Motivation

It’s interesting how many of these policy levers can also be described as goals of a democratic society: building solidarity (Marx, trade unions), increasing empathy (Peter Singer), cultivating trust (Francis Fukuyama), promoting transparency (Karl Popper, GNU), and enabling broad and robust communication (Jurgen Habermas). I’m interested as to what Prof. Benkler’s cooperation analysis can tell us as to why democratic society has generally succeeded or failed in achieving these various goals. Is a nation-state simply too large to serve as the input or output for these design levers? If so, is greater federalism preferable?

My other question is: what is the importance of an out-group (or a competitive rival) in forming the cooperative bond in the first place? In this vein, I find the interaction of the entry/exit and punishment levers to be ripe for exploration. In terms of the fluidity/fixedness of borders, how thick are the barriers to entry for a given system, how discrete is one system from another, and how permeable are the walls between two subsystems that are part of the same larger system? What happens when punishment involves excommunication from the system? (Do other systems take notice? E.g., when a user is blocked from commenting on the Daily Kos website.. do other leftwing political blogs tend to block him as well?) How does the cooperative framework handle conflicts between systems?

When someone is punished for selfishness or for a general norm violation, is punishment aimed at the person’s action or at the person himself? Are decisions to punish more effective (either more deterrent or more peace-producing) when made transparently? Collectively? Automatically? How much room is there for individual negotiation of punishment? How are due process concerns handled? Is justice (and the hangman) blind, or is it a more social affair? Do people enjoy witnessing and carrying out punishment?

I found the “trade secrets” piece to be very useful, as it helped me envision what would be involved in applying the design levers to a particular policy question. And at the same time, it provided an example of one of the challenges of such a project. For example: When reading that non-compete clauses “declare a lack of trust, and an intention to seek power over the life of the employee’s future,” I wondered if this is how I would, if I were subject to such a contract, see it. I can imagine that I might not—that I might see it as a sign that my employer is a commercially sophisticated party, or even as being an essentially fair feature of my employment in a particular industry. If I saw it in either of these terms, it might not occur to me that it signaled a lack of trust. The design-levers cooperation model does predict that the certain levers will counter-act each other, and thus, in my example, the model can makes sense of the fact that seeing non-complete clause as “fair” might outweigh a tendency to see them as indicative of a lack of trust. However, the problem is that “trust,” “fair,” etc., are descriptions that are underdetermined by facts about the world. We cannot determine—as general theory and for all cases—how and why we did or will come to see the world in one way over the other. Thus, it seems that the challenge of employing the design levers in creating policy for a given system is that to do so requires knowing a lot about contingent and particular ways of seeing that are difficult to predict, and might not even emerge consistently within that system.

I’m going to agree with Jason on the benefits of thinking a bit more about the table’s organization, and in particular about “additional levers.” I won’t repeat what he’s said, but I’ll add that the table itself would benefit from a small, mostly cosmetic change: I think the categories ought to be included. As it is, the table is literally a list of 13 things. It’s easy for the reader’s eyes to glaze over at such a list, which as first presented does not appear to have any particular order to it. It’s also a much less useful resource for readers who return to it after a few months, or for those who just want to photocopy that page and put it in a file or something.

On a totally unrelated note, these two pieces make me wonder about the challenge of trying to write a piece of interdisciplinary scholarship. What distinguishes good interdisciplinary legal scholarship? Whatever the answer to this question might be, I get the visceral sense that these two pieces are less about the law than, say, the Kahan piece we read early on. Does that make a difference? When we are writing our own application papers, what should our aspirations be? Should we endeavor to 1) move the motivation story forward, with a focus on law, 2) introduce the motivation literature to a body of law that hasn’t seen it, 3) use the motivation story to develop a new approach to a legal problem, or 4) something else altogether?

Anyway, this string of questions is not meant to be rhetorical. I hope we have the chance to think about answers, if only through discussing our own application papers.

Relatively short post this week as I look forward to discussing the paper in class. Table 1 seems like a real useful resource, bringing together many of the conceptual frames from the past semester into one place. From a modeling standpoint, establishing these distinct design levers will be very valuable in years to come, when cooperative models of human behavior can be used to predict (based on known data of human motivations) how a set of legal rules will play out.

