Motivation

“And Laws also justly made for the preservation of the Commonwealth, without extreme Punishment or grave Penalty, are more often for the most Part obeyed and kept, than Laws and Statutes made with great and extreme Punishments”

Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839, 847 quoting 1 Mary, stat. 1, c. 1 (1553)

This weeks readings dovetailed quite nicely with a seminar I’m taking on the Eight Amendment prohibition on cruel and unusual punishment. One of the central questions in the cases on prison sentencing is whether they must be proportional to the crime that has been committed. Those that argue against a proportionality principle note that punishment has several different purposes, including deterring others and incapacitating offenders, that are not address by having “fair” sentences. Proportional sentences only satisfy one of the purposes of punishment – retribution. The quote above was taken from a statute enacted in 1553 that repealed certain treasons and felonies and contain an argument for proportional sentencing that is not often used by its proponents. However, if the quotes central insight can be proven – i.e. that “great and Extreme Punishments” do not deter people and, in fact, make it less likely that they will follow the law – then the argument that proportionality does not satisfy other penological purposes is weakened.

Fehr and Rockenbach’s experiment suggests that proportional punishments are more likely to deter crime than excessive punishments. However, I am very hesitant to draw the implications of the study out so far as to argue that the study proves proportional sentences are best for many reasons: criminals are often repeat-players, the state and not individuals themselves are responsible for meeting out specific sentences, and the experiment was focusing on informal sanctions. I think that their suggestion that the moral legitimacy of a sanction has an affect on cooperation is a lesson that can inform sentencing reform. (Fehr and Rockehnbackh, 140). It makes sense that those who feel they are the targets of an unfair sentencing policy are less willing to abide by societies rules both inside and outside of prison walls.

I also wonder if the increase in prison terms suggests that the wider society does not see “criminals” as belonging to the same community as their victims or the people who determine what and how society punishes infractions. While Braman notes that lengthy sentences might have a negative effect on the formation of community bonds that help deter crime (Benkler, 31), its possible that this argument may not convince politicians who see criminals as people who are outside of society to begin with.

There are other ways these insights can play out in terms of crime and punishment, but above are just a couple of ideas I had. Help distilling or clarifying them would be much appreciated.

Like Nick below, I found myself focusing on p. 31 of Benkler’s piece in which he points out the (presumably inadvertent) effects that large-scale, societally-based legal measures and the bias it might give one toward deregulatory measures. My initial reaction, at least considering the long-term incarceration example of Bramam, is that we ought to at least consider how a structure that is premised on cooperative actors and mutual community bonds would work and start encouraging some local implementation of such measures.

It makes sense to me that such systems may need to be built from the ground up rather than on top of existing systems, that they will, in Benkler’s words, require “significant reform and reconceptualization of what the the organizational system is about and how it adapts to sustain a cooperative dynamic.”

In the IP realm, and I suppose I mark myself here as a small IP person, it might be interesting to look at how other countries that have more collectivist, community focused, cultures structure their IP regimes. Or at least how they structured them before the United States came in an lobbied to have them adopt protectionist, U.S.-friendly policies. [This may require a bit of historical research given how many signatories the Berne Convention now has)

My overall point, however, is that other countries — take Japan, for example — have had IP structures that promoted community through devices like compulsory licensing. Perhaps in our American minds “compulsory licensing of IP” sounds a lot like sanctioning, but it could be viewed as governmental regulation designed to encourage teamwork and group applications.

Someone who knows more about Japanese IP feel free to step in here and show me how/if those types of IP laws stifled creativity and innovation.

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.

In every study we’ve read, the stakes are presumed to be roughly identical for each subject—a potential $10 payoff (or $5 fine) shapes incentives similarly for all involved. Since the money in play is relatively insignificant, and since all subjects are typically college students, this assumption is probably a fair one. After all, even $10 is unlikely to mean much more to a poor college student than a wealthy one, whereas $10 to the average citizen of Malawi is like earning an additional three weeks’ salary.

Still, when I’ve tried to start thinking about applying the various findings of the studies we’ve read to legal doctrines, I’ve found myself struck by the problem of inequality. The typical calculus for a driver in David’s example is likely to change based on the driver’s wealth. To the extent that the cooperation research is applied to internal policing as in Kahan’s paper, I think inequality has little significance. But if we are designing legal sanctions from the government, the effect of preexisting inequality may complicate things.

