W. Kip Viscusi on Pricing Lives: Guideposts for a Safer Society

ViscusiLike it or not, sometimes we need to put a monetary value on people’s lives. In the past, government agencies used the financial “cost of death” to monetize the mortality risks of regulatory policies, but this method vastly undervalued life. Pricing Lives tells the story of how the government came to adopt an altogether different approach—the value of a statistical life, or VSL—and persuasively shows how its more widespread use could create a safer and more equitable society for everyone. In this book, Kip Viscusi provides a comprehensive look at all aspects of economic and policy efforts to price lives. Pricing Lives proposes sensible economic guideposts to foster more protective policies and greater levels of safety in the United States and throughout the world.

What do you mean by “pricing lives,” and where does this occur?

What we mean by pricing lives depends on the context. For the government’s risk and environmental regulation policies, the challenge is to determine how much we are willing to spend to prevent each expected fatality. The principal measure used to set this price is known as the value of a statistical life (VSL), or the amount society is willing to pay to prevent the risk of each statistical death. Companies also set an implicit price on life every time they make products that are not risk-free. Sometimes companies have assigned numerical amounts to the value of the fatalities that are prevented, though how they have done so is seriously flawed and has greatly undervalued life. There is also a role for pricing lives after fatalities have occurred. Regulatory agencies set the penalties that firms must pay for regulatory violations that led to the fatalities. The courts also set a price on lives in wrongful death cases in terms of the amount of compensation that must be paid to the decedent’s family after the death.

Why should there be any limit at all on what the government spends to save lives?

So long as resources are limited, we cannot make an unbounded commitment to a risk-free society. The practical issue is where to set these limits. In the 1980s, I was asked to settle a dispute between OMB and OSHA over the proposed hazard communication regulation. OMB had rejected the proposal, concluding that the costs exceeded the benefits. In my analysis of this debate, I introduced the VSL concept to government agencies. Doing so made the calculation of the benefits of risk regulations ten times more valuable than they were under the previous cost of death approach. It also led to the issuance of a regulation that previously had been rejected because it was viewed as being too costly. Although some government agencies were slow to adopt the higher VSL numbers, this approach is now the norm in government agencies. The VSL is the most important single number used in the evaluation of government regulatory policies.

Where can we get these values of a statistical life numbers?

The most reliable evidence is based on U.S. labor studies of the extra pay workers get for extra risk.  Suppose, for example, that a worker was paid $900 extra per year to face a risk of 1/10,000. Then, for a group of 10,000 workers, they would be paid $9 million (10,000 × $900) for the one expected death to their group. My current estimates of the VSL in the U.S. place this value at $10 million. Once people understand that the VSL greatly exceeds people’s earnings, the criticism that the approach is immoral generally diminishes. Instead, people wonder how people can value their lives by more than what they make. The reason for this surprisingly large value is that they are not buying out of the prospect of certain death. Instead, the VSL only pertains to very small risks of death that are much less costly to prevent.

What do other countries do? Does this U.S. labor market evidence have any pertinence to them?

Many other countries have also adopted the VSL approach, usually based on studies in which people are asked in interviews how much they are willing to pay for safety. Unfortunately, the VSL estimates that are used outside of the U.S. are very low—far lower than is warranted based on the income levels relative to the U.S. Even countries such as the United Kingdom and Australia greatly undervalue lives, with far greater disparities observed for many low-income countries. In this book, I present an approach for transferring the U.S. estimates to other countries, along with appropriate adjustments for income level differences. The estimates I provide for a wide range of countries will greatly increase the value placed on safety throughout the world.

Are there other factors, like age, that can affect the VSL?

What matters is people’s own willingness to pay to reduce risk. Unlike purported economic measures, such as the cost of death approach, people can still have a high VSL even if they are retired. As it turns out, the VSL rises over people’s lifetime, and then does decline somewhat, but it does not plummet with age. The VSL for those age 65 and over is very similar to that of people in their early 20s. There was a public outcry against the Environmental Protection Agency when it attempted an age adjustment that put “seniors on sale, 37% off.” Unfortunately, this age adjustment was not based on any U.S. labor market evidence but on a more speculative interview study from the United Kingdom. Typically, government policies have impacts across the entire population so that in most instances, relying on an average VSL is all that is needed. 

This whole idea of pricing lives sounds similar what businesses do when they decide how much to spend on product safety improvements. Do they get it right?

Unfortunately, companies historically have underpriced lives as well, as they have focused on how much they have to pay in court after a fatality rather than on how much it is worth to consumers to reduce the risk of death. Companies fell prey to the same cost of death approach that government agencies used to use. Jurors have expressed alarm after reviewing these corporate practices, sometimes levying punitive damages of $100 million or more against companies that have valued lives in this way. The result has been that most companies have abandoned such risk analyses altogether and now keep such deliberations secret, for fear of liability. In my book, I propose that companies adopt the VSL in their product safety decisions and that they be given legal protections to encourage responsible corporate risk analyses.

How is it that setting a finite price on life can provide “guideposts for a safer society?”

A properly set VSL raises rather than reduces the amounts that government agencies throughout the world assign to the prevention of fatality risks. Adoption of this approach for corporate risk decisions likewise would lead to safer products. In this book, I also advocate that the VSL be used to set penalties for regulatory violations leading to fatalities. Doing so would lead to an enormous increase in penalties by, for example, boosting penalties for job safety violations by a factor of 1,000. The courts similarly can use the VSL in both assessing product safety and setting damages in situations where deterring risky behavior is the concern. My proposed expansion of the application of the VSL will provide greater incentives for safety in all these contexts. What is particularly striking is that the single VSL number can serve multiple purposes and set the price on life in so many different situations.

W. Kip Viscusi is the University Distinguished Professor of Law, Economics, and Management at Vanderbilt University. His many books include Economics of Regulation and Antitrust and Fatal Tradeoffs: Public and Private Responsibilities for Risk.

Paul Tucker on Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State

TuckerCentral bankers have emerged from the financial crisis as the third great pillar of unelected power alongside the judiciary and the military. They pull the regulatory and financial levers of our economic well-being, yet unlike democratically elected leaders, their power does not come directly from the people. Unelected Power lays out the principles needed to ensure that central bankers, technocrats, regulators, and other agents of the administrative state remain stewards of the common good and do not become overmighty citizens. Like it or not, unelected power has become a hallmark of modern government. This critically important book shows how to harness it to the people’s purposes.

What is the regulatory state?

It’s a term that has come to be used to describe a host of government bodies that regulate particular economic sectors or the public more generally to protect, say, investors, the environment, consumers, workers, and so on. In a rudimentary form it has existed for a long time, going back to the 19th century and beyond. Going wider, Americans sometimes refer to the administrative state, meaning the evolution of government beyond a world of legislators and courts to one in which the executive branch makes policy and is divided up into departments, agencies, bureaus, commissions, and so on.

What are Independent agencies, and why do they matter?

They are government organizations that are not under the day-to-day control of elected politicians, whether in the executive branch or the legislature. Obvious examples today are the central banks, such as the Federal Reserve, European Central Bank, and the Bank of England, but also various regulators insulated from ongoing political control. By no means all agencies in the administrative state are independent. On both sides of the Atlantic, many are under the control of cabinet ministers or subject to annual budget approvals from the legislature, which makes them sensitive to politicians’ sentiments and whims. Independent agencies are distinctive in that politicians can control them only by amending or repealing legislation.

That sounds problematic in a democracy. Is it?

That’s the point of the book. The way I’ve just described them it could be a hell of a problem. Imagine an independent agency that had lots of powers but only the vaguest purpose and objective. Who would be able to tell whether it had succeeded in its mission if it set its own goal posts?! That’s at odds with some of our deepest values: just as “no taxation without representation” was a rallying cry a couple of centuries’ ago, we might just as well demand “no regulation without representation.”

Are central banks a particular problem?

They have become the poster boys and girls of today’s unelected power. Compared with what happened after the Great Depression in the 1930s, when it was politicians who did the heavy lifting, this time it has been central banks that have led the way in reviving the economy and redesigning the financial system. They have used their balance sheets on a truly gigantic scale to influence credit conditions in lots of markets, and have been given lots of new regulatory powers. They are more powerful than ever before, ranking with the judiciary and military as a third core pillar of unelected power.

Do people object to all this?

Yes, but in rather different ways in different countries. In the US, since the New Deal there have been critics who object that regulatory agencies violate the values associated with the separation of powers or even the Constitution itself. In France, not long ago the parliament passed legislation to put more structure around such agencies. In the UK, there is episodic antagonism to government by ‘experts.’