Having this in mind, I think it may be helpful to somehow separate the “crowding out” lever out of the current list of 13 design levers. The article describes “design levers” as “elements of [a] system designed to, and capable of, affecting the dynamics of the social system to which they apply . . . . [T]hey increase the likelihood that participants will behave cooperatively . . . “. The way I understand how crowding out works, it seems to me less an independent lever, but more a theory describing how a set of two or more design levers interact so as to diminish the effects of some of the levers compared to the others. Looking at the set of 13 design levers, it seems that crowding out is the only one that cannot operate alone — crowding out cannot be an element of system design absent the presence of at least two other design levers (communication, empathy/humanization, solidarity, …). All the others, with perhaps only the exception of exit/entry, are able to stand alone.

I think a good comparison of where this field is heading is to look at the field of systems biology. I took a course on the subject in graduate school and it didn’t dawn on me until now that many of the same principles/buzzwords apply – cooperativity, repression (~crowding out theory), multistability, diffusion (Silicon Valley example), local effects vs. global effects (see group selection), etc. If you’re curious to learn more about this analogy, check out http://web.mit.edu/biophysics/sbio/ .

I jotted down a few notes while reading, and I though I’d post them up in list form here:
1. Law, Policy, and Cooperation

2. After Selfishness

Professor Benkler’s 13 design levers create a handy toolbox for scholars that will certainly contribute to scholarship. However, in reading about the last four – what are now called “additional” levers – I was wondering if there might be a better way to categorize or label them. All the other levers fit into one of three categories: intrinsic; extrinsic; and intrinsic/extrinsic. Based on my limited knowledge, it struck me that cost and exit/entry might fit into the “extrinsic” box, while leadership and efficacy might fit into the “intrinsic/extrinsic” box. Is this right? If not, is there some other way to label them so that they are easier for scholars to conceptualize and are not free floating design levers?

In terms of building a theory of motivation and applying it to creativity and copyright incentives, what happens when we do away with general purpose measures of belief strength and desire strength, which tend to picture humans as discrete, rational, self-maximizing, entirely foregrounded entities with fully commensurable desires and beliefs? First, we can begin to talk about the special motivational conditions and shared background conditions under which it becomes possible for a person engaged in a given practice to find beauty or fun in a particular mode of action or inquiry or evaluation or collaboration. For copyright law, this existence of a wide range of motivational conditions may require a more piecemeal and field-by-field approach to the design of incentives than is provided by today’s unitary model.

Once we have articulated a practice-based model of motivation, we then have to figure out how a creative actor finds beauty or fun within a given practice. To do so, I suggest incorporating into the model of motivation a sense of fun that is exploited and maintained through the course of open-ended collaborative activity, where “fun” implies limited ownership followed by divestiture back into the common pool of ideas and activities from which one has drawn in the first place, so as to sustain the collaborative activity. One might use this theory of fun to redescribe Weber’s analysis of the religious foundations of capitalism as a shift from unbounded rationality (Kant, Aquinas) to practical social rationality (Benjamin Franklin). I explore using Wikipedia — which utilizes a division of labor that enables specialized and chunked production particularly appropriate to cultivating a sense of fun — as a legal model for networked motivations. The backdrop for this seemingly blithe theorizing about fun is Prof. Benkler’s observation that “behaviors and motivation patterns familiar to us from social relations . . . have become effective beyond the domains of building social relations of mutual interest and fulfilling our emotional and psychological needs of companionship and mutual recognition.” (Wealth of Networks, Ch. 4, introduction).

