoral politics. But it has a tendency to suck almost every other institution, including many that are not supposed to be adversarial or partisan, into its flames.
Exhibit A: the selection of a new justice to sit on the putative non-partisan Supreme Court.
There is not a single political commentator or politician who has not already weighed in on what the President and the members of the Senate ought to do now that Antonin Scalia’s sudden death has opened up a new seat on the bench. Richard Lempert‘s post over at The Brooking Institution’s Fixgov blog does a nice job of mapping out the likely scenarios in the language of game theory.
Assuming — kind of big assumption, no doubt — that the President (who is constitutionally required to nominate a new justice when there is a vacancy) and all of the Senators (who must confirm the nomination) are all rational, well informed, and intelligent, game theory should help us to predict what they are likely to do, given their divergent interests and options. I won’t rehearse them here. Lempert’s post is here.
The Supreme Court is a striking example of a kind of paradox or contradiction we see in many quintessentially non-adversarial institutions. The Court itself, and the role the justices have, is supposed to be strictly non-partisan. When they vote on a decision or opinion, the justices are supposed to interpret the law. They are not supposed to be supporting a cause or political movement they sympathize with, nor are they to base their votes and arguments on their own principles. And yet swirling around the Court are tornadoes of partisanship:
But the Court and the justices themselves are supposed to have the role of a neutral umpire, with no personal interests in any given case, calling strikes and balls as she sees them.
Lempert finishes his post with the following reflections of this intriguing “game” we are now watching:
It is interesting to treat the contest between Obama and the Republicans as a game, and to think about the best strategies for each, and how the moves of one might affect the choices of the other. Yet we are not talking about a game. We are talking about consequential political choices that could change the direction of the law in this country for a generation. Voting rights, money in politics, access to abortion providers, environmental regulation, and much more could turn in the short run on the choice of Scalia’s replacement, although in the longer run there are enough aging Justices that the next presidential election is likely to be more consequential. Now it appears the long and short term outcomes may turn out to be intertwined, for the fate of Obama’s nominee may influence what happens in the election. The “game” being played by Obama and the Republican Senate is, however, one that we, the people, can only watch, though we are permitted to root for our favorite team.
It doesn’t hurt that Justice Scalia’s death set the contest in motion during that lull in the American sporting calendar between the Super Bowl and March Madness….
On another blog, at the end of the summer, I spent far too much space trying to figure out what we should think about Lance Armstrong after his quasi-implicit-wink’n’nudge-pseudo-confession. That statement from Armstrong came as he announced his decision to, in essence, plead “no contest” to the US Anti-Doping Agency’s public hearing of his case. My colleague Chris MacDonald follows up on the case on his Business Ethics Blog — and does so much more concisely, and with special attention to the “adversarial ethics” angle.
On Wednesday (October 10), the United States Anti-Doping Agency (USADA) released a small mountain’s worth of evidence against champion cyclist Lance Armstrong. Not surprisingly, comparisons to corruption in the world of business were not far behind. On Twitter, a number of wags referred to Armstrong as the “Bernie Madoff of cycling,” or variants on that.
The comparison with Madoff is to be expected. In both cases, you have wrongdoing of impressive scope. In both cases, the wrongdoing was truly brazen, going on right under the noses of regulators. In both cases, you can’t escape the feeling that someone should have been able to figure it all out sooner. And in both cases, you see the eventual fall of a man who was a hero to many.
But the comparison is also off target in important ways….
(Posted by Wayne.)
… and if so, is what goes on there like hockey or figure skating?
We standardly think of the adversarial legal system as one of the “classic” deliberately adversarial institutions. (This blog is about whether there are special rules for the design of, and behavior within, such institutions.) The most visible — and tele-visual — parts of the system involve lawyers representing two or more sides of a case battling it out, within the rules, to advance the interests of their clients (or of The People, in the case of prosecutors).
But not all parts of the justice or legal system are adversarial. It’s an open question how we should think about both the theory and the practice of what goes on at the “top” of the system — the Supreme Court (to give a US example; but all constitutional democracies have something similar). It certainly looks adversarial in important ways. Its role is to settle contentious issues in the law, and it does this by dealing with actual cases where one side doggedly disagrees with the other. Like lower courts, it will also listen to lawyers representing the opposing sides. And of course, we can’t ignore the fact that the justices on the Court are nominated by the President and approved (or rejected) by a very adversarial legislature.
And yet, the work of the justices themselves is expected to be entirely professional. They are meant to figure out, individually and collectively, the best interpretation of laws and the Constitution. They are not supposed to be representing any particular interest, and are even expected to set aside their own biases and interests — and if they cannot, on a particular case, to step aside. No individual member of the Court is supposed to be trying to “win” anything. Cases are supposed to be decided on their merits alone — may the best arguments be the winners.
Next week the Court will begin its deliberations on the Affordable Care Act. In advance of the three sessions where the justices will hear arguments, the New York Times has recently highlighted two interesting aspects of the nature of the Court within the deliberately adversarial justice system.
First, it noted that
The White House has begun an aggressive campaign to use approaching Supreme Court arguments on the new health care law as a moment to build support for the measure seen as President Obama’s signature legislative achievement, hoping to shape public opinion on an issue at the center of the battle for the White House and Congress.
Now this would not be unusual as a matter of politics: the President and his party are part of another nakedly adversarial system called democratic politics, and elections are looming. But what is unusual about these current plans is that they suggest that such politics may also be trying to influence the justices themselves.
