Discretion with Barry Lam

What value might there be in having fewer rules? In episode 129 of Overthink, Ellie and David talk to philosopher and host of Hi-Phi Nation Barry Lam about his book, Fewer Rules, Better People: The Case for Discretion. They discuss the problems with legalism and bureaucracy and the importance of discretion, as well as how the emergence of AI affects decision-making, and the negative impact of too many rules on our criminal justice system. Are we obliged to follow government rulings? Why is the ‘by the book bureaucrat’ the biggest villain of all? And how can we train people to make better discretionary decisions? In the bonus, your hosts consider the effects of decisions based on private morality and whether there are cultural differences in discretion.

Works Discussed:

Ronald Dworkin, Taking Rights Seriously
Barry Lam,  Fewer Rules, Better People: The Case for Discretion
Plato, Crito

Transcript

Ellie: 0:12

Hello and welcome to Overthink.

David: 0:14

The podcast for two friends who are also professors talk about philosophy and everyday life.

Ellie: 0:21

I'm Ellie Anderson.

David: 0:22

And I'm David Pena Guzman.

Ellie: 0:24

David, I'm so excited to be talking today about this topic because even though the word discretion might not immediately call to mind, fascinating stories of over bureaucratization. Indeed, that is what we are talking about. We're gonna be speaking later in the episode with Barry Lam, who recently wrote a book about this.

David: 0:43

And let me just say, Ellie, that I really enjoyed reading this book, fewer Rules, better People. Where Lam essentially comes to the defense of the concept of discretion, arguing that sometimes we need to give people in positions of power, Discretionary decision making capabilities. This is a thought provoking position to take in a world where we associate a rule following and rule enforcement with justice, right? We tend to define, in the west, justice as applying rules sort of mechanically and equally to everybody. And so the idea that there could be a philosophical defense for the exception or for giving individuals the right not to enforce a rule seems counterintuitive to the way many of us think about why we have laws and rules in the first place.

Ellie: 1:32

Yeah, though at the same time, I would say that even if abstractly, we tend to appreciate that rules have an important role to play in a democracy. We find that people on both the left and right are very frustrated with both a symptom and a cause of the proliferation of rules, which is bureaucracy. And so Lam talks about that. I mean, I think sometimes we associate the removal of bureaucracy with a libertarian approach or maybe a more conservative approach. But indeed Lam says no, actually, like a lot of people on the left, and a lot of liberals are frustrated by the proliferation of rules. Two, of course we're seeing today some of the damaging effects of a disdain for rules and bureaucracy in the gutting of the federal government. And so one thing that, as we were interviewing Barry, he mentioned at the beginning was like, it's weird for this book to come out in 2025 to be, for me to be making a case for discretion over and against Bureaucratization because we're seeing some of the negative effects of not following rules. However, I do think that there's a way for us to preserve the insight that bureaucracy has a lot of problems with it and we should favor discretion more without saying we should gut the federal government and what I think we can say to that following this book, fewer rules, better people. Is that we need better people. In order for people in power to be able to make discretionary decisions rather than just rule-based decisions, they need to be trained to do so. And so one of his suggestions towards the end of the book is that there should be ethics boards that evaluate discretionary decision-making and inform bureaucrats if they're falling short. Another one he suggests is that bureaucrats should have specific moral decision making frameworks. That govern their discretionary decision making. That's really different from what we're seeing in the current federal government in the US I would say what we're seeing is not less bureaucratization and more discretion, but disdain for existing bureaucracies in favor of something that's equally rule-based, which is rule by algorithm, rule by technocrat.

David: 3:45

Or conversely, we could say that what we're seeing under the current Trump administration, given the role that technocrats are playing in, it is a replacement of discretion by arbitrariness. That's a conceptual distinction that Lam makes in this book. He says, just because somebody has discretionary power over which rules to enforce in their particular domain, it doesn't follow that therefore, they're acting in a completely arbitrary way. So, of course we have reasons to be wary of people exercising their power of discretion without constraints or without bounds. That's how you get injustice, and that's also how you get corruption, both of which we definitely want to avoid if we ever want to have a system of rule in place that serves the common good. And in one of the chapters of the book, Lam talks about research on criminal justice, especially concerning the role that police officers play in arresting individuals who have been accused of domestic abuse to make the claim that there are many cases where though it seems counterintuitive discretionary decision making on the part of those very police officers can actually serve the needs of the citizenry, and he cites a criminologist by the name of Lauren Sherman, who conducted a lot of research in multiple American cities about the effects of domestic abusers being or not being arrested by the police officers who get dispatched to the scene. Now, of course, you can imagine why there are good reasons to say that here, there is no room for discretion. When somebody is accused of domestic abuse, you arrest them and you remove them from the scene. But Sherman's research found that, in fact, a lot depends on what community you are dealing with. More specifically, if a perpetrator, this is a quote from the text, if a perpetrator is a white male, gainfully employed, middle or upper middle class, living in an urban environment with no previous arrest history, arrest tends to work best to prevent further occurrences. However, and this is what I find really interesting about this research. If the perpetrator has a history of alcohol or drug use, is unemployed or lives in a high poverty area, arrest tends to make things worse for both parties. If the state wants to make lives better for all victims, they will need to find alternatives to arresting partners in these circumstances.

