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 Please do not cite without permission of the author.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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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 Please do not cite without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.
Counter-Intentional Policy Outcomes March 20, 2014
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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).
Counter-Intentional Policy Outcomes March 20, 2014
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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.”
Counter-Intentional Policy Outcomes March 20, 2014
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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.
Counter-Intentional Policy Outcomes March 20, 2014
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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-
Counter-Intentional Policy Outcomes March 20, 2014
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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
Counter-Intentional Policy Outcomes March 20, 2014
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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
Counter-Intentional Policy Outcomes March 20, 2014
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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