Value Competition

Management and Law Comparative Paper--Outline

What follows is an outline of a paper that would review and revisit the themes of Barley and Kunda (1992) and Eastman and Bailey (1998); the idea would be to submit it for the AoM conference this summer in Montreal and then revise it for journal publication:

a) Intro--paper theme--a new look at the historical, cyclical, materialist classification of management scholarship by B & K and the different historical classification of management and legal scholarship by E & B, which is non-cyclical and idealist;

b) Predicting the recent past--does B & K's approach or E & B's work better to explain trends in management scholarship and education since the 1990s when B & K and E & B wrote?  How about trends in legal education?

c)  The basic dichotomy between utilitarianism and deontology; the prevalence of the former in management and of the latter in law;

d) Utilitarian-Benthamite and deontological-Kantian approaches to mediating the fact-value antinomy;

e) How management with its predominantly utilitarian mediation surfaces methodological "rationality of means" value competition and represses substantive "rationality of ends" value competition; how law with its predominantly deontological mediation surfaces substantive value competition and represses methodological value competition;

f) The greater salience of business ethics as a field relative to legal ethics; why the utilitarian mediation of management leads to the rise of business ethics and why the deontological mediation of law leaves legal ethics as a backwater;

g) The growth of a methodological split in the legal academy with the rise of law and economics; management in that respect as pointing the way for law;

h) Relevance of the analysis for management education;

i) Conclusion.

Utilitarian and Deontological Mediations of the Fact-Value Antinomy

Eastman and Bailey (1998) contend that the contemporary legal academy features surfaced value competition in a way that the management academy does not, and advocate management scholarship that is overtly normative in the legal mode.  Their positive claim is partly correct, in that the surfaced clash of substantive political visions—individualist, communitarian, left, right—that is central in law is far more muted in management.  But it neglects an important way in which value competition has traditionally been surfaced in management, but not in law.

Management scholarship represses open competition as to substantive visions—the rationality of ends.  But it surfaces open competition as to methods, in particular between the “rational” and “cultural” poles, to adopt Barley and Kunda’s nomenclature.  Legal scholarship by contrast has traditionally repressed methodological competition.  Law has its own methodological parallel to the rational-cultural split in the form of the division between rules stated in factual terms and standards stated in moral terms.  But this methodological division has not traditionally resulted In anything parallel to the intricate divisions in business schools between calculative and cultural approaches.   Duncan Kennedy, Kathy Sullivan, and others have correctly identified the power of the rules-standards split, but have not prevailed in leading the legal academy toward surfaced methodological competition between rules and standards camps.  What has instead worked to crack open the legal academy on methodological lines is basically the same calculation-culture split that dominates in management, with law and economics as the legal equivalent of the calculative finance/econ and optimization/OR camp in management.

Relating the above to the general Bentham-Kant dichotomy and to the utilitarian and deontological modes of mediating the fact-value dichotomy: Utilitarianism mediates empirically, with a faith that logic plus data will at least some of the time lead to moving the ball forward with better ideas.  Deontology mediates a priori, with a faith in universal rules.  Management features utilitarian mediation, with the calculative and cultural camps engaging in an eclectic local competition to move the ball forward.   Law features deontological mediation, with substantive camps competing time after time after time to establish which is right.

Competing Values in Law

On the face of it, law is a domain of surfaced value competition in a way that management is not.  Managers may employ individualist or communitarian--or for that matter left or right--ideas, but a direct competition of the sides with advocates for both defies the norms of the management field.  On the other hand, surfaced competition with advocates for both sides is entirely mainstream within law.  Further, quite often the positions the two sides are advancing are individualist, communitarian, left, or right positions.  

The key qualification to make about law and values is that what the competing sides advocate and what judges decide, if they are "speaking law" properly, is not Rawls or Nozick or MacIntyre or Burke but a version of ideology or ethics that is tailored to the distinctive legal task of blending and alternating between rules and standards.  John Hart Ely's wisecrack some decades ago about the Supreme Court voting 6-3 for Rawls over Nozick hits home as a criticism of the limits of politicized legal judgments not so much because law is apolitical or a ethical--it  most emphatically has very substantial political and ethical content--but because judges must speak properly in legal terms.  A brilliant libertarian or communitarian idea must remain tacit, or be translated into an appropriate rule, standard, or rule-standard. 

By comparison to judges, managers can draw from column A and column B without the constraint of having to justify their answer as the right answer over other possible answers.  Compared to law, a "right answer" discipline, management is a "move the ball forward" discipline.  A manager can draw on Bentham, Kant, Rawls, MacIntyre, Burke, and other ethicists and/or ideologues more freely in some respects than a judge can do.  Judges face greater consistency constraints than managers do; for a manager, honoring the grab-bag, local rationality over global rationality quality of management as a discipline constrains the manager from consistent commitment to one ethical or political perspective as the right answer but supports eclectic commitment to different perspectives that may in different circumstances help move the ball forward.

