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What Baseball’s Rules — Written and Unwritten — Tell us About Business Ethics

The fist that landed on Jose Bautista’s jaw echoed around the baseball world almost as loudly as his famous “bat flip” last October. And whereas Bautista’s bat flip violated the unwritten rule against grandstanding, Texas Rangers second baseman Rougned Odor’s punch violated the written rules, but also followed from a different, unwritten rule that permits retribution. In particular, Odor was getting back at Bautista for a very aggressive slide into second base just seconds before — which may in turn have been retribution for a fastball to the ribs that Bautista had previously suffered at the hands of a Rangers pitcher, and which was presumed to be intended as — you guessed it — retribution for last fall’s bat flip. That’s how retribution often works, namely that it results in a string of tit-for-tat acts of violence with no natural end point.

But what’s important, here, from a business point of view, is to see the way all of this plays out within what has been structured, intentionally, as an adversarial system. This kind of eye-for-an-eye pattern of retribution would be seriously problematic in private life; but on a baseball field, it’s merely the working out of a set of informal rules designed to civilize a rather aggressive set of activities.

The point here is that in baseball — as in business — people on opposing “teams” aren’t supposed to get along. They’re supposed to compete, each trying to get the better of the other. And such competitive domains typically have their own rules, rules that permit behaviours not considered OK in everyday life. In everyday life, after all, throwing a ball towards someone at 96mph would be considered recklessly dangerous, possibly criminal. But that’s something major league pitchers are encouraged to do, if they can. And in everyday life, causing a person to lose their job would be a terrible thing to do. But in business if you invent a better mousetrap and force makers of lesser mousetraps out of business, that’s considered entirely justified in the name of innovation.

As philosopher Joseph Heath has convincingly argued, this idea of constrained competition serves as a strong foundation for an ethics of business grounded in the goals of markets themselves. Business is tough and competitive, but even tough, competitive games need rules if they are to achieve their purpose. In a business context this puts limits on the aggressive strategies that managers can use in pursuit of profit. Managers of competing companies are free to act aggressively, trying to outmanoeuvre each other, zealously seeking out efficiencies, devising devilishly clever new products and so on, all in an effort to drive the “other guy’s” market share to zero. Managers at all competing firms employ the same tactics, and generally it is the consumer who wins by gaining access to better and better products at lower and lower prices. But the permission to act aggressively in the market — permission granted as an exemption from the rules of polite society — is limited by requirements that the competitors avoid taking things too far, by for example sabotaging each other’s factories or lying to customers to boost sales. Those would certainly be competitive strategies, but anti-social ones.

My Ryerson colleague Hasko von Kriegstein argues, in a forthcoming paper, that this obligation to compete in a constrained way in principle really applies to corporate shareholders, not to managers. After all, shareholders are the ones seeking to profit in the market, so it’s their profit-seeking behaviour that must be constrained. But it still implies limits on the behaviour of managers because managers act as shareholders’ agents in the marketplace. When you’re the one “on the field,” you’re the one subject to the rules.

And in both business and in baseball, the rules — both written and unwritten — serve to protect a range of stakeholders. Some rules protect participants. Others protect innocent bystanders. In some cases, the written rules are controversial or unclear. And in others, the unwritten rules are uncertain. And so sometimes the former get changed or clarified, and the latter evolve. But we can’t begin to understand the point and the proper scope of particular rules — rules against aggressive slides, rules against insider trading, etc. — and the way those rules differ from the rules of everyday life, without understanding that they are rules whose logic is internal to the game, a way to civilize a justifiably aggressive activity.


