Tag Archives: Posted by Wayne Norman

Is the Supreme Court an arena?

(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.”

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

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

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

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

David Brooks on Linsanity and the difference between the morality of religion and sports

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.

Bubbling up in the Ethics-for-Adversaries lab…

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:

  • University Student Politics (ought we to expect an emphasis on certain unwritten democratic norms that have fallen by the wayside in big-money national politics?)
  • Debate Club (how is it like a sport? what is its function? is this a better way to develop public-speaking and logic/rhetorical skills than other pedagogical or social means? what formal and informal rules and norms surround the competitions?)
  • Academic Philosophy (similarly, what can we learn by contrasting student and professional academic philosophy communities that place greater or lesser emphasis on aggressive argumentation?)
  • Job Hiring for Non-Adversarial Institutions (there are formal and informal competitions going on all the time in even the most non-adversarial institutions. E.g., competitions for student placement or job hiring. How do otherwise non-adversarial institutions best handle and constrain these competitive moments?)
  • Ballet-Company Politics (one such non-adversarial institution — after all, its purpose is to put on a show that is evaluated on its own terms by aesthetic criteria — is the ballet company. And yet at all levels, we are told that the competition between dancers, and their parents, is like a blood sport.)
  • Animal Mate-Selection (what can we learn from the mostly genetically-encoded norms that govern mate-selection in different parts of the animal kingdom? Robert Frank has recently written that  Darwin, not Adam Smith, is really the father of modern thinking about market economics. So what can we learn from Darwin about the social benefits of a well-designed adversarial practice?)
  • International Relations, Diplomacy, Espionage, and War.  (At the limit: surely one of the oldest, and most ritualized, deliberately and inherently adversarial practices.)
  • Scientific Research (a cooperative community in a common search for the Truth, or red in tooth and claw? What kinds of tactics and strategies are justifiable in the competition for grants, patents, and publications?)

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.

Stand by to reboot!

(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.

Stand by…

Obama on the basic framework for adversarial ethics: why international trade is like a pick-up basketball game

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.

Free trade = more regulation?

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

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

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

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

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

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

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

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

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

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