Counter-Intentional Policy Outcomes:

Workshop analytics and the diagnosis of ‘foreseeable but unanticipated consequences’1

Michael A. Fotos, III, Ph.D,

Lecturer in Political Science and Ethics, Politics, and Economics

Yale University, New Haven CT

Associate Program Director, Public Policy Graduate Program

Trinity College, Hartford CT

March 17, 2014

1 Working paper prepared for presentation at the F. A. Hayek Program for Advanced Study in Philosophy, Politics,

and Economics of the Mercatus Center at George Mason University, March 24, 2014. Please do not cite without

permission of the author. Copyright reserved by author.

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Introduction

This paper elaborates on claims that theoretical developments and empirical research associated

with the Vincent and Elinor Ostrom Workshop on Political Theory and Policy Analysis meet the

definitional conditions of an alternative scientific paradigm for the study of politics and policy.2

Vincent Ostrom’s theorizing constitutes a paradigm challenge because it directly challenges

widely agreed upon fundamentals of mainstream political science and policy analysis (Fotos

2013). The empirical research of Workshop-affiliated scholars (aka “the Bloomington School”

per Aligica and Boettke 2009) fills out the definitional elements of a developed scientific

paradigm by their congruence on subjects and questions, social philosophy and values, research

exemplars, and methods (Kiser and Ostrom 1982, McGinnis (ed.) 1999a, 199b, Polski and E.

Ostrom 1999, E. Ostrom 2010 [2009], Aligica and Boettke 2011, Fotos 2013, see also Kuhn

1996, Godfrey-Smith 2003). In the following, I refer to the essay, “Public Goods and Public

Choices: The Emergence of Public Economies and Industry Structures” (Ostrom and Ostrom

1994 [1977], hereinafter referred to as “Public Goods and Public Choices”) to derive a method of

inquiry and framework for analysis that directs attention to the terms and conditions of political

experiments.3 The method and framework I propose promise greater scientific efficacy because

they enable the analyst to more objectively evaluate the artisanship of the authors of the subject

policy and they increase the likelihood that analysis will lead to further development of political

and policy theory. I proceed by applying the method of inquiry and framework to the task of

2 Interested readers may wish to consult my 2013 essay, “Vincent Ostrom’s revolutionary science of association”

(accepted by Public Choice: the Journal of the Public Choice Society). 3 “Public Goods and Public Choices” is a seminal contribution to the literature on political economy in several

respects. First, it synthesizes several developments in political and economic theory derived from the studies of

urban services conducted by the Ostroms, their students, and colleagues during the decade-plus prior to its

publication (c.f., E. Ostrom 1971; E. Ostrom and Parks 1973; Bish and V. Ostrom 1973; E. Ostrom, Parks, and

Whitaker 1977). Second, the essay integrates economic and political theory, achieving one of the central purposes

that united the founders of the Public Choice Society (Bish 2013). Third, the essay presents “an empirically testable,

deductive framework for matching the scale and scope of public goods and their effects to preferred organizational

arrangements for service provision and production” (Fotos 2013, 11).

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explaining counter-intentional policy outcomes. The presentation is tentative in places and

imperfectly resolved in others so I respectfully request the reader’s forbearance as well as

suggestions, comments, or questions that may strengthen or productively redirect the paper’s line

of argument.

Conventional policy analysis focuses analytic attention on the pareto improving (or not) effects

of policy (Weimer and Vining 1989, Stokey and Zeckhauser 1978). The successful analyst can

tell whether a policy is “good” or “bad” by its effect on pareto optimality. The analyst must

propose other conjectures or introduce additional evidence or methods of inquiry if he or she

wishes to tell the client why this outcome obtained. In essence, the analyst possesses a single

standard which applies to all cases and all policy problems. The missing methodological

element is recognition of the intentions and materials (i.e., values and social context) of the

artisan making the policy (V. Ostrom 1980, 2011 [1991]). The situation is akin to the art

historian, having decided that the Mona Lisa represents the pinnacle of artistic achievement,

thereupon judges every other work of art by its conformity with da Vinci’s enigmatic portrait of

a lady, whether the work under examination is a Ming vase or a fugue by J. S. Bach. Analysis on

these terms will tell us if the artisan’s vision conforms to ours but it tells us next-to-nothing

about pottery or music-making skill.

