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By Brishen Rogers

American “exceptionalism” and the beautiful game

Regardless of what happens in today’s U.S.-Germany match, we can expect more heated discussion of whether soccer will ever really catch on here.

Granted, that may already be changing. Sunday’s U.S.-Portugal match netted over 25 million viewers, well above the average for the last NBA finals or World Series. More and more of each new generation of American kids are brought up in the game, a trend likely to continue as football’s concussion crisis pushes parents to opt-out of that sport. And as my colleague David Post notes in a wonderful analysis over at Volokh, the growth of interest in the beautiful game has been phenomenal over the past two decades.

Yet, as Post observes, “we will not engage in a sustained bout of national soul-searching and self-doubt if our team does poorly.” Italy, France, England, Argentina, Brazil…not so much. Post is undoubtedly correct here. But why? There are some stock explanations, none of which quite hold water for me.

First is the lack of scoring in soccer. Yes, one can often watch an entire match and not see a single goal, or see only one goal. Some say this makes soccer boring.

But does such a preference make Americans unique? Other globally popular sports, including cricket, and basketball, and rugby, involve quite a bit of scoring. Americans also seem perfectly capable of appreciating—even loving—sports that don’t involve high scoring. We love baseball and ice hockey, both of which can involve relatively low scores, though of course 0-0 is very rare in either. We love NASCAR, in which mechanically identical cars drive in circles and rarely even pass one another; yes, NASCAR involves plenty of strategy, and crashes, but much of the appeal is in its nuances–like soccer. Perhaps most importantly, Americans also watch…fishing. Need I say more?

Second, and slightly more illuminating, are theories about soccer and American legal culture. The classic here is William Pizzi’s wonderful “Soccer, Football and Trial Systems,” which compares American football’s rules and the American rules of criminal procedure. As Pizzi observes, “our trial system reflects many of the cultural values encoded in the rules and traditions of professional football: the worship of proceduralism, the attempt to rationalize every aspect of the decision-making process, the distrust of spontaneous action, the heavy preference for managerial control over participants, and, above all, the daunting complexity of the rules that such a system requires.”

This is compelling, since there does indeed feel like something uniquely American in the NFL’s never-ending dialectic of violence and regulation. The NFL has even instituted a multi-stage appellate process within games to ensure that referees get things right. I personally can’t stand the way this fractures the pace of football games, but I’m weird.

Yet this explanation, too, isn’t totally satisfying. Formula 1, another massively popular global sport that hasn’t quite caught on in the U.S., has pretty complicated rules around engine and car construction. Instant replay is catching on in other global sports, including tennis and even soccer.

Furthermore, even if true, both...

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Treating Car-Hire Services as Public Goods

I love Emily Badger’s Wonkblog piece about Uber’s effect on the taxi industry. Badger addresses many different sides of the issue, discussing the likely impact of Uber on medallion owners, on drivers, on medallion management companies, and on consumers. She is non-dogmatic throughout. She moots a few different potential outcomes, recognizing that much will depend not just on the “market” itself but also on the strategic behavior of the different institutional players. I wish all economic journalism were this good.

I do want to expand on Badger’s treatment of taxi deregulation, and to say a little more about my idea, in my last post, that regulators “treat car-hire services as public goods.” In retrospect, that post jumped too quickly from that idea into a broader argument about distributive policy and politics. That was unfortunate, I think, because the possible regulatory approaches here warrant deeper consideration.

On the first point, Badger notes that various Sunbelt cities deregulated their taxi industries in the 1970s and 1980s, with decidedly mixed effects. Supply went up, but fares also went up, and service seems to have declined. Drivers refused short trips and trips to poorer parts of town more often. Airports became a sort of bazaar.

Why did this happen? Some economic models of the traditional taxi industry suggest that it has pervasive information asymmetries. In the absence of set prices, consumers don’t know how much a standard ride will cost, and may not want to haggle with drivers. Riders and taxis also face high search costs, especially in relatively low-traffic areas. Another peculiarity of the taxi market, related to search costs, is that excess supply (in the form of vacant cabs) can affect demand. Intuitively, if consumers have difficulty finding cabs because cabs are scarce, they may tend not to search for cabs.