One obvious effect of preexisting inequality on the studies: in the “one-way identification with information” DG, I suspect that, if the information were to suggest significant inequality of resources between dictator and recipient, the division would be affected.

Professor Benkler’s discussion of group identity led me to wonder whether these findings on behavior and motivation can also apply to actions and decision-making by collectivities. Rational choice theory is used to explain state actors decisions, so can behavioral science do the same? If it can, then, for multi-state collective action problems, we would see cooperative states routinely sanction non-cooperators. Moreover, Fehr et al.’s work in this regard would help explain a big question in international law — when states care more about relative welfare than absolute welfare. But, are there sticking points that make rational choice theory more applicable to collectivities than findings from behavioral science?

After a late night at work, John Doe gets stuck behind a car that is going way below the speed limit on a one-lane highway. Frustrated and wanting to get home as soon as possible to see his family before they go to sleep, he checks for traffic on the opposing side of the road to see if everything is clear. John then drives quickly to the other side of the road so that he can pass the car in front of him. To his surprise, there were two cars in front of him rather than just one, and the cars that he thought were so far away are approaching closer than he hoped. John makes a quick maneuver and squeezes in between the two cars in just enough time to prevent an accident. He realizes that one of the cars on the opposing side of the road was a police vehicle, and John is pulled over one minute later.

The police officer scolds him for his dangerous maneuver, and asks for John’s license and registration. The police officer goes back to his vehicle and stays there for a good 10 minutes. John in the mean time is terrified. He wonders how much he will be fined and how he is going to find time to go to traffic school. The officer returns to John’s car and tells him he has decided to only issue a warning this time but that he should be more careful.

Taking Fehr and Rockenbach’s study (Nature, 2003) and revising the facts and definitions a bit, the police officer here had three options (note that I am ignoring the possibility that the officer does not pull over John at all):
1. Trust condition – fine not possible. The police officer would pull over John, but could not give them a ticket. John would know that the police officer has no power to issue tickets
2. Incentive condition – fine imposed. The police officer pulls John over and issues him a ticket.
3. Incentive condition – fine not imposed. The police officer pulls John over. Although the officer can issue John a ticket, he decides not to.

Some will say that this fact pattern more accurately fits the “notion of “reciprocal altruism” as defined by Trivers.” (Fehr and Rockenbach, 2003). I disagree, and instead believe that the relationship of John with the police officer is a one-off game with only indirect elements of “reciprocal altruism. The police officer gives up some utility by not issuing the ticket – he is foregoing an opportunity to approach his ticket quota (see http://www.heraldextra.com/content/view/…). In addition, John and the officer are unlikely to ever meet again, and probably do not know each other already, so their “social distance” is probably large.

Nonetheless, the fact pattern does have a repeated game element since John will drive again. But the interesting quirk here is that the one who sanctions is the law enforcement system in general. Yet, it is individual police officers, with their own sense of altruism and empathy, who decide whether to issue the tickets themselves.

I’d be very interested in a retrospective study of whether individuals who are issued warnings are more or less likely than individuals who were issued actual fines to either cooperate or defect in the future. The study could trace any number of variables including the size of the fine (high sanction, low sanction) and the size of the city (social distance in some towns will probably be small since people will know each other), among others. A benefit of this study would be the potentially large sample size.

My guess? Forcing John to pay a fine and attend traffic school will be most effective in convincing him to follow the law.

Here’s a link to an article talking about what’s firing in people’s minds when they think about the trolley problem

http://www.reason.com/news/show/35014.html

Reading the Kahan and the social games articles got me thinking about some of the philosophical, rather than psychological, frameworks for individual action within society. Kahan describes the conventional theory as casting people as wealth maximizing agents who cooperate with others when given enough “incentives,” while the reciprocity theory portrays people as “moral reciprocators” who cooperate based on trust. This, along with several references Kahan makes throughout his article reminded me of the utilitarian/deontological debate.

Utility needs some basis of measurement, and so the conventional theory of collective action that emphasizes accrued wealth and incentives (usually some material gain, though pleasure/pain work too) fits nicely in this framework. Reciprocity, particularly in its most extreme form, smacks of a rigid adherence to Kant, choosing one’s actions a priori before taking the time to learn to play the games.

Yet the need for a basis of measurement leads to a commensurability problem. Money is an easy answer, and the common unit for these game studies. Kantian logic, however, urges that we avoid such measurements as a valid basis for human action.