V. Ostrom (1980, after Hobbes) reminds us that we cannot evaluate artisanship without knowing

the artisan’s intent. He makes the same point elsewhere in the language of the political

economist. “Producer efficiency in the absence of consumer utility is without economic

meaning” (Ostrom 2008b 54 emphasis in the original). Values inform intent and outcomes

determine utility.

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Overview

The four-cell typology of goods presented in “Public Goods and Public Choices” (Figure 1)

points the way to understanding the essential logic linking the nature of the public good and the

choices of the policy maker to intended outcomes. That logic is embedded in the way rules

address the problems of exclusion and the regulation of consumption uses of the goods that are

the object of policy. Competitive free markets efficiently allocate private goods because defined

property rights solve the producer’s problem of excluding non-payers from using the good and

the price system provides consumers the information they need to “self-regulate” their

consumption of scarce goods. Markets do not efficiently allocate public goods because

producers cannot exclude non-payers from using the goods they produce and the absence of

effective price signals precludes consumer discovery of the true scarcity of the good (Munger

2000). Public policies such as licenses and permits address the problem of exclusion and taxes

and fees address consumers’ information problems.

In a conventional policy analytic study, the analyst takes the stance of the “outside expert” who

uses the tools and techniques of the trade (largely derived from neo-classical microeconomic

theory) to define the client’s policy problem, formulate alternatives, evaluate them, and

recommend alternatives (Munger 2000, Bardach 2009, Weimer and Vining 1989). The analyst is

presumably objective and scientific, or aspires to be, while the client or the public she represents

is presumably subjective, under-informed, or perhaps even irrational in their beliefs and actions.4

This analytic stance places the analyst inexorably in conflict with two essential publics, self-

organizing actors (i.e., the market) and government actors (i.e., state and politics) (Munger

4 Shafqat Hussain (2014) makes the keen observation that biologists working on problems of global biodiversity

perceive the people living among the animals they study as occupants of a “culture” and themselves, the biologists,

as occupants of a realm of science and objectivity that is universal and “outside culture.”

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2000). The people in opposition to the analyst are frequently also prospective or actual clients us

and so the “objective” analyst inexorably encounters the temptation of trimming analytic sails to

please the client or of biting the hand that feeds him.5

“Public Goods and Public Choices” offers an alternative to the prospect of a profession poised

between pandering and poverty. The theoretically derived goal of ‘matching the scale and scope

of public goods and their effects to preferred organizational arrangements’ suggests the

possibility of a policy analytic craft grounded in a process of inquiry that directs analytic

attention to the terms and conditions of the political experiment rather than to the single criterion

of efficiency. The analysis of experiments offers a truly scientific prospect for policy analysis

leading to theory building. In contrast, a policy analytic craft dedicated solely to measuring

departures from pareto optimality verges on scientism and offers little in the way of theory-

building. Moreover, a process of inquiry aiming to match public goods to preferred

arrangements for provision and production offers the prospect of a joint solution to the problems

of scarcity and distribution, normally stated as the inexorable and immutable conflict between

efficiency and equity according to conventional analysis. One might call the joint solution a by-

product, intended or not, of the successful integration of political science and economics (as

noted by Robert Bish 2013).

A Three-Step Process of Inquiry

The new craft of policy analysis requires the analyst to undertake a three-step process of inquiry

aimed at 1) discovering the intentionality of the political artisans making the choices that are the

subject of analysis, 2) specifying the policy problem in terms of the packages of public, private,

and mixed goods that the chosen policy is intended to provide or produce, and 3) diagnosing (or 5 Ariel Rubinstein’s (2006) explanation of why economists earn more than mathematicians makes this point.