Uber has solved both problems, at least for the wealthier users who can utilize it. It dramatically reduces search costs, and its standardized rates prevent price gouging. It also solves a collective action problem among telephone-dispatched drivers. A potential client may take another vacant cab that passes by, and a cab headed toward a call may pick up another fare on the way and never arrive. Under Uber’s watch, though, riders trust that their cars are going to arrive, and drivers can’t take one another’s fares. +1 for private regulation.

None of this means, however, that regulators should allow Uber to continue competing directly with traditional taxis. Regulators should also keep in mind what Uber means for drivers, and what it means for the poor.

First, on the poor. Badger notes that the basic tradeoff within the cab sector has long been restricted entry in exchange for equity-oriented regulations. Medallions grant an exclusive license to operate, but drivers must follow a fare schedule, accept short trips, and not discriminate on the basis of race or neighborhood. Badger also notes that the current structure of the industry—in which drivers lease cars from medallion owners or medallions management companies—actually exacerbates some of the problems faced by the poor in getting...

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The Uber Wars or: Why We Need a New Politics of Distribution

Uber is sparking Silicon Valley’s first major labor conflict. With the exception of online news, past “disruptive technologies” like file-sharing, internet search, and Apple’s various innovations haven’t had a major direct effect on working class jobs. But Uber is now permanently altering the cab industry, which has many visible workers already living close to the economic margins. With electric cars, autonomous cars, and 3D printing on the horizon, this may well be a harbinger of things to come.

As a result, it is worth thinking about how to address the distributive conflicts that are emerging. Current debates around Uber pose choices between regulation and markets, and between producerism and consumerism. In this post, I argue that the former is a false distinction, and that the latter doesn’t begin to capture the complexity of the issues. Spoiler alert: I don’t have any ready solutions to these challenges, though I do believe we need to start thinking about them differently.

One reason I love reading about this conflict—apart from my own background in labor law—is that it is such rich terrain for regulatory theory. For example, we have taxi drivers and companies capturing monopoly rents enabled by existing licensing structures; we have a standard regulatory dilemma moving into overdrive as a new technology threatens existing social practices and rules; we have the relationship between law and worker organizing on the ground; and we have lingering questions about passenger discrimination by Uber drivers.

That said, I think the cab drivers’ argument that Uber “isn’t properly regulated” is a complete political loser, for the simple reason that Uber is making the very same argument! In fact, they wear it like a badge of honor, arguing that their business enhances consumer welfare while highlighting the perversities of existing rules. (The argument that Uber is dodging taxes may be a different matter, but that has little to do with the underlying dispute here).

At the same time, let’s collectively call BS on Uber’s casting itself as the champion of competition and freedom over regulation and protectionism. For one thing, Uber is now playing a game of regulatory arbitrage, benefitting from the service gaps created or reinforced by existing regulations—all while benefitting from consumers’ belief that car-hire services are relatively safe, which is in part a function of existing regulations. Moreover, if taxi regulations were altered, Uber would face greater competition, at which point it would almost certainly seek public regulations to keep out competitors. Because that is what dominant market players do.

So the question isn’t between regulation and markets, but rather how to balance the various goals to be advanced through car-hire services within a particular area. Off the cuff, if one were designing a car-hire system from scratch, one would presumably want to ensure (a) a reasonable level and quality of services; (b) reasonable user costs; (c) equity in services (though anti-discrimination rules, guarantees of service to the poor, etc.); (d) other public goods such as safety and environmental protection; and (e) a decent livelihood for drivers.


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Governing Global Garment Production (Pt. 2)

In my last post, I argued that the two Bangladesh fire and safety agreements reflect the failures of existing legal regimes, both public and private. The agreements intend to impose some basic standards on the Bangladeshi garment industry; rather than competing (almost) entirely on the basis of cost, as existing law encourages them to do, brands will collaborate to ensure that suppliers’ factories are safe. In this post, I’ll defend the Accord (signed between most major European brands and various unions) as substantively preferable to the Alliance (an agreement among U.S. brands), because the Accord has the potential to reshape the political economy of global garment production and governance.