The advocates and officials mapped out a strategy to call attention to tangible benefits of the law, like increased insurance coverage for young adults. Sensitive to the idea that they were encouraging demonstrations, White House officials denied that they were trying to gin up support by encouraging rallies outside the Supreme Court, just a stone’s throw from Congress on Capitol Hill…
Supporters of the law plan to hold events outside the court on each day of oral argument. The events include speeches by people with medical problems who have benefited or could benefit from the law. In addition, supporters will arrange for radio hosts to interview health care advocates at a “radio row,” at the United Methodist Building on Capitol Hill.
The law’s supporters may have to get there early if they want the best patch of sidewalk:
Opponents of the law will be active as well and are planning to show their sentiments at a rally on the Capitol grounds on March 27, the second day of Supreme Court arguments. Republican lawmakers, including Senator Patrick J. Toomey of Pennsylvania and Representative Michele Bachmann of Minnesota, are expected to address the rally, being organized by Americans for Prosperity, with support from conservative and free-market groups like the Tea Party Express.
Your guess is as good as mine about what influence all of this will have on the nine individuals charged with the final decision. It is nonetheless a curious “grey area” partisan political activity swirling around a part of the justice system that is supposed to be non-partisan and non-political — or at the very least, not susceptible to the emotional volume of support for one side or the other. The White House’s own cautious framing of their strategy seems to acknowledge that they are toeing close to a line they don’t want to cross.
Meanwhile, we hear whispers that the Chief Justice himself, John Roberts, may be approaching his pending vote among his colleagues with concerns that go beyond the correct interpretation of the law. The guess is that he will not necessarily vote for the side with the best arguments.
The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members.
Why might he be willing to vote either way?
The case will require the chief justice to choose between two competing instincts.
On the one hand, he views himself as a steward of the court’s prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings. “As chief justice, Roberts has been extremely careful with the institutional reputation of the court,” said Barry Friedman, a law professor at New York University who has filed a brief urging the court to uphold the law.
The court has not rejected legislation as ambitious as the health care law since the 1930s. There is, moreover, only one plausible way for the justices to strike down the law, scholars who study the court say: by a 5-to-4 vote divided along ideological lines.
All of that might augur a cautious approach.
Now this is not unusual practice for judges in constitutional courts: to decide politically charged cases in ways that will serve to uphold the legitimacy of the Court — where legitimacy requires its being perceived as a fair, neutral party.
So what might this tell us about principles for design and professional behavior in other deliberately adversarial institutions? Sometimes “players” have to act in ways that uphold the “integrity of the game” even if this requires refraining from a winning tactic, or from carrying out a routine professional duty.
Interestingly enough, in the controversial Citizens United ruling, the Roberts Court struck down legislation that the politicians had put in place to preserve (some of) the integrity of their adversarial institution. The politicians had agreed to limit the influence of corporate money, along with perceptions of bias and corruption. Not all members of the majority denied that a flood of corporate money would have these consequences for democratic processes, but they felt nevertheless that rights to free speech couldn’t be infringed for the sake of the legitimacy of that process. If the rumors are true now, however, it seems that the Chief Justice may be willing to overlook a fundamental right being infringed by the new health care law for the sake of the Court’s “prestige and authority.”
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.)
Posted by Wayne
David Brooks, the New York Times‘s supposedly conservative columnist, regularly looks to sports as a way of making sense of our political and popular culture. This week he used the Jeremy Lin phenomenon as a pretext for some reflections on the gap between the ethos of sport and the ethos of religion (because Lin, like Tim Tebow, is a devote Christian). For Brooks the gap is a chasm that can probably not be fully or safely bridged.
The discussion is relevant for this blog because Brooks claims that the “sporting ethos pervades modern life and shapes how we think about business, academic and political competition.” Our ethical thinking in certain adversarial contexts or institutions will — and ought to — differ from the way we think ethically in other parts of our lives, even if we are deeply religious.
The moral universe of modern sport is oriented around victory and supremacy. The sports hero tries to perform great deeds in order to win glory and fame. It doesn’t really matter whether he has good intentions. His job is to beat his opponents and avoid the oblivion that goes with defeat.
The modern sports hero is competitive and ambitious. (Let’s say he’s a man, though these traits apply to female athletes as well). He is theatrical. He puts himself on display.
He is assertive, proud and intimidating. He makes himself the center of attention when the game is on the line. His identity is built around his prowess. His achievement is measured by how much he can elicit the admiration of other people — the roar of the crowd and the respect of ESPN.
His primary virtue is courage — the ability to withstand pain, remain calm under pressure and rise from nowhere to topple the greats.
This is what we go to sporting events to see
Brooks identifies this ethos with “modern sports,” but take away the inclusion of female athletes and ESPN, and the description of the virtues, goals, motivations, and glories of the athletic hero (or warrior) would not have looked out of place in Ancient Greece or Rome.
Of course, it is easy to see why these qualities are troubling for adherents of many traditional and religious moral traditions in the West and East. A “moral hero” in these traditions would not be described in any of the ways I have emphasized in bold font in long quotation from Brooks. (Although he or she would, presumably, be just as courageous as the sporting hero, even if this was not his or her primary virtue.) Brooks himself goes on to paint a similar broad-brush portrait of the religious life, and explains why he thinks the sporting and religious characters can never be fully reconciled. Following the Jewish theologian Joseph Soloveitchik, Brooks believes
that people have two natures. First, there is “Adam the First,” the part of us that creates, discovers, competes and is involved in building the world. Then, there is “Adam the Second,” the spiritual individual who is awed and humbled by the universe as a spectator and a worshipper.