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projecting) outcomes by examining the rules as remedies to the problems of exclusion and use

regulation (associated with preferred packages of goods identified in step 2). The reader will

naturally have questions about intentionality, how the analyst discovers it, how one determines

whose intentionality has standing, and how analysts avoid the human tendency to substitute their

own preferences for those of the client or the affected public. I recognize these as questions of

method that must be resolved for the proposed method to move ahead. But, they are questions of

investigative technique only and do not bear on the epistemological basis of the method. It is

impossible to examine the terms and conditions of any rulemaking exercise (i.e., any political

experiment) without knowing the intentionality of the experimenter (Ostrom 2011[1991], 1994,

2008a) and so discovering intentionality is an essential observational element of the social

sciences, especially as they relate to “the art and science of association.”

The reader may also have questions about how one re-specifies policy problems as mixed

packages of public and private goods. I do not resolve this problem in a general sense at present

but liken it to the problems of specification and measurement that the Ostroms and their

colleagues and students faced when they undertook the study of urban services in the 1960’s and

1970’s. I also note that they discovered that the specification and measurement of public goods

and services are problems best resolved by application to particular public service industries with

reference to specifiable production technologies (E. Ostrom 1971; E. Ostrom and Parks 1973; E.

Ostrom, Parks, and Whitaker 1977, Kiser and Ostrom 1982).

The third step, diagnosing outcomes, is the primary objective of this essay and it occupies my

attention for now. Evaluating outcomes is impossible without knowing the artisan’s intent.

Analysts should use intentionality as the evaluative standard for assessing the associational

understanding of the rule writer and policy maker. And, analysts should refer to counter-

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intentional outcomes as experimental anomalies pointing to problems in the design of rules or

inadequate policy theory (V. Ostrom 1980, 2008b, 2011 [1991]). The typology of outcomes

presented in Figure 2 below derives from the policy typology Ostrom and Ostrom present in

“Public Goods and Public Choices” and my expectation is that it contributes to Workshop

epistemology by providing a logical basis for making warrantable diagnoses of the terms and

conditions of policy designs.

Intentionality, counter-intentionality, public goods, and the diagnostic framework

The reader is no doubt familiar with the four-cell typology of goods defined by two dimensions,

jointness-in-use and feasibility of exclusion (See Figure 1). As noted above, the provision of

public goods, where exclusion is difficult and consumption is joint, is problematic because the

producer cannot be compensated for the full value of production and the consumer can withhold

payment yet still enjoy the good. Nearly all public goods are subtractible to some extent and this

attribute requires rules (which may include price signals) that address the problems of congestion

and incompatible use, which if unchecked, erode the value of the public good (Ostrom and

Ostrom 1994 [1977] 166). Public goods provision is a customary justification for governments

using their powers of taxation and regulation to provide for pareto improving public goods

production or corresponding reductions in public bads (Munger 2000). For this reason, analysts

incline to evaluate policies for their effects on social welfare and to pronounce policies “good” if

they are pareto improving or “bad” if they are not. A skilled analyst may even be able to

measure just how good or bad a policy is in terms of net social product, or additional road miles

built, or change in the graduation rate, etc. (Bardach 2009). All these efforts satisfy normative

standards of policy analysis but they do not advance the science of analysis for the simple reason

that they do not explain why particular policies work or do not work as intended. Conventional

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analysis is fundamentally a descriptive art, not an explanatory science. Investigating

intentionality with reference to outcomes and the attributes of the goods (or structures of events)

promises description and explanation.

Ostrom (2008b: 54-5, 2012 [1994]: 334) describes three types of counter-intentional outcomes,

ambiguous (or no) effect at high cost, monopolization of public goods leading to the erosion of

their public value, and unequivocally counter-intentional results. The three types mentioned by

Ostrom omit a fourth which is easily supplied by the successful type, policies that work as

intended. See Figure 2. When intentionality and outcomes match, then the analyst can presume

that the policy adequately addresses the problems of exclusion and the regulation of use. When a

single user, or a single class of users, comes to dominate a public good, then the analyst can

presume that the rules for assuring the compatibility of consumption uses are inadequate.