The Implicit Ethical Structures of Management and Legal Education

Why is business ethics more intellectually ambitious and more successful as a field than legal ethics?  A plausible materialist answer is that the professionalization of law has led to legal ethics becoming synonymous with a code of professional responsibility and to a concomitant diminution in intellectual ambition and disciplinary power.  But there is also a potential idealist explanation: The virtues and the flaws of management as an academic discipline map better onto major ethical schools than the virtues and flaws of legal education do.

Management education with its mix of calculative (finance, OM, etc.), cultural (OB, etc.), and mixed disciplines can be justified in eclectic utilitarian terms: To enhance their effectiveness as well as that of their firms and their society, managers should be able to draw on both utilitarian and non-utilitarian approaches.  From the eclectic utilitarian perspective, epitomized by Mill, effectiveness is often enhanced when utilitarianism is not directly relied upon; given that perspective, the central role of the calculation-culture dichotomy in management theory makes sense. 

Management education also can be usefully criticized in philosophical terms.  From a Kantian deontological perspective, there is a serious concern as to whether management forsakes moral seriousness and universality for an endless succession of morally relaxed utilitarian compromises.  From an Aristotelian virtue ethics perspective, there is a serious concern over whether the dominant split between calculation and culture in management loses sight of the manager as a whole person with a character in favor of viewing the manager as a device to achieve effective results.  From a communitarian utilitarian perspective a la Peter Singer, management education reinforces the failure to take into account remote but ethically pressing harms and benefits.  From an individualist perspective, management education oversocializes, cultivating organization men and women rather than free spirits.  Because critical stances as well as a justificatory stance on management education can be readily related to major ethical schools, business ethics courses have a reasonably straightforward logic.

By comparison, legal education with its emphasis on inculcating skills in blending and alternating between clear rules that avoid moral language and ambiguous standards that embrace moral language does not readily map onto Bentham, Kant, Aristotle, or other major ethicists.  First, because the utilitarian reason cultivated by law and economics is a subordinate kind of reason that dare not speak its name, there is no bright-line clash between utilitarianism and deontology in law the way that there is in management.  Next, because the legal curriculum is not as fragmented and dichotomizing as the management curriculum, virtue ethics has less critical bite in law than it does in management.  Finally, because legal education lacks the preoccupation management education has with the individual, firm, and social levels, individualist and communitarian critiques map less well onto law than to management.  For all that the structure of legal as well as management education has significant ethical content for the people who go through it, the structure does not accord as closely with major ethical theories in law as  it does in management.

Predicting the Recent Past

If Barley and Kunda (1992) are right in hypothesizing that management theory cycles between rational and normative poles according to broad economic trends, with better times for American business corresponding to the ascendance of rational theory, it would have been reasonable to expect a turn away from the cultural theory of the 1980s to a renascent rational theory in the 1990s and 2000s, given the generally though not unrelievedly good times for the American version of capitalism from the fall of the Nikkei and the Berlin Wall in 1989 to the financial crisis of 2008. As a prediction, that looks reasonably good, especially if we give Barley and Kunda credit for calling the turning of the American economic wheel from the nervous 1970s and 1980s of malaise and Japan as #1 that preceded their article. Even if we do not credit them with being economic seers and focus solely on management theory of the last two decades with the economy as an exogenous factor, their hypothesis is quite defensible. The rise of agency theory as not simply a finance model but as a major stream within the management academy itself; the reinvention of OR and OM in the rising field of supply chain management; the increasing financialization of management consulting theory and practice, at the same time that consulting replaced medicine and law as the most desired destination for Ivy League graduates; the popular success of Moneyball, Freakonomics and other books selling rationality and incentives rather than culture and teamwork: These phenomena can all be cited as support for the case that the recent, apparently ended good times did indeed go along with a wave of rational theory.

If Eastman and Bailey (1998) are right in hypothesizing that management theory has entered into a long-term period of value partisanship associated with the breakdown of earlier formalist and consensualist approaches to mediating the fact-value dichotomy, it would have been reasonable to expect that the 1990s and 2000s would have been a period of intensified surfacing of value disputation in management, along the lines already prevalent in law. Some evidence can be cited in support of that proposition: Compared to twenty years before, the division structure of the Academy of Management in 2009 shows an increased number and proportion of divisions—Critical Management, Organizations and the Natural Environment, Management and Spirituality—whose missions reflect a clear value-orientation; the rise of the Moneyball/Freakonomics genre has gone along with the rise of a counter-genre, epitomized by Irrational Exuberance and Predictably Irrational, that emphasizes how human beings deviate from rational choice; and the rise of agency theory has gone along with a vigorous counter-movement arguing that agency theory itself is a major problem for American business and American society. On the other side of the ledger, though, one can cite a diminution of the culture-oriented academic and popular 1980s literature related to flattening hierarchy and liberatory management, as well as a less self-critical tone in 1990s and 2000s theoretical and practitioner literature compared to that of the more anxiety-ridden, less self-confident preceding period, with its concerns about managerial myopia and American decline.