Note that Brooks is focusing almost entirely on one component of a moral or ethical perspective — the part that concerns virtues or characters traits. But we also care about what rights, freedoms, and duties people have; and with the how to design just institutions (which will, in turn, assign various rights and duties to individuals occupying particular roles). So we might also ask whether the rights and duties of “players” in deliberately adversarial institutions will necessarily conflict with the dictates of a religious follower’s conscience.
Here too the answer seems to be Yes, but for very different reasons than the ones Brooks has highlighted. The best summary I know of for this case comes from Joseph Heath‘s important paper in the Journal of Business Ethics, “An Adversarial Ethics for Business: or When Sun-Tzu Met the Stakeholder” (2006). Here is how Heath sums up an argument explained over several pages:
Much of everyday morality has as its goal the prevention of a collective action problem. It is possible to secure certain advantages by lying, but if everyone did it, no one would believe what anyone said, and everyone would be worse off… This is why the… Golden Rule capture[s] much of the spirit of everyday morality. But because the central mechanism in a competition is an unresolved collective action problem, there are bound to be numerous prima facie conflicts between competitive imperatives and those imposed by everyday morality. This is reflected in the fact that a naïve or mechanical application of the Golden Rule in a competitive situation is likely to generate the wrong results. Before kicking the winning field goal, we do not want football players to be thinking, “How would I like it if the other team did that to me?” Similarly, before lowering prices, we do not want the gas-station owners to be thinking “How would I like it if the station across the street did that to me?”
The bolded phrase is the key to understanding the reason we actively encourage a different kind of ethical thinking or ethos in what we are calling deliberately adversarial institutions (like sports, markets, and democratic politics). These institutions regulate a competition in order to create benefits for “non players” outside the competition — what economists call “positive externalities.” So in all of these institutions we deliberately prevent the competitors from cooperating in ways that will be to their advantage but not to the advantage of outsiders.
Traditional morality is about cooperating and mutual assistance: adversarial ethics is about how to generate social benefits by preventing certain forms of cooperation; but also about how to make sure that the players use only appropriate tactics in their attempt to succeed. Heath’s article is as good a place as any to see the outlines of, and tensions between, these two features of adversarial ethics. But you should also find these tensions in almost every case study we highlight on this blog.
Incidentally, Heath’s article could be of some service to pious, but ferociously competitive athletes like Tim Tebow or Jeremy Lin. They can play hard to beat their opponents, but show self-restraint in doing so by embracing the “spirit of the rules” and by treating their opponents with respect. And of course, they can and should be as cooperative and humble as possible with their own team mates. Within the team itself, there is still no “I” in Golden Rule.
In this blog we have spent a lot of our time with case studies drawn from the “Big 4” large-scale deliberately adversarial institutions: markets, electoral politics, sports, and the justice system. But some of the most illuminating analyses are sparked by adversarial activities in other realms, or in peculiar corners of the Big 4.
Based on an initial brainstorming session with this year’s team of bloggers, here are a few of the realms of structured competition you can expect to see future posts on:
Expect this list to grow over the coming weeks. If you have suggestions for other adversarial realms we should be working on, please let us know in the comments section, below.
(Posted by Wayne Norman)
During the so-called “Spring” semester at Duke last year (which runs through what northerners would surely call the dead of winter), this blog was shared by students in my seminar on Adversarial Ethics. Well, there’s a new crew in this class this semester, and they too will soon be filling this space with sometimes quirky, sometimes deadly serious, examples of issues arising in deliberately adversarial institutions.
In his press conference following the recent APEC meetings in Honolulu, President Obama laid out a pretty basic normative framework for the adversarial institution of international trade. The question he was addressing involved the perception among American politicians and some Asian leaders that China was not exactly playing cricket.
And I think leaders in the region understand that as China grows, as its economic influence expands, that the expectation is, is that they will be a responsible leader in the world economy — which is what the United States has tried to do. I mean, we try to set up rules that are universal, that everybody can follow, and then we play by those rules. And then we compete fiercely. But we don’t try to game the system. That’s part of what leadership is about.
China has the opportunity to be that same type of leader. And as the world’s second-largest economy, I think that’s going to be important not just for this region, but for the world. But that requires them to take responsibility, to understand that their role is different now than it might have been 20 years ago or 30 years ago, where if they were breaking some rules, it didn’t really matter, it did not have a significant impact. You weren’t seeing huge trade imbalances that had consequences for the world financial system.
Now they’ve grown up, and so they’re going to have to help manage this process in a responsible way.
What he is describing, essentially, are the rules for a pick-up game of soccer or basketball among a bunch of people from the same neighborhood. You agree to a set of reasonable rules (given there are no real referees), you expect everyone to follow the rules, each person still plays hard to win within those rules, and the whole game is threatened if one or more players are consistently trying to get away with blatant cheating or fouling. Obama says, “that’s part of what leadership is about,” and here he is really talking about sportsmanship.
Obama is chastising China for gaming the rules (e.g., by not devaluing its currency), though it is not clear they ever agreed to that particular rule. This press conference also unveiled some details about a new “Trans-Pacific Partnership” that might lead to a free-trade zone. But it appears that China is not welcome in this partnership until it agrees to abide by a fair set of rules.