    
 


What Baseball’s Rules — Written and Unwritten — Tell us About Business Ethics

The fist that landed on Jose Bautista’s jaw echoed around the baseball world almost as loudly as his famous “bat flip” last October. And whereas Bautista’s bat flip violated the unwritten rule against grandstanding, Texas Rangers second baseman Rougned Odor’s punch violated the written rules, but also followed from a different, unwritten rule that permits retribution. In particular, Odor was getting back at Bautista for a very aggressive slide into second base just seconds before — which may in turn have been retribution for a fastball to the ribs that Bautista had previously suffered at the hands of a Rangers pitcher, and which was presumed to be intended as — you guessed it — retribution for last fall’s bat flip. That’s how retribution often works, namely that it results in a string of tit-for-tat acts of violence with no natural end point.

But what’s important, here, from a business point of view, is to see the way all of this plays out within what has been structured, intentionally, as an adversarial system. This kind of eye-for-an-eye pattern of retribution would be seriously problematic in private life; but on a baseball field, it’s merely the working out of a set of informal rules designed to civilize a rather aggressive set of activities.

The point here is that in baseball — as in business — people on opposing “teams” aren’t supposed to get along. They’re supposed to compete, each trying to get the better of the other. And such competitive domains typically have their own rules, rules that permit behaviours not considered OK in everyday life. In everyday life, after all, throwing a ball towards someone at 96mph would be considered recklessly dangerous, possibly criminal. But that’s something major league pitchers are encouraged to do, if they can. And in everyday life, causing a person to lose their job would be a terrible thing to do. But in business if you invent a better mousetrap and force makers of lesser mousetraps out of business, that’s considered entirely justified in the name of innovation.

As philosopher Joseph Heath has convincingly argued, this idea of constrained competition serves as a strong foundation for an ethics of business grounded in the goals of markets themselves. Business is tough and competitive, but even tough, competitive games need rules if they are to achieve their purpose. In a business context this puts limits on the aggressive strategies that managers can use in pursuit of profit. Managers of competing companies are free to act aggressively, trying to outmanoeuvre each other, zealously seeking out efficiencies, devising devilishly clever new products and so on, all in an effort to drive the “other guy’s” market share to zero. Managers at all competing firms employ the same tactics, and generally it is the consumer who wins by gaining access to better and better products at lower and lower prices. But the permission to act aggressively in the market — permission granted as an exemption from the rules of polite society — is limited by requirements that the competitors avoid taking things too far, by for example sabotaging each other’s factories or lying to customers to boost sales. Those would certainly be competitive strategies, but anti-social ones.

My Ryerson colleague Hasko von Kriegstein argues, in a forthcoming paper, that this obligation to compete in a constrained way in principle really applies to corporate shareholders, not to managers. After all, shareholders are the ones seeking to profit in the market, so it’s their profit-seeking behaviour that must be constrained. But it still implies limits on the behaviour of managers because managers act as shareholders’ agents in the marketplace. When you’re the one “on the field,” you’re the one subject to the rules.

And in both business and in baseball, the rules — both written and unwritten — serve to protect a range of stakeholders. Some rules protect participants. Others protect innocent bystanders. In some cases, the written rules are controversial or unclear. And in others, the unwritten rules are uncertain. And so sometimes the former get changed or clarified, and the latter evolve. But we can’t begin to understand the point and the proper scope of particular rules — rules against aggressive slides, rules against insider trading, etc. — and the way those rules differ from the rules of everyday life, without understanding that they are rules whose logic is internal to the game, a way to civilize a justifiably aggressive activity.


    
 


Mainstream medicine’s not perfect, but it beats the alternative

Defenders of David and Collet Stephan are right about the Canadian healthcare system, and about the “mainstream” approach to healthcare. Sometimes the system kills. Sometimes errors are made. Some pharmaceuticals, in some circumstances, do more harm than good. Preventable “adverse events” may kill as many as 23,000 adults Canadians each year. Sometimes a trip to the hospital makes things worse, rather than better.

Mr and Mrs Stephan were recently convicted of failing to provide the necessaries of life to their toddler, Ezekiel. Their story has many elements, but a central one of them seems clearly to be a mistrust of the mainstream healthcare system. Rejecting that system, David and Collet Stephan opted instead to treat (or rather, “treat”) their child’s very serious illness with herbs and with vegetable smoothies. They didn’t seek the help of mainstream, evidence-based medicine until it was far too late.