Single-use dominance indicates that the exclusion problem has been solved but not which actor,

the policy maker or the dominant user, solved it. When the policy appears to work procedurally

but policy outcomes are spurious, i.e., bearing no apparent relation to the level of effort, then the

analyst can presume that the rules for addressing exclusion, or “clearly defined boundaries,” are

inadequate (E. Ostrom 1990 91). And when the policy outcomes are perverse, when the reverse

happens, the analyst can presume that rules for regulating use and setting boundaries are both

inadequate. The following sections illustrate the logic of classification by presenting examples

from each category.

Lobster fishing in the Gulf of Maine: policies that work as intended

As Jim Acheson (2003) explains, lobstermen and Maine state regulators have developed

informal and formal territorial and limited-entry rules (harbor gangs and zone management) to

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solve problems of exclusion and they have agreed to trap limits and size and sex restrictions on

harvested lobsters solving key problems of use regulation. By almost any measure, the Maine

lobster fishery is a policy success story. According to the Maine Lobster Marketing

Collaborative, in 2012, 5,900 licensed lobster fishers landed 126 million pounds of lobster worth

over $338 million at dockside (Maine Lobster Marketing Collaborative). In contrast, during the

“lobster bust” of the 1930’s when stocks were so low that biologists worried about the future of

the species, about 2,900 lobstermen harvested between 5 and 6 million pounds of “bugs”

(Acheson 2003 17). Biologists who study the Gulf of Maine worry that lobster populations are

too high for the health of the species (nytimes.com 2011a). Many factors6 explain the boom in

lobster stocks but clearly catching them in accordance with the rules presently in-use has not

overly constrained their abundance.

The successes of the Maine lobster fishery illustrate the case where boundary and use rules are

adequate to the public goods produced. Acheson’s examination of the fishery substantiates this

claim.7 The literature on successful and unsuccessful cases of common property governance is

quite extensive (see E. Ostrom 1990, 2005, Gibson 1999, and Agrawal 1999 for examples).

Acheson’s study is particularly relevant to this exercise because the granular detail of his

analysis enables the reader to see the relationships among the rules-in-use and the boundary and

use regulations they are intended to solve.

The War on Drugs: great effort, spurious outcomes

6 Notable to this author is the collapse of cod stocks (under national fishery management since 1977). Cod are a

primary predator of lobsters. 7 See in particular chapters two through five concerning territoriality (exclusion rules), state laws (use regulation),

and co-management (exclusion and use regulation) (Acheson 2003).

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The War on Drugs exemplifies the second category where despite incurring immense direct costs

to government and unimaginably high indirect costs to society the outcome bears little apparent

relationship to the policy effort.

“We must now candidly recognize that the deliberate procedures embodied in

present measures to control drug abuse are not sufficient in themselves. The

problem has assumed the dimensions of a national emergency. I intend to take

every step necessary to deal with this emergency…” President Richard M. Nixon,

June 17, 1971 (The New York Times 1971)

When President Nixon defined drug abuse as a national policy problem, his statement was

quickly characterized as a declaration of “war on drugs.” Nixon called for a national effort

lasting three years with the possibility of a two-year further extension (ibid.). He proposed

adding 325 positions and $45 million in additional budgetary authority to national drug

enforcement activities. Nixon opined that this extraordinary effort would be sufficient to solve

the problem. If only the problem of exclusion were so easily solved…

In FY 2011, the Drug Enforcement Agency had an annual budget of $2.2 billion and employed

nearly 10,000 people roughly half of whom are special agents charged with enforcing the

nation’s drug laws (Drug Enforcement Administration 2011). According to the New York

Times, total spending by the national government to prosecute the “war on drugs” runs about $25

billion annually (nytimes.com 2012b). In 2008, 2.3 million Americans were in jail, a quarter of

them for non-violent drug offenses (Schmitt, Warner, and Gupta 2010). Roughly 2% of working

age U.S. males presently resides in prison or jail (ibid.). The direct cost to the national, state, and

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local governments of the United States for incarcerating the non-violent drug offenders alone

was approximately $16.9 billion (ibid.).