And on central bank independence, there have been challenges in the German constitutional court and attempts to pass reforming legislation in the US Congress.

So what is the solution?

Our democracies need norms for whether and how to delegate to independent agencies that measure up to the deep political values of our democratic, liberal republics: the various values of democracy, rule of law, constitutionalism. My book proposes and defends just such a set of Principles for Delegation, as I call them. They come in two broad parts: criteria for whether to delegate, and precepts for how to delegate.

Criteria for whether to delegate: I argue that a policy function should not be delegated to a truly independent agency unless (1) society has settled preferences; (2) the objective is capable of being framed in a reasonably clear way; (3) delegation would materially mitigate a problem of credible commitment; and (4) the policymaker would not have to make big choices on society’s values or the distribution of its resources.

Precepts for how to delegate: (1) the agency’s purposes, objectives and powers should be clear and set by elected legislators; (2) its decision-making procedures should be set largely by legislators and should accord with the values of the rule of law; (3) the agency itself should publish the operating principles that will guide its exercise of discretion within the delegated domain; (4) there should be transparency sufficient to permit accountability to the legislature for the agency’s stewardship of the regime and, separately, for politicians’ framing of the regime; and (5) it should be clear what (if anything) will happen, procedurally and/or substantively, when the edges of the regime are reached but the agency could do more to avert or contain a crisis. 

Perhaps the biggest thing is that elected legislators should set a monitorable objective. Independent agencies really can improve the credibility of commitments made by government, but only if we know what we want them to do and can track whether or not they are doing it.

Would those Principles affect anything much?

Yes. Here are just three examples.

They would challenge the acceptability of judges completely having completely overhauled the principles of competition policy a few decades ago. The legislation was vague and the views of economists had moved on, so the courts had room and reason to act. But, given our democratic values, this should have been work for elected politicians.

They suggest that role of some financial-market regulators in preserving a stable financial system needs either to be better insulated from politics (such as the SEC in the US) or subject to much clearer objectives (UK).

And they would restrict the roles and activities of central banks rather more than we have seen in recent years.  

Is any of this realistic in actual democratic states?

Well, that’s the point of the book. There are no deep constitutional blockages, so it’s a question of whether we want to be governed in a way that’s consistent with our values. I’m hoping that people who see merit in my Principles for Delegation (or something like them) will cite many more examples than I can (or even know about), generating the kind of debate that is badly needed about how state power is allocated.

Anyway, surely something has to be done to bring the role of experts in government in line with our democratic commitments.

Why did you write the book?

I spent a good part of my central banking career helping to design regulatory and monetary regimes, none more important than the expansion of the Bank of England’s powers after the Great Financial Crisis. We resisted some powers, wanted others constrained, and had strong views on how the different responsibilities should be assigned to distinct committees so as to disperse power and focus incentives. I wanted to try to write down the values and considerations lying behind that. When I moved to Harvard in late-2013, I had the opportunity to do so.

Paul Tucker is a fellow at the Harvard Kennedy School and chair of the Systemic Risk Council. For more than thirty years, he was a central banker and regulator at the Bank of England and the Bank for International Settlements. He lives in London.

Nancy Woloch: The roots of International Women’s Day

WolochInternational Women’s Day has roots on the left. The idea for such a day arose among socialist women in the US and Europe early in the 20th century. A New York City women’s socialist meeting of 1909 endorsed the plan. So did the International Socialist Women’s Conference that met in Copenhagen in August 1910 as part of the larger Internationalist Socialist Congress. The hundred delegates from seventeen nations who attended the women’s conference shaped a demanding agenda. In what manner would socialist women support woman suffrage? Might they join forces with “bourgeois” feminists to accept restricted forms of enfranchisement, as urged by British delegates? Or did the socialist campaign for woman suffrage involve “the political emancipation of the female sex for the proletarian class-struggle,” as claimed by German delegates? The Germans won that point. In other areas, the women delegates found more unity. Denouncing militarism, they spoke for peace. They urged international labor standards for women workers, such the 8-hour day, limits on child labor, and paid support for pregnant workers and new mothers. Finally, they endorsed a day of activism around the globe to promote women’s emancipation, a counterpart to the May Day marches of socialists. “[W]omen of all nationalities have to organize a special Woman’s Day, which in first line has to promote woman suffrage propaganda,” wrote German socialist Clara Zetkin and her comrades. “This demand must be discussed in connection with the whole woman question according to the socialist conception of social things.” As of 1913, socialist women chose March 8th as the date for International Women’s Day.  

Women activists of the 1960s in Chicago revived the socialist strategy to promote women’s emancipation. Adopted by the United Nations in 1975, International Women’s Day now sponsors less politicized and more broadly inclusive goals; proponents celebrate facets of women’s achievement and champion action to achieve gender equity. Over the decades, on March 8 of each year, events around the globe underscore common themes such as equal rights, women and peace, and opposition to violence against women. In the recent words of the UN Secretary-General, Antonio Guterres, the celebration of International Women’s Day seeks “to overcome entrenched prejudice, support engagement and activism, and promote gender equity and women’s empowerment.”

Workplace rights are key issues for advocates of International Women’s Day, just as they were for defenders of labor standards a century ago. The growth of labor standards—such as maximum-hour laws and minimum wage laws—is the subject of my book, A Class by Herself: Protective Laws for Women Workers, 1890s-1990s. With global roots and global impact, labor standards remain vital for women workers today. Women constitute almost half the workforce of the world and half of migrant workers, often the least protected of employees. Current concerns include the minimum wage, overtime pay, paid family leave, workplace safety, and opposition to sexual harassment. Labor organizers worldwide focus on job segregation, the gender wage gap, and the need for policies to integrate work and family. Celebrants of International Women’s Day share such goals and seek to uphold labor standards around the globe.

 

Nancy Woloch teaches history at Barnard College, Columbia University. She is the author of A Class by Herself: Protective Laws for Women Workers, 1890s–1990s.

Sources
Report of the socialist party delegation and proceedings of the International socialist congress at Copenhagen, 1910 (Chicago: H.G. Adair, 1910), pp. 19-23.
Temma Kaplan, “On the Socialist Origins of International Women’s Day,” Feminist Studies 11, no. 1 (Spring, 1985), pp. 163-171.
Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s-1990s
(Princeton: Princeton University Press, 2015).

Exploring the Black Experience through Economics

For hundreds of years, the American and global economies have been built on the backs of Black people. In each era, new forms of marginalization—enslavement, segregation, exclusion—have been devised to limit Black economic success. Still, Black dreams and Black resilience have created space for Black people’s hard-won economic gains. As workers, scholars, migrants, and emissaries of empire, Black people have shaped the American and global economies in crucial ways.

From industrial migration to economic colonization, and from unfunded neighborhoods to elite business schools, these four books from PUP’s catalog highlight different aspects of Black Americans’ experiences at the center, the margins, and the cutting edge of the formal economy.

From 1940 to 1970, nearly four million black migrants left the American rural South to settle in the industrial cities of the North and West. Competition in the Promised Land provides a comprehensive account of the long-lasting effects of the influx of black workers on labor markets and urban space in receiving areas.

Employing historical census data and state-of-the-art econometric methods, Competition in the Promised Land revises our understanding of the Great Black Migration and its role in the transformation of American society.

In 1901, the Tuskegee Institute, founded by Booker T. Washington, sent an expedition to the German colony of Togo in West Africa, with the purpose of transforming the region into a cotton economy similar to that of the post-Reconstruction American South. Alabama in Africa explores the politics of labor, sexuality, and race behind this endeavor, and the economic, political, and intellectual links connecting Germany, Africa, and the southern United States. The cross-fertilization of histories and practices led to the emergence of a global South, reproduced social inequities on both sides of the Atlantic, and pushed the American South and the German Empire to the forefront of modern colonialism.

Tracking the intertwined histories of Europe, Africa, and the Americas at the turn of the century, Alabama in Africa shows how the politics and economics of the segregated American South significantly reshaped other areas of the world.

Baltimore was once a vibrant manufacturing town, but today, with factory closings and steady job loss since the 1970s, it is home to some of the most impoverished neighborhoods in America. The Hero’s Fight provides an intimate look at the effects of deindustrialization on the lives of Baltimore’s urban poor, and sheds critical light on the unintended consequences of welfare policy on our most vulnerable communities.

Blending compelling portraits with in-depth scholarly analysis, The Hero’s Fight explores how the welfare state contributes to the perpetuation of urban poverty in America.