There are plenty of people who mistrust mainstream medicine. That’s why “alternative” and “complementary” medicines sell so well. People object to a system that they see as being dominated by big pharma, a system that intrusively asserts control over our lives, telling us what’s wrong with us, and telling us what we must do in order to get better (as they choose to define “better”). It’s a system that is notorious for “medicalizing” everything. Menopause? That’s a disease, and we’ve got the cure! Baldness? There’s a chemical solution to that! Pregnancy? Let’s treat it like an illness!

The thing is, for all its flaws, mainstream medicine works. That is, it mostly works, and doctors and scientists search pretty relentlessly for the bits that don’t work, and they tend to toss those out. Is there an error rate? Yes. Do pharmaceutical companies have too much influence? Certainly. Do physicians sometimes prescribe medicines that pose risks but do little to help? Yes. But overall, mainstream healthcare works. Antibiotics work. Chemotherapy works. Vaccines work. The same simply cannot be said for almost any of the wide array of complementary and alternative “medicines.”

So failing to take your dying child to the hospital because you don’t trust “modern medicine” is literally like failing to get your kid out of a burning building, simply because you don’t like the look of the weather outside.

Those who mistrust mainstream medicine ought to think, before opting out, not just about what they’re jumping away from, but what they’re jumping into. Imagine you don’t like the way your physician is imposing his view of the world for you, and worry that his view is unduly influenced by the the marketing dollars of big pharma. So you opt to visit a naturopath instead. What you get is your naturopath imposing his view of the world on you, a view that is likely to be unduly influenced by the marketing dollars of the big alternative medicine companies. The move — from a system that “medicalizes” your health to one that “alternativizes” — is not clearly a positive one, even from an ideological point of view. And from the perspective of what we know about what actually works, the move is a disastrous one. And when the stakes are as high as the lives of our children, it’s a move that warrants considerable scrutiny.


    
 


What should you do if you lose faith in what you’re selling?

What happens — what should happen — when you lose faith in your product, when you come to see that the product you’ve been selling all this time isn’t really what it’s been cracked up to be? Is it wrong to keep selling it? How bad does the product have to be for it to be wrong to keep selling it? How strong should the evidence be?

The question came to mind when I read recent reports accusing Dyson Airblades hand dryers of spreading germs at an apparently horrifying rate. Now to be clear, there are reasons not to overreact to the hyperbolic headlines. The stories you’ve read about Airblades are based on one study, conducted under lab conditions that might not reflect reality. But what if — what if — the reports turn out to be fair and accurate? What if the highly artificial scenarios used for the lab tests turn out to be validated by field trials? What if Dyson Airblades really are spreading filth? Should Dyson simply say “Oh well, so much for that!” and stop selling them?

The question of losing faith in your product also comes to mind with regard to various ‘complementary’ and ‘alternative’ healthcare products. Most people who sell such products, and most health practitioners (homeopaths, naturopaths, therapeutic touch practitioners, and so on) surely do what they do out of a genuine belief that they’re helping their patients. They believe they see positive effects. But the evidence generally doesn’t support that belief. Now, most practitioners and sellers simply never come to accept that fact, and so they go on selling and prescribing products that are physically incapable of doing what they claim they do. And though I’m a strong critic of such practices, I do have a degree of sympathy for the person who has spent, say, 20 years believing that homeopathy really works, and “seeing” it help thousands of people (a fact that can readily be explained by the operation of a whole range of well-documented cognitive biases). When such a person starts to realize the 20-year error they’ve made, they must find themselves in a rather awkward situation.

