This is one of those areas where not only is there a lot of gray, but in fact the law (and the underpinning culture) have probably not moved as fast as commercial practices. It makes a lot of sense to pursue alliance relationships and I suspect, as business becomes more complex, more risky and more dependent on scarce and narrow expertise, that there will be more alliance relationships. But the norms of appropriate alliance relationship are still under-developed.
But McArdle makes a point that is worthy of note because it is a general truism rather specific to collusion.
But it seems worth mentioning because of a conversation that I recently had with professor Steven Teles, at Johns Hopkins University, whose class on policy failures I'm taking this semester.I see this all the time. Because there is a disparate impact from a policy or commercial venture or volunteer activity, then the outcome must reflect the intention. It is very occasionally the case that the outcome does indeed reflect the intent, but not that often. The world is too complex and exogenous shocks too frequent for that to be true and yet people are perfectly comfortable believing that if something turned out as X then you must have intended X.
We were talking about the fact that people often confuse the effect of something with its purpose. For example, the increasing premium on a college degree -- and particularly on an elite college degree -- has the effect of making it harder than ever for poor kids to overcome educational disadvantage. It's no longer enough to be sharp and hard working; you also need to be academically gifted and adroit enough to negotiate our strange and demanding university system without help. That's a very high hurdle. And you can make a good argument that the middle class is basically protecting itself by erecting that hurdle, which makes it hard to join them -- and, therefore, harder for their kids to fall out of their comfortable class.
But you occasionally hear people take this argument much further, and contend that the middle class has done this consciously and deliberately. I'm quite sympathetic to the former, weaker version of this critique. The stronger version, however, is nonsense.
This matters quite a bit, because structural critiques that assume intent may imply very different remedies than structural critiques that assume that our basically healthy instincts -- a reverence for learning and the desire to give our children the tools they need to enter the labor force -- may be producing very unhealthy results. Moreover, when you accuse someone of deliberately sabotaging the American dream, they're apt to get a bit testy and stop listening to what you're saying.
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