Friday, March 27, 2009

When market realities are out in the open

Here is what US Treasury Secretary Timothy Geithner said on Thursday March 26th about the US economy as it gestated the great financial crash of 2008:

"The system proved too unstable and fragile, subject to significant crises every few years, periodic booms in real estate markets and in credit, followed by busts and contraction. Innovation and complexity overwhelmed the checks and balances in the system. Compensation practices rewarded short-term profits over long-term return. We saw huge gains in increased access to credit for large parts of the American economy, but those gains were overshadowed by pervasive failures in consumer protection, leaving many Americans with obligations they did not understand and could not sustain. The huge apparent returns to financial activity attracted fraud on a dramatic scale. Large amounts of leverage and risk were created both within and outside the regulated part of the financial system. These failures have caused a great loss of confidence in the basic fabric of our financial system, a system that over time has been a tremendous asset for the American economy."

This is an indictment of an economic system, not praise for a relentless free market profit-taking.

Friday, March 20, 2009

Requim for Wall Street - where the past meets today


by Percy Bysshe Shelley

I met a traveler from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shattered visage lies, whose frown,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them, and the heart that fed;
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look upon my works, ye Mighty, and despair!”
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare
The lone and level sands stretch far away.

Is there an Agency Problem?

I want to call to your attention, as we turn from crisis management to building more viable global institutions of financial intermediation, a sophisticated cynicism that opposes more resolute commitment to business ethics and corporate social responsibility.

I am not referring to the common mistrust of private enterprise on the grounds that working for personal profit is inconsistent with securing a greater good for society. This is the perennial tension posed by philosophers and religious leaders between the claims of virtue and the attractions of self-interest. Rather, I am referring to a more academically polished elaboration of that argument which is called “the agency problem.”

Briefly put, the “agency problem” is said to be an inherent dysfunction in all principal/agent relationships, a dysfunction so powerful that such relationships can never fully achieve their stated objectives.

The “agency problem” exists on the agent side of the relationship: agents can’t be trusted to be diligent or faithful. They are always out for themselves and are constitutionally unable to put loyalty and service to their principals above their self-interest.

Thus, any business structure that relies on agency will always be a substantial risk to a principal, putting principals on their guard and forcing them to use tactics of fear and greed to keep their agents responsible.

The problem with this approach, however, is that the remedy feeds the disease.

Using self-interest to overcome self-interest has its limitations.

As long as we believe that the “agency problem” exists and is insurmountable, we have placed before us a conceptual roadblock to corporate social responsibility. Business is no more than a complex network of principal/agent relationships. Owners of corporations are principals to the boards of directors who manage them; senior company officers are agents of the boards and the companies; all employees are agents of their employers; banks, insurance agents, accountants, investment managers, lawyers are all agents to some degree for others. If the “agency problem” exists, then every relationship in this network is infected with the risks of negligence and betrayal. Social Darwinism or dog-eat-dog would seem to be the only rational approach to a life in business. It would be foolish or worse to expect such an environment to ever promote responsibility to the common good.

Advocates of corporate social responsibility must presume something other that the “agency problem” as an immutable fact of business life. Corporate social responsibility, corporate philanthropy, corporate citizenship, all ask of business and business decision-makers a showing of responsibility to others. Usually the responsibility of business is stated as having respect for the interests of stakeholders: customers, employees, owners, creditors, suppliers, competitors, and communities, including the environment.

The problem of faithless agents

If we want a more moral capitalism, we have to solve the “agency problem” or, at a minimum contain its virulence. Modern capitalism generates wealth through specialization of function and division of labor. This fact was Adam Smith’s great insight into the origin of the ‘wealth of nations” as he called it. But, as labor is more and more specialized, each component sub-unit of the economic system becomes more and more dependent on all the other parts. In today’s world of high technology, dependency on specialized machines and the skills of professional experts is higher than ever in human history. Our modern world is also completely subservient to reliable flows of electricity.

The Turkish Airlines plane that recently crashed short of the runway at Schiphol Airport outside of Amsterdam did so because its altimeter was faulty. Nine people died as a consequence of the pilots’ relying on a mechanical device for guidance in landing.

If the “agency problem” is all powerful and all pervasive, then modern capitalism is constant at risk of failure because the dependency relationships that flow from specialization are prone to abuse on the part of those who dishonor the reliance and trust placed on their competence and their integrity.

A market place of lying sellers and conniving buyers will never grow very prosperous. When faith and trust evaporate, so does capitalist wealth. The current meltdown of global financial markets is a good case in point.

