Mashaw - 2014 - Accountability and Time PDF

Accountability and Time
Oxford Handbooks Online

Jerry L. Mashaw
The Oxford Handbook of Public Accountability
Edited by Mark Bovens, Robert E. Goodin, and Thomas Schillemans
Print Publication Date: May 2014

Subject: Political Science, Public Administration, Political Behavior
Online Publication Date: Aug 2014 DOI: 10.1093/oxfordhb/9780199641253.013.0031
Abstract and Keywords
This chapter puts the issue of time on the accountability studies agenda. It argues that
time is a crucial consideration in the design of accountable institutions. But it also claims
that while time adds to uncertainty, complexity, and normative ambiguity in decision-
making, time does not defeat accountability even in extreme cases such as accountability
for historic injustices and responsibility for intergenerational equity.
Keywords: Accountability, Time, Institutional Design, Intergenerational Equity
Adding the “when” Question

Our standard “grammar of governance” (Mashaw 2006) distinguishes accountability
regimes according to six features. Who is accountable? To whom are they accountable?
For what is accountability demanded? Assessed by what standards? Determined through
which processes? And, attended by what effects? To those six questions, we should add
another: When are the relevant actors be called to account?
Looking at current arrangements we know that there is a vast menu of options. In

electoral politics some systems use fixed durations in office. Others allow elections to be
called at the option of some office-holder—think parliamentary snap elections—or at the
option of some segment of the electorate. As we have had reason to experience several
times recently in the United States, many states, perhaps most of them, permit office-
holders to be subject to recall if a sufficient number of voters request a recall election
(Streb 2011). Fixed durations can vary across offices in order to trade off concerns about
maintaining representatives’ closeness to voters, current policy preferences against
citizens’ equally important background preferences for some stability in governing
coalitions and therefore government policies.
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The timing of accountability is often at the discretion of the overseer, the “to whom”
person or institution in a particular accountability regime. Legislatures may investigate
the performance of administrators whenever they feel the need (or perhaps merely the
desire) to do so. Legal accountability is fundamentally at the option of plaintiff or
prosecutor initiative in adversary systems, or judicial initiative in more inquisitorial
arrangements. As a parent I can oversee my children’s school performance episodically at
report card time, or I can check whether they are doing their homework and
understanding their lessons on a nightly basis. Some accountability systems are in
continuous (p. 575) operation like quality assurance systems in both the public and private
sectors. Others are highly episodic as when accountability to the people, or to someone
else, is based on the happenstance of journalistic investigation.
We need not pursue further examples of current practice to see that time is a crucial
design parameter that serves multiple purposes. One of these purposes is precisely to
protect against accountability overload and the disruption of ongoing decision processes.
Legislatures cannot function if their members must constantly stand for election.
Administrative agencies cannot do their job if they can be called into court to justify their
decisions before they are made final, or sometimes before they are applied. More
fundamentally, the timing of occasions for accountability is crucial for the preservation of
liberty and autonomy. Were we continuously accountable to others, individual moral
agency would be eliminated.
This is not to say that getting the time dimension right is easy. Accountability reinforces
effectiveness and efficiency but can undermine both of those things as well. The tradeoffs
are many. But this is only to say that designing institutions is an uncertain business. From
this perspective time is just a dimension of designing accountable and effective
governments or firms—or families, for that matter.
Time can enter into the design of accountability regimes in other ways as well. Writers
have been concerned that time, in the sense of “history,” may be ignored in accountability
analyses. Failure to consider the history of accountability successes and failures when
attempting to design or reform institutions is surely a mistake (Brandstrom, Bynander,
and Hart 2004). Time also figures into the analysis of accountability regimes when
considering the effects of path dependency on organizational designs and when
considering how to make accountability regimes durable over time (Pollitt 2008).
My concern in this chapter, however, is with a different dimension of the time problem,
one that causes particular problems for institutional design. How can or should
contemporary accountability regimes deal with time lags, that is, long separations
between decisions and their effects? This question emerges in two different forms. In the
first, current effects are seemingly attributable to historical actions or policies whose
authors have long passed from the scene. A prominent example is the longstanding
debate over reparations for the lingering effects of chattel slavery in the United States.
Slaves and slave owners, along with the policymakers who instituted and preserved this
institution and others who bore its benefits and burdens have long since past from the
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scene. Is it possible to craft acceptable current policies of repair when the benefits and
burdens of reparations as a remedial accountability device would necessarily affect
persons in the present?
A second lag problem concerns decisions made (or not made) and actions taken (or not
taken) today that are anticipated to affect events or situations that will occur sufficiently
far in the future that the responsible actors or deciders will not then be available to be
called to account. Policy decisions by governments sometimes turn out badly, but only
after the decision-makers have moved on. For contemporary Americans the Iraq War and
the deregulation of the banking sector spring immediately to mind. Governments may
make improvident expenditures and commitments that result much (p. 576) later in
unsustainable national indebtedness. The current malaise of the Eurozone is an example
fresh to the European mind. And the failure to recognize the dangers of CO2 emissions
over the past century, and current procrastination in doing anything decisive about it,
may well have catastrophic consequences in the next century—or perhaps this one. Long
lag times between decisions or actions and effects are a real problem, both for decision-
making itself and for making decision-makers accountable for their actions. Are these
problems for which institutional designers lack solutions?
Distinguishing Policy Mistakes from