Ellie: 6:22

And you can see how then we need people in positions of power to be really well-trained in order to make these kinds of judgment calls and I do think that's something that's really hard to come by in a massive society like the one that we have. But as I was reading some of this stuff, I was thinking about restorative justice models because I think that Lam's argument about discretion is very compatible with the restorative justice model. Especially when it comes to maybe avoiding arrest altogether. So this is a little bit different from the case that you're mentioning specifically David, but he starts off the book by talking about two police officers, Tom and Mike. Tom is a seasoned police officer. Mike is new to the job, and Tom knows the community that he works in really well. A convenience store owner calls them in and says that a teenage boy has stolen from the store. He's stolen a gallon of milk, a loaf of bread, and a jar of peanut butter, and he says, I wanna press charges like I'm a small business owner. I can't afford to have people just stealing from me. The teenage boy lives in an area called Onion Town, which is a town inhabited by squatters, and Tom and Mike go to Onion Town. They find the boy he admits to what he stole. He says, is there anything I can do? And Tom and Mike find themselves saying, okay, here's this really underserved teenage boy. He not only says that he stole, but he also mentioned to them that he did it because his family, including his small brother, were hungry. And so they go back to the convenience store owner and they say, look, we know you wanna press charges, but is there anything we can do? And they end up coming to a deal with the convenience store owner where the teenage boy, his name is Joey, will come and clean the convenience store. It goes so well that the convenience store owner ends up hiring Joey on an ad hoc basis saying, look, anytime you are really hungry, come and help me out at the store and I will give you food for your family. And that's a really beautiful tale of discretion. It was Tom's experience in the force and the fact that he was respected by the local community that led him to be able to be in this position as negotiator. I think we can still have a conversation about whether in an ideal society, the people doing that negotiation within a community would be police officers. But either way, you really see this nice example of restorative justice happening within a small community, and that's thanks to the discretionary power of these two officers.

David: 8:46

No, for sure, and I actually don't think these examples are that different actually, because in both cases what we're dealing with is a question of whether a police officer should have the right not to arrest when arrest is part of the recommended or even required protocol. So it's a question about when the exemption is better for the community than the rule that is imposed upon it from the outside. And I think when you think about it in that way, both of these cases become cases of restorative justice because at the center of them lies the issue of the danger of mechanical rule following, where sometimes the very rules that we create to protect citizens end up tearing at the bonds that those citizens create with one another, because not all rules are going to have the same effect in all circumstances. And I think that's really the target of Lam's work. It's this assumption that many of us have that once a rule is created. If it is applied mechanically, the result is always going to be justice. It might give us justice in a purely formalistic, legalistic way, but it will lead to situations and circumstances that most of us, with any common sense will recognize are actually deeply unjust, like arresting a hungry kid.

Ellie: 10:25

Barry Lam is professor of Philosophy at the University of California Riverside, and the host and producer of the Hi-Fi Nation podcast for Slate. It. His new book is Fewer Rules, better People, the Case for Discretion. Barry, welcome to Overthink. We are so happy to have you.

Barry: 10:43

I am so happy to talk to you both again.

Ellie: 10:46

I know we've been featured on your podcast now you're featured on ours. It feels like it's been a long time coming. And the occasion for this is the publication of your new book, fewer Rules, better People, which is all about discretion and over bureaucratization. So I wanna begin by asking you about that. You suggest that societies tend to head down a path of bureaucratization like almost inevitably as they scale up, and when they head down a path of bureaucratization that ultimately leads them to a place of over bureaucratization. How and why does this happen? Why does it seem to be a feature of societies that as they scale up, they become bureaucratized and then over bureaucratized?

Barry: 11:28

Uh, Wow. This is a very long answer, but short answer has gotta be.

Ellie: 11:34

You'd have to read the book to get the full answer.