It is interesting to note that law, which Eastman and Bailey rely upon as offering a kind of leading indicator for management, has been characterized over the last twenty years not so much by the rise of value disputes—much as divisions between liberals and conservatives remain central to academic law as well as to the practitioner literature produced by Supreme Court justices--but by the consolidation of law and economics as an ideologically mixed utilitarian alternative to the "rules and principles" mainstream in the legal academy. The result has been a legal academy divided more along the calculation-culture lines that have long prevailed in business schools with their division between more normatively-oriented and more rationally-oriented disciplines. That calculation-culture value split in both its management and legal incarnations lacks the moral intensity of the left-right split, which raises a question about whether the Eastman and Bailey hypothesis of heightened value partisanship holds true in law, and also about whether they were right in seeing law as a leading indicator of trends in management. Perhaps it is management education with its longstanding calculation-culture split that has shown the way for legal education, rather than the reverse.

Law as a Modern Discipline

What part does law play in the modern disciplinary project of creating human subjects who experience a heightened pull toward both individualism and altruism and who balance between the competing poles with some blend of calculative reason and anti-calculative reason?   As a pre-modern profession, law is not obviously part of the project of creating useful subjectivity in the way that management and applied psychology are.   But law has been usefully modernized.  First, the rights consciousness that is a prominent feature of modern individualism has found its home and its major forum in law, and helps inculcate self-oriented values in lawyers in particular as well as in others.  Given the continued and necessary presence of communitarian elements that have always been present in the discipline, modern law is neither communitarian nor individualist, but rather a combination of the two principles or poles that acts to heighten the intensity of the feelings connected to both sides in those who are trained in the discipline.  Second, calculative utilitarian reason has risen in law as elsewhere from Jeremy Bentham to a present in which Richard Posner and other modern counterparts of Bentham are an important part of the discipline.   Given the continuing and necessary presence of anti-utilitarian, rule-oriented features of law, the result in law as in modernity generally has been a more equal balance between calculative and cultural reason, with the rise of calculation creating useful pressure on cultural reason to pay its way through justifying its practices.

Mr. Posner, Meet Mr. Kennedy

Within living memory, American law schools were the site of an academic battle of sorts between two rising jurisprudential approaches: law and economics, epitomized by Richard Posner, and critical legal studies, epitomized by Duncan Kennedy.  Back in the 1990s, I argued in an encyclopedia article for a mini-movement of cls l&e that would be a kind of fusion of the two movements http://encyclo.findlaw.com/0660book.pdf, and I'm now inclined to take up that cause again.  The argument would parallel the one in my recent business ethics paper: 1) cls claimed/claims that law is ideological; 2) test the claim, using legal academic work and judicial opinions (examining the calculation/culture and self/other dichotomies as well); 3) make an l&e case for the value of ideological competition; 4) contend that the l&e case for norms competition and the cls case for ideological contradiction share common elements; and 5) suggest that the l&e and cls positions combined can yield insights on ideological splits and other kinds of splits within law.

Stich on Morality and Cognitive Science, part 4

Stephen Stich's final lecture on the Nicod website deals with moral intuition: http://www.institutnicod.org/lectures2007_outline.htm 

S focuses on research done by Daniel Kelly on disgust and by Joshua Knobe on intentionality to argue that moral intuition is a poorly designed or "kludgy" system that is not merely frequently dysfunctional in modern conditions as opposed to hunter-gatherer conditions (the Peter Singer position), but was always a patchwork whose results were and are dubious.  Kelly's work suggests that poison avoidance and parasite avoidance responses have been co-opted over the course of the evolution of human ultra-sociality into morally-charged, negative responses to outsiders with different cultural norms and to certain kinds of behavior associated, possibly irrationally, with impurity or contamination.   Knobe's research deals with judgments of intentionality.  He has found that people usually consider predictable harm to the environment resulting from profit-seeking intentional, while finding predictable benefit to the environment from profit-seeking not intended.   Additional Knobe results: An ad using an intimate interracial couple was judged to be intentionally encouraging interracial  sex, while an ad using a potted plant was not judged to be intentionally encouraging office plants; a predictable violation of a Nazi racial purity law resulting from profit-seeking was judged to intentionally violate the law, while a predictable fulfillment of the obnoxious law resulting from profit-seeking was not judged to intentionally fulfill the law.  S asserts that Knobe's work indicates the patchwork and morally questionable nature of judgments of intention, given that subjects viewed the interracial ad and the purity-law violating company as acting intentionally even while rejecting racial separation as a norm.