To see why, note that both agreements invite a question common in the sociology of law: what explains the emergence of particular legal regimes at particular times? As Professor Alan Hyde has pointed out, this question is surprisingly understudied in the international labor field. Hyde proposes that transnational labor governance institutions emerge to solve coordination problems when all participants “would gain by cooperation but will be disadvantaged if their rivals defect.” That theory has some traction here. Nations have a common interest in minimizing child labor, but no nation can do so alone; brands have a common interest in ensuring minimally safe factories, but must cooperate to do so. Once the failures of existing governance regimes became clear after the Rana Plaza and Tazreen Fashions disasters, brands needed a new system. So they built one.

But such an account is incomplete—as Hyde would surely agree—for it disregards the need for a prime mover to build trust among disparate actors. I’ve addressed this question in the context of domestic labor organizing, arguing that organizers actively shape workers’ preferences and build solidarity, in part by creating moral crises (read: strikes) in which workers rely on each other out of necessity. As it turns out, unions and workers’ rights NGOs played a central role in the shaping of the Accord, and then, by extension, the Alliance.

The Workers’ Rights Consortium and other unions and NGOs have long argued that that the solution to basic standards noncompliance in the garment sector lay in binding commitments by brands to ensure safe factories and to pay more for garments. Indeed, as I understand, the basic terms of the Accord had been drafted well before the 2012-13 disasters, but the unions were unable to press enough brands to sign on until after those disasters.

This echoes Richard Locke and the NYU Stern School’s diagnosis of the problem, as discussed in the prior post: brands’ practices need to change for supplier working conditions to change. But the WRC and the unions’ approach differs from Locke’s and the Stern School’s. Locke argues that states should step in to regulate labor standards, especially freedom of association, while the Stern School proposes collaboration among the state, the Alliance and Accord, and other actors in Bangladesh to ensure safety. But neither Locke nor the Stern School considers in detail what political and institutional arrangements would make that collaboration possible.


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Governing Global Garment Production (Pt. I)

Again, I’m very happy to be guest-blogging at Co-op this month. For my next couple posts, I’d like to focus on the situation of garment production in Bangladesh, which raises fascinating issues of global governance.

About a year ago, major garment brands in the E.U. and U.S. announced separate and competing initiatives designed to prevent a recurrence of the horrific 2012-2013 Bangladesh factory disasters. The “Accord on Fire and Building Safety in Bangladesh” (“Accord”) was negotiated between various unions and most major European garment brands, as well as some American brands; the “Alliance for Bangladesh Worker Safety” (“Alliance”) was developed by U.S. brands, in particular Gap and Walmart, in conjunction with industry associations in Bangladesh. Under both, brands commit to source from Bangladesh for a period of time and to institute comprehensive systems of factory inspection and remediation.

A year in, the media has begun to report on tensions between the two groups around factory inspections, as well as other growing pains. A recent report from the NYU Stern School also criticized both agreements for doing too little to combat unauthorized subcontracting, arguing that their similarities outweigh their differences. While the press and academics should of course try to understand such tensions, and should point out each agreement’s structural weaknesses, I would argue that the Accord has transformative potential as compared to the Alliance. This point should not be lost in discussions.

In this post, I’ll outline the structural conditions that led to the agreements, and why they represent an important step forward in global labor standards protection. It is a sort of “explainer,” with apologies in advance to those already immersed in the details of the agreements. In a follow-up post, I’ll discuss the importance of the Accord in particular, arguing that it could be the template for a new global labor governance regime.

The agreements are best understood in the context of our existing system of global labor governance—which, in contrast to the binding and legalistic regimes governing trade and investment, is based almost entirely on “soft law.” The International Labor Organization (“ILO”) has enjoyed remarkable success in building normative consensus around its core labor standards—freedom of association and prohibitions on discrimination, child labor, and forced labor—yet it lacks basic enforcement capabilities, and those standards have no direct effect upon either nations or employers.

As a result, “hard-law” labor market regulations have been and remain largely the provenance of nation states. Yet many developing nations lack the political will either to regulate producers within their jurisdiction, and many wealthy nations lack the political will to impose binding duties on their multinationals. Moreover, the global investment regime creates strong disincentives for states to implement stringent labor regulations, lest they begin to appear hostile to investors.

Partially in response to this governance deficit, civil society organizations have long demanded that multinationals use their market power and internal regulatory capacity to ensure labor standards among their suppliers. Most have done so, adopting corporate social responsibility (CSR) codes that require suppliers to protect basic...

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