The Sport of Business, the Business of Law, and the Legality of Bargaining Power
The goal of this is to show how we need to use law, science, statistics and even a little philosophy to explain what is going on in business.
Data and Justice Lesson — Civics of Technology
To build on this idea, I bring up another example of how data that is created for one purpose can be used in unexpected ways.
This reminds me of an important statistical concept in reading research and why in so many scientific fields, it is of paramount importance to label your answer with the units. It is so we know what was actually measured so we have context and can make more accurate inferences. As my high-school physics teacher used to say “20.2 what? Meatballs? Sandwiches?”. This is analogous because companies understand this too.They put so many resources into accurate data collection. They do this because they know it is important. Yet when you want access they won't allow you to share it with companies they could save you money. Your habits, patterns and usage of something does not fall under their umbrella of proprietary information. This hypocrisy displays the true intent of these decisions. This is taking away our autonomy and is inherently in opposition of the spirit of antitrust laws which are linked at the bottom
3. Whose goals are pursued with these data?
“People decide which data to collect, which data to report, and how those data are represented. Through those decisions, certain stories are told, and others are not. Certain objectives are pursued, and others are not.”
This again, directly comes back to how statistics are done and more plainly talks on how p-hacking and other statistical mal-practices can be used to bolster a decision in an erroneous manner. I would argue cherry picking what information to provide based solely on the benefits of the party providing it is worse than no information at all. This is for several reasons. First off because they provide just enough to be protected. More than that is someone controlling the narrative of what information you have access to has a long history of being detrimental to society. An idea is not inherently dangerous but when ideas are chosen with specific intent they mislead. Learning how to do something wrong takes more effort to unlearn. We learn through stories and have many biases that are meant to help us interpret the massive amounts of information that bombard us everyday. These short cuts are sometimes necessary but are taken advantage of or at least can be hard to unlearn something we have decided is true.
I have come to the point that I know too much to be content with these actions, yet not enough to take effective action of my own. I am not “Dunn” yet… I think that is the inconvenience of the current system. Which is a convenience when it comes to those in power. There is too much to sift through to directly pull out the problems areas with certainty. We have opinions, ideas, and assumptions that only hold weight relative to our own party's ideology and never a complete and specific way to solve the problems that are always so numerous on the “other” side. We have to start with simple things. We have to have more of a mechanistic understanding of the systems we seek to change. Tracking changes over time and using the data is a necessary step to getting to the truth with any certainty.
Our digital environment is designed to maintain our attention. This we can accept. This is important for mechanistically understanding the current digital landscape. Something simple gets your attention, but something emotional usually gets your engagement. Something new draws our intrigue, but something familiar is usually more consistent and certain with how much attention and engagement it will get. Our digital environments are becoming increasingly more complex and interactive. All while our physical environments seem to be diminishing in detail. Infrastructure is more simple, less physical exchange in our environment occurs. Less use of physical cash, job markets shifting towards digital are consistent. Less physical stores, products, books, video games, many art forms have become digitized and usually licenced not even bought, but that is for another time. This trend is clearly pervasive through most of our life.
This coincides with the trend of tracking everything to optimize transactions. The theory behind capitalism would suggest that in a capitalist system there is inherently a balancing system that occurs through competition and a meritocracy. With this build up you may know I am going to say that is not the case. That is where we have such a systemic issue and why the “bipartisan” system just toils away back and forth. It is unarguably a meritocracy. Simply based on the idea that there has historically been competition and that means not everyone gets the same amount, someone can win. We may say that is motivating to those at the bottom. That is where we have to get more specific. We haven't said what the “merits” of this system are. To answer this we have to ask the question of how to win. We have to be clear and simple to get an understanding and then slowly add variables of context as we go. In any sport there is a goal or clear directive. In track and field sports it couldn’t be more simple at least for what you need to do. Jump the highest, run the fastest. In team sports it is still simple. There are just more ways to do it. I promise this is going somewhere. I'll use football since this is America, know your audience. All that matters is who scored more touchdowns, that is it. One team could be bigger, faster and stronger, but the other team cna technically win, maybe they were more strategic and used plays that counter the other team's plays really well or maybe just got lucky and had catches at more important times. This is an important concept to remember under capitalism. I said we want to keep things simple to start but what we can’t say is that whoever provides the best service is rewarded with the most money is a negligent simplification.