It’s interesting that Obama also references an exception to full compliance that is often accepted by participants in a pick-up soccer or basketball game: that you may give a younger kid a little more latitude (say, to receive a pass off-side in soccer, or to travel or double-dribble in basketball). It can be fun to watch the kid trying to play “with men” above his talent level. But it nevertheless gets pretty annoying if the kid grows up to be one of the strongest players and still expects special rules or exceptions for himself alone.
From this week’s issue of the magazine named for the citizens of the city so nice they named it twice. (Posted without permission and removable on request.)
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.
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.”
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?
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.)
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.
A deservedly viral proposal for the American Philosophical Association.
Created by Landon Schurtz
My favorite is the middle signal in the second-last row. It is the signal for a “safety” in American football — when a team is unable to carry the ball out of its own endzone and concedes two points; like an own-goal in soccer.
This new book, The Ethics of Voting, by Jason Brennan, looks tailor-made for our blog. I’ve just ordered a copy, but as advanced publicity for it, here’s a quick shout-out.
In democratic theory we rightly pay a lot of attention to the design of the system — especially the electoral system and campaign finance. And we pay some attention (as Bethany and Justin have in posts here and here) to the obligations of professional political actors. But what about the obligations of those other participants in the democratic system, the citizens and voters?
As the blurb says:
Nothing is more integral to democracy than voting. Most people believe that every citizen has the civic duty or moral obligation to vote, that any sincere vote is morally acceptable, and that buying, selling, or trading votes is inherently wrong. In this provocative book, Jason Brennan challenges our fundamental assumptions about voting, revealing why it is not a duty for most citizens–in fact, he argues, many people owe it to the rest of us not to vote.
Somebody had to say it. Amen.
Frank Knight, one of the founders of the so-called “Chicago School” of economics, took seriously the idea that markets are a kind of game. But he wondered whether something that is both a game and a system designed to satisfy wants could be fair.
“In a system which is at the same time a want-satisfying mechanism and a competitive game we seem to find three ethical ideals in conflict. The first is the principle already mentioned, of distribution according to effort. The second is the principal of ‘tools to those who can use them.’ This is a necessary condition of efficiency, but involves giving the best player the best hand, the fastest runner the benefit of the handicap, and thus flagrantly violates the third ideal, which is to maintain the conditions of fairness in the game.” (“The Ethics of Competition,” p. 54 )
There is no reason to think the system or game can meet all of our ethical expectations. If winning is a priority for the team, can we expect them to play fair? Does being fair to the team and its fans (e.g. by giving them the best chance to win) require being unfair to certain players (e.g. not letting them play because they aren’t as good)? And are these notions of fairness in games appropriate in settings dealing with people’s livelihoods? Is it right for firms to give some workers benefits that others don’t get? Should firms be able to horde secrets that might make all firms more efficient if they were shared?
So what is fair and what is foul in sports or business? Knight seems to be suggesting that it is hard to tell because we have at least three “ethical ideals” for justice and they each give us different answers to this question.
This blog got plenty of free publicity last Friday when I (Wayne Norman) did a turn on Duke University’s weekly “Office Hours” live tweet-in show. For better or for worse, the conversation should be permanently accessible here:
Some of the topics of conversation were plucked from my other blog, This Sporting Life, including one on Why the NCAA Tournament is the American Idol of Sports, and What’s Wrong with the Wonderlic Test.
Bethany’s post here about what we learn about political ethics from primary elections also got a quote and a shout-out during the interview, and it can be found here. Stay tuned for some of her follow-up thoughts on that topic.
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.
Here’s a newish book I’ve just ordered on the history of Adam Smith’s Great Idea — the one that still frames so much of our thinking about the ethics of deliberately adversarial institutions. (Steven G. Medema, The Hesitant Hand: Taming Self-Interest in the History of Economic Ideas.)
I just hope the book is better than the first line of Princeton University Press’s blurb, which seems at best skewed and revisionist, and at worst just false:
“Adam Smith turned economic theory on its head in 1776 when he declared that the pursuit of self-interest mediated by the market itself–not by government–led, via an invisible hand, to the greatest possible welfare for society as a whole.”
It is well-known that the famous phrase “an invisible hand” (not even “the invisible hand,” which is what we tend to say now) was used only once in the massive two-volume Wealth of Nations. It comes in a chapter railing against Restraints on the Importation of Goods. Much of the chapter concerns what we would now call the law of comparative advantage — that is, about why it is to each country’s advantage to produce what it can produce most efficiently, and to trade abroad for what can be produced more efficiently in other countries. Throughout the chapter and the book Smith points out the myriad ways restrictions on international trade create inefficiencies. And also how these restrictions inevitably come from business people lobbying gullible or corrupt politicians in order to secure domestic monopolies.
But not only is it inefficient to restrict imports of goods produced more efficiently abroad, it is usually unnecessary. Business people prefer to keep an eye on their investments and to be able to trust the people they deal with, so they will naturally, even other things not equal, invest domestically. As Smith says in the famous “invisible hand” paragraph,
“As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it… he intends only his own gain, and he is in this, and in many other cases, led by an invisible hand to promote an end which was not part of his intention.”