For nearly three decades, English has been the lingua franca of cross-border organizations, yet studies on corporate language strategies and their importance for globalization have been scarce. In The Language of Global Success, Tsedal Neeley provides an in-depth look at a single organization—the high-tech giant Rakuten—in the five years following its English lingua franca mandate. Neeley’s behind-the-scenes account explores how language shapes the ways in which employees who work in global organizations communicate and negotiate linguistic and cultural differences.

Examining the strategic use of language by one international corporation, The Language of Global Success uncovers how all organizations might integrate language effectively to tap into the promise of globalization.

Ian Hurd: Everything I know about International Human Rights I Learned from The Clash

In the constellation of fake holidays, International Clash Day is a new star that burns a little brighter every year. Invented in 2013, February 7th is a celebration of the British band who in the late 1970s added sharp politics to the energetic, polyglot music of punk rock. Their message embraced human rights but with a twist: they saw the rule of law as the enemy of human rights rather than its savior, and they mocked both liberals and conservatives while charting a third way.

In contrast to the nihilism of the Sex Pistols and the cartoonism of the Ramones, The Clash offered a rock ’n roll course in political philosophy. It begins with seeing where the sharp end of the state is felt by regular people. Their songs speak of people’s daily lives in the face of police, the military, courts, and laws that all carry the possibility of violence.

Joe Strummer and Mick Jones were the principal songwriters. Their song Know Your Rights amounts to a primer on the difference between rights in theory and in practice. Billed as “a public service announcement… with guitars” it tells the audience to

Know your rights

All three of them

 

Number one: you have the right not to be killed

Murder is a crime

Unless it was done by a policeman – or an aristocrat

 

Number two: you have the right to free money

As long as you don’t mind a little investigation, humiliation, and

if you cross your fingers… rehabilitation!

 

Number three: you have the right to free speech

As long as are you aren’t dumb enough to actually try it

The song comes from knowing that legal rights are interpreted and applied by the state itself. For regular people the value of these rights depends mainly on how this interpretation and application are done. To be shot a person dead on the sidewalk is presumably a wrong. But whether it’s a legal wrong depends on who did it, why, where, and to whom. The legal and political meaning of killing depends on how the state draws lines around accountability. Police badges, stand your ground laws, citizenship status, declarations of war, and skin color are formal and informal features that affect legal accountability.

The pragmatic realism of The Clash could come across as mere cynicism – that law promises one thing but delivers another – but it’s is also a foundation for a political worldview that challenges the liberal common-sense.

At the heart of the liberal view is the belief that what’s most important is following the rules. These might be rule of law or rules of global governance. The Clash remind us to ask why these rules are the rules and who do they benefit. Once we do that, the political content of the rules becomes clearer and the injunction to just ‘follow the rules’ seems less like a universal good and more like a partisan intervention in a long-running social conflict.

In Julie’s Been Working for the Drug Squad they tell of their friends caught in punitive jail sentences for casual drug offenses. The bureaucratic function of judges – to impose penalties upon rule breakers – feels indistinguishable from the politics of race, class, and power that went into making the law in the first place.

And then there came the night of the greatest ever raid

They arrested every drug that had ever been made

They took eighty-two laws

Through eighty-two doors

And they didn’t halt the pull

Till the cells were all full

‘Cause Julie’s been working for the Drug Squad

 

They put him in a cell, they said ‘you wait here’

You got the time to count all of your hair

You got fifteen years

That’s a mighty long time

The liberal faith in law believes that it protects the individual against the state. The Clash point to something else: that law serves some interests at the expense of others. Moreover, in practice it’s likely to serve the strong rather than the weak. Instead of a neutral framework that benefits everyone it is better seen as a political structure that allocates power and privilege.

If we were talking about tax law all of this would make for an uncontroversial point. It is easy to see that while tax law imposes its obligations on everyone equally it also favors some people, some kinds of income, some kinds of wealth, at the expense of others. It produces winners in society and also losers, and political fights over tax law are about who will sit in which category.

But the idea that law creates both winners and losers becomes much less popular when it moves to the world of international human rights. It is common among human rights activists to take an enchanted view of law that sees it as making only winners. It is assumed that the rules are good for everyone and so there are no losers.

On the grandest scale, good governance in world order is often seen as requiring faithful adherence to international law by all parties. If only governments were more committed to international human rights treaties then then we could be rid of torture, repression and all the rest. This is what Stephen Hopgood has called ‘Human Rights’ in the uppercase sense – the collection of treaties, states, courts, and activists who have been granted formal power to oversee, criticize, and perhaps even prosecute violations.

The Clash look instead for what Hopgood calls ‘human rights’ in the lowercase. This is the lived experience of people in relation to state violence. From this perspective, the state is likely felt as the main danger rather than a source of protection. It sees human rights as a struggle between the person and the government – it exists when you want to do something that the state wants to prevent. By persisting, you risk a baton to the back of the head, or pepper-spray to the face, or jail or death.

What is at stake here are two different views of the relationship between law and politics. On the one side, ‘Human Rights’ seeks to create centralized political and legal institutions to govern the world, on the theory that these will constrain governments violence against people. On the other, ‘human rights’ sees these as tools in the hands of the state, which are likely to create a legal framework that favors the state rather individuals. Since the state makes and interprets the law, adding more laws and legal institutions may not be regress rather than progress.

The Universal Declaration of Human Rights guarantees your right to freedom of peaceful assembly and association. This is a cornerstone of uppercase Human Rights. In practice, however, it is likely that you need to acquire a permit to hold a public rally. The personal experience of this right – that is, its lowercase version – depends on the terms that the state places on these permit. In the US, local authorities regulate protests in the interests of traffic flow, pedestrian access, safety, and fairness. They may also require organizers to purchase insurance and perhaps reimburse for security. The terms of the permit, and thus whether an assembly is lawful or not, are decided by the government.

The language of law and lawfulness is seductive. It promises a well-ordered world in which formal rights are defended by formal institutions. But The Clash knew well that the law comes from the state and its most natural application is by the agents of the state in pursuit of the goals of the state. It is not about protecting the little guy.

The allure of law is strong in liberal internationalism and faithful compliance with international law is often seen as a path to good governance. Senator Cory Booker and law scholar Oona Hathaway recently criticized Secretary of State Rex Tillerson for suggesting that US troops might remain in Syria after its fight with ISIS is over. Military occupation violates international law when it is not justified as self-defense and if the US violates the UN Charter in this way it would “undermine America’s hard-earned global leadership as a champion of law-bound international action, perhaps irreparably.”[1]

The Clash tell a little of what this law-bound global leadership looks like to people in Cuba, Nicaragua, and Chile. In Washington Bullets Joe Strummer sings

Oh! mama, mama look there!

Your children are playing in that street again

Don’t you know what happened down there?

A youth of fourteen got shot down there

The kokane guns of jamdown town

The killing clowns, the blood money men

Are shooting those Washington bullets again

In the lowercase version, the lived-experience of human rights is undermined rather than protected by American military activities. Personal safety requires that people find a way to avoid getting hit by all those Washington bullets. Chinese, British, and Russian bullets are no better. Human welfare – and human rights – are threatened by the military adventures of powerful governments, regardless of whether they aim to prop up or topple local authority.

To be sure, the official institutions of Human Rights can be useful to people engaged in struggles against their state. Law and legal institutions are welcome tools for victims looking for a way to fight back or get redress for wrongs. Prisoners at Guantanamo, Evin, Wormwood Scrubs, and elsewhere search for legal paths to improve their conditions and they are sometimes successful.

But we should be honest about which way the law is looking. It encodes the interests of the state and is interpreted and applied in a manner that reflects them. This is not a novel idea – Hannah Arendt wrote Eichmann in Jerusalem to explore what happens when bad policies are legalized by the state and Judith Shklar wrote Legalism on courts’ power to decide political questions.

Today, Trump’s indifference to international human rights provokes a liberal backlash premised on nostalgia for a past that never was. The Clash might say bollocks to both of camps. Their songs offer a third way on human rights. Neither the legalism of international treaties nor the laissez faire of global capital. It is a view that they learned through experience in London in the 1970s, as squatters, buskers, and Carnivale-goers, in the face of racist gangs, police violence, and the bureaucracy of the dole.

There may be a tradeoff between Human Rights and human rights. The first empowers governments to define what people can and can’t do. The second sees state power as the source of the problem itself. To resolve the tension, The Clash offer a practical suggestion in the song Working for the Clampdown.

