an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
When I’m upset about the minor annoyances of life, I sometimes find it helpful to think of the price I’d charge for enduring the annoyance. For example, when my wallet was stolen, I wondered how many dollars would someone have had to pay me to consent to the taking. This thought experiment is comforting because the amount is usually much less than the daily fluctuation in my stock portfolio. Why should I be so bent out of shape for something that “all in” has a frustration cost of X, when I routinely endure a portfolio loss of 2X or 3X without wrinkling a brow?
But Orlando Magic coach Stan Van Gundy has an even better “Why Not?” idea about monetizing frustration. After one of his players, Matt Barnes, was fined $20,000 for throwing a basketball into the stands, Van Gundy joked:
Barnes should consider throwing cash into the stands instead of a ball next time.
“That’s basically what he did,” the coach said. “At least if you did that, it’d be the same amount of money, and you’d be very popular. If he threw $20,000 in cash, he’d be very popular.”
Actually throwing money into the stands might cause a riot. But you could imagine a team keeping some cash on hand at courtside to let players, who were about to commit a finable offense, bypass the NBA middleman and give the fine directly to some designated recipient. Instead of throwing a ball into the stands, Barnes could have ceremonially and publicly deposited cash into a courtside forfeiture drawer — with the money going to charity or to rebate part of the ticket prices.
Publicly forfeiting money is a pretty credible way to signal that you are upset about a blown call. It is not cheap talk. Forfeiting money to fans or a charity that players like makes the talk a bit cheaper because players might get some value from making such a donation. But then again, the current NBA fines suffer from a similar problem:
The NBA and National Basketball Players Association (NBPA), per the league’s collective bargaining agreement, equally split fines paid by players, then donate the respective shares to the charities of their choice.
Rasheed Wallace or Mark Cuban may be less deterred in criticizing the refs if they think the ensuing fine will ultimately go to a worthy charity. If Wallace plans to give a bunch to charity anyway, he can just reduce his non-fine giving so that the fine won’t have much of an effect. The NBA wisely chose to “not specify which charities benefit from the league’s donations.” It’s harder to rationalize that your fine is going to a good charity that you support if you don’t know the beneficiary of your fine.
The commitment website I cofounded, stickk.com, takes a similar approach. Users who put money at risk to keep a commitment have the option of designating a specific charity or anti-charity. But we also give them the option of forfeiting money (if they fail to stickK to their goal) to a more ambiguous “charity” option — where we, like the NBA, choose not to specify the recipients clearly. When you’re trying to deter particular behaviors, sometimes it is better to make it harder to put a price on the frustration.