Accountability Failures
In gauging just how serious lag times are in the design of accountability systems, we
should not confuse policy mistakes with accountability failures. There are available
mechanisms that can make current actors accountable for risky decisions. That decisions
turn out badly does not, without more, signal an accountability failure. Let us take the
financial collapse of 2008 in the US as an example.
Much ink has been spilled concerning the “real causes” of the 2008 financial meltdown
(Gorton 2010; Rajan 2010; Shiller 2008). Banking regulation had become too lax, thus
allowing banks to take risks that could have dire systemic consequences. The US Federal
Reserve System’s approach to monetary policy was too expansionist in the face of a
housing bubble. Rating agencies gave overly optimistic ratings to complex debt
instruments. The government’s promotion of home ownership through the quasi-private
entities that manage the secondary mortgage market caused lenders to ignore risks that
they should have considered. And so on.
To be sure, as a contrite administrator testifying before Congress once remarked,

mistakes were made. And some of those mistakes were made well over a decade before
the financial collapse to which they contributed. Nevertheless, it is far from obvious that
the lag time between decisions and effects raises an issue of accountability that should
trouble us. The political decisions concerning regulatory reform in the banking sector
were made within the usual accountability restraints applicable to legislation. And, at the
time, there were many reasons for thinking that those reforms reduced financial risks in
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the banking sector by permitting banks to diversify their investment portfolios. Similarly,
ratcheting down the requirements concerning mortgage risks necessary to access the
secondary mortgage market carried out a pro-home ownership policy approved by the
political branches of the national government. Collateralizing these loans was subject to
the usual constraints of marketability. If those collateralized debt obligations were
believed to be too risky, they could not be sold in the private market. But sold they were,
at substantial gains for Fanny Mae and Freddy Mac, the relevant secondary market
makers. The purchasers of many collateralized debt obligations certainly ended up
holding paper that was a lot riskier than they believed it to be, but the (p. 577) riskiness of
those ventures had been certified in the usual way by the accounting firms to which the
federal government has made various purchasers accountable. There may be an
accountability system flaw in this process, the conflict of interest created by having rating
agencies paid by the issuers of the paper that they are rating. But that flaw had nothing
to do with time lags.
Not to put too fine a point on it, all decisions made under conditions of uncertainty about
the future—which means virtually all decisions—have risks. But there are front- end
mechanisms to make current actors accountable for their current risky decisions. In the
financial crisis scenario, elected officials were electorally responsible for decisions
concerning deregulation of the banking sector. Market actors were responsible in the
usual way, through fear of loss or bankruptcy, for decisions to hold certain forms of debt
obligations. There has been much complaint that those who caused the crisis have not
been held accountable because some of them were bailed out by the government and few
have been criminally prosecuted. But we should recognize that the bailouts short-
circuited the market processes and, economic losses, including bankruptcy, that would
have, in the normal course, made the banks (and some non-bank institutions) accountable
for their risky decisions. A political decision was made that standard market
accountability should be forestalled in order to protect the financial system as a whole.
And while many citizens of the countries affected are understandably angry at the
bankers whose practices caused this mess, few bankers have been prosecuted because
few if any engaged in any criminal activity. Virtually no one anticipated the combination
of events that turned a bubble in the housing market—a market that is, after all, a small
portion of the total economy—into a global meltdown of the financial system. To be sure,
real estate and other bubbles have caused crashes before but, in the words of the title of
a book published soon after the crash, everyone thought “this time is different” (Reinhart
and Rogoff 2010).
Mistakes were made, but within the standard political and market accountability regimes.
Delayed effects posed no special accountability problems. Moreover, where there are
relatively well-known tendencies for policymakers to fail to anticipate the future, or to
over-weight the present, we often find accountability mechanisms that require sober
second looks at what the relevant actors are doing. The tendency of legislatures to spend
now in the hope of paying later—on someone else’s watch—often results in both
substantive and procedural constraints on incurring public debt. Virtually all states in the
United States, for example, have balanced budget requirements in their constitutions
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(National Conference of State Legislatures 2010). These do not always work as planned,
but they do limit future trouble by making legislatures legally accountable now for public
budget decisions. At the local level, again in the United States, one finds common
requirements that localities submit proposals for the issuance of municipal bonds to local
referenda. Hence, in many circumstances localities cannot acquire debt without the
immediate approval of the taxpayers whose taxes will retire it. Where risks are
unavoidable, but their incidence uncertain, we may demand that individuals or firms post
bonds or carry insurance so that any future harm from their current activities can be
compensated, at least monetarily.
We should remember that the absence of explicit governmental accountability