Our “war on drugs” has become a literal war in Central and South America, involving the

militaries of the U.S., Mexico, Colombia, and other nations in battles with heavily-armed

traffickers including some reputedly comprised of former military elements. As of June 2012,

the widely-circulated estimate of murders attributed to narco-trafficking in Mexico is 50,000

(telegraph.co.uk 2012).

Yet, the pharmacopeia and the public’s appetite for self-medication seem little diminished.8 Law

enforcement crackdowns on any particular intoxicant or its supply network apparently re-direct

demand to more readily available substances (nytimes.com 2012b). Feasible exclusion remains

an elusive goal; the boundaries between alternative forms of self-medication are porous. Drug

users can switch from scarce or costly drugs to more readily available substances or move back

and forth between regulated and informal drug markets seemingly always several steps ahead of

drug law enforcement efforts (nytimes.com 2013, 2014).

Atlantic Menhaden: the oily fish that everyone loves to death

Shortcomings in oceanic fisheries regulation illustrate the third category, when a single user or a

single class of users monopolizes consumption of the public good eroding its public value.

Under present rules, a single processor Omega Protein in Reedsville, Virginia captures

approximately eighty percent of the entire commercial harvest of the Atlantic menhaden

(nytimes.com 2011, Pew Environment Group 2013, cfn.epubxp.com 2013). The Atlantic

8 The longest running surveys of illicit drug use are several that ask young people about “past month use” of

marijuana. Online resources indicate that after a spike in the late 1970’s and a decline in the 1980’s, usage rates of

this drug among young people have varied little.

http://www.oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.htm#Fig8-3 (July 5, 2012)

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Menhaden occupies an admirable, albeit unenviable position in the oceanic food chain. Many

depend on it because seemingly everything wants to eat it. Ospreys, loons, and other sea birds

fatten themselves and their young on the menhaden’s oily, soft flesh. Bluefish, striped bass, and

blue fin tuna hunt the menhaden along the U.S. Atlantic coast because it is the most nutritious

forage fish in our part of the ocean (Pew Environment Group 2013). Recreational anglers use

live menhaden, known around Long Island Sound as bunker, to troll for blues, stripers, and other

trophy game fish. Commercial fishermen bait lobster traps, crab pots, and long lines with dead

“pogies,” accounting for approximately 20% of the commercial harvest. And finally, Omega

Protein collects 80% of the commercial harvest, 183,085 metric tons of menhaden, for

“reduction” to fertilizer, animal feed, and human dietary supplements (Pew Environment Group

2013, asmfc.org, omegaproteininc.com). Commercial demand is high because menhaden are a

source of Omega-3 fatty acids, a dietary supplement linked to reduced risks of heart disease and

Alzheimer’s (asmfc.org).

We’ve been catching menhaden on the Atlantic coast for a long time at rates faster than the fish

can reproduce. The Atlantic States Marine Fisheries Commission (ASMFC), a compact of 15

Atlantic coast states, has authority granted by the U.S. Congress (P.L. 539 as amended by P.L.

721, August 19, 1950) to regulate the menhaden fishery (asmfc.org). The ASMFC estimates

that the remaining bunker population comprises about 8% of what an un-fished stock would be.

Commercial fishing for menhaden as bait once occurred in nearly all the Atlantic states. Now

waters off the New Jersey coast and the Chesapeake Bay are the only places where the bait

fishery exists at greater than de minimis levels (asmfc.org). The Pew Environment Group

estimates a dramatic impact on wildlife diets; bunker comprised 75% of the average osprey’s diet

in the 1980’s, now it’s 24%; 77% of the striped bass diet in the 1950’s, now 7%; 42% of the

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weakfish diet in 1991, now 3.3%; and 41% of the bluefish diet in 1991, now 11.6%. The

menhaden fishery is a valuable resource, lots of people and animals want a piece of it, and like

nearly every other ocean fishery; we show every indication of loving it to death.

Notice in the introductory paragraph to this section how the numbers of users and relative shares

of the commercial harvest form an inverted pyramid. Zero percent of the commercial harvest

goes to the countless wild birds, animals, and fish that make no direct commercial use of

menhaden but depend on them for survival. Twenty percent of the commercial harvest goes to

the tens of thousands of recreational anglers and the thousands of commercial fishers for lobster,

cod, crab, and other marketable species. Eighty percent of the commercial harvest goes to a

single processing plant.