Kick over the walls

Cause governments to fall

How can you refuse it?

Let fury have the hour, anger can be power

Do you know that you can use it?

 

And in White Riot, they follow up to ask “Are you taking over or are you taking orders?”

For The Clash, human rights exists in the fight between the state and a person. It is personal and it is political – it comes alive in the desire of a person to do what the government does not want them do to. In that fight, the laws are likely on the side of the state and investing more power in the state and its institutions may be a backward step.

The Clash tells stories from below, of regular people who find themselves targeted by powerful institutions, and remind us to listen. Their objective – and the central premise of punk rock as a political movement – is to create space in which people can live outside the lines that are drawn for them by others and not be beaten up, jailed, disappeared or killed for it. To get there, they chart a refreshingly clear philosophy on the relationship between law and politics. On International Clash Day, turn up the volume and remember to let fury have the hour.

[1] NYT Jan 23 2018.

Ian Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy (Princeton) and International Organizations and How to Do things with International Law.

The Greatest Showman and the Deceptions of American Capitalism

by Edward J. Balleisen

BalleisenPerhaps unsurprisingly, The Greatest Showman, the new cinematic musical about the nineteenth-century American impresario of entertainment P. T. Barnum, unabashedly takes liberties with the historical record. As reviewers have already documented (Richard Brody in the New Yorker, Bruce Chadwick for History News Network), it fabricates matters large and small, as is the wont of Hollywood screenwriters and directors who work on biopics, while ignoring a host of truthful vignettes that cry out for cinematic treatment. As a historian of business fraud, I found myself especially disappointed that the musical steered clear of many aspects of Barnum’s career that speak powerfully to elements of our own moment, including the rise of a Barnum-esque publicity hound and conductor of media misdirection from the White House, and the constant turmoil swirling over allegations of fake news. And yet, The Greatest Showman does get some of the larger implications of Barnum’s life right—especially his injection of a democratic style of hullabaloo into American capitalism.

A full inventory of the film’s flights of fancy would require catalogue length. But a sampling conveys the minimal concern for fidelity to historical detail. The movie portrays the young Barnum as the poorly-clad son of an impoverished Connecticut tailor, rather than the child of a respectable proprietor who had a number of well-to-do relatives and also owned a store and inn. It gives Barnum experiences that he never had (begging and stealing food as an orphaned New York City street urchin; clerking for an insurance company). It depicts his move into the world of entertainment as occurring sometime well after the establishment of the railroad, perhaps even after the Civil War, rather than in the 1830s.

The Greatest Showman ignores Barnum’s earliest promotions of lotteries, curiosities and hoaxes, including his cruel exhibition of the elderly African-American slave woman Joice Heth as supposedly the 161-year old former wet-nurse of George Washington, and his willingness to profit further after her death through a public autopsy, experiences that laid the groundwork for his management of the American Museum. The screenwriters (Bill Condon and Jenny Bicks) have Barnum buy the museum on a wholly fictional mix of frustration, fantasy, and fraud, made possible by his fraudulent provision of fake collateral to a New York City bank that lends him the necessary $10,000. Instead of coming to grips with the actual Barnum’s vociferous advocacy of temperance, the film conjures up a hard-drinking man who makes deals over whiskeys in saloons. Rather than showing how Barnum consistently found new performers over the years, it brings together the midget Charles Stratton (known on stage as Tom Thumb), the Siamese twins Change and Eng, and the other members of the troupe within weeks of Barnum’s purchase of the American Museum.

The historical Barnum had a falling out with the famed Swedish singer Jenny Lind not because he refused her amorous advances in the middle of their American tour (the musical’s explanation), but because she tired of his relentless focus on maximizing the returns from her concerts. A key antagonist for Barnum in The Greatest Showman is one “Bennett,” portrayed as a stiff-collared, high-toned theatre critic of the New York Herald. The actual James Gordon Bennett was the publisher of that paper, who proved more than happy to go along with hoaxes and sensationalism himself, using both to help cement his newspaper’s position as the first penny newspaper that catered to the broad masses. The character of Barnum’s high society sidekick Philip Carlyle is entirely fictional, as in his relationship with Anne Wheeler, an African-American female trapeze artist. One last illustration—the film attributes the fire that destroyed Barnum’s New York City Museum to neighborhood toughs who did not like his business, rather than the actual arsonist, a Confederate sympathizer who wished toward the end of the Civil War to strike a blow against the Union.

Of course, by indulging a willingness to elide facts or push outright lies in the service of a hokey story, the makers of The Greatest Showman adopt Barnum’s own modus operandi as a purveyor of entertainment. And the movie does a creditable job of engaging with some of Barnum’s larger cultural significance—his recognition that publicity and HYPE of any kind was often a marketing asset; his understanding that the public would be forgiving of misrepresentations and humbug if they, on balance, enjoyed the eventual show; his embrace of difference and variation within the human condition as worthy of celebration (if also exploitation); his compulsion to expand operations to take advantage of new opportunities, even at the cost of incurring gargantuan debts; his relentless focus on the American mythos of democratic opportunity, whether through his own experience (as carefully narrated in his autobiographies) or those of the stars in his shows. As the film implies, there was indeed deep-seated antagonism to Barnum’s business practices and willingness to engage in fakery, though the complaints came overwhelmingly from pulpits and the pages of evangelical newspapers, rather than protesters who made their presence known outside the Museum. And Barnum did in fact seek to defuse those critiques through the promotion of respectable performers such as Jenny Lind, alongside his curiosities, penchant for misdirection, and outright fakery.

Nonetheless, The Greatest Showman also missed many opportunities to explore episodes in Barnum’s life that have renewed resonance in the early twenty-first century. One crucial theme here concerns Barnum’s engagement with American race relations, both as promoter and in his post-Civil War forays in Connecticut politics and public service. Barnum’s often dehumanizing treatment of people of color and his evolving political views on race will surely occasion much commentary amid the current dramatic growth in ethnocentric nationalism and racially-grounded politics, as in a recent Smithsonian Magazine piece by Jackie Mansky. Other contemporary developments that suggest the value of reconsidering Barnum’s historical significance, closer to my own expertise, include the reoccurrence of massive business frauds, the emergence of enduring conflict over the appropriate role of government in consumer and investor protection, and diminished faith in institutions of all sorts.

The musical, for example, overlooks Barnum’s own bankruptcy in 1855, brought about because of his misplaced faith in the promises of a clock manufacturer who was willing to relocate his operation to Barnum’s adopted home town of Bridgeport, Connecticut, as part of an industrial development scheme. Barnum freely endorsed the Jerome Clock Company’s loans, opening himself up to devastating losses when the company failed, losses made worse by the firm’s eventual forging of Barnum’s endorsement on many additional notes. Yet he also sidestepped the worst consequences of that failure by illegally transferring assets into his wife’s name, a move that greatly facilitated his ability to get back on his financial feet, and for which he never faced public condemnation or legal penalty. Barnum’s insolvency thus speaks to the reality that even the savviest operators can be victims of imposition; and that well-connected perpetrators of commercial deceit have often been able to sidestep the most damaging fallout from their actions.

Another fascinating episode that The Greatest Showman ignores is Barnum’s growing focus on debunking the deceit of other purveyors of rhetorical (or actual) snake oil. By the 1860s, the promoter sought to legitimize his own brand of hokum and bluster not only by adding unquestionably respectable acts to his museum and eventual circus, but also by exposing frauds in many sectors of American life.  Compiled in his 1866 volume, Humbugs of the World, these endeavors targeted misrepresentations in retail trade, medicine, and religion (especially in the realm of spiritualism). Here Barnum intuited the great power associated with well-constructed strategies of deflection—that one could gain trust in part by setting oneself up as an arbiter of untrustworthiness. Perhaps there is no greater contemporary practitioner of this particular form of showmanship than the current occupant of the White House. Donald Trump has rarely hesitated to get out ahead of critiques of his own business and political practices by casting the first stones, as through his allegations of malfeasance by political opponents (the pleas during the 2016 general election campaign to investigate Hillary Clinton and “Lock Her Up”) or representatives of the media (the incessant allegations of FAKE NEWS.) In addition to muddying factual waters, such strategies can shore up support among the faithful, sustaining the conviction that their champion is fighting the good fight, and could not possibly be engaging in duplicitous behavior of his own.