The game studies show that people will act according to material game, but also give up some gain to punish the bad behavior of others. However, they suggest that people never act in a purely altruistic manner.

Are pure personal utilitarians jerks and pure Kantian a prori actors chumps? Can it be that people act, at least on occasion, without taking personal gain into account at all (or at most taking the action they would want everyone else to take into account)?

    Yesterday, I attended Professor Coates’ Chair Lecture where he gave a talk entitled “On Being a Corporate Lawyer.” I’m sure everyone going to a corporate law firm will be interested to know that one of the results from his research was that lawyer’s were being underpaid. This is deduced in part from the fact that lawyers are overworked. In response to the amount of work that needs to be done, law firms are providing inadequate training (and I’m guessing inadequate feedback), especially as some firms focus on increasing leverage. Assuming Professor Coates’, and the conventional wisdom that corporate lawyers are generally an unhappy bunch, is right, what does this say about the intrinsic motivations of lawyers? I don’t think that increasing salaries of lawyer’s has lead to a crowding-out effect – quite the opposite. However, I’d like to think that legal practice presents numerous opportunities to engage in the type of complex-solving problems for which intrinsic motivation is important – but then again maybe document review and due diligence are not all that complex. I think few of Deci’s “needs” are fulfilled by junior corporate lawyers. Autonomy? Nope. Competence? Hopefully, but with increasing leverage its unlikely that you will be able to get as much feedback as you’d like and, again, the tasks that are given to you at least initially may not be the best avenue for showcasing your abilities. Leverage also has a negative impact on relatedness.

For many people then, myself included, being a corporate lawyer would come down to the $160,000 salary. But if I’m being underpaid, there goes my extrinsic motivation! However, in this case, it would appear that raising the price could, in a round-about way, help increase intrinsic motivation. The higher our salary, the less demand there’ll be for our services (but, unfortunately, more competition for jobs between law students). This will make it essential that junior lawyers get better training and substantive work. I’m not sure an increase in salary will directly or indirectly make us feel like we have more control over what we do, but if it can magically grant us a better work-life balance, some measure of autonomy will hopefully seep back into the lives of junior lawyers.

I realize that I am painting what is probably an overly pessimistic view of being a corporate lawyer and there are several angles I’m missing. However I’d love to hear what other people think of this even though it’s a response largely to last weeks readings.

(1) I’m wary of Camerer & Fehr’s definition of altruism. It seems to catch situations where a person is trying unsuccessfully to be selfish and calling that behavior altruistic, which I’m not sure is what we want to say altruism is. For example, say that we evolved the inclination to try to cooperate when cooperation is not narrowly in our interests because generally that behavior is adaptive in repeat-player situations. Even if we don’t know whether someone is a repeat or one-time player, we could still have these inclinations because in the past we couldn’t anticipate what kind of a player someone was. (I’m thinking of situations where you meet someone once, don’t think you’ll see them again, but then end up running into them all the time.) Under this understanding, what Camerer and Fehr call altruism seems to me like it might be ineffective selfishness — we’re maladapted to dealing with true one-time player situations and not good at recognizing them. But is that really what we mean by altruism — a word which evokes a sense of goodness and morality?

(2) On the last page of Ostrum she writes, “We are producing generations of cynical citizens with little trust in one another, much less in their governments.” Now, I agree with her that trust is important to solving social dilemnas. But this arguably throw-away sentence rubbed me the wrong way. Does trust in government ever make for better government, or does it just give government more leeway to, say, wiretap its citizens, perform searches and seizures that are not necessarily justified, etc? The government-individual relationship seems very different in kind to the individual-individual-individual-[etc.] relationship, where trust seems (prima facie, to me) more valuable.

(3) I wonder how much the minimum wage or other senses of entitlement ever contribute to crowding out “effort.” (Jolls mentions something close to this on the first full paragraph on p. 10.) E.g. the couple pays the babysitter higher than they could get away with, in the hope that the babysitter will reciprocate the payment with a higher degree of effort. However, is the babysitter’s feeling that s/he should try hard diminished if the babysitter feels that s/he “deserves” that amount under a wage law? This issue actually could appear any time that an employee feels entitled to certain treatment (think 160k being the standard starting law firm salary, for instance). I’m not suggesting this is bad or good — I think most of us would agree certain conditions, like safe work conditions, a worker absolutely should feel entitled to. But it would be interesting to explore how feeling entitled to payment affects effort.