A single user dominates other uses, thus eroding the value of the public resource. The dominant

user’s highly efficient capture technology and its concentrated interest in a single point of

consumption effectively exclude out other users from the resource. Reduction of fish to beauty

aids and nutrition supplements is clearly incompatible with feeding birds and catching other fish.

For a mainstream policy analyst, Omega Protein’s catch share offers evidence of regulatory

capture and a sign that national and state fisheries regulators lack the political will to crack down

on a well-connected corporate operator (Fairbrother 2012). My experience with fisheries

regulation and knowledge of this case indicate that while the latter explanation offers emotional

satisfaction, the former explanation offers greater analytic traction.

Unequivocal counter-intentionality: The reverse happened!

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Vincent Ostrom (2012 [1986]) illustrates the fourth category, the unequivocally counter-

intentional result, by recounting the outcomes of Bolshevist-Stalinist political and economic

experiments. He quotes Milovan Djilas,

Everything happened differently in the U.S.S.R. and other Communist countries

from what the leaders—even such prominent ones as Lenin, Stalin, Trotsky, and

Bukharin—anticipated. They expected the state would rapidly wither away, that

democracy would be strengthened. The reverse happened (ibid. 227; emphasis

added by Ostrom).

As I’ve noted elsewhere (Fotos 2013 27)

The unequivocally counter-intentional outcomes of the successful Marxist

revolution include the expansion, not the withering away, of the state, the

replacement of the old oppressor class with a new, more oppressive class of

oppressors, the decline, not the improvement of working class living standards,

and the installation of an unresponsive autocracy when democracy was expected

(ibid. 224-28).

Perverse policy outcomes are not solely Soviet affairs.

Life on the Mississippi: floods are expected; what comes after, not so much.

Floods are a fact of life in all riverside communities. People living on the banks of the

Mississippi River witnessed “great” floods in 1844, 1927, and 1951 that set the pattern and lent a

name to the Great Midwest Flood of 1993. From May through September of 1993, heavy rains

and snow melt in the Mississippi Watershed drove the great river and its tributaries to record

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heights, flooding 15 million acres of farmland, destroying over 10,000 homes, and taking 50

lives (Larson 1996). The Missouri and the Mississippi Rivers delivered a double blow to St.

Charles, Missouri, the floodplain community located where the two streams join. St. Charles

experienced 94 days when the Missouri was at flood stage or higher including a new record high

of 14.5 feet above flood stage on August 1, 1993 (ibid.). Floodwaters forced 2,000 St. Charles

County families from their homes and caused $160 million in property damage in the county

(Sylves 2008).

The people of St. Charles and other flood-stricken locales did not go without help in their time of

need. A generous and provident nation responded by expending over $5.5 billion in recovery

assistance to repair or replace public facilities such as roads, bridges, and levees as well as

private homes, businesses, and other personal property (Sylves 2008 122). Then something

unexpected happened. The grateful beneficiaries of the public’s largesse did not relocate their

homes and businesses on higher ground as federal flood officials recommended. Rather, the

people of St. Charles County and adjacent St. Louis County looked at the stronger, higher levees

(built with the nation’s money) and resettled the flood zone. In the decade after the flood, they

constructed 28,000 new homes and thousands of acres of new commercial space “estimated to be

worth more than $2.2 billion” (nytimes 2007, Hiles 2012).

The Mississippi and Missouri Rivers run high every year. Great floods recur at regular intervals.

Yet, national policies intended to repair and remediate flood damage make the people living

there more, not less, liable to lose property and livelihoods from flooding.i The reader might

well wonder how policies intended to help a community recover from a flood causing $160

million in damages can contribute to conditions that place $2.2 billion worth of property in

similar peril.