He is talking about a particular case, and criticizing a particular type of government regulation, namely, what we would now call protectionism. He notes that this basic logic of the market replicates itself “in many other cases.” He does not say “in all other cases.” We know, for example, that the invisible hand will get all messed up in situations that involve collective action problems like the Prisoner’s Dilemma. Adam Smith would have had no reason to object to that (and I suspect that a real Smith scholar could point you to his discussions of PD-like situations). And he wouldn’t think that the general welfare would necessarily be increased by trade involving deceit, the exploitation of what we now call information asymmetries, or negative externalities.
It is also noteworthy, given the wording of the Princeton University Press blurb, that he does not say that self-interest via the invisible hand leads to “the greatest possible welfare of society as a whole.” In the “invisible hand” paragraph he is talking about “the annual revenue of every society [which] is always precisely equal to the exchangeable value of the whole annual produce of its industry.” That is, something like GDP. It is obviously an open question whether GDP tracks the “welfare of society.” Even the British Conservative Party doubts that assumption these days!
Once again, I’m no Adam Smith expert, but I have actually read great swaths of the Wealth of Nations, which is more than most latter-day “disciples” of Smith can claim. It is somewhat odd that the enduring lesson from that monumental work is the panglossian one that markets, left to their own devices, always lead to the best of all possible worlds (since that is not what Smith ever says), rather than Smith’s repeated warnings that we should always be suspicious of corporate lobbying and corporate conspiracies.
The conspiracy part we do remember from the famous quote about how we should worry whenever members of the same trade meet, “even for merriment and diversion” since they will inevitably try to fix prices. That is why even conservatives support anti-trust regulation; even if they also tend to think it is unfair in almost any particular case. But just as relevant today would be Smith’s utter contempt for business people lobbying and corrupting hapless politicians in order to enact particular regulations that serve their interest more than the public’s. Smith was concerned with trade restrictions that create unnatural monopolies, but he would be just as worried today about lobbying to allow for the exploitation of other market failures in a modern economy. And he would have been horrified when the right-wing — supposedly pro-market — justices on the Supreme Court used the Citizens United case to make it easier for corporations to pursue their interests by manipulating election processes.
And while this new book is drawing our attention to the famous “invisible hand” paragraph, it is worth noting that Smith was no fan of Corporate Social Responsibility, or CSR, either. He continues the paragraph quoted above by noting:
“By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.”
(Continuing the theme of the previous post by K. Listenbee.) From this week’s issue of the eponymous magazine of the City so nice they named it twice: a cartoon on the ethics of deception in adversarial negotiations.
(This cartoon is retransmitted without permission and will be removed upon request.)
Consent and fair play can both provide reasonable justifications for the deceptive behavior in some contexts. If you agree to play poker with me, you can’t complain if I bluff — though you certainly could complain if you caught me playing with a marked deck. But these reasons do not necessarily work in the case of all adversarial institutions.
To an extent, part of what adversaries do is deceive and coerce people in order to win the game that they are a part of. This deception amongst adversaries is part of the game, not accidental. The minute difference between a foul and an intentional foul in the sport of boxing is just one example. In order to win, some boxers try to disguise intentional fouls as mere accidents. In his book Ethics for Adversaries, Applbaum argues that those within adversarial institutions have a better chance of getting away with actions that might not be as acceptable in other situations.
“One cannot coherently claim that one aims at the good ends of a competitive system if one seeks to undermine features of the system that make it good. Perhaps the claims that adversaries make about their aims and the actions that they take cannot be made to cohere. Or perhaps the good ends of the system are for its practitioners a sort of idle hope that is unconnected to what their actions aim at. But there is no plausible way to redescribe the violation that adversaries aim at as accidental, a foreseen but unintended side effect. If, to pass a test of reasonable acceptance, actions cannot aim at violation, then much of the violation that results from adversary institutions does not pass the test” – Applbaum, p. 187
When one plays to win, it can often involve actions that undermine the aims of the game. If adversaries are aiming at good ends, then the violations they inflict upon one another can be reasonably justified. As the final sentence of the quote implies, however, not all violations of normal moral codes (like honesty) in adversarial institutions are accidental.
In short, for Applbaum, the good ends of deliberately adversarial institutions will not always justify the means if the means are deliberately unethical.
In the comment-thread to a post by “Matiok” about soccer dives, below, I suggested that diving is in some sense significantly worse that most other fouls in sport (say, among fouls that do not involve significantly injuring your opponent). This is because diving involves a player who was not able to better his opponent on the field, and so instead decides to accuse the opponent of a foul in order to gain an advantage. You can’t win fair and square, and not only do you cheat, but you accuse your opponent of being the cheater.
There isn’t a good word for “chickenshit” in formal academic ethics. “Hypocrite” doesn’t quite capture the ethical nastiness of that kind of competitive tactic. (Yes, I realize it’s much more complicated than that, and that we have to look at the way the institution of soccer has evolved, etc, etc. I’ve done some of that in my other blog, here and here.)
But in this post I want to think about how we might fill in the blank in the title of the post. What, in other adversarial realms (like business or politics), resembles diving in soccer?
Well, here’s something similar. In a Reuters story yesterday we learn that:
Nickolas Galiatsatos, owner of Nina’s Bella Pizzeria in Upper Darby, Pennsylvania, is accused of putting bags of mice at nearby competitors on Monday afternoon, according to Upper Darby Police Superintendent Michael Chitwood.
The owner of Verona Pizza watched Galiatsatos go into his restroom carrying a bag but emerge empty-handed, and alerted two patrol officers who were in the restaurant, Chitwood said.