We now come back to what the goal of the digital space is. It is to keep your attention. That is it. The companies that do that best will be far more likely to make more. There is yet another layer that we have to add which gets to be where. These politics exist in sports as well, which makes even their meritocracy slightly less univariant than it may seem. Meaning you not only have to be one of the best at your sport or role in your sport but you have to convince people you are, it is optics. How a player or business is perceived is crucial and less univariate the more interpretable it is. For instance running a 100 meter dash has minimal optics, they exist but significantly less so than say a basketball or hockey player. These sports have parts of aesthetic importance and flare that contribute to viewer ship and keeping people's attention. That is where we finally merge the two. That is why you get companies that rebranded to each social cause associated with that month but do nothing other than marketing with it. Customers are not the only people that companies need to care about optics for though. Many larger companies need to be aware of how they are perceived by regulatory bodies associated with the business that they do. You may say well that is the law, that isn't optics. The law is interpretations of interpretations of interpretations. This is not me discrediting the law. I believe it is a cornerstone of society that can help shape many parts of our life both good and bad. We come back to realize the actual thing being measured to then draw appropriate context and make better decisions for ourselves. Many people accuse democracy of not working because people have fragmented understandings. Frankly everyday I see more anecdotal evidence of that being true. When we look at the law though. The players don't even know the rules. In my endeavors of learning exercise science and human physiology. I started with clear structural things that can be more easily perceived. Muscles’ origins, insertions and actions and the bones and joints and connective tissue. This took many years to get a feel for just all the mechanical parts that allow for simple things like circumduction. Then we get to things where we are measuring something else to infer another. Most studies do not measure exactly what we are looking for. You may measure creatine kinase to infer muscle damage or you may measure the difference in circumference of a limb to infer hypertrophy but to directly get those readings would usually require dissecting someone, and well… ya… so we don't do that. We make inferences and use statistics to attempt to get a better gauge of where on the scales of the magnitude effect and variance of results we may sit. What I can appreciate about all this madness though is as a democracy of idiots we have access to almost everything part of everything I just mentioned. I have spent close to ten- thousand hours (conservatively 15 years everyday with at least an hour and sometimes much more) learning these things.
When we come to the law though, I am slowly learning that the barrier for entry is usually lawyers only or a pretty penny, or immense time to cross reference many places to get the actual text of a case and that comes with no guarantee. So not only in case law are we interpreting the facts of the case we are using the context of previous cases to see if there is precedent and comparing them with some expectation of standard but even those standards are often interpretable. Companies use this madness to their advantage. They just like a big law firm have the resources to sift through all this information to best protect themselves. Law firms use services like Westlaw and Lexis which are research databases that you have to subscribe to. Now I do not have years of experience in this so there may be ways around it but I have looked for say 5-10 hours and found Cornell law and Google scholars case law function but there doesn't seem to be any requirement to publish laws to case to these sites. The barrier to enter this field seems to be that you are in or graduated law school but this information should be easily accessible to the public because it governs how they exist. This is another case of information that affects a person not being accessible. You either have to read an immeasurable amount of interpretations and legalese or trust the unregulated summaries that are opinion based and don't show the original sources. What I have gathered from the law is that part of its goal is to balance the forces at play to keep a balance in the economy. For example National Labor Relations Act, which is codified at 29 U.S.C 151-169 Congress expressly found, among other things, that “(t)he inequity of bargaining power between employees who do not possess full freedom of association or actual liberties of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens the affects flow of commerce, and tends to aggravate recurrent business depressions” the remedy then became determination and prevention of unfair labor practices and rights to determination of and forming a union. Antitrust laws are also in place partly for this idea.
In summary it outlines the enforcement of preventing monopolies as to allow for a balancing of powers. With a monopoly a company can offer unfair wages and increase prices. Tying it all together, these laws do not negatively impact a meritocracy in the assumed sense of one. The idea that the best bookstore will sell the most books. What these laws do is the underlying forces that I have been trying to summarize some of. Corporate strategy typically uses Porter's Five Forces to understand their place in the market better.