Barry: 11:36

Yeah, yeah, yeah. So the first thing is to understand that whenever you do anything that's organized, there are rules, whether it's gonna be sports or living with roommates, right? These are like very general like board games. Rules are the things that allow. People who are within your household or within the game to guide their behavior in a way that is cooperative with everybody. So as soon as you have rules, there's a couple of things that can lead to the bureaucratization and complexification those rules. Two, I would say that our key drivers are scale and the other one is mistrust, right? Scale is just the idea that you're just gonna go bigger. So one analogy that I like to talk about is you know, you have a restaurant and it's a nice little family restaurant in your local community. You're working with your family and you now want a franchise, and maybe it's so successful that you want to franchise internationally, right? And as soon as you wanna do that, you're gonna be like, okay, we need to have some kind of regularity of experience to everybody who goes into this restaurant with our name, our family name on it. We need the food to be very similar, if not exactly the same across all of these restaurants. And that's gonna mean the rules go from be friendly to the people walking in and, you know, try to serve within 30 minutes of the order or something like that to something like, here is what everybody has to say as soon as you come into the restaurant, if you have a drive through, like every drive through operator is gonna have to follow this script. Like, welcome to McDonald's you know, can I interest you in a blah, blah, blah today? Wanna take your, you know, something like that. Your supply chains is gonna have rules, right? So this is just the feature of scale, right? If you. Just look at how things pattern over your lives and your interactions with institutions. You're gonna have far fewer bureaucratization if you're gonna just engage with like, I know a person who's like an herbal doctor. Just go there and talk to them. You know, versus, you know, Kaiser Medical or United Health Plan, something like that. Something that's gotta serve millions and millions of people. So that's the first thing, just sheer scale and the idea that you need to have regularized quality control across millions of interactions. The second one is mistrust. So if you look at the US tax code, you can start with something like, give 30% of what you make to the government, right? And then I'll, very soon you're going to have people going, what I make. Hmm. How would they define it versus how would I define it? And the government's not really gonna trust you to define it in such a way that advantages it. Who needs tax dollars? And you are not gonna trust the government to define what it means by what you make, right? That's not to its advantage as to opposed to your advantage. And so with that kind of mistrust between say, the implementer of the rules and the people who are supposed to be. Governed by the rules. We'll call one citizens and we'll call one. You know, the institution, the citizens with mistrust over the institution will want No. You need to tell me exactly what it is that you're going to take from me, otherwise I'm gonna keep the rest for myself. And the government's gonna do the same thing because of their mistrust for you. And so you're going to have something like an incredibly byzantine, you know, thousands and thousands of pages defining what it is that you make in such a way that you know, well, what if it's 10 bucks from a babysitter? For babysitting you know, my cousins, and then it's kind of like, well, there's a rule for that, right? It's like under a certain amount, blah, blah, blah, but over a certain amount, blah, blah, blah, blah, blah. So I would say mistrust and scale.

David: 15:28

Barry, that's really interesting for us to think about the role that scale and social mistrust play in leading us toward over bureaucratized forms of life. But in your book, you also talk about a third variable, and I just wanna hear your thoughts on that. And that third variable is mediocrity. Because you point out that of course, most of us are mediocre at most things, right? Not everybody's a genius, very few people are. And so we don't really want to rely on the individual wisdom of random people to govern our lives, especially really important aspects of our lives. We want rules that even mediocre losers like us can enforce and enforce with a degree of regularity that make possible meaningful social interactions.

Barry: 16:17

Yeah, it's a very astute observation by this otherwise totalitarian political philosopher named Han Fei in ancient China. So he was sort of one of the towering figures of Chinese legalism as an operating political philosophy. And he pointed out, and you know, one interpretation he pointed out is that we're all mediocre, right? And that includes our leaders, right? That's really important for Han Fei. It's not just that the citizens are mediocre, but the leaders are. So, one way of understanding that is we are not really gonna do things against our own interest in the interest of a broader community unless we had to. Right. Unless the rules compel us to. And a leader's not gonna do that, right? A leader's probably just gonna look after himself and his own family, unless they are all forced to do it by rules and so forth. I think there's a different interpretation of mediocrity, which is even more powerful, which is the idea is that even if you have some people who are incredibly virtuous, like are incredibly good at a certain thing or are incredibly good leader. Over time, it's gonna average out to mediocrity. That sounds absolutely correct to me. Right? It's like, oh, is every leader mediocre? No, not every leader is every citizen. No, there's some great citizens. but the great ones don't all stick around and they're not everybody. Right? And averaging out to mediocrity means you wanna be able for good governance of anything, not just government, but like a university or a fast food chain, or your household, not to depend on the identities of the individuals, right? Not to depend on the virtues of the individual. You want people to be interchangeable so that the really good people will govern well and the really crappy people will govern well and overall the mediocre people will govern well. And I think that you know, this idea is. So powerful that there are entire sectors of our economy, which I don't know if we've all talked about it between the three of us, but you know, the entire gig work system is like this, right? Gig work doesn't depend on the identity of the individuals, right? It depends on a rating. Right, and that rating is algorithmically determined and we care about getting a 4.6 Uber driver or eating at a 4.7 restaurant. Right. And it's kind of like, well, it's a 4.7. It's a 4.7. You know, we have this kind of like preference for that then to have to like, you know, any of you travel across the country, like, oh, if I'm at a truck stop, I've never heard of that place before. Do I really wanna go about trying to figure out how good it is? Oh, let's just like look at the rating, you know?

Ellie: 18:58

Yeah. It's like I think I'm getting out of that corporatization by choosing the hole in the wall places when I travel, but I'm choosing those hole in the wall places based on Yelp or Google reviews, so it's like the same thing.