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Discussion

Lobster fishing rules have the intended effect of making a high level of fishing effort compatible

with the long term conservation of the species because they effectively address problems of

exclusion (territoriality) and use (size and sex restrictions). The War on Drugs has exacted

enormous financial and social cost with unspecified results because, despite the enormity of the

law enforcement effort, the boundaries between legal and illicit drug markets remain porous to

anyone motivated to cross them. Omega Protein and its fishing fleet dominate the Atlantic

Menhaden catch because the rules regulating the use of the public resource are inadequate to the

capture and processing technology they employ. National flood and disaster policy actually

increases the public’s exposure to harm by effectively reversing the price signal and avoiding

any hint of rules that would exclude development from flood prone areas. One can explain why

each of these examples turns out as they do by relating particular rules to specifiable problems of

exclusion and use. See Table 1.

As the reader well knows, four cases barely demonstrate the concept and they certainly do not

establish empirical validity. I selected these cases for proof of concept not as proof of theory.

One might however construct a fairly long list of policies with counter-intentional outcomes,

schools that don’t teach, urban policies that make cities less desirable places to live and work,

home finance policies intended to make homes more affordable and raise middle class living

standard instead guarantee the reverse, bankrupt cities with unaffordable public pension

promises, a national surface mining law that incentivizes the most destructive forms of mining,

global climate policy initiatives that incentivize strategic increases in greenhouse gas emissions,

world-leading health care spending and mediocre health outcomes, and food and nutrition

policies that assure millions of Americans will suffer from food insecurity and chronic illnesses

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caused by over-eating, often simultaneously. This is not easy to do. Dr. Aaron Shirley, a

Mississippi pediatrician, aptly characterized our health care policies as “spending billions to treat

people for preventable illnesses of which they will never be cured” (nytimes.com 2012c).

Perhaps the most ironic and paradoxical counter-intentional policy outcome involves the

progress of American arms in the 21st century. The nation fields the most lethal and

operationally proficient armed forces the world has ever known. They prevail in nearly every

tactical encounter and yet the United States loses the wars they fight on its behalf.

I am skeptical of conventional explanations of these unintended policy outcomes primarily

because the same political reasoning informs the policy design and the explanation of its failure.

The historical analogy can be made from the partly apocryphal story of the American military

planners who prescribed overwhelming firepower as the cure-all for our problems with

Vietnamese insurgents. When bombing did not produce the desired result (of a pacified

countryside), the remedy was more bombing. Only too late did policy makers acknowledge that

firepower was equally problem and remedy and that an alternative framework of analysis offered

more warrantable understandings of popular insurgencies.

Things I left out and other holes in the argument

The next challenge to my argument is to compare conventional explanations of the longer list of

policy failures to explanations that re-cast them as imperfectly addressed problems of exclusion

and use regulation. My use of two natural resource cases suggests that resource and

environmental goods are readily amenable to the proposed analytic approach. It takes only a bit

of imagination to re-cast budget policy as a problem of use dominance (health care, entitlements,

defense) attributable to inadequate rules related to use regulation (off-budget or mandatory

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spending for privileged constituencies) and runaway deficits as a problem related to infeasible

exclusion.9

A slightly more difficult case involves the re-casting of redistributive policies as public goods

problems. Policies offering private goods to citizens for free or at deep discounts to their true

scarcity (such as food aid or Medicare) in effect suspend the price mechanism, depriving

citizen/consumers of signals of the goods’ true scarcity. The effective policy remedy can be

found in the principle of fiscal equivalence applied to the government jurisdiction providing the

service. Governments of general jurisdiction acting as collective consumption units must bear a

substantial portion of the cost of the good (Ostrom and Ostrom 1994 [1977]). Deficit spending,

off-budget gimmicks, and mandatory expenditure rules deprive Congress and the public of the

information provided by the principle of fiscal equivalence. Mainstream theories of budget

politics may offer more elegant and parsimonious explanations. Nonetheless, I am not giving up

on this one yet because the positive externalities of many redistributive policies, e.g., the

elimination of old age poverty freeing younger people to participate in the workforce, imply a

public goods argument worthy of further consideration and development.

Two conventional explanations of counter-intentional policy outcomes merit consideration, too.