(p. 578)
regimes for protection against future harms does not necessarily indicate that no
alternative accountability regimes are in place. Indeed, markets and social accountability
regimes may be particularly good at both limiting future “bads” and incentivizing the
production of future “goods.” Lenders avoid bad credit risks; people with a reputation for
poor judgment are not given decision-making authority in firms, families, or other
organizations. On the other hand good track records tend to be rewarded with money,
power, and social esteem. There is a substantial literature on how these normative
systems substitute for and sometimes displace law and legal accountability (Ellickson
1991; McAdams 1995).
To put the points that I have just been making in another way, in many situations time,
the lag between decisions or actions and their ultimate effects, is not really the problem.
The problem is uncertainty. We have a limited capacity to forecast the future, even if the
future is tomorrow. Extended time periods simply exacerbate uncertainties because a
host of other contextual factors shift over time in ways that could not have been
anticipated. And, while we have mechanisms to hold actors or decision-makers
accountable by requiring sober second looks at risky decisions, we do not want to overdo
front-end accountability mechanisms to protect against the risks of all decisions and
actions having future consequences. Preventing all risky actions or judgments by
burdensome front-end accountability mechanisms—even if it were possible—would hardly
be desirable. Risks also have rewards.
Moreover, other values are at stake. Lots of parents seem to be pretty bad at providing
their offspring with the environment and guidance that promote future success in life.
And social constraints on “bad parenting” may be quite weak, particularly where cultural
and economic factors tend to reinforce unsuccessful parenting approaches. The human
costs of bad parenting are high. But, as a policy matter we tend to want to hold parents
accountable legally only for extremes of abuse or neglect. Routine accountability to
government “parenting coaches” might conceivably improve the lot of a substantial
number of children. But liberty and family privacy count for something.
We also know that something like 7 out of 10 new businesses will fail, and yet the
prospects for failure, at least as a statistical matter, do not seem to deter over-optimistic
entrepreneurs from trying to make a go of yet another pizza parlor or high tech startup.
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This involves a lot of wasted resources. But we hardly want to try to license every pursuit
(although I sometimes think we are getting close) in order to make sure that
entrepreneurs know what they are doing, have the requisite skills to make their
businesses a success, and have the financial wherewithal to make it through an almost
inevitable slow start. Such a licensing scheme is a sure-fire recipe for economic
stagnation. Knowing that, we leave accountability for business success largely to the
market, even though a market accountability system that produces only 30 percent
successes and 70 percent failures seems to do a reasonably bad job of informing
entrepreneurial judgment.
To summarize, time, with its attendant uncertainties, is a problem. Long lag times
between decisions or actions and consequences exacerbate risk and uncertainty. But we
should not take that to mean that there are no ex ante constraints or accountability
(p. 579) mechanisms that make actors consider the future. Mistakes are not necessarily
accountability failures and much success is due to luck, not to the fact that actors knew
that they could be held accountable for the risks their actions or decisions posed for the
future. Neither failures nor good outcomes in the future are necessarily the result of
accountability system successes or failures in the present. Second, society has other
values besides ensuring that people are accountable. Liberty, privacy, and economic
welfare may demand loose accountability controls. We should be prepared to find an
accountability deficit only when a different accountability regime would produce better
results without too high a tradeoff in relation to other social values.
So where is the deep problem of accountability and time—if there is one? If there are
such problems it seems to me that they tend to combine long lag times with major
uncertainties about how to answer one or more of my original six questions about the
construction of an accountability regime. To test this intuition let’s consider a couple of
rather hard cases—reparations for past injustices and the problem of intergenerational
equity. As we shall see, accountability of the present to the past raises rather different
and les tractable issues than accountability in the present for potential future effects.
Reparations for Enslavement