Although I'm inclined to agree with S about the kludginess of disgust, I have more of a John Mikhail, Universal Moral Grammar sense about judgments of intention following an implicit complex logic analogous to that of language.  For judgments of intention, I don't have a VC line as to a need for opposing sides; my intuition is that high variation across and within individuals between harsh and lenient judgments of intentional conduct is highly useful, but I'm fine with a UMG-type uniformity or near uniformity in judgments of whether certain side effects are intentional.  I think S and Knobe are right that there is no single type of intentionality judgment.  The "double effect" logic of judgments of intention in trolley problems as studied by Mikhail is different from the "internalize the negative externalities of self-interested action" logic I see in Knobe's environmental scenarios; both the trolley and environmental logics are different from the "unmask partisanship" logic I see in his ad scenarios; all three logics are different from the "non-exigent rule violation" logic I see in his purity law scenarios. 

Does any of this have anything to do with the VC framework, as opposed to Mikhail and I both being lawyers and hence protective of the intention-oriented logic of our discipline?   I think so, in the following way.   One line, espoused by Joshua Greene, is that intricate reasoning is the property of utilitarianism, with deontological approaches like Kant's amounting to rationalizations of gut feelings.  In addition to countering my lawyer's intuition that non-rational choice, non-utilitarian reasoning exists and is important, Greene's line is contra-VC, since VC as I currently see it involves a deontological part of the brain in competition with a utilitarian part, with both sides employing reasoning and appealing to self-oriented and other-oriented emotions.

Cross-Race Trust Games

Another post inspired by the Liz Phelps presentation yesterday...

Consider "Trust Game" interactions between people of different races under the following rules: A gets $1, which can be given to B or kept; B then gets an additional $2, making a total of $3 that can either be shared equally with A or kept by B.  Assume (this is my addition, not something presented by Phelps) that A can then punish a non-sharing B by losing $1, which will take away B's unshared $3. 

A plausible behavioral prior is that absent the punishment feature, A and B are more likely to cooperate with a same-race partner than with an other race partner.  A second plausible behavioral prior is that A is more likely to punish an other-race B than a same-race B.  The first prior will lead to less sharing by A, who will (given current social norms) explain his/her failure to share the dollar not in terms of negative attitudes toward B's group but to concerns that B won't share.  The second prior will also not motivate A to share, assuming that A sees it as a general proposition that is not applicable to his/her non-racist self.

What will induce optimal levels of sharing?  (Allowing for the important caveat that in real life, as opposed to the trust game, sharing is not necessarily the best policy.)  One possibility is externally administered punishment through the legal system that punishes cross-racial wrongs more heavily.   A legal system that does so can be attacked as racist ("blacks who kill whites are punished more than blacks who kill blacks"; "discrimination laws punish white-run businesses more than they punish black-run businesses"), but arguably has a significant value in inducing cooperation across racial lines.  A second possibility is to have competing values.  On the punishment dimension, the downside of having a racist "punish the other group more heavily" value pole strikes me as high.  One the other hand, a competition between a "punish cross-racial non-cooperation more heavily" pole and a "don't punish cross-racial non-cooperation more heavily" pole strikes me as beneficial; the former pole, hard as it is to distinguish from racism in regard to one's personal actions, is beneficial on a broader scale in inducing cross-racial cooperation, and the latter pole is helpful given the real-world ambiguities of determining whether cooperation as opposed to non-cooperation is in fact beneficial.

Same discipline, different forms of value competition

What is the predominant form of value competition on the US Supreme Court?  I'd say left-right ideological competition.

What's the predominant form of value competition for a municipal court judge?  It's much less clear that any single form predominates, I'd say.  I think most of the work goes on internally, with different subsystems within the judge relating to rules, standards, communitarianism, and individualism. 

Since the US is unusual internationally in the degree to which ideology is surfaced routinely in its high court, it's not apparent that there's a strong efficiency story to tell that competition should differ at different levels.  But on an appellate panel with very high visibility like the Supreme Court, it makes sense that ideological judges might well care about how their decisions affect the viability of their side over the long haul.  That caring is important to make ideological judging something other than a personal rip-off by unaccountable judges; with judges whose decisions aren't going to matter for the large-scale, long-term prospects of their side, a tendency to grab on behalf of one's side needs to be checked by accountability at the local level.