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the law and social inequality

A simple question was asked of me: In what ways does the law increase or decrease social inequality? The answer, I think, depends a great deal on which dimensions of the law one looks at. I’ll stick to the US, since that is what I know, but I think the lessons may apply to other industrialized countries.

Decreasing inequality: There are probably three major areas in which the law aims at decreasing difference and, to some degree, succeeds: taxation, social services, and affirmative action/anti-discrimination statutes. Taxation is fairly clear. In the US, as in most places, we have progressive taxation, which means wealthy people pay most of the taxes and the poor pay little tax. These funds are often used to fund social services, such as schools, which also aim to reduce inequality. Finally, some domains of the law have inequality as their stated target, such as anti-discrimination statutes like the 1964 Civil Rights Act.

Increasing inequality: At the same time, the US has many legal institutions that seem designed to increase inequality. Perhaps the most famous example is immigration law. The US literally bans millions of people from moving to a wealthier and safer economy simply because some natives are uncomfortable with outsiders. Another example is the prohibition of narcotics, which has contributed to mass incarceration of minorities. A less noted aspect of the American legal system is that it contains endless fines, which disproportionately affect the poor. I am have little knowledge of criminal procedure, but I suspect, like many people, that it favors those who can afford attorneys. I’d welcome people knowledgeable in this area to discuss.

The balance? My sense is that many of the egalitarian benefits of the first category of law (e.g., required schooling) are cancelled out by the second (e.g., having a conviction on your record can mitigate the positive effects of schooling).

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Written by fabiorojas

January 29, 2018 at 5:01 am

are lawyers dead meat?

A recent article at Futurism.com suggests that life may be grim for many lawyers:

Law firm Baker & Hostetler has announced that they are employing IBM’s AI Ross to handle their bankruptcy practice, which at the moment consists of nearly 50 lawyers. According to CEO and co-founder Andrew Arruda, other firms have also signed licenses with Ross, and they will also be making announcements shortly.

Ross, “the world’s first artificially intelligent attorney” built on IBM’s cognitive computer Watson, was designed to read and understand language, postulate hypotheses when asked questions, research, and then generate responses (along with references and citations) to back up its conclusions. Ross also learns from experience, gaining speed and knowledge the more you interact with it.

Ouch! Why is this a problem? Basically, many lawyers make their money either doing document review, case review, or routine law. Document review simply means taking a big batch of documents obtained through discovery and looking for key words. Case review simply means reading prior law and decisions to see what is relevant. Routine law is what it sounds like – writing documents or providing advice on simple legal matters, like parking tickets, wills for most people, and divorces for people with no children and few assets.

What these things have in common is that you don’t need a lot of judgment or skill to do them. In other words, a computer could easily handle a large proportion of routine law and basic legal work. That’s bad news for many lawyers, as a big part of the legal labor market is exactly this kind of work.

My conjecture is that in the future, working lawyers will be like surgeons,  a very high skill area. If you make a good living as a lawyer, you are probably in a very complicated area of the law, like corporate mergers, or you are in an area where people skills are crucial, like arbitration. You might also be serving high income people, who have very complex legal issues. But for the many attorney’s who do things like wills and DUIs for average people, your time may be limited.

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Written by fabiorojas

November 10, 2017 at 5:32 am

the democrats can’t decide how radical they want to be on antitrust

The other day I wrote about the current moment in the spotlight for antitrust. (Here’s the latest along these lines from Noah Smith.) Today I’ll say something about the new Democratic proposals on antitrust and how to think about them in terms of the larger policy space.

The Democrats are basically proposing three things. First, they want to limit large mergers. Second, they want active post-merger review. Third, they want a new agency to recommend investigations into anticompetitive behavior. None of these—as long as you don’t go too far with the first—is totally out of keeping with the current antitrust regime. And by that I mean however politically unlikely these proposals may be, they don’t challenge the expert and legal consensus about the purpose of antitrust.

But the language they use certainly does. The proposal’s subhead is “Cracking Down on Corporate Monopolies and the Abuse of Economic and Political Power”. The first paragraph says that concentration “hurts wages, undermines job growth, and threatens to squeeze out small businesses, suppliers, and new, innovative competitors.” The next one states that “concentrated market power leads to concentrated political power.” This is political language, and it goes strongly against the grain of actual antitrust policy.

