Archive for the ‘law and society’ Category
It is common for affirmative action critics to sue colleges over race based admissions policies. Here’s my question: How often do critics sue colleges over legacy admissions (i.e., giving preference to alumni children)? I think the answer is “not much.” The lack of concern over legacy admissions suggests that critics don’t really object to the absence of color blind standards. Spending so much money on court fights aimed at under privileged students while ignoring the student who slides by on family connections leaves a very bad taste in one’s mouth.
There’s a bunch of legal theories that assert that a statute, regulation, or constitution should be strictly interpreted in terms of the author’s intention or the common sense meaning of the words as they were used at the time of the writing of the text. I get it. We should figure out what the law actually means, not what we want it to mean. And for a lot of everyday law, I can buy it.
But still, theories of intent and meaning leave me scratching my head. For example:
- What if the legislators don’t know the meaning of the law? For example, when big laws are passed, like the Patriot Act or the Affordable Care Act, the text is literally thousands of pages. A lot of folks literally don’t know what they are voting for. What is the “intent” of the law?
- What if the legislators didn’t write the law? A lot of legislators rely aides and others to actually write the text. Does interpretation of the law rest on what some clerk thinks?
- If multiple people authored the law, whose meaning or intent takes precedence?
- What if the law uses really vague words? For example, people argue over “cruel and unusual” punishment. Even back in the day, people must have had differences in opinion. Do you have to somehow go back in time and take a survey to figure out what the average American in 1789 thought was cruel and unusual?
- What if the original meaning or intent of the law was muddled to start with? Is there an assumption that legislators have a sort of papal infallibility that ensures a clear “intent” that we must discover?
Via Colorlines, a new study from the Duke econ department. In a sample of 700 Florida non-capital felony cases, the racial composition of the jury had a big effect on conviction rates. The finding? An all-white jury convicts a black defendant 81% of the time. White defendants are convicted about 66% of the time. The results remain when you toss in control variables.When you add a single black juror, the rates more or less equalize. A mixed-race jury convicts whites and black at about equal rates (71% vs. 73%). See our previous discussion of race and sentencing here.
I’m a sucker for nutty futurist speculations. So bear with me on this one.
A few nights ago I was watching Neal Stephenson’s talk on “getting big stuff done,” where he bemoans the lack of aggressive technological progress in the past forty or so years. There’s obviously some debate about this, though he makes some good points. He raises the question of why, for example, we haven’t yet built a 20km tall building despite the fact that it appears to be technologically very feasible with extant materials. Nutty. But an interesting question. From a sci-fi writer.
Stephenson ends his talk on an organizational note and asks:
What is going on in the financial and management worlds that has caused us to narrow our scope and reduce our ambitions so drastically?
I like that question. Even if you think that ambitions have not been lowered, I think all of us would like to see the big problems of the world addressed more aggressively. (Unless one subscribes to the Leibnizian view that we live in the “best of all possible [organizational] worlds.”) Surely organization theory is central to this. This is particularly true in cases where technologies and solutions for big problems seemingly already exist – but it is the social technologies and organizational solutions that appear to be sub-optimal. So, how can more aggressive forms of collective action and organizational performance be realized? I don’t see org theorists really wrestling with these types of questions, systematically anyways. It would be great to see some more wide-eyed speculation about the organizational forms and theories that perhaps might facilitate more aggressive technological, social and human progress.
I can see several reasons for why organization theorists don’t engage with these types of, “futurist” questions. First, theories of organization tend to lag practice. That is, organizational scholars describe and explain the world (in its current or past state), though they don’t often engage in speculative forecasting (about possible future states). Second, many of the organizational sub-fields suited for wide-eyed speculation are in a bit of a lull, or they represent small niches. For example, organization design isn’t a super “hot” area these days (certainly with exceptions) — despite its obvious importance. Institutional and environmental theories of organization have taken hold in many parts, and agentic theories are often seen as overly naive. Environmental and institutional theories of course are valuable, but they delimit and are incremental, and are perhaps just self-fulfilling and thus may not always be practically helpful for thinking about the future.