Barry: 19:09

Yeah. And I think that's like Han Fei's dream that everything is like that. Now you have these leaders that you have a bunch of algorithms that determine what makes them good and they follow that. And if they follow that, you'll, you're gonna have 4.8 leaders, or you're gonna have 4.7 citizens. And that's what, and right. And that's kind of the society. So over bureaucratization can very well be a feature of this view. You can call it mistrust, but it's not exactly like mistrust. It's more like saying, I positively believe that overall all of you are just so, so. And I'm not gonna, you know, you could say, I'm not gonna depend on how well this society is or how well this university is on all of you, just acting on your own accord.

Ellie: 19:52

And you've just mentioned Han Fei a bit, who in the book you describe as like the protagonist, perhaps we might say, of the tradition of legalism, which is opposed to discretion. And Han Fei's rationale for opposing legalism. We just mentioned the mediocrity point, but it's also because we are mediocre. Discretion is bad because it gives too much power to those in charge, right? Those in charge are by and large mediocre, or on average mediocre. And it's funny because I think sometimes we can think about bureaucrats as unfairly wielding their power, but in fact, Han Fei seemed to worry that it was not having enough bureaucracy that was gonna lead to an unfair wielding of power. So tell us a bit about legalisms, rejection of discretion and this worry about abuse of power. I.

Barry: 20:42

It's the idea that if you give a police officer too much of a choice about whether they decide to arrest or whether they decide to just give a warning to somebody and so forth, that, you know, you're going to get decisions that are, well in the West there was always like unfair, right? Unfairness is this big complaint that we have in the West, right? Like bias, right? Bias against, say black motorists. Bias in favor of wealthy motorists. Unequal distribution of good and bad decisions is what the West was concerned with. And Han Fei was just concerned with just bad decisions, right? Like, so the kind of decisions that were just bad. Who cares if, you know, some people got good ones and some people got bad ones. And, and the idea, it's very much the same idea. If you build into bureaucracies too much of this kind of discretion, what you are doing is you are making good governance dependent on whether that person happens to be a good decision maker versus a, a bad decision maker, right? So, so here, you know, here's an example that's not in a governmental context. So there's something that happens to be very highly discretionary in the medical system, which is whether doctors can prescribe off label, right? So like the label says this is a drug that's for, you know, sleep or something like that, right? Nobody's going to take the doctor's license or anything if they decide, you know, I've actually noticed that for depressed patients it works okay pretty well and they're gonna do that. Right? But if you think about it, that's a license to just be a drug dealer. I mean, right? You think about, right. That's like. Off-label. That means anything, right? That's anything you wanna prescribe the drug for, you're allowed to do. And this is a good question about whether, you know, how much doctors are responsible for the opioid epidemic? I think a lot actually. You know, quite a bit. And so is the answer to have rules against that? Right? Or some kind of rules reigning it in, right? Can a doctor lose their license? Can they be prosecuted for? Some off-label prescription or too much off-label prescription. And the idea there is just no, we need the rules. The people who make the decisions, we cannot trust over, you know, the whole population.'cause otherwise we're gonna end up think with things like the opioid crisis or bias in policing and so forth. And I think that that's, that's one tendency, right. So that, so there is a tendency for one kind of person to respond to these kinds of problems in governance with, alright, more rules, right? Or more complex rules.

David: 23:24

Yeah, maybe we're all legalistic subjects down when it comes to it. In so far as that, I think that's right, that that's a normal tendency to ask for more rules when we feel like there's a gap in the legal system or in its enforcement. And I wanna ask you a question about this, because. Most of your book focuses on the importance of discretion in the enforcement of rules. For example, you have a great chapter on most of it is criminal justice, like police officers deciding whether to make an arrest, prosecutors whether to press charges. You had a really wonderful chapter. I have to say, it was my favorite one about judges deciding whether to follow sentencing protocols

Ellie: 24:02

Oh yeah, I really so interesting.

David: 24:05

I really liked the section about plea Bargains. And so I wanna ask you about the other side of this coin. What are your views about the value of discretion when it comes not to the enforcement of rules, you know, people in positions of power, but when it comes to rule following, especially from like an average individual, an average citizen, can individuals decide at their discretion on your view, which rules and laws to follow? And I thought about this, while I was reading your book on the bus, I'm gonna reveal something about my law, non abiding behavior here. So I don't think people should have to pay for public transport. I think it should be paid for by the state, and so I don't feel bad about not paying the fare when I ride the bus. It's like a principled act of civil disobedience on my part. Very minor, very ineffectual, but I stand by it.

Ellie: 25:03

David, I have so many questions for you, including the fact that I wonder how much of like your willingness to ride the bus without paying the fare has to do with like knowing that you could pay the fine,

David: 25:14

Oh, yes.