But, the seriousness of the “agency problem” has been overstated. If it were truly dominant in the business world, modern capitalism with all its relationships of interdependency and mutual benefits would not have emerged to produce the wealth that we enjoy today – even in these months of a serious global recession. Thus, we can infer that there are some countervailing forces that nibble away at the “agency problem”.

What can we do about faithless or negligent agents?

The problem is not a new one. In the Judeo-Christian tradition, the prophet Samuel warned the leaders of tribes of Israel not to put their faith in kings, for, as he predicted, kings would turn against their trust and abuse power for their own selfish advantage. Later, Jesus stated that one could not serve both God and Mammon.

The Common Law of England over the centuries fashioned many legal responses to minimize the effects of the “agency problem”. These rules and practices constitute what is called the law of fiduciary duties. Also, the English courts of Equity contributed to fiduciary law with their own set of procedures and requirements designed to remedy abuse of legal power and prevent fraud and oppression in the marketplace.

The basic device used by the Common Law to minimize the effects of the “agency problem” was to define what was expected from agents as duties to their principals and give principals specific remedies for breach of those duties. This was a practical approach that sought to structure incentives so that agents would be more inclined to stick to the punctilio of their responsibilities and principals would be induced to assume the risk of trusting agents. Other words used in the Common Law to resolve the agency problem were fiduciary, trust, and beneficiary of the fiduciary trust. The fiduciary or the keeper of the trust was, in effect, the agent and the beneficiary was, in effect, the principal.

First, the agent was burdened with duties of loyalty and due care. When the self-interest of the agent was suspected of causing harm to the principal, the burden of proving loyalty was placed on the agent. The agent had the burden of coming forward with sufficient evidence to prove his or her loyalty. With respect to negligence on the part of the agent, the principal had the burden of proof but could hold the agent accountable when an objective standard of care had not been observed in management of the business consigned to the agent.

The Common Law thus turned the relationship of principal/agent into a status for the agent. Agency was an office; so was being a partner, a trustee, a corporate director, etc. With office came specific responsibilities. Failure of performance was transformed from a difference of opinion between agent and principal into a notorious setting of public expectations. The behavioral theory used by the Common Law judges appears to be a conviction that when we are made accountable in public, our pride tends to keep us more scrupulous and diligent than when we can act in secret. Principals could deny their own liability for acts of the agent when the agent had acted contrary to the terms of the trust, leaving the agent exposed to face the consequences.

Exposure and transparency were devices used to reduce agency problems.

Second, in its courts of Equity, English jurisprudence fashioned a number of rules that principals and beneficiaries could use. They could seek an accounting of monies had and received, with the burden on the agent to account for every penny received; principals could ask for the imposition of a constructive trust on money and property in the agent’s possession and name when fraud and abuse had occurred; agents had to have acted with clean hands if they sought to recover from principals on their agency contracts; agents could be prevented (estopped) from entering claims and evidence in their favor if they had acted inequitably.

Use of self interest

A second basket of remedial responses to the “agency problem” lies in self-interest. It is in one’s best interest to avoid faithless agents. Over time, therefore, faithless agents will not find employment as their reputation for negligence or disloyalty becomes generally known. This is why reference checks are so frequently relied upon. Generally, market based solutions to the “agency problem” rely on this mechanism of self-help. But it can be of limited utility where agents or those upon whom we rely for professional expertise have market power or are polished performers adept in the arts of lulling our suspicions with their smoke and mirrors – like Bernie Madoff to his investors.

Use of character

The third approach to minimizing the “agency problem” is to promote good character, the habits of living up to the virtues of trustworthiness, integrity, diligence, transparency and reliability. This agenda for securing better prospects for corporate social responsibility and business ethics – for avoiding asset bubbles and financial bubbles – and for putting in place the cultural foundation for specialization of function and division of labor operates at the level of the individual.

We must engage individuals to act as we would want if we want responsible and faithful agents. Such socialization, obviously, begins in the family, continues in school, and is finished in conditions of social engagement. We are concerned for the “presentation of self” in everyday life and Irving Goffman wrote about our dysfunctions in organizational settings. We want a good self to be presented, not a greedy, abusive, stupid or negligent one.

Having good character is one reliable ground for good stewardship behaviors. The moral sense within us is a public good in that it promotes trust in our communities and reliance on our business performance. Trust and reliance form the substructure of successful modern capitalism.

That human persons possess a moral sense that distinguishes them from beasts and other earthly creatures is increasingly a postulate of evolutionary studies, neuro-science, and brain research.

Thus, we must not presume that the “agency problem” is intractable and a permanent obstacle to responsible business decision-making. Rather, we should assume in us all an inherent capacity for reliable agency performance.

Set the bar high and we will tend to jump higher; set it low and we will slack off and get away with poor performance.