Economic antitrust versus political antitrust

Antitrust has always had multiple, competing purposes. The original Progressive-Era antitrust movement was partly about the power of trusts like Standard Oil to keep prices high. But it was also about more diffuse forms of power—the power of demanding favorable treatment by banks, or the power to influence Congress. That’s why the cartoons of the day show the trusts as octopuses, or as about to throw Uncle Sam overboard.

The Sherman Act (1890) and the Clayton Act (1914), the two major pieces of antitrust legislation, are pretty vague on what antitrust is trying to accomplish. The former outlaws combinations and conspiracies in restraint of trade, and monopolizing or attempt to monopolize. The latter outlaws various behaviors if their effect is “substantially to lessen competition, or to tend to create a monopoly.” The courts have always played the major role in deciding what that means.

Throughout the last century, the courts have mostly tried to address the ability of firms to raise prices above competitive levels—the economic side of antitrust. For the last forty years, they have focused specifically on maximizing consumer welfare, often (though not always) defined as allocative efficiency. Since the late 1970s, this has been pretty locked in, both through court decisions, and through strong professional consensus that makes antitrust officials very unlikely to challenge it.

Before the 1970s, though, two things were different. For one thing, the focus was more on protecting competition, and less on consumer welfare per se (the latter was assumed to follow from the former, and was thought of a little more broadly). For another, the courts sometimes took concerns into account other than keeping prices low.

The most common such concern was the fate of small business. Concern for small business motivated the Robinson-Patman Act of 1936, which prohibited anticompetitive price discrimination. It was clear in the Celler-Kefauver Act of 1950, which restricted mergers out of fear that chain stores would eliminate local competition. And the courts acknowledged it in cases like Brown Shoe (1962), which prevented a merger that would have controlled 7% of the shoe market by pointing to Congress’s concern with preserving an “economic way of life” and protecting “local control of industry” and “small business.”

Today, Brown Shoe is seen as part of the bad old days of antitrust, when it was used to protect inefficient small businesses and to pursue confused social goals. This is a strong consensus position among antitrust experts across the political spectrum. While no one thinks that low prices for consumers are the only thing worth pursuing in life, they are the appropriate goal for antitrust because they make it coherent and administrable. Since those experts’ views dominate the antitrust agencies, and have been codified into law through court decisions, they are very resistant to change.

The Democrats’ proposal: radical language, incremental proposals

So when the Democrats start talking about “the abuse of economic and political power,” the effects of concentration on small business, and limiting mergers that “reduce wages, cut jobs, [or] lower product quality,” they are doing two things. First, they are hearkening back to the original antitrust movement, with its complex mix of concerns and its fear of unadulterated corporate power.

Second, they are very much talking about political antitrust, and political antitrust is deeply challenging to the status quo. But their actual proposals are considerably tamer than the fiery language at the beginning, and are structured in a way that doesn’t push very hard on the current consensus. New merger guidelines could make some difference around the margins. Post-merger review would definitely be good, since there’s currently no enforcement of pre-merger conditions that firms agree to, and no good way to figure out which merger approvals had negative effects. I have a hard time seeing a new review agency having much effect, though, since it’s just supposed to make recommendations to other agencies. Even I don’t like bureaucracy that much.

So my read on this is that the Democrats feel like they need a new issue, and it needs to look like it helps the little guy, and they want to sound like populist firebrands. But when you get down to the nitty gritty, they aren’t really so interested in challenging the status quo. That is, basically, they’re Democrats. Still, that the language is in there at all is remarkable, and reflects a changing set of political possibilities.

Next time I’ll look at some of the problems people are suggesting antitrust can solve. Because there are a lot of them, and they’re a diverse group. Tying them together under the umbrella of “antitrust” gives an eclectic political project some nominal coherence. But is it politically practicable? And could it actually work?

Final note: If you are interested in the grand historical sweep of antitrust in capitalism, I recommend Brett Christophers’ The Great Leveler. Among other things, he totally called the emerging wave of interest before it actually happened. Sometimes the very long lens is the right one to use.

Written by epopp

August 3, 2017 at 3:04 pm

do we need illegal firms?