Ellie: 25:14

Like I'm thinking about like you, when you were 23 years old in grad school, wouldn't have done that because you would've been like, I can't pay $70 if I get fined.

David: 25:22

That is. Yeah, great. Great point. But that's not the question

Ellie: 25:25

You're using your privilege for political resistance now. Love it. Sorry. Continue. needed to interject there.

David: 25:32

No, great point. But you know, I was thinking about that. Can citizens just make those sorts of decisions and have them be justified by your philosophical view about discretion? It's something like me choosing not to follow certain laws ethical? And to what extent does your view apply on the following of rules rather than the enforcement of them?

Barry: 25:55

I don't know if this is gonna be a radical or like a very mundane position, but I think the answer is not only can they, I think they must make a decision about the rules that you're going to follow. And I might disagree in your particular case about, about, yeah, I might disagree about the morality or the political morality of it. I think I might, I very well do, but that's not because I think that you, it's not possible for individuals to reasonably decide and be justified in bucking the rules. In fact, I think that it's kind of like a moral requirement of individual citizens to walk around and think about whether or not any given particular law that has been passed is a just or unjust law, and what the political obligations and moral obligations you have to follow or break those just and unjust laws. And it's not one-to-one. It's not just, it happens to be an unjust law. So I'm going to, I'm going to break it. Right? Or it's like sometimes the kind of reasoning that's involved can be quite sophisticated, right? It depends on your self-interest about whether you can afford the fine. It depends on whether you think you're free riding off of other people who also happen to be.

David: 27:13

I am, yes. Literally.

Barry: 27:14

Yeah, yeah, yeah, Yeah. Right. And so forth. But, you know, I really do think that there's just ,the fact that something is a law or becomes a law does not automatically mean that we as individuals who are governed by it, cannot reasonably decide that we're going to break them. I mean, I'm very anti-Socrates, you know, you like this famous dialogue that, you know, a lot of us teach an intro, which is the crito, which, you know, Socrates' position. There really was. Yep. That's it. You know, it, there is no citizen discretion. I, you know, I strongly oppose that.

Ellie: 27:55

That's just for listeners who may or may not be nerds like us. I know you all are nerds in some ways, but, yeah. In the crito, Socrates is justifying his decision to remain in Athens after he's been found guilty for the corruption of the youth by a jury and sentenced to drinking hemlock and basically the crito involves, it's crito who tries to tell him to get out of it. Right? Yeah, basically like Socrates would've been able to just flee Athens, but he takes so seriously the judgment of his peers that he decides to stay and, you know, adhere to the sentencing that he's been served, even though he thinks it's unjust in a, like a moral sense maybe. Yeah.

Barry: 28:32

I mean I think that, you know, many times those of us who are not in positions of power are obliged to follow the law, but that is not a legal point that I'm making. Right? So what I mean by that is it's not just because it is the law that we're obliged to follow it. I think it's because of various other moral political obligations that we have. And those are all contentious, right? Like, and there can be reasons for you not to follow the law. And you know, probably a lot of your listeners will have a limit to what it is they think the government can pass, that they're, they feel obliged by, you know, right now there seems to be an edict that could very well be legal, that the current administration is going to prohibit certain kinds of speech on campuses. I strongly believe that's one that we shouldn't follow, right? So you know, to answer your question, not only do I, I think we're obliged to reasonably decide about given rules, whether we ought to follow them.

Ellie: 29:40

Well, and related to that, I think even though you point out a lot of unfortunate consequences of legalism and bureaucracy, one of the things that I really like in my daily life. Is the fact that when rules seem rational to me, they mean that I don't have to involve myself in cognitive calculations, like processes of reasoning, because a lot of times, discretion, whether it's on the side of the rule enforcer or the rule follower, requires a lot of cognitive and emotional burden. And I'm thinking in particular about a friend's sister. Hi Alex. He's an overthink listener whose job it is to decide. Whether or not people are candidates for liver transplant. And a lot of times she is a social worker, she's dealing with people who have alcohol addiction, and so she's tasked with figuring out is this person likely if they do receive a liver transplant to actually stop drinking? And that I can only imagine is an immense burden on a person. And even like to take a very banal example. Every time you get on public transit, David, you have to make the calculation, does this adhere to my principles? Am I likely to get fined? If so, is it worth it? And so there's just like a lot of reasoning that we have to do. Often reasoning that is very emotionally taxing when we are involved in discretion. And so I'm curious how you think about that in terms of like whether that's a limit to discretion. I mean, I know you're not entirely against legalism in the book, but you do wanna make a case for discretion over it.'Cause I think that's like one really nice thing about bureaucracy and rules that are established.

Barry: 31:22

You know, I agree. And I think Ellie, as you were talking that we are talking about at the same problem of scale, but oriented towards something else, right? This is the scale of decision making that's involved in life, right? So forget about morally weighty things which are incredibly emotionally taxing.