That’s my (very speculative) two cents.
I’ve been reading up on intellectual property of late. Here are some sources worth perusing and reading (some of them can be downloaded for free), along with some interviews and clips.
- Boldrine, M. and Levine, D. (2008.) Against Intellectual Monopoly (you can download all the chapters on the website). Cambridge University Press.
- Boyle, J. (2008.) The Public Domain: Enclosing the Commons of the Mind. Yale University Press. (Here’s a short lecture based on the book.)
- Cohen, J. (2012.) Configuring the Networked Self: Law, Code and the Play of Everyday Practice. Yale University Press. Here’s the open version. (And, lecture at Berkman.)
- Johns, A. (2010.) Piracy: The Intellectual Property Wars from Gutenberg to Gates. University of Chicago Press. (Here’s a C-SPAN interview.)
- Lessig, L. (2001.) The Future of Ideas: The Fate of the Commons in a Connect World. Random House.
- Merges, R (2011.) Justifying Intellectual Property. Oxford University Press.
- Zemer, L. (2007). The Idea of Authorship in Copyright. Ashgate Publishing.
Interestingly, there isn’t meaningfully any kind of sociology of intellectual property, that I am aware of (feel free to correct me). Though several of the above scholars do call for increased dialogue between law and the social sciences (e.g., Julie Cohen), though this seems to be a relatively nascent area.
There is of course the “social construction” argument (e.g., that authorship or ownership is a myth)—a favorite argument of mine (e.g., see Beethoven and the Construction of Genius)—or the ubiquitous and tired references to “networks” (help!), but it seems that there is much opportunity in this space.
If you look at the range of penalties, most of the black-white gaps in criminal sentences disappear when you include initial charges. Source: Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences by Rehavi and Starr.
It’s long been known by researchers that American blacks are more likely to spend time in jail than whites and they serve longer prison sentences. However, it’s not known exactly why that is. Do blacks commit more serious crimes? Are courts handing out tougher sentences to black defendants? Are different laws applied to them? Since a lot of evidence in this areas focuses on the terminal stages of prosecution (e.g., pleas bargaining), it’s hard to to tell.
A new paper by Marit Rehavi (UBC econ) and Sonja Starr (Michigan Law) uses some excellent new data on Federal sentencing behavior to come up with a striking and simple answer. Blacks receive longer sentences because prosecutors are more likely to charge them with crimes that require minimum sentences. From the paper:
This study provides robust evidence that black arrestees in the federal system—particularly black men—experience moderately but significantly worse case outcomes than do white defendants arrested for the same crimes and with the same criminal history. Most of that disparity appears to be introduced at the initial charging stage, which has previously been overlooked by the literature on racial disparity in criminal justice. Other factors equal, we estimate conservatively that, compared to white men, black men face charges that are on average about seven to ten percent more severe on various severity scales, and are more than twice as likely to face charges carrying mandatory minimum sentences. These disparities persist after charge bargaining and, ultimately, are a major contributor to the large black-white disparities in prison sentence length. Indeed, sentence disparities (at the mean and at almost all deciles in the sentence-length distribution) can be almost completely explained by three factors: the original arrest offense, the defendant’s criminal history, and the prosecutor’s initial choice of charges.
In other words, in the modern system, prosecutors often have the option of charging you with crimes that require that you serve some minimal amount of time. Blacks are more likely to be charged with violations carrying minimal sentences and this accounts for most of the black-white gap in sentencing. According to some estimates, like Table 1 (p. 22), the odds double that a prosecutor will charge a black male with a minimum sentence offense. Depending on who you measure it, this results in a punishment that’s about 7-10% more severe.