Over at Harvard Business Review, Benjamin Edelman argues that Uber’s ultimate problem isn’t bad corporate culture. It’s being an organization that is premised on being illegal. To quote:

But I suggest that the problem at Uber goes beyond a culture created by toxic leadership. The company’s cultural dysfunction, it seems to me, stems from the very nature of the company’s competitive advantage: Uber’s business model is predicated on lawbreaking. And having grown through intentional illegality, Uber can’t easily pivot toward following the rules.

And:

Uber’s biggest advantage over incumbents was in using ordinary vehicles with no special licensing or other formalities. With regular noncommercial cars, Uber and its drivers avoided commercial insurance, commercial registration, commercial plates, special driver’s licenses, background checks, rigorous commercial vehicle inspections, and countless other expenses. With these savings, Uber seized a huge cost advantage over taxis and traditional car services. Uber’s lower costs brought lower prices to consumers, with resulting popularity and growth. But this use of noncommercial cars was unlawful from the start. In most jurisdictions, longstanding rules required all the protections described above, and no exception allowed what Uber envisioned. (To be fair, Uber didn’t start it — Lyft did. More on that later on.)

Edelman goes on to make a number of fair points: by operating illegally, employees are at risk and it encourages poor corporate culture.

But here’s another take. What if some industries need to be developed through illegality? For example, right now in the US, many marijuana firms are operating in a de facto state of illegality, with Federal law (which supersedes state law) outlawing recreational marijuana. Despite this problem, many dispensaries remain committed to marijuana distribution and they innovate. My conjecture is that their practices will set the standards for the future recreational marijuana industry. Even in Edelman’s article, he refers to Napster, which illegally made music easier to distribute. They broke the law, but created a new market in the process.

In these three cases (Uber, Napster, US marijuana distributors), the market was expanded and developed through illegality. This suggests to me that Edelman’s point is good – firms working illegally may be saddled with too many problems. But it elides an even bigger point. Various regulations and state granted monopolies create needless zones of illegality. For some markets to develop, somebody has “break the rules to make the rules.” In many cases, that can be a good thing.

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Written by fabiorojas

June 28, 2017 at 4:12 am

supreme court vacancy: no experience needed

The passing of Antonin Scalia creates a Supreme Court vacancy. There’s a lot of politicking already, but Obama will probably nominate in the next month or two. Then, the Senate will likely approve a replacement. Maybe not the first nominee, but lots of justices have been approved in election years and usually in about three months.

What is more interesting in my view is the type of person who gets nominated. History shows that there is some variety. Some have long records as judges, while others have very little. The wiki list of nominees shows that recent nominees have legal experience, but often little judicial experience. Since 1990 (26 years), we’ve had nine distinct nominees:

  • Harriet Miers and Elena Kagan had no judicial experience. Kagan was nominated for the Federal bench by Clinton in the late 1990s, but the Senate refused to take the nomination.
  • Two justices had very short judicial careers: Thomas and Roberts had 2 years of experience each on Federal courts.
  • The rest had very long careers: Souter – 12 years on a state supreme court, Ginsberg had 13 years, Breyer had 18, Alito 16, Sotomayor has 17 years – all on Federal courts.

We have a huge range in experience with an even split between those with almost no experience and those with lots. My sense is that nominees are drawn from two pools of people – long time jurists whose “time has come” and fast track insiders. In other words, to get to the Supreme Court, be connected or get in line … and it’s a very long line.

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Written by fabiorojas

February 15, 2016 at 4:43 am

a warm welcome to guest blogger Ellen Berrey

Please join us in welcoming sociologist Ellen Berrey, who will be guest blogging about her hot-off-the-press book The Enigma of Diversity: The Language of Diversity and the Limits of Racial Justice  (2015, University of Chicago Press).

Here’s the blurb for the book:

Diversity these days is a hallowed American value, widely shared and honored. That’s a remarkable change from the Civil Rights era—but does this public commitment to diversity constitute a civil rights victory? What does diversity mean in contemporary America, and what are the effects of efforts to support it? 