Ellie: 31:44

And that I think should be the real realm of discretion. I should say too, I'm not, I don't think that this person's job should be outsourced, so let me just say, make that clear.

Barry: 31:51

Yeah. But in our everyday life, we might just implement a rule that says, okay, you know what? I'll wear, I mean, Obama did this famously, right? I'll wear, this color suit with a black tie or a blue tie, because you know what? I just, I can't be made to make a decision, like what to wear. You know, write down to every last detail every day, because you know, and so we use rules and rules of thumb and heuristics for that kind of thing. And the justification for that, I think is like a however, we would justify greater good type considerations. Like maybe it turns out that if we were forced to make every decision discretionarily rather than rule-based, we just overall would make much poor discretionary decisions. But I agree with you, Ellie, like in, our professional lives, I have always wanted a university to say, Hey, how about a no smartphone policy or a no laptop policy? Instead, it's a purely discretionary. Right, but then you have, then the way I feel about it is, oh, now I'm the asshole.

David: 32:55

All the micro negotiation with students about little details, you know? What about iPads? What about phones? What about under these conditions?

Barry: 33:03

That's right. That's right. And so this is another reason for heading down to a path of bureaucratization and over bureaucratization, right? If we're fatigued, then we're asking for a rule, and then if we're asking for a rule, then the rule makers have to do those micro negotiations. Right. Then the rule's gotta be, okay, here's a list of A, B, C exceptions with D. Right. And both of you'll know about this and that's happened so that we have to cut and paste certain things onto our syllabi. And that has ballooned in the last years. Right? And that's, but that's what it is. We want some kind of rule. They, they did the micro negotiations in a committee, and so now our syllabi are twice as long with lists of rules and exceptions than they are with the readings and the assignments.

David: 33:51

Yeah. No, and your book does a really good job at pinpointing the dangers of becoming hyper legalistic subjects, right? That there is a kind of moral degradation that happens when you become the kind of person that responds to everything by just implementing the rule, washing your hands of any kind of moral responsibility in saying, well, the rule says so I just do, and this brings into focus, I think the importance of extra legal reasoning, right? That when we make decisions, even when we make the decision about which rules to follow or to enforce, we do have to deliberate about things that are themselves, not captured by the legal system itself, right? It's about politics, it's about morality, it's about the common good. And for me, that brings in the question of the virtue of the individuals who are engaged in this kind of decision making, and I'm gonna ask this question in a really roundabout way, which is through the punctuation of the title of your book. Your book is titled Fewer Rules, comma Better People. And as I was reading it, I thought there are two ways of reading that comma in the title. One is to say that fewer rules lead to better people. So there's a causal claim being made about how we become better moral agents. The other is that we need fewer rules and we also need better moral agents. But the former doesn't necessarily produce the latter. Right. So here we're just dealing with an addition rather than with a causal claim. What's your view on this? Is it that fewer rules improve us morally and we become better when we live in a space of discretion? Or is it that we first need to have. Good moral development and the cultivation of virtue in place so that we can have fewer rules and not have that lead to the dangers that you talked about earlier, like arbitrariness and corruption.

Barry: 35:52

Yeah, so I'm glad you asked about this, David, because that title was deliberately ambiguous between those two readings. It was by design. It was designed to be ambiguous.

Ellie: 36:05

Didn't didn't pick up on it.

Barry: 36:07

Yeah, yeah, yeah. That's right. David. David picked up on that which is funny because there have been some reviewers, I think it was a reviewer in the economist who said, never says how fewer rules can make better people. And it was a complaint because that reviewer read that. One way and said that it didn't. So you asked what I think versus what is said in the book versus what is the official position. So the official position is that it's genuinely ambiguous. I leave it ambiguous. But what I think is that fewer rules is a necessary condition for better people, but I don't say think it's sufficient. I don't think it causes better people, right? A lot of other things need to be in place. I do think the and is definitely there, right? Like we need fewer rules and better people. So I'm just gonna use some other examples. so. certain kinds of sports are almost completely discretionary. So I, I was told like something like diving or figure skating or like, there's certain kinds of, right. I mean, I guess, I guess there are some, some rules there, but the idea is just. Well, it's scoring, right? And then it's a judge, right? And when a judge scores, that's a highly discretionary kind of thing. And other sports have a lot of rules. So American football is like this. I think soccer's like right in between, like there's, you know, and there's always arguments among sports fans about the discretionary calls of referees or umpires. One of the places where this is argued about a lot is when judges are the ones who determine the outcomes of boxing fights, for instance, as opposed to some knockdown. So see how I think about it. Football and basketball do have certain areas where they've generated really overly complicated legalistic rules in American football. One example is what constitutes a catch? Originally it's if you see one, it's if it's judged to be a catch, it's a catch. It's almost an entirely discretionary, right? But there's a lot at stake, right? Because if you didn't make the catch before you stepped out of bounds, then that doesn't count. And in basketball it's fouls, right? Where when does somebody get penalized? And it used to be one line which is, you know, some kind of unnatural touching or something like that. Um, and then that was so discretionary and now it's. Like 10 pages with nine subsections. Right down to questions of like, was your foot directly 90 degrees below the other foot of the person who was jumping up, and if so, did you take, make a effort to move it before they landed on the foot and all this other stuff. And all of this came about for precisely the reasons we've talked about, right? There was a call that wasn't made, it led to an injury. People tried to close the loophole, et cetera, et cetera. And you know, the question to ask is, did that complication of the rules of what counts as a catch or what counts as a foul make for a better referee. Right. Better referee calls. Right. And I think that the answer is no, right? Because I think the answer is when there are all of these rules, individual people who are tasked with making decisions will defer. You both know the big villain in my book is the by the book bureaucrat, right? Yeah. Right. And we all know people like this, right? And I think that there's something missing about their character. And also in the governance, right? In the governance, there's a term for it, I think. I don't know if it's sociology or something. It's called malicious rule following. They should just call it rule following, right? Because if you think about it, if you follow, had to follow every single rule and every single workplace. It turns out it can, you cannot run any workplace that way. Right? So you, it's almost like the economy, the healthcare system, the university depends on those of us within it who are working within it to like look the other way for a certain set kinds of rules, right? If you think about it, you know, so one little example I use also is, you know, there are rules about the size of holes in Swiss cheese, right? Like in the federal rule book, if you really had to enforce that,