In the end, The Greatest Showman cares most about exploring fictionalized or wholly fictional romantic tensions—those between Barnum and his wife Charity and between the Philip Carlyle and Anne Wheeler—as well as the degree to which Barnum lives up to his purported insistence on an inclusive respect for his socially marginalized performers. These choices constrain the musical’s capacity to engage deeply with Barnum’s historical significance as an entrepreneur who played an outsized role in creating modern mass entertainment. And so a multitude of opportunities go begging. Barnum’s many legacies, however, continue to reverberate in contemporary America, whether one focuses on the the dynamics of social media saturation, the process of invented celebrity, the sources of abiding racial tensions,  the implications of pervasive commercial dissembling, or the nature of popular skepticism about expert appraisals of reality. And so the ground remains open for cultural reinterpretations of the Great Showman’s life and times.  If the twentieth-century is any guide, we won’t have to wait too long for another cinematic treatment—every generation or so, some movie-maker finds the resources to put Barnum back on the screen.[1]

[1] Previous films include “The Mighty Barnum” (1934), “The Greatest Show on Earth” (1952), “Barnum” (1986), and “P. T. Barnum” (1999).

Edward J. Balleisen is professor of history and public policy and vice provost for Interdisciplinary Studies at Duke University. He is the author of Fraud: An American History from Barnum to Madoff. He lives in Durham, North Carolina.

Ya-Wen Lei: Ideological Struggles and China’s Contentious Public Sphere

This post has been republished by the Fairbank Center for Chinese Studies at Harvard University.

Lei

Ideology was a critical theme at China’s 19th Party Congress in October 2017. In his speech, President Xi Jinping emphasized China’s “cultural confidence” as well as “Chinese values.” Attempting to import any other kind of political regime, he argued, would fail to match China’s social, historical and cultural conditions. Interestingly, however, at the same time that he rejected foreign political models, Xi promoted China’s particular version of modernization as a valuable model for other countries.

At the domestic level, Xi stressed the importance of controlling ideology, regulating the internet, and actively attacking “false” views within China’s public sphere. For Xi, ideology is a powerful tool that can, at best, unify the Chinese people or, at worst, turn them against the Chinese state.

In fact, ideology has been a priority for Xi ever since he became General Secretary of the Chinese Communist Party in 2012. This focus is understandable, I argue, precisely given the rising influence of liberal ideology within China’s public sphere.

Let me illustrate this by discussing one example, explored in greater depth in my book, The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China. In Chapter 5, I analyze the political orientation of the top 100 opinion leaders on Weibo—one of China’s most popular social media sites—and the connections among them in 2015.

I classified Weibo opinion leaders into the following categories: political liberals, political conservatives, and others. I defined political liberals as those who express support on Weibo for constitutionalism (government authority derives from and should be limited by the constitution) and universal values (e.g., human rights, freedom, justice, equality), and political conservatives as those who argue against those principles. I classified as “others” those who expressed no views either way. I looked at people’s views on constitutionalism and universal values because these are particularly contested and politicized ideas in China given their association with Western liberal democracy. These are, in short, ideas that would not be popular in China if ideology were functioning “properly” from the government perspective.

Despite the Chinese government’s ideological control and censorship, I found that 58% of the top 100 Weibo opinion leaders in 2015 were political liberals, while only 15% were political conservatives. My analysis looked specifically at January of 2015, after the Chinese government launched its “purge the internet” campaign in August 2013 and arrested several opinion leaders. This was also after the government’s effort to use Weibo to create more “positive energy.” Presumably, then, the percentage of political liberals among opinion leaders might well have been even higher before the Chinese government’s intensified crackdowns.

In the following graph, I map the connections among the top 100 Weibo opinion leaders using social network analysis. Blue, red, and white nodes represent political liberals, political conservatives, and others, respectively. The graph reveals the greater level of influence of political liberals in general online, the dense connections among liberals themselves, and their seemingly greater influence on those who may be “on the fence” politically or simply more cautious about expressing their views of constitutionalism and universal values online. Importantly, political liberals would not have become so popular and influential had it not been for the direct and indirect endorsement of Chinese citizens.

Lei

Figure: Top 100 Weibo opinion leaders. Note: An edge between two opinion leaders is directional, showing that one opinion leader follows the other on Weibo. Blue, red, and white nodes represent political liberals, political conservatives, and others, respectively. Squares, triangles, boxes, diamonds, and circles denote media professionals, lawyers and legal scholars, scholars in non-law disciplines, entrepreneurs, and others, respectively. Gray and black edges show“following” across and between people with the same political orientation, respectively.

In short, the graph reveals a situation that contrasts sharply with the Chinese public sphere the government would like to see. The dissemination of liberal discourse and ideology, as well as growing public criticism of social and political problems in China, has only heightened the Chinese state’s concerns regarding ideology.

So, is ideology even “working” in China—at least in the way Xi would like? If constitutionalism and universal values are Western views that need to be discouraged and even attacked as “false,” this map of online opinion leaders in China suggests the government has its work cut out for it. How this happened, how it has changed China’s public sphere, and whether and how the govenment might attempt to regain ideological control moving foward are all questions I explore futher in my book, The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China.

Ya-Wen Lei is an assistant professor in the Department of Sociology and an affiliate of the Fairbank Center for Chinese Studies at Harvard University. She is the author of The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China.

Ian Hurd: Good medicine for bad politics? Rethinking the international rule of law

When an international crisis erupts it is common to hear experts say that the situation will be improved if all parties stick to international law. From the Syrian war to Burma’s massacres to Guantanamo torture, faithful compliance with the law of nations is often prescribed as the best way forward. I wrote this book because I was curious about the idea that international law is good medicine for bad policies, a kind of non-political, universal good. International law often appears like a magical machine that takes in hot disagreements about how things should unfold and produces cool solutions that serve the interests of everyone. How to do Things with International Law examines this idea with a degree of skepticism, holds it up against some empirical cases, and suggests more realistic ways of thinking about the dynamics between international politics and international law.

The standard model of international law is built on two components, one more institutional and the other more normative. On the one hand, international law is seen as providing a framework for the coexistence for governments. Laws on diplomatic immunity, non-interference across borders, and the peaceful settlement of disputes help organize inter-governmental relations and give a kind of civility to world politics. On this view, following the rules makes it possible for diplomacy and negotiation to happen. The second, normative strand adds substantive values such as a commitment to human rights, to the protection of refugees, and against nuclear proliferation. Here, following the rules is said to be important because it enhances human welfare and the other goals encoded by the law. The two strands agree that compliance with international rules is beneficial and that violations of the rules lead to international disorder at best—and violence and chaos at worst.

This represents what I see as a conventional view of the international rule of law. It is a commitment to the idea that governments should follow their legal obligations and that when they do the world is a better place. It is an ideology, in the sense noted by Shirley Scott.

My book explores the premise and the power of this ideology and its influence in global politics. I look at the presumptions that it rests on and the practices it makes possible. I see the power of international law on display in the ways that governments and others make use of legal resources and categories to understand, justify, and act in the world. This is a social power, built on the idea of the rule of law and employed by governments in the service of a wide array of goals.

The book does not aim to answer questions about why states comply with or flout the law. Instead, it asks what they do with the law – and why, and with what effects. As a methodology, this points toward looking for where international law appears in the strategies of governments. On substance, it suggests a close connection between international law and political power. International law has influence in certain situations, when powerful actors find it useful. For instance, the US gave legal arguments for why Russia’s annexation of Crimea was unlawful and therefore should not be accepted by other countries. In response, Russia gave legal arguments to sustain its behavior. Legal experts may well conclude that one side had the stronger legal argument; disagreements about interpretation and application are central to legal practices. But my curiosity comes from seeing both sides use legal arguments as political resources in defense of their preferred outcome.

The use of law to legitimize state policy is a central feature of contemporary international politics. And yet to some, the instrumental use of law is said to reveal the inappropriate politicization of law, contradicting their idea of the rule of law itself. I see it the other way around: the international rule of law is the instrumental use of law. The legalization of international politics gives legal rationalizations their political weight. Their political weight makes them important sites of contestation. In a legalized world, it makes sense for actors to contest their actions in the language of law. To borrow Helen Kinsella’s example, the line between civilian and combatant in a war zone distinguishes those who should be killed from those who should not; the line is defined by the Geneva Conventions and other legal instruments and it is brought to life (and death) as governments interpret it in relation to those whom they wish to kill. Legal categories have political valence and this makes them important resources of power and thus worth fighting over. How else to make sense of the energy that governments put into shaping rules that reflect their interests?

