Self-Regulation

I am reading Siddhartha Mukherjee’s The Gene: An Intimate History (Scribner, 2016).  Lots of interest here—and lots of scientific information that is simply new to me and sometimes beyond my ability to comprehend.  More on that, perhaps, later.

For the moment, I want to focus on a more political point.  Mukherjee devotes a few pages to a 1975 conference at Asilomar (near Monterey in California) in which genetic scientists hammered out an agreement to not pursue certain possible laboratory experiments and procedures because of the potential danger of loosing pathogens into the world.

Quoting from Mukherjee’s account:

“Extraordinary technologies demand extraordinary caution, and political forces could hardly be trusted to assess the perils or the promise of gene cloning (nor, for that matter, had political forces been particularly wise about handling genetic technologies in the past [a reference to forced sterilizations in the US and Nazi eugenics]).  In 1973, less than two years before Asilomar, President Nixon, fed up with his scientific advisors, had vengefully scrapped the Office of Science and Technology, sending spasms of anxiety through the scientific community.  Impulsive, authoritarian, and suspicious of science even at the best of times, the president might impose arbitrary control on scientists’ autonomy at any time.

A crucial choice was at stake: scientists could relinquish the control of gene cloning to unpredictable regulators and find their work arbitrarily constrained—or they could become science regulators themselves.  How were biologists to confront the risks and uncertainties of recombinant DNA?  By using the methods they knew best: gathering data, sifting evidence, evaluating risks, making decisions under uncertainty—and quarreling relentlessly.  ‘The most important lesson of Assilomar,’ [Paul] Berg [Stanford professor and key figure at the conference] said, ‘was to demonstrate that scientists were capable of self-governance.’ Those accustomed to the ‘unfettered pursuit of research’ would have to learn to fetter themselves” (232-233).

Except, of course, that they don’t—fetter themselves that is.  Oddly enough, Mukherjee doesn’t seem to see this.  He hails Asilomar as “a graduation ceremony for the new genetics” (235).  Less than ten pages later, as Mukherjee retails the story of the creation of synthetic insulin, we learn that the success comes from a private company, Genentech, which beats the Harvard team working on the same problem because unconstrained by university regulations and caution.  Later, Mukherjee treats Craig Venter, who creates a private company to compete with the government-funded Human Genome Project, much more kindly than many commentators do, while gingerly avoiding the issue of what corners Venters allowed himself to cut by stepping outside of a regulatory regime.

At issue, however, is not Mukherjee’s failure to develop a coherent stance on regulation.  Rather, I am interested in the whole notion of self-regulation—and in the paradoxes of regulation itself.

For starters, regulation is a tough one for people because it is not full-bore permission and it is not full-bore prohibition.  If I give my teen-age son a curfew, I am regulating his behavior, but not forbidding him to go out at night, and not granting permission for him to stay out all night.  Seems simple enough in principle—but it proves very difficult in practice.  The regulation sets a clearly visible limit which (as we know from the Garden of Eden) creates an immediate and powerful temptation.

With self-regulation, then, the limit setter and the tempted transgressor have to be one and the same.  Again, it is trivially true that learning how to regulate oneself, to set and abide by limits not externally imposed, is a crucial step toward maturation.  I am hardly saying that humans are incapable of avoiding “over-doing” something.

But the case is very different when strong social incentives are in place to reward going past a limit.  That situation appears particularly relevant in any competitive environment.  So, in sports, using performance enhancing drugs or even just over-training (to the point of self-harm) are such strong temptations because the rewards for success are so massive.  Similarly, in science, where getting there first is just about everything (to echo Vince Lombardi).  And the same is true, of course, in economic competitions, where various forms of unregulated or expressly forbidden, behaviors can reap one a market advantage.

George Bernard Shaw said “all professions are a conspiracy against the layman.”  By that, he meant that professions claim to have expertise and knowledge that the ordinary person does not possess.  One of the first consequences of that claim is that professions want to be self-governed, to get out from under any external oversight.  The outsiders cannot possibly understand the full complexity of our professional tasks—and hence can only muck things up by interfering.

I was in a room full of hedge fund managers and Wall Street financial guys (none of the finance people was a woman) shortly after the 2008 election of Obama in the aftermath of that fall’s financial meltdown.  To a man, this group lamented how the Democrats were going to cripple financial markets and the absolutely essential flow of capital by coming in and ignorantly regulating things.  There was not a single iota of self-doubt expressed by this group.  They were too focused on the image of themselves as victims of innocent politicians.

In short, it is hard to believe that any profession can ever successfully regulate itself. The reward structures internal to the profession are tied too closely to surpassing limits.  After all, regulation is about trimming back, about not letting everything that is possible be undertaken.  And the logic of the profession is to push relentlessly forward.