David: 40:25

We wouldn't have Swiss cheese.

Barry: 40:27

we wouldn't have any Swiss cheese, right? It just requires somebody at the FDA to decide. You know what? We're not gonna look at that.

Ellie: 40:36

Mm-hmm.

Barry: 40:36

There's like more important things. Yeah, it's fewer rules don't necessarily lead to better people, but I do think it's a necessary condition on opening up the ability and need for someone to exercise and develop judgment.

Ellie: 40:52

Well, and this is really interesting as it's coming in a time of increasing AI, and you had an entire season on artificial intelligence in HiFi Nation, your podcast last season, which David and I were on.

David: 41:07

And which is coming back?

Ellie: 41:09

Yet that it's coming back.

Barry: 41:11

Yes.

Ellie: 41:11

So stay tuned listeners for the new season. HiFi Nation. But in your book, the way that AI shows up actually is as a perfect example of a by the book bureaucrat, which by the way is also how people who have played games with me have sometimes described to me. I'm known for being a rule follower to a fault when it comes to playing games, but so. You talk though about some things that might be reasonably construed as actually pretty positive benefits of AI. So for instance, you talk about how when AI is used to score non-native English speakers, essays, it scores them much more consistently than human People do. Human people as opposed to AI people. But then you conclude that actually because an AI is a by the book bureaucrat, it has literally zero discretion. We should be very wary of its implementation both in this and in other areas. So I'm curious what you think about that. Like do you think that AI is allowing perhaps for more of a division of labor between things that can be rule-based versus things that can be discretion and therefore human based? That seems like a reasonable conclusion to me, but I feel like you were maybe a little bit less techno optimistic about that. In the book, you describe yourself as not a techno optimist.

Barry: 42:29

Yeah. You know, I think Ellie, that's such a great question and my views on this change, the more techno optimists try to replace human judgment. My official view in the book is that there really are genuine concerns about human judgments that the tech optimists who are trying to replace human judgments with AI are focused on and like they're legitimate, right? So if it turns out that a human being would judge the same essay differently, depending on whether they're hungry or they're not hungry, right? That's a problem. Right? So like consistency across, you know, standards is a genuine problem. Not to mention competing people who might score things differently. And this manifests in just this huge concern that everybody legitimately has about bias in the legal system or bias in the medical system. People are right to point out that, you know, let's replace it with AI. Well, AI might be biased too. That's true. But AI has this thing where if you just correct it in a certain way, right, or you just like change the parameters a little bit immediately, you have a difference in a way that you can't. Reliably have a difference with a person. You could just say, Hey, did you know that you're biased against these kinds of people? Oh, okay, I'll try to do better next time. Like, do you trust they're gonna do better next time? Not really. So the example there was about GRE essays. Yeah. So as early as 2004, you know, most GE essays are graded by one fewer person. It's like a machine that does it, and it is trying to solve a problem, does it? Do that and does it introduce other problems? And I think it does. It absolutely does. And those other problems, some of them I find to be irresolvable. It's just the nature of machine generated decision making. That's, you know, so one of the problems is, you know, we were concerned that human beings introduce some kind of arbitrariness to their judgments, and that's bad. Well, I think AI introduces arbitrariness to judgments too, right? Anytime you have an algorithmic standard as opposed to a human judgment standard, it's going to be arbitrarily precise. It's going to say there's a cutoff point between a B and an A or a four and a five in GRE essays, and if something. Ever so slightly inches, the algorithm to judge it to be a five. It's a five. Right. And it turns out that, as a matter of fact, it's something like polysyllabic content. Like it's easy for an AI to like count syllables. It's a lot harder than for them to like. Judge Insight, right? So like, we're like, we judge insight, right? But like they're counting syllables and there's, I wouldn't imagine there is a really good correlation with how many syllables you use in your writing and how insightful it is. Probably pretty good, right? But we all know 'cause we read a bunch of this stuff, okay. There's like huge exceptions to that. There's gonna be these polysyllabic things that are just a mess and we just like, what the hell is this? This essay and so forth. But it can't. Make decisions like that. That's how I feel about it. I am, you know, not only fearful of, but I think justifiably so about replacing human decisions with algorithmic decision making.