The officers found a bag of mice and footprints on a toilet seat, suggesting someone had been trying to reach the ceiling tiles, he said.
The officers then found Galiatsatos near another pizza place, Uncle Nick’s, where he was seen putting something in a trash can. There, police found a bag containing five mice, Chitwood said.
“This guy planted them to put these guys out of business,” Chitwood said. “I’ve been at this for 47 years, and I’ve never seen mice used as a criminal tool.”
Like many divers in soccer, he claimed he had to do this because his opponents were doing the same to him:
Galiatsatos claimed his shop had been infested with mice, and he blamed his competitors for the problem, he said.
Chitwood said that Galiatsatos told police he bought the mice at a pet shop for $10.
He faces misdemeanor charges of cruelty to animals, criminal mischief, harassment and disorderly conduct.
A misdemeanor?! You can NOT be serious, ref! Surely that’s a red-cardable offense.
[Note: this is the inaugural post by Brandon H.]
Is politics a sport? Some things such as the rules in sports and the referees who enforce them seem accurately analogous to election laws and the election boards and courts that enforce them. Other more controversial comparisons have been suggested, none more interesting than the comparison between spectators and voters.
The simplest argument against this comparison is that spectators in sports may influence the outcome of the game but they do not directly determine it. To work around this objection, let’s see if there are similarities between (a) voters and speculators in the 2011 NBA slam dunk contest — an example of a sporting event where spectators do have more of a say in the outcome — and (b) the voters in the 2010 mid-term congressional elections.
The 2011 Slam Dunk Contest, which took place in Los Angeles, was highly anticipated for one major reason, the participation of the exciting and high-flying rookie phenomenon Blake Griffin. Blake plays for the local Los Angeles Clippers and opened a nationwide competition that aimed at giving him new dunks that he could use on national TV. Day of the competition Blake was able to electrify the fans and won the competition in convincing fashion. Even those who supported Blake’s victory question whether he was the best actual dunker in the competition. ESPN columnist John Hollinger says “in truth, McGee should have been facing DeMar DeRozan in the final instead of Griffin, but the hometown Los Angeles crowd swayed the judges heavily in Griffin’s favor.” He goes on to say the excitement in the arena every time Griffin dunked was electric and though “it’s not necessarily fair… it’s the reason he won.” In other words he may not have been the best dunker that night, but he knew how to work the crowd and do things they would love, and it was this quality that delivered the trophy.
How does this compare to political campaigns and voters? In recent history there has been a growing trend in campaigns to engage in negative advertising. Often these ads have no information about the candidate’s platform and amount to little more than personal attacks. According to the study by Amherst 54% of ads in 2010 were pure negative advertising. The truth is, whether voters want to believe it or not they are being treated much like the spectators in the Slam Dunk contest. Politicians are trying to distract the voters from the true issues and play to their emotions in order to win. Just like Blake Griffin.
Something to think about next time you hear a political consultant or pundit referring to some candidate’s chance of winning as a “slam dunk.”
Ethics for Adversaries is a newish kid on the blogging block. In the life-cycle of a typical blog, it’s probably a toddler now; just beginning to find its legs and sometimes capable of walking in the direction it intends, for at least a few steps.
There’s an even newer kid, though. Still wrapped in blankets and being passed back and forth between parents and nurses: Bleeding Heart Libertarians. It is the brainchild of a clutch of unusually large and active brains, who will occupy themselves there with questions of how to formulate and justify an urbane libertarian-like political philosophy. They don’t put it this way, but the name they chose for the blog could be replaced by “How to be a libertarian without being an asshole.” (I had a professor as an undergrad who wrote a book manuscript with the socialist version of that as his working title.)
In the actual words of one of the founding bloggers, Matt Zwolinski, a philosopher at the University of San Diego:
I’ve created this blog as a forum for academic philosophers who are attracted both to libertarianism and to ideals of social or distributive justice. Labels are often a greater source of confusion than insight in academic discourse, and no doubt most of the contributors to this blog will wish to qualify the sense in which they fit this description. Some, for instance, will qualify their libertarianism with a label – “left-libertarian,” or perhaps “liberaltarian.” Others might prefer to think of themselves as “classical liberals” or even “market anarchists.” But libertarianism, as I’ve argued elsewhere, is a broad intellectual tradition bound together more by rough agreement than by meeting a set of necessary and sufficient conditions. What we have in common on this blog is an appreciati0n for market mechanisms, for voluntary social cooperation, for property rights, and for individual liberty. But we appreciate those things, in large part, becauseof the way they contribute to important human goods – and especially the way in which they allow some of society’s most vulnerable members to realize those goods.
Not everybody who is concerned about the design of, and ethics within, deliberately adversarial institutions will consider themselves to a member of Matt’s broad coalition. But everyone in that tent should be interested in the challenges raised here at Ethics for Adversaries. So with this shout-out I happily send them what may well be their first ping-back.
Best of luck, fellows (for so far their team is very masculine). Let us know when we should cross-post.
In a 1923 essay called “The Ethics of Competition,” Frank Knight, who would become one of the founders of the Chicago School, thought that business had become a kind of game or sport, and he wondered how good or “healthy” a game it was.