Ellen Berrey digs deep into those questions in The Enigma of Diversity: The Language of Race and the Limits of Racial Justice (University of Chicago Press, May 2015). Drawing on six years of fieldwork and historical sources dating back to the 1950s, and making extensive use of three case studies from widely varying arenas—affirmative action in the University of Michigan’s admissions program, housing redevelopment in Chicago’s Rogers Park neighborhood, and the workings of the human resources department at a Fortune 500 company—Berrey explores the complicated, contradictory, and even troubling meanings and uses of diversity as it is invoked by different groups for different, often symbolic ends. In each case, diversity affirms inclusiveness, especially in the most coveted jobs and colleges, yet it resists fundamental change in the practices and cultures that are the foundation of social inequality. Berrey shows how this has led racial progress itself to be reimagined, transformed from a legal fight for fundamental rights to a celebration of the competitive advantages afforded by cultural differences.

Powerfully argued and surprising in its conclusions, The Enigma of Diversity reveals the true cost of the public embrace of diversity: the taming of demands for racial justice.

Berrey’s other publications on this and related topics are available here.

Written by katherinechen

May 10, 2015 at 10:40 am

“you can’t fire your way to finland”

Last week a judge struck down tenure for California teachers on civil rights grounds. (NYT story here, court decision here.) Judge Rolf Treu based his argument on two claims. First, effective teachers are critical to student success. Second, it is poor and minority students who are most likely to get ineffective teachers who are still around because they have tenure — but moved from school to school in what Treu calls, colorfully, the “dance of the lemons.”*

To be honest, I have mixed feelings about teacher tenure. I’d rather see teachers follow a professional model of the sort Jal Mehta advocates than a traditional union model. This has personal roots as much as anything: I’m the offspring of two teachers who were not exactly in love with their union. But at the same time, the attack on teacher tenure just further chips away at the idea that organizations have any obligation to their workers, or that employees deserve any level of security.

But I digress. The point I want to make is about evidence, and how it is used in policy making — here, in a court decision.

Read the rest of this entry »

Written by epopp

June 18, 2014 at 3:00 pm

how corporations got rights

This week the Supreme Court considered whether corporations ought to have constitutional rights of religious freedom, as given to human individuals, in Sebelius v. Hobby Lobby Stores Inc. For many people, the idea that companies ought to be given all of the rights of humans is absurd. But in recent years, this idea has become more and more of a reality, thanks to game-changing cases such as Citizens United vs. FEC. How did we get to this place?

In an article on Slate, Naomi Lamoreaux and William Novak briefly go over the history of how corporations evolved from artificial persons to real persons with human rights. They emphasize that this change was a slow descent that still seemed unthinkable to justices as late as the Rehnquist court.

The court’s move toward extending liberty rights to corporations is even more recent. In 1978, the court held in First National Bank of Boston v. Bellotti that citizens had the right to hear corporate political speech, effectively granting corporations First Amendment speech rights to spend money to influence the political process. But even then, the decision was contentious. Chief Justice William H. Rehnquist, in dissent, reminded the court of its own history: Though it had determined in Santa Clara that corporations had 14th Amendment property protections, it soon after ruled that the liberty of the due-process clause was “the liberty of natural, not artificial persons.”

If you find this piece interesting then I would encourage you to read Lamoreaux’s collaboration with Ruth Bloch, “Corporations and the Fourteenth Amendment,” a much more detailed look at this history. One interesting point that emerges from this paper is that our general understanding of how rights became ascribed to corporations is historically inaccurate. Bloch and Lamoreaux assert that although the Court in Santa Clara v. Southern Pacific Railroad  likened corporations to individuals and asserted that they might have some protected rights, they were careful to distinguish between corporate and human civil rights.

During the late nineteenth and early twentieth centuries, the Supreme Court drew careful distinctions among the various clauses of the Fourteenth Amendment. Some parts it applied to corporations, in particular the phrases involving property rights; but other parts, such as the privileges and immunities clause and the due –
process protections for liberty, it emphatically did not. Although this parsing might seem strange to us today, it derived from a remarkably coherent theory of federalism in which the Court positioned itself both as the enforcer of state regulatory authority over corporations and as the guardian of individual (but not corporate) liberty against state intrusion. To the extent that the Court extended constitutional protections to corporations, it did so to protect the interests of the human persons who made them up.

Read the whole paper. It’s fascinating!

