Monday, June 7, 2010

Thoughts on sending a political institution in to do a market's job

I've been a little skeptical of claims from people like Jonathan Catalán at Economic Thought that tort law and full legal liability is the best way to prevent disasters like the recent oil spill. So far, my arguments have been along prioritarian/corner solution lines. My point has been that the market trades off costs and benefits. Even if it recognizes the cost of something like an oil spill, it will say "well, that would be bad but I'm willing to risk it for some profits". Normally this is very good. We don't want our resource allocation decisions to be guided by extreme caution and risk aversion, so letting people with skin in the game decide on how to trade off risk and reward is usually the best way to maximize social welfare. But sometimes it isn't. Sometimes we as a society want to prioritize certain concerns.

For example, doctors, above all, "do no harm". The medical profession would be extremely different in its decisions between risk and reward if it didn't have these priorities institutionally built in. Thinking about when markets can and can't assess risk properly often comes down to a question of whether market failures exist. They clearly exist in the medical profession - doctors know considerably more about the product that they are selling than their patients do. That asymmetric information distorts the market. The institutional solution to that asymmetric information problem has been a strict code of conduct that's not negotiable in market optimization decisions (I suppose this suggests that Hippocrates anticipated Stiglitz?).
Another example that I often bring up here is positive or negative externalities. I like working things out in markets, but you can't do that efficiently if the property rights regime keeps the market from incorporating information about certain costs or certain benefits. That is the situation with the oil spill.

One solution that some people propose to the externality problem is tort law. If firms can't pay the costs of their actions in the market, they can at least pay in court - and they'll factor those costs into their decision making (a la Jonathan's post). My objection to this claim so far has been that even if tort law does solve the market failure problem, we still may have social priorities that demand a corner solution that the market may not be able to provide. BP will trade off the costs and benefits of different ways of plugging the hole, while Obama will insist that we simply "plug the damn hole". Before the spill, we might have said that complete risk aversion is inappropriate - we might have wanted to trade off the chances of failure with the prospect of profits. After the spill, profit for most people was no concern. We needed to plug that hole effectively, regardless of the costs. My critique has been that whenever we genuinely have these "regardless of the costs" needs, that's not something that you go to the market to solve.

But that is essentially a question of what we are optimizing. If we are optimizing some sort of prioritarian understanding of social welfare, then the market is inappropriate because the market optimizes a utilitarian understanding of social welfare. But that still assumes, with Jonathan, that tort law and the institution of the courts (if freed from liability limits) would be successful in forcing BP to deal with all costs and all benefits (ie - internalizing the costs and benefits that thus far had been external to the market transaction). I wonder, though, if we need to question this assumption.

Two things I read this morning raised this concern for me. The first is a report that eight people were sentenced to two years in prison in India for the Bhopal gas leak that killed thousands in India in 1984. I was born in 1984. These people have had to wait 26 years for Union Carbide to pay the cost for their decisions. Now, India of course is not the United States (although it took 19 years for Exxon-Valdez to be settled here), but it still raises two obvious questions for me:

1. Even if limited liability were repealed as Jonathan wishes it would be, what makes him think that the courts will impose costs with sufficient fidelity to correct market failures, and

2. Do the courts at all consider discount rates when they reach these conclusions?

The first question is the more obvious one, but I think the second question is more interesting. The people of Bhopal suffered the costs that they suffered 26 years ago, and they were only compensated for those costs 26 years later. For that to fully compensate their costs, it needs to be considerably more than the costs that they suffered in 1984. If this idea of time-preference is confusing for you, think of it this way: if you buy a house the bank that's lending you the money to buy it bears all the costs immediately. But you're only going to compensate them for those costs over the next thirty years. The bank values money in the future less than money in the present, so to compensate them for that delayed restitution you have to pay interest. The same principle should apply in tort law. Maybe it already does - I'm not a lawyer and I just don't know. But it should. And if it doesn't, then that's one more reason to be skeptical of Jonathan's position.

The second problem with sending in the courts to do a market's job is of course the question of whether the courts are impartial in the way that a market is. Recent reports of over half the federal judges in the Gulf recusing themselves because of ties with the oil industry suggests that we should be skeptical of this assumption. This isn't something we should criticize the judges for - it's just an inevitable problem with the institution. There's nothing wrong with having oil interests and being a federal judge. They're allowed to own stock like anyone else. But when the institutional solution that you provide is directed by a certain group of elites, it introduces serious risks of conflicting interest. This is as true of regulatory bodies as it is of courts.

My view on how to address this problem is similar to my view of the political economy aspects of fiscal vs. monetary policy as stimulus (specifically, the political economy reasons for why I prefer fiscal stimulus to quantitative easing): if you have to engage in what is essentially "picking winners" and there is a serious risk of partiality, it's better to do the job in a transparent, deliberative setting where multiple perspectives have a voice and a vote than it is to do it in an opaque setting with fewer voices and votes (like a court or the Fed). There will always be problems with political solutions. Legislatures are not immune to these problems. But they are more accountable and visible than other institutions.