Knight begins his classic text by rehearsing the argument from an earlier essay of his, “Ethics and the Economic Interpretation.” He had previously tried “argue against the view of ethics most commonly accepted among economists…” It was, he argued, “against ‘scientific ethics’ of any kind, against any view which sets out from the assumption that human wants are objective and measurable magnitudes and that the satisfaction of such wants is the essence and criterion of value…”
The problem with the so-called “scientific ethics” – by which he means some kind of utilitarianism – is that it cannot really distinguish between “higher” and “lower” wants, and therefore reduces the former to the latter.
But, Knight argues,
the fact is that human beings do not regularly prefer their lower and more “necessary” needs to those not easily justified in terms of subsistence or survival value, but perhaps rather the contrary; in any case what we call progress has consisted largely in increasing the proportion of want-gratification of an aesthetic or spiritual as compared to that of a biologically utilitarian character, rather than in increasing the “quantity of life.” The facts, as emphasized, are altogether against accepting any balance-sheet view of life; they point rather toward an evaluation of a far subtler sort than the addition and subtraction of homogeneous items, toward an ethics along the line of aesthetic criticism, whose canons are of another sort than scientific laws and are not quite intellectually satisfying.
In short, for Knight, we cannot judge how valuable or successful our lives are in the same way that companies organize and analyze a balance-sheet. In the financial arena the balance sheet is used to analyze what a company has (assets) and what it might be risking or not have (liability). But how would we ever make sense of the owner’s equity section in a balance sheet? And how are we supposed to ensure that the assets and liabilities sides of the balance sheet should be equal or balanced?
Knight rejects the view that is still predominant in economics more than 75 years later, of “want satisfaction as a final criterion of value.” We can’t accept that because even in our own lives we don’t “regard our wants as final; instead of resting in the view that there is no disputing about tastes, we dispute about them more than anything else.” In fact, for Knight, “our most difficult problem in valuation is the evaluation of our wants themselves and our most troublesome want is the desire for wants of the ‘right’ kind.”
This is a profound, and these days much more widely accepted, critique of utilitarianism. Why is it relevant for adversarial ethics? Because we need to be able to judge whether the market system produces better overall results (via the invisible hand) than some other system. But how do we evaluate what is a better overall result? Not, Knight is arguing, by judging whether it satisfies more wants. We might not really want those wants. Or worse still, as he will go on to argue in this essay, because the system (or adversarial institution) itself has generated the wants that it satisfies.
Sometimes a founder of the Chicago School can sound remarkably like a founder of the Frankfurt School….
Sunday evening was highly anticipated. From the red carpet to the after-parties, the 83rd Academy Awards was a night to remember — as indicated by tweets, facebook statuses, and even the CNN hot topics list. All eyes might be on the red carpet fashion police and the list of winners and nominees now, but the first Academy Awards ceremony took place out of the public eye. The celebration and recognition of filmmakers and actors still exists, but has the Academy Awards become, along the way, an adversarial institution?
Once upon a time…
May 16, 1929 marked the beginning of a phenomenon – one that now garners more attention and acclaim than some political campaigns. An initially non-adversarial arena, the Academy Awards began as a way to honor the best of the best in the film industry. The first ceremony had a modest guest list, with 270 people in attendance, and only 15 awards were given. It took place during a brunch that was served at the Hollywood Roosevelt Hotel, followed by a party at the Mayfield.
Being recognized as the best in the industry had yet to become center stage, literally. Shortly after its inception, however, enthusiasm for the Academy Awards skyrocketed — a Los Angeles radio station even produced a live hour-long broadcast of the event. Public interest grew exponentially over the years. Rules, regulations, and qualification criteria began to develop. Actors and actresses began to compete for leading roles. Studios sought out the most highly acclaimed producers, directors, and writers in the industry. Thus, an adversarial institution emerged.
“And the Oscar goes to…”
The first awards ceremony had no real surprises. Winners were announced three months before the ceremony took place. The following year, the Academy decided to reveal the winners during the ceremony. The anticipation of winners and the growth in media attention surrounding the second award show aided in the shift: taking something essentially non-adversarial — the recognition of works of art — and putting it in a competitive setting.
Those within the film industry eventually began to take into account the actions of other players in anticipation of what they may or may not do to win. They have also developed tactics to improve their own chances of winning. Some of these tactics involved spending huge amounts of money on gifts and other goodies to influence the voting members of the Academy. And this in turn led to the Academy developing increasingly complicated rules and regulations to forbid “unhealthy” competitive attempts to “buy votes.”
Some accuse the Academy Awards of being influenced by marketing, rather than artistic quality. Others defend artistic merit as the sole requirement to win in this adversarial game. Whatever the case, for many filmmakers, actors, and spectators, the Oscars are not about the impartial recognition of an artistic achievement. They about winning – and by any means you can get away with.
FOR SHAME! This is a whole new level of cheating. Not only has Chile’s Bryan Carrasco taken a ridiculous flop to the turf, but he’s also forced his opponent’s hand up into his face in a pathetic and desperate attempt to win a free kick in his own half. A part of me wants to applaud him for originality, but NO! Just no.
Bryan Carrasco, if you are the future of football then god help us all…
So far on this blog we have not talked much about the choices between adversarial and non-adversarial relations inside of firms. But this is a great context in which to sharpen our understanding of adversarial ethics, because we do have experience with much more and much less adversarial corporate cultures and industrial relations.