Written by brayden king

March 28, 2014 at 3:15 pm

new book on work and family: Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy

When I visiting another university to give a talk a few years back, I met two faculty members for lunch.  One was wincing visibly in pain.  When I asked what was wrong, my colleague explained that he was suffering a migraine but that he would still teach class.  When I suggested cancelling class that day to recuperate, he felt he couldn’t.  He explained that he needed to save his vacation days for helping his ailing father, who was aging in place in another state.  Moments like these made me realize that for workers of all ages, attending to family matters is not easy or well-supported in the US.

Such policy issues are addressed in a new book by sociologist Ruth Milkman and economist Eileen Appelbaum: Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy (2013, ILR/Cornell University Press).

Here is a description of Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy provided by the authors:

This book documents the history of California’s decade-old paid family leave program, the first of its kind in the United States, which offers wage replacement for up to six weeks for all private-sector workers when they need time off from their jobs to bond with a new child or to care for a seriously ill family member. Based on original fieldwork and surveys of employers, workers, and the larger California adult population, it analyzes the impact of paid family leave on employers and workers in the state, and explores the implications for crafting future work-family policy for the nation.

The book makes three key arguments. The first concerns the politics of paid leave. In contrast to most government-sponsored social programs, which are under attack and often have little popular support, paid family leave (and indeed work-family policy more generally) is a crossover issue politically. Conservatives see it as an expression of “family values,” whereas for progressives it is a much-needed element of the safety net for working families. As a result it has strong support across the political spectrum. Business routinely opposes any and all legislative initiatives in this area, which is a major obstacle to passing laws like the one that created the California program. But because the population generally is so highly supportive of paid leave, that opposition can be overcome by means of coalition organizing, as the passage of California’s landmark 2002 law – documented here in detail – illustrates.

The second argument is that contrary to the claims of the Chamber of Commerce and other business lobbyists, paid family leave and other programs like it do not impose any major burdens on employers. This book presents survey data that show that in California, employers themselves concluded that the impact of the new state program on their productivity, profitability and performance was minimal and often positive. In addition, paid leave often reduced turnover and improved workers morale, at little or no cost to employers. The tax supporting the program is paid for entirely by workers, and many employers enjoyed cost savings as a result of the program’s creation, because they could coordinate their own wage replacement benefits with now offered by the state.

The third argument is more disturbing. This book shows that although workers who use California’s paid leave program and their family members have benefitted greatly, and although the program is well-managed and easy to access, awareness of its existence remains low. Moreover, those who are in most need of the program’s benefits – low wage workers, young workers, immigrants and disadvantaged minorities – all of whom have little or no access to employer-provided wage replacement benefits when they need to take time off to care for a new baby or a seriously ill relative – are least likely to know about it. As a result, the program’s potential to act as a social leveler, making paid leave available not only to managers and professionals, who are much more likely than lower-level workers to have access to paid time off in any form, but to all private-sector workers, has not yet been achieved. Instead the longstanding pattern of inequality in access to paid leave has remained largely intact. And even workers who are aware of the new state program are often reluctant to take advantage of it because they fear repercussions on the job.

Here’s the front and back of the book cover:

Milkman-Pprbk, Proof#1 copy

Check out the book – the 2014 ESS annual meeting in Baltimore will feature this book (and others) as an author-meets-critics session.

Written by katherinechen

October 11, 2013 at 7:39 pm

religion and immigration rights in the US

Yesterday’s WSJ featured an interesting (gated) front page article on growing support among some evangelical congregations for extending immigration rights to undocumented immigrants. Drawing on the Bible to justify “welcoming the stranger,” leaders have urged outreach efforts and political mobilization for overhauling immigration reform, even though these activities may alienate some congregants and politicians. According to the WSJ, one opposing politician has countered supporters’ assertions with the claim that “The Bible contains numerous passages that do not necessarily support amnesty and instead support the rule of law. The Scriptures clearly indicate that God charges civil authorities with preserving order, protecting citizens and punishing wrongdoers.” Clearly, groups and individuals are tapping logics of religion and the state to offer various rationales for the status quo versus change.