The strength of the paper is that the authors have access to Federal data bases that provide data from arrest to conviction. That way, the authors can account for issues like prior criminal record and the severity of the offense, as recorded by law enforcement at the time of the arrest. There are some limits to the analysis. Certain types of crimes are excluded because relevant data doesn’t exist. For example, one important class of crimes, drug offenses, are excluded because amount of drugs is not reported in the data base. Regardless, it’s a massive data set that covers an important portion of the legal system. Bottom line: no matter how you look at it, prosecutors are being more harsh on black defendants.
Here are some more Anonymous links:
- The group has big plans for 2012, here’s the announcement (watch the video).
- You can follow Anonymous on twitter, @Anon_Central.
- There’s a new documentary, We are legion: the story of hacktivists (it’s now playing at Slamdance Film Festival, the alternative to Sundance).
Also, Anonymous has recently retaliated against the shutdown of the filesharing site Megaupload (wiki site here) and the arrest of its Finnish-German hacker-founder Kim DotCom. Here’s the NYT story about the arrest. This fella is a piece of work: he was arrested at his $30 million dollar mansion in New Zealand (yes, with Finnish flag flying), and apparently about $6 million worth of vehicles were also confiscated. Yes, he made his money via illegal filesharing (of music, movies etc) – about 50 million people visited the site daily. Anonymous retaliated by hacking various sites, including the DOJ, MPAA, Universal. Interesting issue: free filesharing, important to the Anonymous ethos, has now created the type of concentration of wealth that the movement is fighting against. Robin Hood got rich.
Kim Dotcom managed, just last month, to get some music celebs (Will.i.am, Alicia Keys, Kanye West, etc) to endorse Megaupload:
Needless to say, Universal did not like the song or video.
Despite its many problems, I use wikipedia, a lot. Too much. Sure enough, just now I tried to dig something up – and got the wikipedia blackout page. Given the blackout- where will we quickly read up on SOPA (or whatever else)?
The SOPA thing is a complicated matter – a fascinating tension between protecting intellectual property and free speech. At the extreme – should online sites like Pirate Bay (free movies, music and books) be allowed to operate freely? Few people say “yes” to that one (including Jimmy Wales), so the questions emerge in the gray areas. But SOPA itself is a mess, no question.
There’s lots of scholarly interest in the commons these days. The free software movement has led many to call for the broadening of the commons from software to all information and culture-based production: music, movies, books, journals, and so forth. Many argue that intellectual property can’t meaningfully be treated as “property” – it should be free. I disagree (with lots of qualifications: e.g., it’s up to authors and outlets) – though I think this is a fascinating topic (and I’ll follow up with a future post).
So, one of my pet peeves is when an author strongly advocates for the information commons (e.g., that the peer-to-peer sharing of all music is perfectly reasonable) but then their own book itself is not in the commons. Here’s one example (there are many others): Hyde, Lewis, 2010. Common as Air: Revolution, Art and Ownership. Farrar, Straus, Giroux. Here’s an interview with the author a few years ago (where the commons are discussed). A review of the book. A Creative Commons interview. Here’s the book talk at the Berkman Center (watch the first five-six minutes and you’ll get a sense).
(I may well be wrong, perhaps the above book indeed is out there in the commons somewhere. If so, I need to pull this post.)
Here’s also Lewis Hyde’s 1979 book The Gift: Imagination and the Erotic Life of Property. This book inspired the organizers of Burning Man.
Thankfully some of the commons advocates, like James Boyle, also walk the talk and post their books into the commons. Here’s his The Public Domain: Enclosing the Commons of the Mind. Yale University Press.
Bottom line: if your book advocates the commons (for others), then it should be in the commons. Seems reasonable. (Sorry for the rant.)
I was reading through some of his work and much of it links with important issues in organization theory. For example, one of Ribstein’s areas of focus was “uncorporations” — see his book The Rise of the Uncorporation (Oxford University Press). Uncorporations are forms of association and governance like limited liability corporations (LLCs), partnerships etc. These uncorporations represent 1/3 of all tax-reporting entities (the stat is from the above book) and the form is growing rapidly. These forms deserve attention given their unique structure, approach to contracts and incentives, etc.