Accountability for the historical injustice of slavery through reparations paid to the
descendants of slaves has been debated in the United States and elsewhere for many
decades. Arguments for reparations have been made by some Caribbean countries as well
and African countries which were the countries of origin for the slave trade have asked
for reparations to them for loss of population (Brennan and Packer 2012; Howard-
Hassmann 2008). In 1865 who should be accountable to whom and with what effects
seemed relatively straightforward to General William Tecumseh Sherman. Having military
authority over a portion of the occupied South, Sherman used the property of former
slave owners to settle nearly 40,000 slaves on 400,000 acres of tillable land. Around the
same time, Congress created the Freedman’s Bureau and authorized it to rent and
eventually sell land to freedmen. But when Andrew Johnson assumed the presidency after
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Lincoln’s assassination, he reversed Sherman’s order and similar actions by the

Freedman’s Bureau, thereby undermining two Acts of Congress. Congress failed to
address the issue of reparations for the rest of Reconstruction (Foner 1988).
The passage of time seems to have made all these questions increasingly complicated.
For General Sherman, who should be accountable was relatively straightforward: the
slave holders who had benefitted directly from slave labor. But the slave holders are now
gone and their descendants, including some ex-slaves, long since dispersed. Other
candidates abound. The United States government is one. The US House of
Representatives did pass a resolution apologizing for slavery and subsequent
discriminatory laws on July 30, 2008, but proposals for reparations have never made any
substantial headway. There is also much controversy about where the obligation should
lie. Should it be only the (p. 580) responsibility of former slave- holding states or of the
whole country? Slavery existed for a time in the North as well as the South and northern
merchants were heavily involved in the slave trade itself.
The plot thickens. Prior to the formation of the United States of America, slavery was
permitted because of the legal regimes enforced by the colonial powers, Spain, France,
and the United Kingdom. Merchants in all those countries, as well as others, were heavily
involved in the slave trade. Moreover, the slave traders received their cargoes from
Africans as well as Europeans. And, to complicate matters further, none of the European
or African countries implicated in this slave trade have retained the forms of government
that existed in the late eighteenth century.
Private companies are also a potential target. Publicity campaigns have elicited apologies
for involvement in the slave trade from companies like Aetna Insurance, J.P. Morgan
Chase, and Wachovia. But suits for reparations against private companies have
foundered. In 2006 Judge Richard Posner, in an opinion for the United States Court of
Appeals for the Seventh Circuit, outlined the high legal hurdles that such a lawsuit would
have to clear:
If one or more of the defendants violated the state law by transporting slaves in
1850, and the plaintiffs can establish standing to sue, prove the violation despite
its antiquity, establish that the law was intended to provide a remedy...to lawfully
enslaved persons or their descendants, identify their ancestors, quantify the
damages incurred, and persuade the Court to toll the statute of limitations, there
would no further obstacle to the grant of relief.
(Posner 2006, 759).
To state these criteria is essentially to deny the possibility of a successful lawsuit.
The ease with which General Sherman issued his reparations order compared with the
difficulties of legal accountability, and the long unsuccessful pursuit of reparations from
legislatures, highlight the importance of the process through which accountability is to be
established. The legislative process seems to be the only available approach. And even
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that would seem under-inclusive if foreign governments and enterprises should bear
some responsibilities. No international court has jurisdiction over all or even most of the
relevant potential defendants.
But these complications concerning processes and potential collective defendants pale
beside the more fundamental questions raised by the passage of time. Holding the United
States responsible means holding current taxpayers responsible. And, while it may be
true that the wealth of the United States has been enhanced by the exploitation of black
slave labor (Horton and Horton 2005), not all Americans have shared equally in that
wealth. Taxpayers would share the burden of reparations in proportion to their tax
liabilities, not in proportion to their benefits from slavery in the past. Indeed, the
descendants of white abolitionists and soldiers in the Union Army seem odd persons to
hold accountable for the effects of an institution that their ancestors sacrificed
themselves to abolish. The “to whom” question is similarly complicated. General
reparations whether in money or in time would be over-inclusive. Large proportions of
the current African-American population are not the descendants of slaves, and in some
cases it (p. 581) would seem quite unjust, as in the case of the descendants of free blacks
who owned slaves themselves. Yet a more targeted approach is confounded by the
obvious difficulties—perhaps “impossibility” is closer to the mark—of tracing ancestry.
Finally, time complicates the question of under what standard one should judge past
conduct. Slavery was, after all, not illegal in the United States prior to the 13th
Amendment to the US Constitution, which was ratified in 1865. And, the Jim Crow laws
passed in the South following Reconstruction, which for many years disadvantaged freed
slaves and their descendants, were not repealed or declared unconstitutional until much
later. The standard for reparations would have to be a moral one, not one based in
violation of law. And, while many believed slavery immoral even when legal, many did not.
A consensus on the immorality of slavery can perhaps only be established at the time that
the legal institutions were changed. But, if the moral fault begins when slavery was
abolished, then the claim for reparations must be based on failures to compensate and
repair in the subsequent period. Which means that the claim for reparations would be
based in some sense on the failure to make reparations. This is not a morally incoherent
position, but over time it raises the same conundrum concerning who is accountable to
whom as slavery itself.
In the reparations case it seems clear that passage of time raises a host of questions,
questions so fundamental that they implicate the broader issue of whether accountability
in this form can be justified at all. Yet, I hasten to add that the legal, moral, and practical
difficulties with establishing a reparations regime as the accountability mechanisms for
the historical injustice of chattel slavery does not mean that all forms of accountability
are absent.
Notice that various federal, state, and private institutions have apologized for their
historic role in United States slavery. Who is accountable is being determined by political,
social, and market forces that cause various institutions at various times to accept
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responsibility for the past. The processes through which these acceptances are made are
the usual processes of public and corporate governance. To whom these accountable
parties are apologizing is also determined by a process of self-selection. The groups that
have formed to demand reparations, in-kind benefits, and the acceptance of
responsibility, are the agents for a much broader class of persons who self-identify as the
persons to whom these apologies have been directed.
Moreover, one can easily argue that a number of public and private policies to end
discrimination and to engage in affirmative action to assist those disadvantaged by the
history of slavery result from a similar political and social accountability regime. And
because these institutional actions are tied to conventional public and private governance
structures, the “voluntary” actions to apologize and to seek to compensate for
disadvantage represent a broader acceptance of responsibility by the constituencies that
control these institutional actors through yet another set of accountability arrangements.
To be sure this is an accountability system or regime that is loose-jointed, disaggregated,