Some might ask whether the seller’s faith in the product really matters all that much. Isn’t the customer always right? Isn’t the customer’s opinion the one that matters? Yes, mostly. And so there are times when it’s absolutely OK to keep selling your product even after you’ve personally lost faith in it. Imagine you’re in sales for Coke, and you find yourself developing a taste for Pepsi. The fact that you prefer Pepsi doesn’t make it wrong to sell Coke. Your customers are buying based on their tastes, and de gustibus non est disputandum.

But that’s about questions of taste. What about questions of objective reality? Some products after all just don’t work. Selling only products that work is required by the basic ethical and legal requirement of “merchantability.” If you sell me a chair, it needs in fact to be capable of functioning as a chair. If you sell me a gizmo to attach to my car’s engine that you swear will provide better performance, then it had better actually provide better performance: me having the “feeling” that the car is now performing better isn’t enough.

And so some cases are pretty clear. Once you understand — really understand — the weight of evidence against most complementary and alternative medicines, it immediately becomes ethically imperative to stop selling them. And if Dyson finds its product really is spreading germs at an unconscionable rate, then it will be duty-bound to stop selling the product, though surely the restaurants and public buildings that are the company’s main customers will make that choice for them.

In the end, what’s required are vigilance and good faith. Anyone who sells a product is obliged to go to reasonable lengths to ensure their product works, and to grapple with credible evidence to the contrary. A sincere belief in your product is nice — it helps you get up in the morning and look yourself in the mirror — but it’s not enough.


    
 


Could the FBI really force Apple engineers to break encryption?

Would FBI Compelling Apple Mean Using Forced Labour?

News surfaced recently that, in the event that the FBI is successful in getting a court to compel Apple to unlock an iPhone, the company’s engineers might simply not do the work.

In addition to raising interesting practical questions (still hypothetical at this point) for the FBI, this turn raises interesting ethical questions about forced labour. It’s easy enough in the abstract to accept the idea of a court forcing a corporation — a lifeless thing —to do something. But it’s somewhat more difficult to stomach the idea of a court order compelling a number of human individuals to do work over a period of weeks. We’re all familiar of course with the idea of courts forcing people to do things — to disclose a piece of information, for example. But forcing labour, in the absence of a criminal conviction of the individuals involved, is dramatically different. It may even be a violation of the 13th Amendment to the U.S. constitution, which forbids “slavery [and] involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted.”

This is also a reminder of the complex relationship between corporations per se and the people that, roughly speaking, make them up.

Back in 2011, a lot of people criticized then-presidential candidate Mitt Romney for saying during a campaign stop that “corporations are people.“ In context, it was pretty clear that Romney wasn’t referring to the controversial notion of corporate personhood, but rather to the simple fact that corporations are (in a practical sense) composed of people. When corporations profit, inevitably some people profit. And, more importantly for the present case, when corporations do labour, some people do labour.

The current Apple v FBI situation is a good example of Romney’s point. You can’t compel Apple to unlock an iPhone without compelling its human engineers to do certain work.

Of course, requiring people to do work they don’t particularly want to do is generally regarded as permissible within the context of a labour contract. When you sign up for a particular job, no one promises you that you’ll love every minute of it. So in complying with the (possible, potential) court order, Apple’s engineers would merely be doing their jobs. But on the other hand, there’s apparently now evidence that such a request would be considered sufficiently odious to make those engineers give up their jobs entirely. In that event, getting the work done would mean either literally compelling the individual engineers to do the work, or finding engineers with very specific skills to take their place.

And news emerged just today that the FBI may have found a way to get into gunman Syed Rizwan Farook’s iPhone without the help of Apple and its engineers. Whether the non-Apple route will work remains unknown. But the case still raises interesting questions about the rights and duties of corporations, and the way (or the extent to which) those rights and duties are ultimately held by humans. We offer legal protection to corporate property, not out of respect for corporations but out of respect for their human owners. And we should think twice before legally compelling corporate action, when that action would in practice imply forced labour for the corporation’s human employees.


    
 


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