Recognizing the close connection between international and power politics opens a way to considering the political productivity of international law. Law is not only regulative and constraining; it is also empowering and permissive. By defining some acts as unlawful and others as lawful, it makes the former harder for governments to do (or more expensive) and the latter easier. The availability of a legal justification smoothes the way for action just as much as its unavailability impedes it. If we look at one side of this balance, we see for instance that the UN Charter outlaws the use of force by governments and limits their autonomy with respect to going to war. On the other side the Charter also authorizes them to go to war as needed for ‘self-defense’ against an armed attack. In ‘self-defense,’ the Charter creates a new legal resource with the capacity to differentiate between a lawful and an unlawful war. This is a powerful tool for governments, a means for legalizing their recourse to force, and they have used it with enthusiasm since 1945. The Charter produced something that previously didn’t exist and as a consequence changed how governments go to war, how they justify their wars, and how they think about their security in relation to external threats.

With the political productivity of international law in mind, the book shows that international law is inseparable from politics and thus from power. For powerful governments, international law puts an instrument in their tool-kit as they seek to influence what happens in the world, and for the less powerful it is a tool that they might also seek to take up when they can but may equally be a means of control whose influence they seek to escape.

There isn’t much evidence to back up the presumption that international law steers global affairs naturally toward better outcomes. How to Do Things With International Law is neither a celebration of international law nor an indictment. It offers instead a look into its practical politics, a messy world of power politics that is as full of interpretation, ambiguity, violence and contestation as any other corner of social life.

HurdIan Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy and How to Do Things with International Law.

Lawrence Baum: Ideology in the Supreme Court

When President Trump nominated Neil Gorsuch for a seat on the Supreme Court, Gorsuch was universally regarded as a conservative. Because of that perception, the Senate vote on his confirmation fell almost completely along party lines. Indeed, Court-watchers concluded that his record after he joined the Court late in its 2016-2017 Term was strongly conservative. But what does that mean? One possible answer is that he agreed most often with Clarence Thomas and Samuel Alito, the justices who were considered the most conservative before Gorsuch joined the Court. But that answer does not address the fundamental question: why are the positions that those three justices took on an array of legal questions considered conservative?

The most common explanation is that liberals and conservatives each start with broad values that they then apply in a logical way to the various issues that arise in the Supreme Court and elsewhere in government. But logic can go only so far to explain the ideological labels of various positions. It is not clear, for instance, why liberals are the strongest proponents of most individual rights that the Constitution protects while conservatives are the most supportive of gun rights. Further, perceptions of issues sometimes change over time, so that what was once considered the liberal position on an issue is no longer viewed that way.

Freedom of expression is a good example of these complexities. Beginning early in the twentieth century, strong support for freedom of speech and freedom of the press was regarded as a liberal position. In the Supreme Court, the justices who were most likely to support those First Amendment rights were its liberals. But in the 1990s that pattern began to change. Since then, when the Court is divided, conservative justices provide support for litigants who argue that their free expression rights have been violated as often as liberals do.

To explain that change, we need to go back to the period after World War I when freedom of expression was established as a liberal cause. At that time, the government policies that impinged the most on free speech were aimed at political groups on the left and at labor unions. Because liberals were more sympathetic than conservatives to those segments of society, it was natural that freedom of expression became identified as a liberal cause in the political world. In turn, liberal Supreme Court justices gave considerably more support to litigants with free expression claims than did their conservative colleagues across the range of cases that the Court decided.

In the second half of the twentieth century, people on the political left rethought some of their assumptions about legal protections for free expression. For instance, they began to question the value of protecting “hate speech” directed at vulnerable groups in society. And they were skeptical about First Amendment challenges to regulations of funding for political campaigns. Meanwhile conservatives started to see freedom of expression in a more positive light, as a protection against undue government interference with political and economic activity.

This change in thinking affected the Supreme Court in the 1990s and after. More free expression cases came to the Court from businesses and people with a conservative orientation, and a conservative-leaning Court was receptive to those cases. The Court now decides few cases involving speech by labor unions and people on the political left, and cases from businesses and political conservatives have become common. Liberal justices are more favorable than their conservative colleagues to free expression claims by people on the left and by individuals with no clear political orientation, but conservative justices provide more support to claims by businesses and conservatives. As a result, what had been a strong tendency for liberal justices to give the most support to freedom of expression across the cases that the Court decided has disappeared.

The sharp change in the Supreme Court’s ideological orientation in free speech cases is an exception to the general rule, but it underlines some important things about the meaning of ideology. The labeling of issue positions as conservative or liberal comes through the development of shared understandings among political elites, and those understandings do not necessarily follow from broad values. In considerable part, they reflect attitudes toward the people and groups that champion and benefit from particular positions. The impact of those attitudes is reflected in the ways that people respond to specific situations involving an issue: liberal and conservative justices, like their counterparts elsewhere in government and politics, are most favorable to free speech when that speech comes from segments of society with which they sympathize. When we think of Supreme Court justices and the positions they take as conservative and liberal, we need to keep in mind that to a considerable degree, the ideological labeling of positions in ideological terms is arbitrary. Justice Gorsuch’s early record on the Court surely is conservative—but in the way that conservative positions have come to be defined in the world of government and politics, definitions that are neither permanent nor inevitable.

BaumLawrence Baum is professor emeritus of political science at Ohio State University. His books include Judges and Their Audiences, The Puzzle of Judicial BehaviorSpecializing the Courts, and Ideology in the Supreme Court.

Edward Balleisen on the long history of fraud in America

BalleisenDuplicitous business dealings and scandal may seem like manifestations of contemporary America gone awry, but fraud has been a key feature of American business since its beginnings. The United States has always proved an inviting home for boosters, sharp dealers, and outright swindlers. Worship of entrepreneurial freedom has complicated the task of distinguishing aggressive salesmanship from unacceptable deceit, especially on the frontiers of innovation. At the same time, competitive pressures have often nudged respectable firms to embrace deception. In Fraud: An American History from Barnum to Madoff, Edward Balleisen traces the history of fraud in America—and the evolving efforts to combat it. Recently, he took the time to answer some questions about his book.

Can you explain what brought you to write this book?

EB: For more than two decades, I have been fascinated by the role of trust in modern American capitalism and the challenges posed by businesses that break their promises. My first book, Navigating Failure: Bankruptcy and Commercial Society in Antebellum America, addressed this question by examining institutional responses to insolvency in the mid-nineteenth-century. This book widens my angle of vision, considering the problem of intentional deceit in the United States across a full two centuries.

In part, my research was motivated by the dramatic American fraud scandals of the late 1990s and early 2000s, which demonstrated how badly duplicitous business practices could hurt investors, consumers, and general confidence in capitalism. I wanted to understand how American society had developed strategies to constrain such behavior, and why they had increasingly proved unequal to the task since the 1970s.

In part, I was gripped by all the compelling stories suggested by historical episodes of fraud, which often involve charismatic business-owners, and often raise complex questions about how to distinguish enthusiastic exaggeration from unscrupulous misrepresentation.

In part, I wanted to tackle the challenges of reconstructing a history over the longer term. Many of the best historians during the last generation have turned to microhistory – detailed studies of specific events or moments. But there is also an important place for macro-history that traces continuity and change over several generations.

In addition, my research was shaped by increasingly heated debates about the costs and benefits of governmental regulation, the extent to which the social legitimacy of market economies rest on regulatory foundations, and the best ways to structure regulatory policy. The history of American anti-fraud policy offers compelling evidence about these issues, and shows that smart government can achieve important policy goals.

What are the basic types of fraud?

EB: One important distinction involves the targets of intentional economic deceit. Sometimes individual consumers defraud businesses, as when they lie on applications for credit or life insurance. Sometimes taxpayers defraud governments, by hiding income. Sometimes employees defraud employers, by misappropriating funds, which sociologists call “occupational fraud.” I focus mostly on deceit committed by firms against their counterparties (other businesses, consumers, investors, the government), or “organizational fraud.”

Then there are the major techniques of deception by businesses. Within the realm of consumer fraud, most misrepresentations take the form of a bait and switch – making big promises about goods or services, but then delivering something of lesser or even no quality.

Investment fraud can take this form as well. But it also may depend on market manipulations – spreading rumors, engaging in sham trades, or falsifying corporate financial reports in order to influence price movements, and so the willingness of investors to buy or sell; or taking advantage of inside information to trade ahead of market reactions to that news.

One crucial type of corporate fraud involves managerial looting. That is, executives engage in self-dealing. They give themselves outsized compensation despite financial difficulties, direct corporate resources to outside firms that they control in order to skim off profits, or even drive their firms into bankruptcy, and then take advantage of inside information to buy up assets on the cheap.