and indirect. Time has made answering the basic questions about how a reparations
accountability regime should be structured much more difficult. But, asking those (p. 582)
questions reveals that if one shifts the answer to the question of “with what effects?” to
include apologies, non-discrimination requirements, and affirmative action, some forms of
accountability re-emerge.
Where reparations are concerned, an important opportunity was lost when President
Johnson revoked General Sherman’s military order and Congress was unable to act. Time
has made seizing that opportunity ever more problematic. Time has not eliminated all
accountability for slavery’s historic injustice, but it has radically reshaped its focus.
Intergenerational Equity and Accountability

Accountability for the future poses a somewhat different set of issues. At a superficial
level we know that the question of how a later generation could hold a former one
accountable for the mix of consumption and savings that it chose is unanswerable. When
we employ “generation” in this way we mean to reference populations that do not share
political or economic power, or perhaps inhabit the earth, at the same time. If a later
generation finds that its prospects have been diminished by a prior generation’s resource
use (consumption) that prior generation is beyond reach. If the who is accountable to
whom questions concern a former generation’s accountability to a later, the game seems
to be up. Time gets in the way.
On the other hand we have already seen that certain ex ante techniques of accountability
can enforce norms of conduct that limit future risks to acceptable levels. Perhaps if we
could agree on an acceptable norm concerning intergenerational equity, then we could
translate the problem of accountability into a question of how to structure an
accountability regime for the present generation that tends to implement that norm by
appropriate processes, standards, incentives, and sanctions. The present generation
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would be accountable to itself for making good on its normative commitments. And every
subsequent generation could do the same, even if it agreed on different norms of
intergenerational equity.
It is obvious from ordinary public conversation that people do care about these matters
and have beliefs about the current generation’s obligation to its successors. There is at
least some inchoate theory of intergenerational equity in commonplace complaints that
current generations are beggaring future generations by overspending, or exhausting the
Earth’s resources and polluting its atmosphere so that future generations have lesser life
chances—or perhaps no life at all. Indeed, in recent years environmental equity has been
a major focus for debates about intergenerational equity (Gundling 1990; Westra 2006).
Moreover, it is widely recognized that this problem is a deep-seated one. Our all-too-
human tendency to privilege the present over the future is one of the most (p. 583) robust
findings of the behavioral social sciences (Kahneman 2011). And here the findings are
about whether people tend to discount their own futures excessively, much less the
futures of some as yet unborn generations. This tendency surely suggests that we need
some social norm to counter this so-called cognitive bias and some accountability
mechanisms to reinforce those normative commitments.
Under the scheme I am imagining it is up to each generation to decide what those