So if you want a very good primer on corporations and uncorporations (frankly, this should really be part of the “yleissivistys” of any good org theorist), then get this book (here’s Chapter 1 on SSRN). While we have some good work on partnerships and related forms (e.g., I like this piece by Royston Greenwood and Laura Empson), nonetheless I think there is much opportunity to do further research in this area.
Another piece that might interest org theorists is Ribstein’s 2010 piece on the Death of Big Law, Wisconsin Law Review. The article discusses the many pressures faced by big law firms: deprofessionalization, competition from small law firms, the rise of in-house council, diseconomies, changing incentive structures, etc.
For more, here’s Larry Ribstein’s bepress page.
Why are there so few anarchists in the academy? That’s the opening question in David Graeber’s book (free pdf) Fragments of an Anarchist Anthropology. Check it out.
Here are the opening two paragraphs:
What follows are a series of thoughts, sketches of potential theories, and tiny manifestos—all meant to offer a glimpse at the outline of a body of radical theory that does not actually exist, though it might possibly exist at some point in the future.
Since there are very good reasons why an anarchist anthropology really ought to exist, we might start by asking why one doesn’t—or, for that matter, why an anarchist sociology doesn’t exist, or an anarchist economics, anarchist literary theory, or anarchist political science.
If you haven’t seen this, worth watching.
OK, while we’re in luminary mode around here, here’s a keynote address that Dick Scott recently gave at a health care conference. I think orgs scholars will also enjoy the talk. It definitely has some theoretical punch.
The first ten minutes offer a nice primer — one that will be very familiar to most orgheads — of macro organizational sociology, key concepts and levels of analysis (fields, logics, actors, etc).
Thereafter it gets meta-theoretical. At 18:52 (through 24:55) Dick outlines a half dozen+ “advantages of a field level conception for multi-level approaches.” An interesting discussion and a nice defense of field-level approaches.
(I’m admittedly not a “fields” guy — at all — but can certainly still appreciate this. Dick’s orgs bible/book was what first got me hopelessly fascinated with org theory. Plus, this is Dick Scott in HD, what more can you want!)
The subsequent discussion focuses on applying the key concepts and fields notion to health care, which obviously has been the context for much of Scott’s work during the last decades.
Here’s a piece by Yochai Benkler that discusses wikileaks as a Rooseveltian muckraker and the emergence of the ‘networked fourth estate’ — (pdf) A Free Irresponsible Press: Wikileaks and the Battle Over the Souls of the Networked Fourth Estate.
Here’s a SFI lecture by Yochai Benkler that might interest orgtheoristas – “the penguin and the leviathan: the science and practice of cooperation.” It appears there is also a forthcoming book titled The Penguin and the Leviathan: How Cooperation Triumphs Over Self-interest.
My two cents?
I’m afraid the lecture (and I’m guessing book as well) features some econ-bashing and lots of wikipedia exuberance. It would be nice to hear some orgtheory-informed discussion and novel arguments related to markets, hierarchies and hybrid organizational forms. Theoretically there is quite a bit of recycling (which Benkler recognizes: see his review of disparate disciplines on matters of self-interest and cooperation) – it appears that the book is largely targeted toward non orgs specialists. So it may not necessarily be meant as a new-new scholarly contribution – we’ll see. The lecture is worth watching nonetheless (e.g., some interesting data and Q&A/public policy discussion at the end).
More on the book once it comes out.
Here are some proposed effects.
Here’s the paper (pdf): Cole, S.A. & Dioso-Villa, R. 2009. Investigating the CSI effect: Media and litigation crisis in criminal law. Stanford Law Review.
Following up on my earlier post about the inability of courts to create social change, I discovered that Frank Dobbin makes a similar argument in his 2009 book, Inventing Equal Opportunity. Dobbin’s general point is that the U.S. state is weak and fragmented, which creates opportunities for professionals and other entrepreneurial actors to design their own institutional responses to legal mandates. His case is based around the development of equal opportunity measures created by networks of personnel experts. The experts were hired by corporations to protect them from violating civil rights laws, but the laws themselves were not clear in specifying how they expected companies to implement non-discrimination programs or even about what discrimination really was. This ambiguity created a space in which personnel professionals could engineer their own equal opportunity programs and define the appearance of discrimination.