Why does business fraud occur?

EB: Modern economic life presents consumers, investors, and businesses with never-ending challenges of assessing information. What is the quality of goods and services on offer, some of which may depend on newfangled technologies or complex financial arrangements? How should we distinguish good investment opportunities from poor ones?

In many situations, sellers and buyers do not possess the same access to evidence about such issues. Economists refer to this state of affairs as “information asymmetry.” Then there is the problem of information overload, which leads many economic actors to rely on mental short-cuts – rules of thumb about the sorts of businesses or offers that they can trust. Almost all deceptive firms seek to look and sound like successful enterprises, taking advantage of the tendency of consumers and investors to rely on such rules of thumb. Some of the most sophisticated financial scams even try to build confidence by warning investors about other frauds.

A number of common psychological tendencies leave most people susceptible to economic misrepresentations at least some of the time. Often we can be taken in by strategies of “framing” – the promise of a big discount from an inflated base price may entice us to get out our wallets, even though the actual price is not much of a bargain. Or a high-pressure stock promoter may convince us to invest by convincing us that we have to avoid the regret that will dog us if we hold back and then lose out on massive gains.

How has government policy toward business fraud changed since the early nineteenth century?

EB: In the nineteenth century, Anglo-American law tended to err on the side of leniency toward self-promotion by businesses. In most situations, the key legal standard was caveat emptor, or let the buyer beware. For the judges and legislators who embraced this way of thinking, markets worked best when consumers and investors knew that they had to look out for themselves. As a result, they adopted legal rules that often made it difficult for economic actors to substantiate allegations of illegal deceit.

For more than a century after the American Civil War, however, there was a strong trend to make anti-fraud policies less forgiving of companies that shade the truth in their business dealings. As industrialization and the emergence of complex national markets produced wider information asymmetries, economic deceit became a bigger problem. The private sector responded through new types of businesses (accounting services, credit reporting) and self-regulatory bodies to certify trustworthiness. But from the late nineteenth century into the 1970s, policy-makers periodically enacted anti-fraud regulations that required truthful disclosures from businesses, and that made it easier for investors and consumers to receive relief when they were taken for a ride.

More recently, the conservative turn in American politics since the 1970s led to significant policy reversals. Convinced that markets would police fraudulent businesses by damaging their reputations, elected officials cut back on budgets for anti-fraud enforcement, and rejected the extension of anti-fraud regulations to new financial markets like debt securitization.

Since the Global Financial Crisis of 2007-08, which was triggered in part by widespread duplicity in the mortgage markets, Americans have again seen economic deceit as a worrisome threat to confidence in capitalist institutions. That concern has prompted the adoption of some important anti-fraud policies, like the creation of the Consumer Financial Protection Bureau. But it remains unclear whether we have an entered a new era of greater faith in government to be able to constrain the most harmful forms of business fraud.

Many journalists and pundits have characterized the last several decades as generating epidemics of business fraud. What if anything is distinctive about the incidence of business fraud since the 1970s?

EB: Fraud episodes have occurred in every era of American history. During the nineteenth century, railroad contracting frauds abounded, as did duplicity related to land companies and patent medicine advertising. Deception in the marketing of mining stocks became so common that a prevalent joke defined “mine” as “a hole in the ground with a liar at the top.” From the 1850s through the 1920s, Wall Street was notorious for the ruthless manner in which dodgy operators fleeced unsuspecting investors.

Business frauds hardly disappeared in mid-twentieth-century America. Indeed, bait and switch marketing existed in every urban retailing sector, and especially in poor urban neighborhoods. Within the world of investing, scams continued to target new-fangled industries, such as uranium mines and electronics. As Americans moved to the suburbs, fraudulent pitchmen followed right behind, with duplicitous franchising schemes and shoddy home improvement projects.

The last forty years have also produced a regular stream of major fraud scandals, including the Savings & Loan frauds of the 1980s and early 1990s, contracting frauds in military procurement and healthcare reimbursement during the 1980s and 1990s, corporate accounting scandals in the late 1990s and early 2000s, and frauds associated with the collapse of the mortgage market in 2007-2008.

Unlike in the period from the 1930s through the 1970s, however, business fraud during the more recent four decades have attained a different scale and scope. The costs of the worst episodes have reached into the billions of dollars (an order of magnitude greater than their counterparts in the mid-twentieth century, taking account of inflation and the overall growth in the economy), and have far more frequently involved leading corporations.

Why is business fraud so hard to stamp out through government policy?

EB: One big challenge is presented by the task of defining fraud in legal terms. In ordinary language, people often refer to any rip-off as a “fraud.” But how should the law distinguish between enthusiastic exaggerations, so common among entrepreneurs who just know that their business is offering the best thing ever, and unacceptable lies? Drawing that line has never been easy, especially if one wants to give some leeway to new firms seeking to gain a hearing through initial promotions.

Then there are several enduring obstacles to enforcement of American anti-fraud regulations. Often specific instances of business fraud impose relatively small harms on individuals, even if overall losses may be great. That fact, along with embarrassment at having been duped, has historically led many American victims of fraud to remain “silent suckers.” Proving that misrepresentations were intentional is often difficult; as is explaining the nature of deception to juries in complex cases of financial fraud.

The most effective modes of anti-fraud regulation often have been administrative in character. They either require truthful disclosure of crucial information to consumers and investors, at the right time and incomprehensible language, or they cut off access to the marketplace to fraudulent businesses. Postal fraud orders constitute one example of the latter sort of policy. When the post office determines that a business has engaged in fraudulent practices, it can deny it the use of the mails, a very effective means of policing mail-order firms. Such draconian steps, however, have always raised questions about fairness and often lead to the adoption of procedural safeguards that can blunt their impact.

How does this book help us better understand on contemporary frauds, such as the Madoff pyramid scheme or the Volkswagen emissions scandal?  

EB: One key insight is that so long as economic transactions depend on trust, and so long as there are asymmetries of information between economic counterparties, there will be significant incentives to cheat. Some economists and legal thinkers argue that the best counter to these incentives are reputational counterweights. Established firms, on this view, will not take actions that threaten their goodwill; newer enterprises will focus on earning the trust of creditors, suppliers, and customers. And heavy-handed efforts to police deceptive practices remove the incentive for economic actors to exercise due diligence, while raising barriers to entry, and so limiting the scope for new commercial ideas. This way of thinking shares much in common with the philosophy of caveat emptor that structured most American markets in the nineteenth-century.

But as instances like the Madoff investment frauds and Volkswagen’s reliance on deceptive emissions overrides suggest, reputational considerations have significant limits. Even firms with sterling reputations are susceptible to fraud. This is especially the case when regulatory supports, and wider social norms against commercial dishonesty, are weak.

The title of this book is Fraud: An American History from Barnum to Madoff. What do you see as uniquely American about this history of fraud?  

EB: The basic psychological patterns of economic deception have not changed much in the United States. Indeed, these patterns mirror experimental findings regarding vulnerabilities that appear to be common across societies. Thus I would be skeptical that the tactics of an investment “pump and dump” or marketing “bait and switch” would look very different in 1920s France or the Japan of the early 21st century than in the U.S. at those times.

That said, dimensions of American culture have created welcome ground for fraudulent schemes and schemers. American policy-makers have tended to accord great respect to entrepreneurs, which helps to explain the adoption of a legal baseline of caveat emptor in the nineteenth century, and the partial return to that baseline in the last quarter of the twentieth-century.

The growth of the antifraud state, however, likely narrowed the differences between American policies and those in other industrialized countries. One hope of mine for this book is that it prompts more historical analysis of antifraud regulation elsewhere – in continental Europe, Latin America, Africa, and Asia. We need more detailed histories in other societies before we can draw firmer comparative conclusions.

What do you see as the most important implications of this book for policy-makers charged with furthering consumer or investor protection?

EB: Business fraud is a truly complex regulatory problem. No modern society can hope to eliminate it without adopting such restrictive rules as to strangle economic activity. But if governments rely too heavily on the market forces associated with reputation, business fraud can become sufficiently common and sufficiently costly to threaten public confidence in capitalist institutions. As a result, policy-makers would do well to focus on strategies of fraud containment.