normative commitments might be. Our concern is with what sort of accountability regime
might make present generations accountable for acting on their normative commitments.
But we need to specify some norm in order to see where the difficulties in constructing
such a regime might lie.
To be sure, at a philosophical level, intergenerational equity is a difficult problem. For

present purposes I am going to assume that we cannot do much better than some variant
of the old Lockiean proviso concerning property (Locke 1988; Nozick 1974). We are
morally entitled to make use of property (here think the resources of the Earth) to the
extent that as much and as good is left for others. Translated into intergenerational
terms, the present generation is entitled to use the resources of the Earth to carry out its
life plans just to the extent that resources remain available to the next or following
generations to carry out theirs.
Rawls’s (1971) famous maximin principle would seem to lead down a similar path. If one
agrees with Rawls’s approach, a hypothetical contract across generations would specify
that resources could be used by a present generation so long as that use of resources
maximized the position of the least advantaged in that society—and also the least
advantaged persons in subsequent generations as well.
Utilitarianism might lead to a different approach: Current generations might be obliged

to forego resource use that would increase that generation’s happiness provided that the
next generation’s happiness would be increased by an amount that exceeded the current
generation’s loss. But it is not clear why one generation’s happiness should be more
important than another’s. Nor is it clear why one generation’s capacity for happiness
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should exceed another’s. Hence, utilitarian commitments could lead to similar results as
the Lockean or Rawlsian approach. And non-individualistic normative systems that tend
to collapse generations into a “people” or “mankind” across time recognize these
obligations to the future almost as a matter of course (Bickham 1981).
But we can leave these theory questions aside. The issue is how to translate any of these
general norms into rules of conduct that would actually implement the norm. So, assume
for present purposes that we adopt the Lockean proviso. How are we to make the current
generation accountable for living up to this normative commitment? Can political,
market, and/or social accountability mechanisms be put in place that will likely be
effective? Perhaps, but the difficulties are immense because time exacerbates
uncertainties.
Consider just two of the unknowns concerning the future—the rate of technological
change and population growth (Solow 1974). We might assume that natural resources are
finite, but that does not mean that we know either what the finite quantity is today or
what natural resources will be important for the production of human well-being (p. 584)
in the future. Technological change can easily alter both. A decade ago, for example, we
tended to think that our access to carbon-based energy was reliably quantifiable in terms
of known reserves, and was diminishing fairly rapidly given then current rates of use.
New processes of extraction have altered this picture dramatically. Further technological
innovations, such as deep sea bed mining, may alter the picture yet again. A decade ago
we seemed to be violating the principle of leaving as much and as good for following
generations. But given unanticipated technological advances, with further yet unknown
advances perhaps in the offing, conserving carbon-based energy resources may be
entirely unnecessary to carry out our obligation to leave as much and as good resources
for future generations.
And, of course, “resources” is a vague term whose operational meaning may change with
time as well. “Carbon-based energy resources” may seem well-specified, but the real
question for human well-being is access to energy that is usable in producing goods and
services. Given future technological advances, carbon-based energy may turn out to be a
passing energy phase, like the almost exclusive reliance on the power of animals, wind,
and water by earlier generations. Nuclear energy is having something of a renaissance
and the whole energy equation would be transformed by an ability to harness fusion
power. Who is to say that geo-thermal energy is not the wave of the future or indeed that
wind and water might not make a comeback. What technology is going to be available is
not a difficult question if we are talking about the day after tomorrow. If we’re talking
about the generation after the next, time introduces radical uncertainty. In order to
assure that the least advantaged in each generation might have the same advantage as
those in the preceding or following ones, technological advance might demand rapid
consumption of current resources even if they are thought finite at the moment.
Otherwise the current generation will be short-changed.
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The rate of population increase or decrease may also confound our expectations. If
populations are static, the present generation needs to pass on resources equivalent to
those that it inherited—assuming it can determine what that means. In the face of a
growing population, equally advantaging future generations would mean providing them
with greater resources than were available to the present one. And, of course, just the
opposite would be true if populations shrink. We may believe that overall population
growth is a virtual certainty, but the long history of the Earth provides no assurance that
that is the case. To make the current generation accountable for implementing its
normative commitments to the next we need a standard that can be operationalized in the
face of unbridgeable gaps in our knowledge about the state of the world in the future.
Uncertainty is not the only issue plaguing intergenerational accountability. Up to now I’ve
treated the question of who the current generation is as essentially non-problematic. But
a “generation” is just an abstraction—a way of describing those who are in control or
alive on the planet, or some part of it, at a particular time. That abstraction cannot be
held accountable even though we might have described it as having obligations or
normative commitments.
So who is the “who,” that is, the persons or institutions to be held to account for carrying
out one generation’s responsibilities to future ones? To be responsible for, and (p. 585)
therefore properly to be held accountable for, the implementation of a norm, persons or
institutions must have a capacity to act or refrain from acting in ways that would tend to
produce that result (Copp 1991). But we are speaking globally here about the
responsibility of current inhabitants of the planet to future ones. And there is no world
government that can be made responsible, and hence accountable, for implementation.
If we think of the accountability problem as one entailing extant governmental structures