Rather than being a strong arm of enforcement that coerced firms into adopting equal opportunity programs, the courts actually picked up cues from the corporations about how civil rights laws should be interpreted.
[O]ur fascination with judicial decisions led to a misreading of the role of the courts. Seeing that may companies have sexual harassment policies and procedures that are in line with Supreme Court guidelines, for instance, many conclude that the Court’s rulings were successful. In fact, human resources experts devised guidelines for corporations, and then the court vetted them. It was corporations that guided the judiciary, no the other way around. Congress and federal bureaucrats also took their cues from employers, approving some innovations and overturning others. For the most part, they went along with what leading employers wee doing, though they rarely ruled that any one innovation, or any concoction, would fully protect employers. This was the case in part because, while the courts were the final arbiter, they did not have the authority to make law (12).
Does this mean that courts are completely lacking influence? No, obviously companies listened to their HR professionals because they didn’t want to be punished for violating the new civil rights laws, and it was this general fear of being punished that spurred the spread of equal opportunity programs. But the court were also not active in promoting a particular interpretation of the law from the beginning. They figured out what the right response to the law was by watching the emerging consensus of best practices among the companies themselves. The courts validated equal opportunity law, rather than prescribing it.
Good stuff: Timur Kuran talks to Douglass North about efficient institutions and political economy.
The Supreme Court has sided with Wal-Mart in the class action case. As regular readers of this blog will be well aware, sociologists have been more than usually involved in the case and the debate surrounding it. The slip opinion, written by Scalia, discusses Bill Bielby’s testimony and dismisses it:
The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case … The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” … Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
While dismissing the particular body of evidence presented as insufficient to establish the Plaintiff’s central claim, the decision does not make any more general remarks about the relevance of social-scientific evidence. (At least not to my untrained eye. Those with a legal education are welcome to comment.)
The ruling was unanimous with respect to rejecting certification, but Ginsburg wrote a partial dissent (joined by Breyer, Sotomayor, and Kagan) on the question of the scope of the ruling, and did not sign on to the middle section of the decision (where the social science evidence is discussed). She writes, in part,
The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture. … the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. The results, the District Court found, were sufficient to raise an “inference of discrimination.” … The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.
In a footnote to that “long been known” sentence, Ginsburg cites Goldin and Rouse’s paper on discrimination in Symphony orchestras (revealed by the comparison of blind with non-blind auditions). The partial dissent does not mention Bielby’s testimony.
I’ll leave it to those more qualified than myself to assess the technical aspects of the ruling (e.g., with respect to Daubert), along with its meaning and likely consequences. It’s worth noting, finally, that even as they dismissed certification for the class, the three women on the court joined the dissent.
I think the nexus of law and organization is a fascinating area. While doing some searches in this space, I ran into former guest blogger Jerry Davis’s recent, provocative article on the matter – arguing that the public corporation has reached its twilight:
During the five decades after Berle and Means published The Modern Corporation and Private Property in 1932, their analysis became the dominant understanding of the American corporation. Social scientists, policymakers, and the broader interested public knew about the separation of ownership and control, the potentially fraught relations between shareholders and managers, and the image of the corporation as a social institution. Berle and Means’s view of an economy dominated by a handful of ever-larger corporations run by an unaccountable managerial class inspired scholarship from sociologists (who were convinced they were right) to financial economists (who wanted to prove them wrong) to lawyers (who contemplated the rights and obligations implied by this system).