The legal recognition and buttressing of labor unions from the late 19th century until, say, the 1980s, could be described in two ways: either as instituting deliberately adversarial mechanisms in the governance and management of firms, or as making an already-adversarial relationship between owners of capital (and their managers) and laborers less unfair. There are other ways of describing this contested institution, for sure.
We’ll talk much more about what goes on inside the firm in the future; but at this point I would just like to flag a brief debate going on in the blog space at The Economist. Mark Thoma, an economist at the University of Oregon, proffers a brief answer to the question “What good are labour unions?” His one-sentence answer is, “Governments should replace unions as a protector of workers.” And of course, in many ways they have. Government occupational health and safety legislation, along with extensive bodies of employment law, now give to all workers what unions had to bargain tooth-and-nail for on behalf of their members.
But however important unions may have been in the past (and for Thoma this is an open question), he argues that:
In an increasingly globalised world where digital and other technology allow firms to easily escape unionised labour, unions have lost their ability to act as an equalising force in negotiations over wages and benefits.
Global labor organisations could provide an alternative, but this would require global institutions that do not presently exist, and that do not look likely to emerge anytime soon. For now, the answer has to come domestically and the only institution powerful enough to protect workers is government. Government-provided health and dental care, security in old age, workplace safety, insurance against job loss, higher education that is essentially free, and other such benefits would go a long way toward remedying what workers have lost since the 1970s. In addition, government redistribution of income may be needed to ensure that economic gains are shared more equitably. In combination, this would provide the things that unions fought to get for workers and maintain the current social protections that government provides.
There seems to be a general trend to make more institutions adversarial, competitive, or “market-like.” Ed Sullivan got people to watch singers and dancers on TV, but now we won’t watch them unless they’re competing against each other and we can vote on who wins. But here is a proposal to make one very important economic and social institution — the firm — less adversarial. Or maybe just less fair.
We can’t understand what might be special about the regulation of, and ethics within, adversarial institutions unless we can get a clear idea of what analogous non-adversarial versions of those institutions might be like. It helps to be able to contrast a sport like gymnastics with an art form like modern dance; or to compare inquisitorial legal systems with those that structure a competition between the prosecution and the defense; to think about the relative merits of benevolent dictators and democratically elected leaders (and to think hard about which category we would want to stick Mike Bloomberg in).
In the previous post, we see the economist Milton Friedman almost instinctively assuming that life in general is but a game or sport. But lest we forget, this is not the way most poets have thought about life. The 1954 doo-wop classic, “Sh-boom,” comes to mind. You can find all you need to know about the song here.
There doesn’t appear to be anything especially adversarial about the Crew Cuts’ vision of life as a dream.
Oh, life could be a dream (sh-boom)
If I could take you up in paradise up above (sh-boom)
If you would tell me I’m the only one that you love
Life could be a dream, sweetheart
I mean, the singer doesn’t even seem to be concerned about the possibility of a rival with whom the sweetheart might possibly find an even dreamier life. Of course, it is all rather hypothetical. Life could be a dream. Maybe that’s because he currently experiences it as game (like the similarly crew-cut Milton Friedman) or… a battlefield.
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?
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.
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.
The headline above was from The Onion last week. Like most articles in the satirical newspaper and website that calls itself “America’s Finest News Source,” the headline contains as much punch as the article that follows.
If you found it mildly funny (as, presumably, the 300 or so people who tweeted it directly from the site did), why? What is the underlying “truth” that the joke is riffing off?
Could it be that it’s playing on our instinctive, but usually inarticulate, understanding of the difference between ethics in “everyday” contexts, on the one hand, and ethics in “competitive” contexts, on the other?
In everyday contexts we teach children how to use “indoor voices” so they will not bother or annoy other people they are sharing space with. Like much of everyday ethics, it is designed to facilitate cooperation and solve collective-action problems (or in this case, collectively-sharing-space problems). You show respect for others, and make things go better for them, by piping down in their proximity.
But the last thing we want in a sports arena is for everyone to be using their indoor voices and sitting on their hands. Indeed, as discussed by student bloggers on this very blog recently (here and here), rowdy home-side spectators are part of the attraction and entertainment-value of sports for everyone. Even when that crowd noise is deliberately trying to help your team, and distract or demoralize the visitors, we all think that is perfectly acceptable from an ethical point of view. (Which is not to deny that there are limits to what kind of fan behavior is acceptable, as the previous posts emphasized.)
The great thing about satire is that it captures all of that in a headline or a caption. It takes a philosopher to spend 300 words sucking all the fun out of it.
Following from the aesthetic analysis of business cartoons in the previous post, here’s another old chestnut on the same theme.
(This comic is reposted without permission and will be removed upon request.)
Every writer I’ve ever read on ethics in adversarial settings takes explicit note of the obvious: that is it neither possible, nor desirable, in a deliberately adversarial institution to regulate away all unethical behavior.
As Arthur Applbaum puts it in the book that shares the name of this blog, if “the best of regulatory worlds is understood as a set of rules and levels of detection and enforcement that best balances the gains of eliminating the costs and harms and liberty restrictions of the regulations themselves, then the best set of regulations will legally permit a great deal of adversary action that is economically inefficient, harmful, and liberty-restricting.” (p. 196)
So we cannot expect that “the invisible hand of competition, even in a well-regulated market, will channel all adversary action to good ends.”
In this inevitable gap between what’s legal and what’s ethical we can pack a significant percentage of the best comics about business. Like this one from a couple of days ago.
(This comic is reposted without permission and will be removed upon request.)