But, as Mukherjee’s anecdote about Nixon (making him sound remarkably like Trump) reminds us, are the politicians really in a better position to do the regulating?  When we watch the spectacle of our politicians denying climate change, endorsing nut-case theories about vaccinations and autism, and calling for a balanced federal budget and a return to the gold standard, aren’t we forced to agree that their ignorance should not be allowed to cripple the experts’ knowledge?

How, in other words, are we to establish true accountability?  Some, of course, say we should rely on markets for that.  But the market’s decision is always (even when it does come—and it does not always come) after the fact.  The harm has been done.  Regulations are often also created after the fact, to prevent a disaster happening a second time. But regulations are also anticipatory.  My curfew for my teen-age son was not motivated by any particular incident.  It is just a rule that seems to fit the circumstances—and some possible issues.  So regulation is not just in order to hold people accountable; it is also about prevention.  Don’t do this because it will have bad consequences.

That still leaves the question of who is the best judge of possible bad consequences.  I don’t think the profession itself is.  Professionals have their minds fixed on other things—on success as their profession defines it, on pushing the limits, on following a line of thought or action out to all its logical and possible conclusions.  But no one else seems to be in a very good position to set the boundaries.  We reach here a fundamental dilemma in democratic governance.  The professions need to be governed by a demos that actually lacks good credentials for doing the governing.  We are stuck, I would say, with trial and error, with repeated attempts to regulate that will be resisted by the professions and yet still must be enforced, with (hopefully) continual revision as some regulations prove salutary and others harmful or useless.

Regulation will also have to be dynamic—no once and for all fix will ever be achieved—because the attempt to evade regulations will be endless, as will be the emergence of new possibilities and innovations. (I scorn the oft-heard conservative argument that regulations are counter-productive because they generate evasion.  No one uses that argument against the prohibition of murder or the regulation of prescription drugs.) Some of those innovations will have arisen precisely as mechanisms to evade regulation.  But others arise just because human ingenuity knows no bounds and things undreamed of in the current regulatory scheme become possible.  Trying to tailor old regulations (for radio and TV) to handle new media (the internet), to take just one example, is a fool’s errand.  But in an atmosphere of knee-jerk hostility to regulation, devising a whole new regulatory framework is almost impossible.  The result is the current patent mess, which cries out for a reform that seems beyond our political capability to enact.

So let me conclude by considering that wide-spread hostility to regulation.  Every one of us has experienced it: some bureaucratic barrier placed between us and just getting the job done.  “Enough to make me a Republican,” was my exasperated way of responding to HR hurdles in the days when I was trying to hire staff for the Institute that I directed.  It was fairly easy (in almost all cases if one could look at the thing impartially) to see why a certain regulation was in place, what possible abuse it was trying to guard against, but that didn’t lessen the hassle of having to abide by the regulation.

But it is also worth thinking about just what regulations disallow—or enable.  Our heroic individualists always claim regulations stiffly ingenuity, creative thinking, going beyond the current sense of what is thinkable or doable.  Nonsense.  Just like those who talk most loudly about risk are actually risk averse (businesses make bets when the odds are stacked in their favor), what really irks most people about regulations is that they assault their habitual ways of doing things.  Many of those HR regulations were about insuring a diverse applicant pool and avoiding the nepotism and unconscious biases that lead to all-white offices.  Similarly, requiring that professors deposit their syllabi with a central office prior to the semester’s start means they must actually plan their classes and inform their students about the course’s content and expectations.  Regulations are ways of intervening in shoddy professional practices, of trying to not let habit rule the roost.

And regulations are also reminders that you, perhaps, are not the best judge of your performance.  In my corner of the professional world, college professors, there is deep resentment against the introduction of notions like “learning outcomes” and attempts to measure whether those outcomes have been attained by students.  Finding the right metrics is, no doubt, very difficult, but there is absolutely no denying at this late date the well-documented findings that lectures and reading are a poor way to transmit information to today’s students.  But deny those findings my colleagues will.  It was good enough for them—and they are also damned sure their students are learning lots.  How do they now this latter fact?  They can just tell.

External demands that any profession actually demonstrate, actually prove, its worth can only be to the good, in my opinion.  I sure as hell don’t want an unregulated Wall Street.  So how can I, in good faith, then argue for unregulated professors? The give-and-take, the endless jostling and disputes, between the professions and those external to them that try to regulate them is never going to be resolved.  But that process is far preferable to the delusion that the profession will self-regulate.  Just recall that every time a new environmental or economic policy is bruited in our fair land, some industry group will step forward and say: “We will voluntarily adopt this standard.  Just leave it up to us.”  How many times should we fall for that ploy?

As Michael Bérubé puts it in Life as Jamie Knows It, “bioethics is too important to be entrusted to the bioethicists.”  The same goes for every profession.  It has to be kept on its toes by knowing not just that outsiders are watching, but also by knowing that outsiders wield regulatory power to intervene in its practices.  And when such interventions come, let the fight begin.

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