When we can rely on market institutions to make these decisions we should rely on them - but there are many cases where we can't. When we can't, the question is "what is the best political or social institution to remedy the problem"? Since courts impose costs that are not imposed by the market, they're very, very attractive as a market alternative to a lot of people. I think we need to be more critical of that.

11 comments:

  1. "...although it took 19 years for Exxon-Valdez to be settled here..."

    Sure, but during that whole period Exxon was paying out money for remediation, etc.

    "My critique has been that whenever we genuinely have these "regardless of the costs" needs, that's not something that you go to the market to solve."

    Except we are never or at least very rarely in that situation; even in this case that is true.

    Not to be insulting, what your argument reminds me of (in spirit) is the "ticking time bomb" scenario I hear about torture.

    "...if you have to engage in what is essentially "picking winners" and there is a serious risk of partiality, it's better to do the job in a transparent, deliberative setting where multiple perspectives have a voice and a vote than it is to do it in an opaque setting with fewer voices and votes (like a court or the Fed). There will always be problems with political solutions. Legislatures are not immune to these problems. But they are more accountable and visible than other institutions."

    I'm skeptical of the claim that legislatures are more transparent than the courts or the Fed; even with big ticket items like health care "reform" most of what is going on is entirely unknown to the general population. Unless you are making the claim that somehow interested parties are a proxy for the general population - which I am skeptical of - what legislatures do seems as opaque as what the courts and the Fed does.

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  2. RE: "Sure, but during that whole period Exxon was paying out money for remediation, etc."

    Right - not to mention the clean up itself. I'm remarking on the extension of the compensation over time, not trying to suggest that they had to wait 19 years to get any compensation.

    RE: "Not to be insulting, what your argument reminds me of (in spirit) is the "ticking time bomb" scenario I hear about torture."

    Hmmm... I think this is a little weak. What do we not like about torture? That it is ethically wrong. It's an ethical priority not to torture. In other words, you're critiquing me using my own point! The "torture is always wrong" is also a "regardless of the costs" point. Namely, "torturing is always wrong regardless of the costs of refraining from torturing people". So in this case we have two competing "regardless of the costs" priorities. We want to (1.) avoid a terror attack "regardless of the costs" and (2.) not torture someone "regardless of the costs".

    What informs our decision on this case? Ultimately, what informs it is which we consider most important. You and I both seem to think (2.) is most important. But fool yourself into thinking that my "regardless of the costs" logic is the problem here. After all - it is precisely the logic that you are employing!

    As for legislatures and the courts - I'll refer you to the part where I say that all political institutions have this problem, simply that some have less problems than others. Congressional deliberation is public - jury deliberation is not. 500 odd people who are elected by hundreds of millions of people vote on legislation - 12 people vote on verdicts. I'm not saying there is no role for both institutions. Part of the reason for such a small, unanimous group deciding court cases is precisely that the law is not expected to be a public opinion poll. Each institution has it's place. But there's no credible way that you can argue that Congress is a opaque as a court room.

    If you're simply arguing that there are ways in which Congress can be opaque, then you seem to be in complete agreement with me on that point.

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  3. *But DON'T fool yourself into thinking...

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  4. RE: "Except we are never or at least very rarely in that situation; even in this case that is true."

    Never or rarely in the extreme "at any costs" situation, I would agree. But a prioritarian perspective does not necessarily need to be extreme. Many of us think the needs of the poor should be prioritized over the needs of others. In a crisis it's "women and children first". The subway system requires that you give your seat up to pregnant women or the disabled. These are all prioritarian goals that can never be efficiently achieved in a market that operates based on utilitarian principles.

    Whether they can be achieved by other institutions - state institutions or otherwise - is of course an open question.

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  5. "After all - it is precisely the logic that you are employing!"

    I'm not actually. The "ticking time bomb" scenario is used by people who think that extremely rare scenarios justify torture. What we are experiencing right now is an extremely rare scenario that took a whole cascade of problems to achieve. The industry will largely learn from these problems and go on. It doesn't justify any change in legislation, etc. any more than 9/11 justified the massive level of overreaction by the state in a number of public policy areas. Sometimes bad things happen and there is really no level of legislation or regulation that is going to do anything about it, and this is especially true in technical areas where the experts are all justifiably in that area.

    "Congressional deliberation is public..."

    And that is not where the decision making is actually made or at least very, very rarely is that the case.

    "But there's no credible way that you can argue that Congress is a opaque as a court room."

    Ahh, ok. Asshat. You have to think about how legislatures actually work; they work opaquely for reasons based on the incentives of legislators. This all has to do with iron triangles, interest group politics, blah, blah, blah. They are just as opaque as the courts are, and generally for pretty good reasons.