we must redefine generations to be generations of Americans or Nigerians or Chinese.
But, if so, those governments can be made accountable for acting on the desires or
normative commitments of their populations concerning intergenerational equity in the
same ways that they are made accountable for other policy choices. The problem of time
and uncertainty in intergenerational equity poses daunting problems of prediction, but if
those could be solved, existing and well-understood accountability regimes seem as
serviceable here as elsewhere.
The problem, of course, is that national governments, acting alone, do not have the
capacity to fully implement citizens’ normative commitments. The world is too
interconnected. Resources are found here that are consumed or used there and the
utilization of resources by those not within a particular national government’s control
makes it impossible for any government to reliably enact and implement an
intergenerational equity program. What future populations of Americans, Nigerians, or
Chinese have by way of resources to carry out their life plans is too dependent upon the
actions of others for their national governments to be sensibly charged with the
responsibility of carrying out their citizens’ desires concerning intergenerational equity.
In order to make the “who” problem tractable, we really need to redefine the “what.” We
Page 12 of 16

have to think of national governments not as responsible for intergenerational equity in

the sense of fully implementing their citizens’ desires in that regard, but instead as
responsible for attending to the issue and attempting to manage the problem as best they
can in the face of both daunting uncertainties and limited control over the relevant actors
who ultimately determine outcomes.
This is hardly the place to attempt to catalogue the various means available to the
national government for implementing a commitment to intergenerational equity. But it is
worth noting that many such efforts are already underway. States participate in
international organizations that have recognized and promoted intergenerational justice,
particularly with regard to environmental resources. The interests of future generations
are recognized in statutes and constitutions. Some countries have instituted particular
offices, ombudsmen, or parliamentary commissions, which have specific auditing and
consultative functions designed to bring to bear the interests of future generations in
both parliamentary and administrative decision-making. Some courts have recognized the
standing of existing parties to represent the interests of future generations and numerous
environmental agencies have respect for the interests of future generations as a part of
their statutory mandates. In short, there is an array of techniques for instantiating
concern for intergenerational equity in state legislative, judicial, and administrative
processes and in their participation in international affairs (Gopel 2011; Science and
Environmental Health Network 2008).
(p. 586) The problem of time is not a problem that defeats current accountability for
attending to intergenerational equity. Governments are already accountable in myriad
ways for implementing the preferences of their populaces. There may be accountability
deficits in the rough and ready way in which all citizen preferences are factored into the
responsibilities of a particular government. But, if those preferences include a concern
for equity across generations, then governments are already responsible and accountable
for intergenerational equity through standard political processes. If governments are not
attending to this issue, or attending to it as effectively as they might, the deficit may lie in
the preferences or normative commitments of the citizenry. We can make ourselves
accountable to future generations by making our governments accountable to us for
attending to that issue in as effective ways as they or we can devise. The problem of
accountability over time is soluble even here, at least to a degree, but we have to want to
solve it.
Conclusion
Time is both an ubiquitous feature of accountability regimes and a troublesome problem
in their construction. Long lag times between actions and effects can problematize
virtually all the who, whom, what, and how standards, and effect issues that help us
characterize and analyze accountability regimes. Inquiry into time’s hard questions, like
reparations for historic harms and responsibility for intergenerational equity, also
illuminates the fundamentally normative nature of accountability discourse. Designing
Page 13 of 16