How does a new framework for explaining and making normative evaluations become credible at a given moment in history and why? In this paper, I will explore this question with a study of the ways in which behavioral psychology has been used to think about environmental policy. The lack of concern over global warming in the US, and the mass mobilization against genetically modified foods in EU, have been the subject of work by Cass Sunstein, who suggests that both of these reactions are in part the product of human cognitive biases. For example: if you ask people to choose between preventing a one-in-ten chance of 2000 deaths and a one-in-one-million chance of 200 million deaths, the vast majority will chose the former, despite the fact that both scenarios have the identical “expected value” (a loss of 200 lives), and the death of 200 million will have catastrophic ancillary effects. Thus, Sunstein concludes, people seem to systematically undervalue small probabilities of extreme harm, and a rational public policy on global warming—and one that reflects the true concerns of the people—should account and adjust for this bias. It seems to me, however, that this analysis goes too far too fast, and fails to adequately consider the complex way in which probability actually enters our moral evaluations. Insofar as causal attributions in the worlds of ethics and of law are not dictated the external world, explanations that focus on statistical risk and “expected value” overlook the way in which we feel, and assign, responsibility for harm — and it is this that best explains the results of the study. A similar limitation in Sunstein’s analysis can be seen in his account of the genetically modified foods debates in the EU, according to which categorical opposition to GMOs is essentially irrational and based on perceived rather than real risk. While I do not contest that this is part of the story to be hold, it seems to me that Sunstein’s account of “rational” motivation is a bit thin, failing to account for the fact that the public might have legitimate concerns about the behavior, track-record, and trustworthiness of the institutions that are given the power to evaluate and control the potential harm associated with GMOs. These are, however, first impressions, and I will certainly flesh them out as I further explore the conditions and manner in which the approach to environmental policy advanced by Sunstein came to occupy the authoritative position that it holds today.

The public domain comprises all uses of information not prohibited by copyright law. Copyright scholars typically idealize the public domain, viewing its “enclosure” with suspicion. They defend the public domain for three reasons. The libertarian justification holds that exclusive rights restrict freedom and should do so no more than is absolutely necessary. The economic view idealizes the public domain for its efficiency—regulation is necessary to produce dynamic gains, but regulation in excess of dynamic equilibrium leads to deadweight loss. The instrumental-republican account prizes the public domain because it allows citizens to participate in a “semiotic democracy.”

These accepted arguments are important but incomplete. The libertarian and instrumental-republican accounts require the acceptance of a normative program exogenous to the copyright system. The economic justification comports with the underlying constitutional purpose of “promoting progress,” but it relies on dubious assumptions about how selfish rational actors respond to incentives in the production of public goods. As a result, the optimal shape of the public domain may differ substantially from what the economic account might prescribe. To the extent that we have intrinsic motivations to produce public goods, we may require less copyright-based incentives. Indeed, the best way to crowd-in intrinsic motivations may be to promote a community of information production, consistent with self-determination theory. Thus, something like a semiotic democracy may actually produce optimal incentives, with positive externalities of cultural participation. Whether it does so depends on whether the costs of promoting the republican public domain outweigh the gains in intrinsic motivation.

My paper will look at the problem of regulating conduct when part of what is driving such conduct is its illegality. One example of such a phenomenon is graffiti (other examples may also be included). I will attempt to argue that part of the reason graffiti is difficult to counter is because it is the creation of people who belong to marginalized groups and are therefore motivated in part by a desire to upend the existing social hierarchy and flout the rules of society. The paper will focus on two different types of graffiti – tagging and gang graffiti. The two practices are different in that a tagger primarily works independently to spread his own reputation. This involves creating a personal signature which he (very few women are graffiti artists) attempts to fix in public spaces (the more inaccessible the setting the better). On the other hand, the purpose of gang graffiti is to mark territory, broadcast allegiances and enmities between various gangs, and provide advertisement for a gang. While a trained eye can easily tell the difference between a tag and gang graffiti, most people cannot. Common to both graffiti artists is a desire to let the public know of their existence while simultaneously hiding their message. The gang graffitists do this to intimidate and, therefore, the illegal nature of the act is important since it shows the outside world just how fearless the gang is. For taggers, the illegal element also enhances their reputation by making their task even harder/riskier to accomplish.

There have been a variety of different responses by law enforcement to graffiti from reactive crime prevention approaches such as “zero tolerance,” graffiti control projects, and community-based initiatives that involve the graffitists themselves. Only the latter approach attempts to address the problem by changing the norms of the subculture directly. However, I predict these programs are unlikely to succeed since they do not and cannot change the social order that graffitists are attempting to disrupt.