A decade into the twenty-first century, however, the public corporation may have reached its twilight in the United States. The “shareholder value” movement of the past generation has succeeded in turning managers into faithful servants of share price maximization, even when this comes at the expense of other considerations. But the shareholder value movement also brought with it a series of changes that have undone many core features of the Berle and Means corporation. Corporate ownership is no longer dispersed; the concentration of assets and employment have been in decline for three decades; and today’s largest corporations bear little resemblance to the companies analyzed by Berle and Means. Moreover, there are far fewer of them than there used to be: the United States had half as many publicly traded domestic corporations in 2009 as it did in 1997. In another generation, the Berle and Means corporation may be just a memory, overtaken by new forms of organization and financing.
Here’s the link and full citation:
Much has been discussed about the Walmart case and ASA Amicus Brief in the postings and comments on the orgtheory [with subsequent posts 1, 2] and scatterplot blogs. Little, however, has been said about the literature review in the ASA Amicus Brief, though it spans a little more than half the main body of the Brief. Some have even suggested that the only thing the Brief does is take the position that the methods that Bill uses are those of science and sociology in particular. Clearly it does much more. [In providing the analysis below, I want to be quite clear that I am not making any claims about what people’s motives were in writing and submitting the ASA Brief. Laura Beth has been quite clear about hers and I believe her.]
Amy Myrick is a doctoral student in sociology at Northwestern University. Amy completed her JD from Northwestern University Law in 2009. Amy helped draft the Amicus Brief filed by the ASA about the Wal-Mart case and is a coauthor with Laura Beth Nielsen on related papers. The following is a response to Chris Winship’s earlier post about the Amicus Brief.
Wal-Mart attacked Sociology. The ASA responded.
An important overlooked point for those who think the ASA should have abstained: the ASA decided to file a brief in this case to defend sociology at large, not to defend Bill Bielby or his conclusions. Wal-Mart’s Supreme Court brief – widely read and reported in both academic and non-academic circles – attacked not just the expert in this case, but sociology’s basic legitimacy in a way that demanded a response. Wal-Mart claimed that because women employees could not identify a specific discriminatory policy, they had to rely on “statistics, sociology, and anecdote.” Wal-Mart then derided each of these sources of evidence, devoting an entire section of its brief to the discipline that ASA helms and to which we all belong. At minimum, Wal-Mart picked the fight.
Wal-Mart then used an article from a law review (not peer-reviewed) to summarize what sociology “does” and is incapable of doing, even adopting a term – social framework analysis – that sociologists do not own, and that fails to capture sociology’s actual capabilities. According to Wal-Mart, “Dr. Bielby’s social frame-work analysis fails because it lacks a reliable, scientific basis for linking general research to the corporate setting.” This assertion does two things: it labels sociology with legal jargon and claims that, per methodological shortcomings, its cumulative research has no “scientific” value in court.
Had ASA not filed a brief, Wal-Mart would have been allowed to redefine sociology as part of a sham triumvirate that has nothing “scientific” to say about corporate practice in cases like this. Walking away would have been an embarrassing surrender. The ASA brief is clear that it aims to show how sociology can make supported claims about how particular cases are likely to work based on cumulative research, and that reliable methods govern this process – in other words, this is science. Bielby comes in only in reference to whether or not he used those methods. In the ASA’s own words:
“While we offer no opinion on the substance of Dr. Bielby’s testimony or conclusions, we stress that the methods through which he reached these conclusions are widely accepted and are the bases for research published in the top peer-reviewed social science research journals.”
… amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case. I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.
First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus …
Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.
I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers. …
Permission fees are the real purpose here, of course. The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction. … I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible. For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible …Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.
This proposed order, in short, represents a nightmare, a true dystopia, for higher education. We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs. No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.
As Kevin says, the plaintiffs are unlikely to be granted such a far-reaching injunction. But the request makes it clear—if further clarification were required—how they see their interests, and how far removed those interests are from the academics who, in addition to teaching courses that incorporate material from scholarly journals, also edit, referee, subscribe to, subsidize, and provide all the content of these journals almost entirely for free. Scholarly publishing is a canonical case of Information Feudalism. If there is anywhere one would want to see the scythe of disintermediation cut through the fields, it’s here.
