Problem definition, regulatory logics and the incoherence of politics

Monday’s schedule included a well-organized forum held at the new Centre for Law in the Contemporary Workplace (I attended by videoconference). The discussions centred on the issues raised by the Supreme Court’s decision in Fraser, especially the extent of the constitutional protection for collective bargaining under the Charter of Rights and Freedoms.

Fraser‘s relevance to my own research derives not only from its focus on freedom of association, but on the Court’s increasing reliance on international labour law. As has become typical of discussions of this issue since the release of the BC Health Services decision, the most controversial comments came from Brian Langille, law professor at the University of Toronto. Without getting into too much detail, Langille’s criticisms (and his indictment of the majority was scathing) reiterated two themes of his recent work. First, he suggested that the court had lost sight or failed to correctly answer the fundamental question: “what is it we are trying to do?” Second, he suggested that the court did a bad job of two forms of derivation, both the transposition of international responsibilities into constitutional commitments and the translation of constitutional principles into constraints on government law-making.

When it comes to international labour law, I think there’s a deep problem with Langille’s approach. His criticisms share a basic premise with formalist approaches to law, namely that rules can be correctly derived from higher-level principles; and that these principles can also help resolve conflicts between rules whose application would be in conflict in specific cases. Now, the original critique of this claim from the critical legal studies movement was that such derivation is non-deterministic: that there is no politically neutral, logically coherent process by which legal conclusions can be drawn regarding the application of principles in specific situations. However, it is not this claim which concerns me – even most “crits” have retreated from this version of the claim – but rather a precondition for its possibility. What bothers me is that in some cases, it is not the interpretations of the principles which are contested, but the principles themselves.

Lawmaking, after all, is a political process. The players and participants in the process want different things. In a review of Bauer, Pool and Dexter’s 1964 study of the political process surrounding antebellum US trade policy,[1] Theodore Lowi notes an important finding:

The outcome depended not upon compromise between the two sides in Congress but upon whose definition of the situation prevailed. If tariff is an instrument of foreign policy and general regulation for international purposes, the anti-protectionists win; if the traditional definition of tariff as an aid to 100,000 individual firms prevails, then the protectionists win.

The advantage of Langille’s framing of the question – “what are we trying to do?” – is helpful insofar as it sets aside debates between formalism and functionalism, and implicitly sides with those who see no divide between principle and policy: both are cast simply as a matter of what the law is meant to do, and how it ‘works’ to accomplish that task. Once the problem has been defined and the successful policy choice promulgated into law, legal adjudication and administration can be made to cohere on the basis of a purposive interpretation of the resulting rules.

Unfortunately, purposive interpretation in international labour law is not so easy. I have spent much of the last week scanning the record of the last ten years of discussions at the ILO’s Governing Body, regarding the reform of standards and supervision processes. These are discussions of process, mind you, not discussions leading to actual international standard-setting. What these discussions reveal is unsurprising: action being taken and rules amended despite the absence of any consensus about problem definition. Without compromise at the level of problem definition – except for an agreement not to agree – the unfortunate result is a set of processes which reflect multiple, often incoherent logics. Each party tries to convert their interest into a principle, but neither principle prevails.

Such conflict of problem definition is just as likely to be reflected in international labour standards. While it is true that the ILO Constitution sets out high-level normative aims, the relevance of international regimes relies on their possession not only of a goal, but also an operative logic, i.e. an understanding of how specific norms will be realized by the policy or standard in question. Reading those Governing Body decisions has made clear to me that the resulting rules or procedures may actually embody conflicting norms which are inherent to the system, not accidental; the high-level aims may be purposefully vague and multivalent; and the resulting institutions may rely on multiple, incoherent logics. What a ‘correct’ derivation from the resulting texts might look like, in this type of situation, is without question a non-deterministic inquiry.

[1] The book is Raymond A. Bauer, Ithiel de Sola Pool, and Lewis A. Dexter, American Business and Public Policy: The Politics of Foreign Trade (New York, Atherton Press, 1963); the review is Theodore Lowi, “American Business, Public Policy, Case-Studies, and Political Theory” (1964) 16:4 World Politics 677

Dr. Pepper is hurting America

One could call a recent episode, in which the employees at a Mott’s factory in upstate New York’s Williamson face a $1.50 an hour pay cut combined with other benefits reductions just another day in the continued American slide toward inequality. Yet as noted by New York Times writer Steve Greenhouse, the strike is interesting because the concessions are being demanded at at time when the parent company, The Dr. Pepper Snapple Group, is showing healthy profits.