David: 45:48

Well, Barry, we thank you for giving us your time, your thoughts, and. Your wisdom, which is very much not AI generated.

Barry: 45:56

Hmm.

David: 45:57

And for our listeners, we highly recommend that you get a copy of Barry Lam's fewer rules, comma, ambiguous, comma, better people.

Ellie: 46:05

Thank you so much, Barry. It's been such a pleasure.

Barry: 46:09

Thanks for having me. Really happy to be on Overthink.

David: 46:14

Overthink is a self-supporting independent podcast that relies on your generosity. By joining our Patreon, you can gain access to our online community, extended episodes, and monthly zooms. If you'd prefer to make a onetime tax deductible donation, you can learn more at our website overthink podcast.com. Your support helps cover key production costs and allows us to pay our student assistance a fair wage.

Ellie: 46:38

David, that interview with Barry was so enriching. I mean we didn't even like really get into this, but he's quite the titan in the philosophical podcasting industry has had a really big impact on overthink. I mean, he was one of the instructors of this fellowship that I did a few years ago. He's had like amazing advice for us over the years. So he's really been a behind the scenes advocate and mentor. And now we actually got speak with him. What do you wanna touch base about here as we debrief.

David: 47:07

Yeah. One thing that I wanna bring our attention back to is the importance of extra legal reasoning. As you know, Ellie, one of the classes that I had to teach most frequently when I was a graduate student at Emory was randomly philosophy of law. Even though that's not something that I worked.

Ellie: 47:22

We taught some random, I taught mind, brain, self and evolution, like I specialize in maybe one, maybe two of those, but definitely not brain and evolution.

David: 47:34

And in my philosophy of law class, I always assign this book by the political philosopher Ronald Dworkin, called Taking Rights Seriously. And one of the interests of working, I think, aligns really well with the project that Barry Lam is presenting in this book. And that is that when individuals, Dworkin is primarily talking about judges, which Lam also talks about in a couple of chapters. When judges find themselves in a situation where following the law to the letter, like to the T would result in a fundamental injustice. Many of them want to avoid that injustice and so they have to make the law stretch. They have to make the law bend, and when it will not stretch and it will not bend, they sort of have to think outside of the law. And so the question that Dworkin poses in this book taking right seriously, is, does that mean that they're just completely subjective, that they're just making a decision with absolutely no banisters and it could go one way or the other. And Dworkin comes up with this conclusion that hinges on differentiating between the body and the spirit of the law. So there is the body of the law. There are all the laws in the book, and we know what they say, but sometimes you can appeal to extra legal principles that are the spirit of the law that are not reflected in any actual concrete piece of legislation or court case. And so you can come to the defend of the law by making at your discretion an appeal to these larger moral political principles such that to step outside of legal thinking and make a journey into extra legal thinking is not the same as arbitrariness.

Ellie: 49:20

I love that because it also speaks to me about the need for us to educate people who are gonna be in positions of power and also just like the average citizen as we were talking about with Barry, in order for them to be able to execute acts of discretion well, I think that's like something that I'm thinking about a lot. This is a short book. Barry doesn't really have time to get into it, and that's fine. You know the book is short, but I am left with a lot of questions about how we actually effectively train people as bureaucrats to have discretion. I think a lot of this has to come down to our education systems.

David: 49:54

And something that I was left wondering about also, just in thinking about the ending of the book, is the connection between discretion and discreteness. Because a lot of our worries about people exercising discretion, like police officers or judges or teachers, is that their decisions are happening behind closed doors, and we won't know the rationale behind them. And Barry doesn't quite talk about this and so I am wondering whether. To act in a discretionary fashion necessarily means that your reasoning is kept behind closed doors, or whether it also has to be publicized in order for your discretionary power to be justified. So you know there, it's not about whether or not you decide, but whether the motives for your decision are public information.

Ellie: 50:43

Yeah. Space of public and private reasoning. That's really interesting. I'll have to think more about that. I gotta go, sorry, I'm running behind on this recording. Thanks all. That's my rule. I'm enforcing.

David: 50:59

Add Ellie's pure discretion. Of course.

Ellie: 51:04

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David: 51:13

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Ellie: 51:28

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