I watched one of my kids play the game “Mao” (also called Mü, Maw, Chairman Mao, etc) with her friends the other day. Fascinating. In the game players develop unspoken, secret rules that others have to figure out — the rules are emergent and evolve. Fun stuff.
Interested in playing (but don’t have any friends)? Well, of course there’s a MaoBot that you can play against online.
Another game, roughly in the same family (but even more fascinating), is Nomic – developed by Peter Suber. Here’s the premise:
Nomic is a game in which changing the rules is a move. In that respect it differs from almost every other game. The primary activity of Nomic is proposing changes in the rules, debating the wisdom of changing them in that way, voting on the changes, deciding what can and cannot be done afterwards, and doing it. Even this core of the game, of course, can be changed.
As Teppo wrote a couple of weeks ago, there is a fascinating literature about corporate personhood, much of it dealing with the corporations’ legal status as persons. I’d never read much about the original court case in which the Supreme Court decided this legal precedent. For your weekend reading pleasure, you might want to check out Morton Horwitz’s 1985 West Virginia Law Review piece, “Santa Clara Revisited: The Development of Corporate Theory.” The essay distills some of the legal jargon and delves into the history of theories of the corporation behind the court decision. What most startled me about the case is the language the Supreme Court used to defend itself against counterarguments.
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does (pg. 174).
And with that off-handed dismissal, the Supreme Court changed the world. This is simply astonishing, especially when you realize, as Horwitz argues in the paper, that “the so-called ‘natural entity’ or ‘real entity’ theory of the corporation that the Santa Clara case is supposed to have adopted was nowhere to be found in American legal thought when the case was decided..” and that the justices themselves “had no conception of a natural entity theory of the corporation.” Horwitz goes on to argue that natural entity theory didn’t actually develop until a decade later.
So, either the justices had a moment of brilliance in which their foresight surpassed the accepted wisdom of the time as it relates to the corporation’s role in society, or they were just making &%@$ up.
I was doing some aimless browsing this morning — here are a few law and economics-type papers on the matter of organizations as real persons versus fictitious entities (beyond some of the classics that we’ve referenced here before).
Iwai, K. 1999. Persons, things and corporations: the corporate personality controversy and comparative corporate governance. American Journal of Comparative Law.
Gindis, D. 2009. From fictions and aggregates to real entities in the theory of the firm. Journal of Institutional Economics.
Smith, B. 1928. Legal personality. Yale Law Review.
Ripken. S. 2009. Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle. Fordham Journal of Financial & Corporate Law.
Pagano U. 2010. Legal persons: the evolution of a fictitious species. Journal of Institutional Economics.
Binder, J. 1907. Das Problem der juristischen Persönlichkeit.
UNRELATED BONUS. While browsing I also ran into this:
In his interesting and controversial review article, Fabio Rojas (2006) refers to the ‘imperialism’ of sociological theories of market behavior and argues for recognizing the essential importance of culture and social structure in explaining economic behavior and outcomes.
That’s Nobel laureate Elinor Ostrom’s first line in this article.
I’m still a bit blown away that economists barely know Williamson’s work (let alone Ostrom’s work — this was discussed by Steven Levitt here). However, thankfully issues of organizational boundaries and comparative institutions are being pursued by Williamsonians and organizational scholars at business schools (as we discussed here).
Given the 2009 Nobel, there have been some TCE origins/overview/future-type pieces that might be of interest to readers:
Williamson, O. 2010. Transaction cost economics: the origins. Journal of Retailing. Some interesting details in this article. I like the remark about the “Carnegie Triple” (I thought it referred to Williamson, March, Simon or something): be disciplined; be interdisciplinary; have an active mind. Also, encouragement he got to “be his own man.” Etc.
Williamson, O. 2009. Transaction cost economics: the natural progression. Nobel Lecture. Obviously, a nice summary of transaction cost economics.
Gibbons, R. 2010. Transaction cost economics: past, present, and future? Scandinavian Journal of Economics.
Klein, P., & Sykuta, M. (Editors.) 2010. The Elgar Companion to Transaction Cost Economics.
