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Incentive structures work, so you have to be very careful of what you incent people to do, because various incentive structures create all sorts of consequences that you can’t anticipate.

Not only may particular decisions made according to rules result in material injustice, but a rule may systematically discriminate against the poor and the oppressed. In such circumstances, to be committed to applying the rules, however fairly or impartially administered, come what may, is to ignore the more obvious and direct demands of justice and human welfare.

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We need to distinguish between incentives at the organizational level and at the individual level, though some of the problems in designing incentive structures are common to both. We need to ask how, for the kinds of activities the public sector engages in, the organization is rewarded for "success" or punished for lack of it, and how individuals are similarly rewarded and punished.

For, since it would be utterly in vain to suppose a rule set to the free actions of men, without annexing to it some enforcement of good and evil to determine his will, we must, wherever we suppose a law, suppose also some reward or punishment annexed to that law. It would be in vain for one intelligent being to set a rule to the actions of another, if he had it not in his power to reward the compliance with, and punish deviation from his rule, by some good and evil, that is not the natural product and consequence of the action itself. For that, being a natural convenience or inconvenience, would operate of itself, without a law. This, if I mistake not, is the true nature of all law, properly so called.

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A prison is perhaps the easiest place to see the power of bad incentives. And yet in many walks of life, we find otherwise normal men and women caught in the same trap and busily making the world much less good than it could be. Elected officials ignore long-term problems because they must pander to the short-term interests of voters. People working for insurance companies rely on technicalities to deny desperately ill patients the care they need. CEOs and investment bankers run extraordinary risks — both for their businesses and for the economy as a whole — because they reap the rewards of success without suffering the penalties of failure. District attorneys continue to prosecute people they know to be innocent because their careers depend on winning cases. Our government fights a war on drugs that creates the very problem of black-market profits and violence that it pretends to solve. We need systems that are wiser than we are. We need institutions and cultural norms that make us more honest and ethical than we tend to be. The project of building them is distinct from — and, in my view, even more important than — an individual’s refining his personal ethical code.

The law gives as well more financial and non-financial incentives, which targets the companies and institutions that support these enterprises. In addition, it adopts simplified bases for taxes imposed on these enterprises and develops mechanisms to put these incentives in action.

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces dominate depends largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. … The most fundamental social interest is that law shall be uniform and impartial. … Uniformity ceases to be a good when it becomes uniformity of oppression.

To produce the same result for different people, it is necessary to treat them differently. To give different people the same objective opportunities is not to give them the same subjective chance. It cannot be denied that the Rule of Law produces economic inequality — all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way.

Dear all, the rule of law is not something you can declare, decree even in the Constitution. It is an attribute of some form of social organization. The fundamental element in this type of organization is with the balance of power. If a certain social force enjoys a great superiority, it will always instrumentally dominate the law. It will always bring it under its own control. There is no other way. It is the balance that is needed.

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