As noted by Leo Casey over at Dissent Magazine’s blog, there’s nothing new about the race to the bottom which has undermined middle class incomes over the past 40 years. Wages for the bottom 90% of the American workers have stagnated for the last 30 years, at the expense of the wages of the top 10%. That’s 20 years of growth for which all of the benefits have flowed to society’s richest.

There is no reasonable argument that this is fair – data shows that the change can’t be attributed to growing gaps in educational attainment.

Besides fairness, however, there is growing understanding, backed up by evidence and theory, that inequality is a large part of what caused the financial crisis.  Former chief economist at the IMF Simon Johnson lays out arguments to that effect from Robert Reich and Raghuram Rajan, no economic slouches themselves. While admitting the long term fiscal problems faced by the United States, Johnson points out that the immeditate causes of the fiscal crunch was paying for the financial crisis – one facilitated by 30 years of growing inequality.

Johnson’s argument is about the implications of this understanding for US fiscal policy, but it also provides a useful perspective on the Mott’s strike. A recent book from Richard Wilkinson and Kate Pickett (you can read a defence against their critics here) has demonstrated the almost unbelievable numer of ways in which equality improves the lives of whole societies (that is, not just the poor); the work of Johnson, Rajan and Reich simply adds another reason to realize that the US has far from crossed the line from reasonable into irresponsible.

Some public advocacy groups have taken a hard tack on inequality, yet public awareness on the causes of inequality have as of yet gained much less traction, and policy responses seem focused on tax measures alone. It is all well and good to focus on individuals and their earnings, but ultimately distribution is a result as much, if not more, of the regulation of the market as it is of post-income readjustment. The Mott’s strike demonstrates just one of the myriad ways in which corporations – empowered and informed by legal rules and government policies – are allowed to increase their share of the total economic pie. It is this wealth which has increasingly found its way into the hands of America’s richest.

If Americans want to do something about inequality – and the crisis has shown that we all have a stake in America rebalancing its economic pie – then they have to do more than raise taxes on the beneficiaries of corporate largesse. They have to go after the largesse itself, with policies which ensure a fairer distribution between business and workers in their common enterprise. That requires a political strategy which focuses not only on the individual workers, but on the larger economic ramifications of short-term corporate policies.

It requires progressives not only to stand in solidarity with the striking workers, but to point out to American independents, fiscal conservatives, and anyone willing to listen, that is not only a matter of Mott’s shortchanging handful of workers. These policies, and those like it, have implications for American social outcomes, global financial stability and the nation’s fiscal health.

So even if it has the ring of comedy, we have to start pointing out the greater truth of the matter, much as John Stewart did when he called out the hosts of CrossFire: it’s not that the demand in Williamson for concessions are bad. It’s more than that.

Dr. Pepper is hurting America.

Flexibily or Arbitrarily?

How should those charged with applying the law administer it?

From a 2006 article on Latin American approaches to labour inspection, Michael J. Piore and Andrew Schrank hint at a fascinating approach to regulatory decision-making we like to pretend is impossible in Canada:

The flexibility of the Latin model in particular contradicts the image of labor-market regulations as bad for business. A telling example comes from our interviews with inspectors in France, where the Latin model originated but where it is currently under attack for its alleged rigidity. One inspector discussed his approach to the limitations on the use of temporary help and gave as an example the case of a large firm that he knew to rely excessively on temporary employees. He also knew, however, that it had an informal agreement with its unions to periodically move a certain number of temporary workers onto its permanent payroll, and in light of this agreement he simply ignored the temporary-help violations. His reasoning, he explained, was that the goal of the temporary-help restrictions was to expand permanent employment, and he thought he would be unable to obtain more permanent jobs by enforcing the existing regulation than by tolerating the admittedly illegal informal arrangement with the union. The law, he pointed out, is a means, not an end in itself.

My friend Sean is an ardent opponent of laws which are selectively enforced. He uses the example of drug laws which end up being applied so that the aggregate result is obviously racist. So where’s the middle ground? There’s a PhD thesis in there just waiting to be written.