As shown above, we have come back to this idea of bargaining power. STOP, to clarify, it may seem that I am trying to lead you to assume this is illegal, that is not the case. The point is that business is about “power”. I think many would agree with that or accept that as a fact of life. Easy come easy go though. It is important to know the WHY of things, which is another idea I have consistently brought up during this. If we know why we are trying to measure something and what we are actually measuring and the end goal, we have better results. Businesses have started to learn that and are taking advantage of that. It is also subsequently taking the focus off of what is classically accepted as what we assume will be the result of a meritocracy. It is still technically a meritocracy, we just mis-labeled our units.
Now I believe it is necessary to infuse some specificity into this discussion. Without an example I really am not held accountable for my ambiguous claims and therefore there isn't much for the thoughts to hold onto and become concrete and real in nature. I want to discuss a case that simultaneously displays the checks and balances of power and some of the structures responsible for the mechanisms of that balancing. This essay does clearly show my support of one side of the other but what I seek to show at the deepest level is how we understand things. Even if we do not agree with something, that is almost all the more reason to understand it even more specifically. As I continue to repeat, the law generally exists as a means to balance powers and provide alternative remedy to vigilantism. Rates of recidivism and reform generally show that incarceration does not in fact, do that, reform. So we come back to the necessity of balancing power. Though you can certainly provide a strong argument that the government is not a flat organization and clearly has hierarchical structure even between the tripartite constitutional framework, we still also understand that to diminish or blunt or suppress one of these branches would have incredible effects.
Currently we are in a position where many of the important pieces of legislation and governing bodies that have been enacted to balance the powers between the individual and normal citizen and incorporated and organized structures are being systematically diminished in their capabilities through a variety of methods as to the circumstances as well as, I would guess, to reduce connection. As a citizen our powers are being reduced, protections diminished and corporations being provided a higher degree of freedom unimaginably passed the point necessary for the effective flow of business.
Next in an effort to build my case and keep myself accountable I will create a useful, but certainly not-exhaustive, list of specific circumstances.
A reduction in funding to key pieces like social security
The removal of NLRB board members to make it inoperable. No lawful reason provided
NLRB v. Noel Canning, 537 US 513 - Supreme Court 2014
This case provides support to idea that there is in fact not an absolute power of the president to remove member of executive branch organizations
The NLRB is a "bifurcated agency" consisting, on one side, of a five-member, quasi-judicial "Board" that adjudicates appeals of labor disputes from administrative law judges ("ALJs"), and on the other, of a General Counsel ("GC") and several Regional Directors who prosecute unfair labor practices and enforce labor law and policy. See NLRB, Who We Are, https://perma.cc/9RLA-FSYL; 29 U.S.C. §§ 153(a), (d), 160;
authorized to remove a Board member "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause," id. § 153(a).
As shown in this case, these checks and balances are necessary to trim back against the “intent on pushing the bounds” (BERYL A. HOWELL, District Judge.) This is not just the case for one person but in general. Both sides will say that there is corruption in the system and that it needs to be changed, just in a very different context. Which I believe showcases how important specificity is to know what someone means. I do not disagree with but I simply insist on a higher scrutiny of opinions overall and demand more prerequisite understanding of what is being discussed. To do that, we have to large scale will need to entail a refocusing of data availability.
As a citizen I believe the takeaway is that we need to take on the sisyphean task of learning these complicated structures. The more effort and time you put into learning them, the more effective your process will become so don't be discouraged. Remain skeptical and seek to base your understandings in the disciplines themselves. Use these frameworks to seek specificity. The process of learning is only as finite as our experience.
Bibliography
https://www.wheresyoured.at/never-forgive-them/
https://www.justice.gov/atr/antitrust-laws-and-you
https://www.civicsoftechnology.org/data-and-justice-lesson
https://www.law.cornell.edu/uscode/text
https://www.khanacademy.org/math/ap-statistics/xfb5d8e68:inference-categorical-pro
https://www.youtube.com/watch?v=vIkRbAvaQjs
The Sport of Business, the Business of Law, and the Legality of Bargaining Power