accountable political, social, or economic institutions is much more than a technocratic

enterprise.
This chapter has focused on time as duration, on lags between decisions and effects and
lags between actions and accountability demands. From this perspective time is a
confounding contextual factor in designing accountability regimes and in assessing the
normative appropriateness of demanding accountability at all. Time as periodicity, the
setting of appropriate temporal occasions for accountability demands, was mentioned
only in passing. But this aspect of accountability and time obviously requires much
greater exploration before an even minimally adequate account can be given. And
struggles over the need for and desirability of various accountability regimes may in some
sense be disputes about the appropriate time horizon within which actions or decisions
should be judged. Economically oriented actors may be functioning in what Ruggie (1998)
has termed “incremental time,” characterized by relatively predictable discrete actions
and events, whereas environmental activists may be thinking in terms of “conjunctural”
or even “epochal” time, where uncertainty reigns. Accountability and time are both deep
subjects. The agenda for further reflection is large.
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Pennsylvania Press.
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Jerry L. Mashaw
Jerry L. Mashaw is Sterling Professor of Law and Management at Yale University.
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Accountability and Time

Oxford Handbooks Online

Print Publication Date: May 2014

Abstract and Keywords

Keywords: Accountability, Time, Institutional Design, Intergenerational Equity

Adding the “when” Question

Looking at current arrangements we know that there is a vast menu of options. In

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Distinguishing Policy Mistakes from

To be sure, as a contrite administrator testifying before Congress once remarked,

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Subscriber: Goldsmiths College, University of London; date: 03 February 2019

We should remember that the absence of explicit governmental accountability

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Reparations for Enslavement

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Lincoln’s assassination, he reversed Sherman’s order and similar actions by the

(Posner 2006, 759).

To state these criteria is essentially to deny the possibility of a successful lawsuit.

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

To be sure this is an accountability system or regime that is loose-jointed, disaggregated,

Intergenerational Equity and Accountability

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Under the scheme I am imagining it is up to each generation to decide what those

To be sure, at a philosophical level, intergenerational equity is a difficult problem. For

Utilitarianism might lead to a different approach: Current generations might be obliged

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

If we think of the accountability problem as one entailing extant governmental structures

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

have to think of national governments not as responsible for intergenerational equity in

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

accountable political, social, or economic institutions is much more than a technocratic

Foner, E. 1988. Reconstruction: America’s Unfinished Revolution, 1863-1877. New York:

Gundling, L. 1990. “Our Responsibility to Future Generations.” American Journal of

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Howard-Hassmann, R. E. 2008. Reparations to Africa. Philadelphia: University of

Locke, J. 1988. Second Treatise of Government. Cambridge: Cambridge University Press.

Mashaw, J. L. 2006. Accountability in Institutional Design: Some Thoughts on the

McAdams, R. H. 1995. “Cooperation and Conflict: The Economics of Group Status

National Conference of State Legislatures. 2010. State Balanced Budget Provisions.

Posner, R. A. 2006. In re African-American Slave Descendants’ Litigation. 471 F.3d 754

Rawls, J. 1971. A Theory of Justice. Cambridge: Harvard University Press.

Reinhart, C. M. and Rogoff, K. S. 2010. This Time is Different: Eight Centuries of

Ruggie, J. G. 1998. Constructing the World Polity: Essays on International

Solow, R. M. 1974. “Intergenerational Equity and Exhaustible Resources.” Review of

Streb, M. J. 2011. Rethinking American Electoral Democracy. New York: Routledge.

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

Jerry L. Mashaw is Sterling Professor of Law and Management at Yale University.

Subscriber: Goldsmiths College, University of London; date: 03 February 2019

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