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  6. I'm confused - what does the rareness of a situation have to do with its justifiability, and what does that have to do with the case that either of us are making here? I had initially thought the point you were making is that "at any cost" arguments can justify all manner of evil and since I'm using "at any cost" prioritarian logic, I'm like people who justify torture. My point is that it is precisely "at any cost", prioritarian moral logic that we use when we say that we should not torture under any circumstance. It seems that I misinterpreted what you were saying. But if your real concern is the "rare event" point, I understand that even less. What in the world does the frequency of an event have to do with this? It's an honest question - I'm not sure what you're getting at.

    RE: "Ahh, ok. Asshat. You have to think about how legislatures actually work; they work opaquely for reasons based on the incentives of legislators."

    You need to chill out, Xenophon. I've enjoyed your comments here because you have a ready supply of really interesting sources and counter arguments, and you've actually been able to tolerate disagreement. Now for the third time I am telling you that I never said that Congress isn't opaque. In fact, I've said twice so far (and this is the third time now) that Congress faces these issues too. I said that in my initial post. My point is it is LESS opaque than a court room.

    If you really think they are "just as opaque as court rooms are", could you explain why rather than repeating reasons why Congress is opaque that I've already both explicitly and implicitly acknowledged.

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  7. The point being you don't have to convince me that Congress faces these problems - I said that explicitly in the post before you even started commenting. What I'm having trouble understanding is why you think they're as opaque as courts or closed boards.

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  8. I'm very chill. I responded appropriately. There is no credible way to argue otherwise. ;)

    "What in the world does the frequency of an event have to do with this? It's an honest question - I'm not sure what you're getting at."

    Because "regardless of the cost" scenarios are so very rare (indeed, I think it is likely that they never exist). Thus I am stating that is not an idea to base much of an argument on.

    "My point is it is LESS opaque than a court room."

    I'm suggesting that they are not. Obviously this is a judgment call; I've given you the reasons why they are just as opaque based on that judgment. Now you can argue that iron triangles, etc. are not as opaque as court procedure, the deliberations of juries, etc., but they look roughly equivalent to me in what one is able to actually see of the process of decision making. Now certainly the Congress looks less opaque; there's C-SPAN, the 24 hour news cycle, etc.; but looks are deceiving. Most of that stuff is theater and the what isn't exists for the benefit of insiders who are talking to one another. Now, if you spend a bunch of time looking at how this works, you can become an insider too ... but that isn't what most people do (meaning 99% of the population outside of politics) and legislators know this. It is a bit like thinking you know how a car dealership works when you have bought three cars; whereas the people who really know how they work are those who work there every day.

    Time for me to do other things.

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  9. Daniel, I know you cautioned me yesterday about commenting on old posts and the lack of response it would receive... But since I'm new to your blog I've been going through a number of these posts and found myself in agreement with much that you have to say.

    Which means you are, like, CLEARLY super smart and stuff.

    Okay, anywaysss... This is again true here, where I share many of the same sentiments and a scepticism of the omnipotent ability of tort law to redress externalities and market shortcomings. In fact, this was the subject of long email debate that I've just been having with a friend of mine (of the Austrian disposition) on the effectiveness of Anti-regulation.

    Trying to bring some of relevant the points from that debate to this post, I think that the argument for ex post action on externalities is a straggling third best, particularly given:
    a) The (time) inefficiency of legal systems with their endless recourse to stalling and appeals;
    b) The difficulty in obtaining fair "price" values in court settlements. This matters especially for things that are inherently subjective, or harder to evaluate in monetary terms; biodiversity, culture and lifestyle, etc (and is exacerbated by very different risk premiums of different parties).

    Indeed, I think that this is an important point: regulation is often aimed at circumventing inefficient and protracted tort processes such as those we saw with Exxon and Bhopal (though poor institutional factors duly noted).

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  10. All that being said, I have long felt that a system of limited liability necessarily encourages unduly risky behaviour. The move to full/strict liability certainly seems to be a positive step in the right direction from my perspective.

    (Naturally, I'd also say that Government regulation has by no means guaranteed a better outcome every time it is applied - quite the opposite in many instances and something you've taken pains to stress as well - but applying blanket rules in the other direction seems equally short-sighted to me.)

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  11. No problem, stickman! And I get email notifications when you post so at least you'll have me to talk to! The externalities question is a big issue of mine, which you've probably picked up on by now. I think externalities are far more central to human social interaction than a lot of people realize. It doesn't mean we abandon the market. It doesn't even mean the market isn't the best solution in most possible cases - but it does mean the human race isn't living up to its full potential and its reasonable to think of ways to achieve that.

    Those are good points on the courts. I'm intrigued by the limited liability point. I would simply worry about the unintended consequences of moving away from limited liability. If you buy into Keynesianism like I do, it's the fear and uncertainty around the payoff on risky investments that leads to a lot of the underperformance of the macroeconomy. Limited liability is an important innovation that helped us get around much of those fears. Is there a middle ground? Are there ways to tweak it? Perhaps. I'd just worry about what else full liability would bring.

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