That approach calls for:

• well-designed campaigns of public education for consumers and investors;
• empowering consumers and investors through contractual defaults, like cooling off periods that allow consumers to back out of purchases;
• cultivating social norms that stigmatize businesses that take the deceptive road;
• building regulatory networks to share information across agencies and levels of government, and between government bodies and the large number of antifraud NGOs; and
• a determination to shut down the most unscrupulous firms, not only to curb their activities, but also to persuade everyone that the state is serious about combating fraud.

Edward Balleisen talks about his new book:

Edward J. Balleisen is associate professor of history and public policy and vice provost for Interdisciplinary Studies at Duke University. He is the author of Navigating Failure: Bankruptcy and Commercial Society in Antebellum America and Fraud: An American History from Barnum to Madoff. He lives in Durham, North Carolina.

The Law is a White Dog author Colin Dayan debunks the rationality of law

What do abused dogs, prisoners tortured in Guantánamo and supermax facilities, and slaves killed by the state have in common? They have all been deprived of their personhood by the law. In The Law is a White Dog, Colin Dayan shows how the law can be used to dehumanize and marginalize, even as it upholds civil order. Dayan puts the topic in historical context, showing how these issues are still prevalent today. In an interview with WFHB Indiana, the author speaks to recent instances of police brutality. Listen for a fresh take on a a timely issue.
Dayan

David Kennedy on remaking our technocratic world

KennedyIn today’s world, expert opinion is particularly revered in political and economic life. But as experts engage one another on a terrain of irresolvable argument, a world of astonishing injustice and inequality is born.  David Kennedy’s new book, A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy draws on his personal experience working with international lawyers, human rights advocates, and an array of humanitarian strategists. The book reveals the power struggle occurring between those who have a stranglehold on the knowledge and those who don’t, arguing that expertise can be used to promote justice rather than inequality. Recently, Kennedy agreed to answer a few questions about his book.

Why a world of “struggle?”

DK: In this book, I try to reframe the international situation less as order or system than as a continual struggle, hence the title, A World of Struggle. When speaking about international affairs, the social sciences often start with conflict – a Hobbesian state of nature or the competitive market of Adam Smith – and then work to explain how things nevertheless turn out well ordered: through a “balance of power” or “invisible hand.” In my picture, thousands of conflicts undertaken by all sorts of people at once generate the world we live in, including terribly unjust things it seems impossible to change. Struggle and conflict are more prevalent and constitutive of our everyday world than we realize.

You write about knowledge and expertise – aren’t economic and military power more important in global struggle?

DK: It’s true, I am particularly interested in the role of ideas. I do think they’re more important than we realize. Although we think of international affairs as an arena of raw power, a great deal is argument and assertion. People drop bombs to “send messages” and transform economic power into a better deal through negotiation. In the shadow of coercion more often than through force.

People in places like Davos or Washington tell lots of stories about the world: stories about what an economy is, what politics can accomplish, about the limits and potential of law. Their stories make some problems visible, some actors central – and others invisible. The technical work people undertake as they struggle in the shadow of these stories arranges the world, distributing wealth, status and opportunity. In the book, I examine big ideas about things like economic development, international law or world trade to understand how they frame and fuel everyday battles for advantage among businessmen, bureaucrats, politicians and citizens.

Are experts too important in world affairs? Lots of people criticize the European Union, for example, as “technocratic” and decry the “democracy deficit.”

DK: Our world is a technocratic one. Experts have lots of authority and it is difficult to change things without speaking their language. And, as we all know, technocratic language is as prone to irrationality, confusion and conflicting objectives as any other. But “expertise” is not the exclusive province of specialists and professionals. All of us, from politicians, to entrepreneurs, to activists speak some vulgate version of languages once owned more exclusively by “experts.” As a result, it is not so clear there is a “political” or “democratic” alternative once democracy and rulership have themselves become technocratic practices.

To me, the problem is not experts run rampant, displacing more appropriate political, ethical or commercial ways of thinking. The problem is all of us – our human capacity for responsible decision and political engagement has been dulled. Or perhaps, like professional talking heads, we’ve all embraced the reassuring comfort of thinking we “know,” rather than face the anxiety of having to choose.

How does your work fit into the literature about “expertise?”

DK: Other studies of “expertise” focus on what makes expert knowledge distinctive. I focus on the continuities between their work and that of many others. Expert knowledge is human knowledge: a blend of conscious, semiconscious and wholly unconscious ideas, full of tensions and contradictions, inhabited by people who thing, speak and act strategically. If you think “expertise” is distinct from politics, you will worry about keeping experts and political leaders in their respective places. At the global level, this constitutional concern is less pressing because there is no constituted political alternative. It really is expertise all the way down. As a result, I worry less about the proper boundaries for expert knowledge and focus instead on the how of expert rule: the modes of public reasoning that arise where practices of power and the articulation of ideas intersect.

What about law? How important is law in world affairs?

DK: Very. People struggle over legal arrangements because they matter. The domain outside the nation is neither an anarchic political space nor a domain of market freedom immune from regulation. The basic elements of global economic and political life – capital, labor, credit, money and liquidity, as well as sovereignty and right – are creatures of law which could be put together in lots of ways. We forget how strange it is that if you own something here, you also own it when you get off the plane elsewhere. Yet, as businessmen and military leaders well know, our international world is the product of intense and ongoing projects of regulation and institutional management. A global production chain is a complex set of legal arrangements, cross-cut by all kinds of formal and informal norms, public and private regulation. Small changes in the rules can shift who wins and who loses.

Law is often at struggle because it distributes: allocating and protecting gains from economic activity or political conflict. Law is also a tool of struggle: I claim a legal privilege to put you out of business; you claim the legal authority to prevent me from combining with rivals to do so. I claim the right to overfly your territory or protect your minorities – or you claim the right to shoot down my plane and attack my humanitarian convoy.

Although we think of law as a source of order – the “legal order” – or as a vocabulary for criticizing government – as with human rights — I focus on the distributive role of law and the resulting push and pull about what it means and how it should operate.

Law does seem to be everywhere today – what has fueled its expansion?

DK: The ubiquity of law owes less to lawyers than to the appetite all kinds of people have for a common and malleable language of engagement. As law has become ever more diverse or plural, it has also become more prevalent. Law’s malleability both encourages people to assert their interests as legal rights – even when their interests are opposed – and opens numerous paths for settlement. The legal vocabulary today is widely available for both ethnical assertion and strategic pragmatism. In this, modern law is typical of many sophisticated expert practices: those who use it do so with a strange blend of confidence and disenchantment. Unfortunately, in the process, people can lose their ethical moorings: that, I believe, is the triumph and tragedy of global rule by expertise.

You offer “modern law and modern war” as an example of the contemporary powers and tragic consequences of expertise. What’s different now?

DK: Warfare has become ever more entangled with law as law has lost its distinctive clarity. Law now shapes the institutional, logistical and physical landscape of war and the battlespace has become as legally saturated as the rest of modern life. At the same time, law has become more malleable, the doctrinal materials used to distinguish war and peace or legal and illegal state violence ever more fluid. No longer a matter of clear rules and sharp distinctions, international law speaks with many voices. As it has become a more plastic medium, law has enabled a strategic management of war’s boundaries – when war ends, when it starts, what damage is collateral and what not. It now offers everyone a vocabulary for marking legitimate power and justifiable death. People everywhere can find reason to affirm their cause and decry the perfidy of their opponent.

When things go well, modern law can provide a framework for talking across cultures about the justice and efficacy of wartime violence. More often, the modern partnership of war and law leaves all parties feeling their cause is just and no one feeling responsible for the deaths and suffering of war. Law and war have become oddly reciprocal, communicating and killing along the boundaries of the world system, at once drenched in the certainty of ethics and detached from the responsibility of politics.

You end on an optimistic note – that people could pull back the dysfunctions of expert rule.

DK: I certainly hope they might. It would require inhabiting our expertise in a new way, less as pragmatic and sophisticated strategic actors than as people for whom, as Max Weber once wrote, politics is a vocation: with passion, with proportion and with responsibility in an irrational world that cannot be known or predicted. My proposal is not an escape from expertise or institutional recipe for its better use. It is a habit of mind, a personal and professional practice, to harness a long tradition of heterodox intellectual and political work to change the world. And to cultivate the ethical possibility of acting when we realize we do not know.

David Kennedy is the Manley O. Hudson Professor of Law and Director of the Institute for Global Law and Policy at Harvard Law School. He is the author of The Rights of Spring: A Memoir of Innocence Abroad; Of War and Law; and The Dark Sides of Virtue: Reassessing International Humanitarianism, and the editor of The Canon of American Legal Thought (with William Fisher) (all Princeton). His most recent book is A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy.