Motivation

This is slightly off the topic of cooperation and punishment but I think it’s useful to consider the political implications of our readings, and figure out where analogies from experience with IP regimes work (and where they fall short).

The Jolls & Benkler readings have made me realize that I have a reflexive anti-regulatory bias when it comes to exclusive rights regimes and a reflexive pro-regulatory bias when it comes to poverty alleviation measures and workers’ rights. Here is my usual explanation for these biases…

• Cultural and scientific creativity flourishes in decentralized environments. Although the state may wish to invest in infrastructure and other large upfront costs that cannot be recouped through profits, any law that seeks to motivate the production of ideas should take a relatively hands-off approach so as to reflect the environment (intrinsic motivation, free-flowing collaboration, reuse of common inputs, etc) in which such ideas thrive.
• Workers and poor people do *not* flourish in decentralized, unregulated environments. See, e.g., the Lochner era, which created a need for systematic federal regulation of workplaces, and the Depression era, which created a need for systematic federal poverty-alleviation and wealth-distribution mechanisms best epitomized by Social Security.

This is obviously a highly compressed and potted narrative (feel free to contest it or expand upon it!), but it does explain why I am resistant to import my IP preference that “the law leave space for social cooperation processes” (Benkler 31) onto my worker/poverty law preferences. I generally object to any normative conclusions that might be drawn from the Jolls piece as to the desirability of letting bosses and workers negotiate working conditions without interference from the state or unions, as I tend to fear that the resulting bargaining imbalance will lead to a pretty lousy outcome for most people working under bosses unenlightened by Jollsian theory.

Does this point to one of the problems with most of the studies we’ve read — the presumption of equal bargaining power between investor and trustee, and between potential cooperators? For instance, it seems unlikely that a worker will be in a sufficiently sheltered situation from which she will feel comfortable punishing or scolding her boss for a non-altruistic move. (As Fehr/Gachter point out, the absence of an opportunity for altruistic punishment then causes cooperation to break down.) And from the boss’s perspective, Fehr/Rockenbach suggest “sanctions that are imposed to enforce an unfair distribution of resources” will undermine altruistic cooperation (140), but how many bosses are really thinking that far ahead in the game to refrain from shoring up their own share of the pie? I’m not a Hobbesian, but I’m still skeptical that the possibility of abstract future gains from mutual cooperation will trump immediate self-interest in this kind of situation.

This does bring us back to Benkler’s question of how to design affirmative legal interventions that “crowd in” social cooperation processes. Any ideas? In the worker context, this might mean laws favorable towards collective bargaining organizations (devil lies in the details, of course). In the poverty context, this might mean incentives towards community-based charitable grants/loans, backed up by a more systematic social safety net similar to Social Security.