The implementation literature is extensive and replete with plausible (and frequently well-

supported) explanations linking policy outcomes to resource budgets to support implementation,

advocacy coalitions, and production technologies (see Jenkins-Smith and Sabatier 1994, Sabatier

and Pelkey 1987, Sabatier 1988 and those who came after). Policy causal theory of the nature

discussed in this essay has the potential to encompass many theories of implementation but I

9 A slice of pie for everyone, too bad it’s our children’s pie.

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have not yet made the case and I share the reader’s expectation that more work is required to

make this point more plausible.

The second conventional explanation of counter-intentionality that I am reluctant to dismiss may

be labeled as “the problem of problem definition.” Formulating an adequate definition of the

problem is a necessary condition for warrantable policy analysis (Bardach 2009). The real world

of policy and politics always has more solutions than problems and policy entrepreneurs (aka

advocates) prepared to attach their pet solutions to any problem that looks likely to land on the

action agenda (Kingdon 1989). The propensity to mis-specify policy problems occurs among all

governments and so one must presume that the conditions requisite for counter-intentional

outcomes are omnipresent. American national security policy in the post-9/11 era exemplifies

the risks presented by spurious problem definitions and the sheer difficulty of discovering

warrantable formulations (Nagl 2002, Johnson 2011, McCauley 2012, Anderson 2014).

Finally, the Institutional Analysis and Development (IAD) framework, a signal achievement of

the Bloomington school, offers a number of variables that relate to policy outcomes with

potential to explain counter-intentionality. Successful schools and effective policing are

inseparable from rules and practices that promote co-production of the public good (Ostrom and

Ostrom 1994 [1977]). Opportunities to communicate, so-called cheap talk, have the potential to

stabilize the shared expectations of citizens and public authorities making cooperative outcomes

more feasible in a host of situations (Ostrom, Walker, and Gardner 1992). Mutual monitoring

can make an enormous difference in individuals’ willingness to comply with rules, expanding the

possibilities for beneficial rulemaking and reducing anticipated implementation problems (E.

Ostrom 1990). Leadership and social capital, the presence of public entrepreneurs in an open

Counter-Intentional Policy Outcomes March 20, 2014

20

public realm, create potentials for cooperation and collective action considered unlikely by

conventional analysis and not accounted for in the arguments presented above (V. Ostrom 1994).

In short, this essay is a working paper intended to engage the reader in shared acts of discovery

and contestation leading to a better science of policy analysis.

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Table 1: Summary of policies and outcomesCase Public Goods Exclusion Rules Use regulation Outcome Comments

Maine Lobster

Fishery

Natural resource

based economic

growth, biologically

and economically

viable fishing

resources

Territorial rules,

apprenticeship and

licensing rules,

zone management

system

Escape vents,

double gauge rule,

V-notch rule,

conservation ethic

Record harvests,

healthy stocks,

thousands of fishers

making decent

livings

Politically well-

organized fishing

community works

effectively at state

and federal levels.

War on Drugs

Externalities from

drug abuse or

narcotics addictions

Criminal penalties

for drug possession

or trafficking

Prescription limits

and reformulation

for opioids,

treatment for

addiction

Direct costs for

incarceration of

drug users, dealers,

etc. are $16.9bn. 2%

of male workforce is

in jail.

Enormous direct

and indirect costs to

society, little

apparent effect on

the problem or its

causes.

Atlantic

Menhaden

Healthy oceanic

food chain,

recreational and

commercial

fisheries

Permits required to

fish commercially

Limits on

recreational and

commercial

harvest, no

meaningful

restriction on

capture technology

Single processer

accounts for 80% of

the harvest; stocks

decline across the

entire range of the

species.

Omega Protein is

politically well-

connected,

recreational and

bait fishers far

more numerous,

wild predators

don't attend public

hearings.

Flood Recovery

& Relief

Safety from flood

disasters, reduced

property losses

None at the federal

level

Some flood

proofing required,

subsidized flood

insurance available

Building in flood

zones accelerates in

the aftermath of

disasters

Policy effectively

suspends the price

mechanism with

respect to flood

risk.