Frankly, there seems to be lots of opportunity to integrate transaction cost logic with more sociological approaches to organizations and markets. There have been references to this type of “unification” (by Williamson and, for example, Granovetter), though there is virtually no program of research, that I am aware of, that is attempting to do this. I don’t necessarily mean unification in a “strong” sense, but even just a programmatic effort which takes insights from both disciplines seriously, focused on understanding the organization-market nexus, comparative institutions and heterogeneity.
Amartya Sen’s book The Idea of Justice (Harvard, 2009) is easily one of the best books I have read over the last couple years. Genius. The topics discussed in the book include social welfare, choice and comparative institutions, governance, philosophy, justice and equity, ethics. Here Sen gives the cliff notes at the Common Wealth Club of California (Feb 2010):
Russ Roberts had a nice podcast with Johanna Blakley, a scholar at USC who studies technology, fashion, and entertainment. In the middle of the talk, Blakley makes a very interesting point about fashion and intellectual property. The fashion world has virtually no property rights. You can copyright patterns, but you can’t copyright or patent clothes. Basically, anyone can reproduce any piece of clothing ever made. The consequences:
- The lack of intellectual property has not led to a demise of creativity in fashion.
- The opposite is true. If you can recycle the entire history of fashion, you get an amazing amount of creativity. There’s no limit to mixing and matching.
- People maintain their status by doing things in very, very specific ways in clothes. In the same way that singers make their mark by tone and delivery, designers make clothes that are hard to reproduce.
- Knock-offs: There are knock-offs. Firms will quickly create cheap knock-offs of famous people and intentionally make it look off – think “almost Mizrahi.”
- Famous designers copy from people off the street. May firms send trend spotters to hip neighborhoods.
What I learned from the podcast is that you don’t need intellectual property rights to have a booming industry. The fashion world example seems to support intellectual property right critics who think intellectual property actually suppresses economic growth. What do you think?
A couple of years ago Gordon Smith and I had a paper published in the Arizona Law Review that imported insights from organizational theory to legal scholarship on contracts. Although the article has yet to make a big splash, I still think the potential is there for organizational theory to have a big impact on corporate legal scholars. The reason is that law professors are borrowers. Legal scholars don’t come up with their own theories of the social/economic worlds. For the most part, they have looked to economics to guide their thinking in corporate law, but as we saw following the recent financial crisis, even the most ardent participants in the law and economics movement have had doubts about the viability of this orthodox tradition. The time is ripe for the borrowing of new theories.
Imagine that a group of corporate law profs got together to read organizational theory. What would you recommend they read? Here are a few suggestions:
- The classics of course.
- There is a lot of great work in the economic sociology of law that has yet to seep into the corporate law literature. I’m thinking of Edelman’s work on the ambiguity of law and organizational compliance; Suchman and Edelman on the normative and cultural aspects of firms’ legal environments (in particular, see Edelman’s 1990 AJS piece on the indirect effects of law); and Dobbin and Sutton on the normative role of the state in shaping corporate policy.
- Agency theory has largely guided legal scholarship on corporate governance. OT’s contribution is to examine the limitations of agency theory in explaining executives relationship with shareholders. In particular, I recommend Westphal and Zajac on the symbolic management of shareholders and their related work on board independence and CEO power. Their work demonstrates why some of the solutions to agency problems touted by economists don’t work like you’d expect.
- Organizational scholars have recently been interested in alternative forms of corporate regulation, including private certification systems as a means to control firm behavior. I recommend Bartley’s work on the political construction of private certification systems; Vogel’s essay on why private regulation has emerged to make up for the deficiencies of global and national regulatory regimes; and Dobbin and Dowd and Fligstein on the effect of anti-trust and other kinds of regulation on the competitive strategies of firms.
As I wrote this, it occurred to me that much organizational theory is useful to legal scholarship because it shows the unintended consequences that legal changes have on corporate and executive behavior. What other recommendations would you make? Feel free to post them in the comments.