Sociologist Grace Yukich has conducted research on a similar movement for immigration rights among Catholic groups. Her forthcoming book One Family Under God: Religion and Immigration Politics in the New Sanctuary Movement (Oxford) examines how supporters simultaneously engage with a larger social movement at the grassroots level and reshape the composition of their flock. Check out more about Yukich’s work via her blog posts on Mobilizing Ideas and The Immanent Frame.

Written by katherinechen

April 10, 2013 at 5:55 pm

where are the lawsuits over legacy admissions?

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.

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Written by fabiorojas

November 19, 2012 at 4:39 am

questions for originalists

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:

  1. 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?
  2. 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?
  3. If multiple people authored the law, whose meaning or intent takes precedence?
  4. 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?
  5. 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?

Just curious…

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Written by fabiorojas

May 31, 2012 at 12:01 am

Posted in fabio, law and society

if you are black, pray for a black jury

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.

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Written by fabiorojas

April 22, 2012 at 12:02 am

getting big stuff done: is this an organizational problem?

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.

Written by teppo

March 5, 2012 at 1:06 am

sociology of intellectual property?

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.

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.

Written by teppo

March 2, 2012 at 5:43 pm

why blacks spend more time in jail

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[1] 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.

Adverts: From Black Power/Grad Skool Rulz

Written by fabiorojas

January 24, 2012 at 12:01 am

links and ironies of anonymous and megaupload

Here are some more Anonymous links:

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.

Written by teppo

January 23, 2012 at 7:44 am

wikipedia blackout and SOPA

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.

Written by teppo

January 18, 2012 at 5:55 am

common as air: the commons snare

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.)

Written by teppo

January 9, 2012 at 2:54 am

larry ribstein, the uncorporation and organization theory

The legal scholar Larry Ribstein passed away a few weeks ago (here’s a post by Bainbridge with many links, here’s a tribute by Roberta Romano).

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.

Written by teppo

January 6, 2012 at 6:16 am

richard stallman and free software as a social movement

Here are some links about free software as a social movement:

Update:  Jenn Lena adds a link in the comments, a 9000+ word rider on Stallman’s speaking contract.

Written by teppo

December 29, 2011 at 8:36 pm

fragments of an anarchist anthropology

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.

Written by teppo

October 28, 2011 at 9:34 pm

steal this film, part 2

If you haven’t seen this, worth watching.
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Written by teppo

September 5, 2011 at 8:47 pm

dick scott on the advantages of a field level conception for multilevel approaches

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.

Written by teppo

July 29, 2011 at 1:37 am

yochai benkler on wikileaks and the ‘networked fourth estate’

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.

Written by teppo

July 22, 2011 at 3:21 am

Posted in law and society

the penguin and the leviathan: yochai benkler on cooperation

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.

Written by teppo

July 7, 2011 at 6:00 am

is there a CSI effect in criminal law?

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.

Written by teppo

July 7, 2011 at 2:30 am

Posted in law and society

Dobbin on the weakness of courts

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.

Written by brayden king

June 29, 2011 at 2:25 pm

institutions and political economy

Good stuff: Timur Kuran talks to Douglass North about efficient institutions and political economy.

Written by teppo

June 26, 2011 at 4:12 pm

why we shouldn’t expect the court to bring about social change

The Wal-Mart case, which has occupied so much discussion on orgtheory of late, is disappointing to many sociologists and organizational scholars because it suggests that courts  cannot take a stand against gender discrimination when discrimination is implicit and covert.  Sure, it would be easy for courts to decide to rule against a defendant that explicitly discriminated against a certain class of people with a formal policy, but Scalia et al.’s decision puts a high bar on the qualifications necessary to identify class discrimination. It’s no wonder that gender scholars, in particular, would be upset by this ruling. In this day and age, the most diffuse forms of discrimination are subtle and implicit. If covert discrimination is going to be overcome, we need courts that are willing to recognize these more subtle forms of influence. But should we have really been surprised by this outcome? Setting aside the political orientation of the current Court, I think that this decision is more or less in line with the history of the Court’s decision-making.

Courts are rarely, if ever, engines of social change. After reading this post by Yglesias, I was reminded of a really interesting book I read back in my grad school days that makes a case for why courts are not usually instigators of social reform. Gerald Rosenberg‘s The Hollow Hope argues that courts, and the Supreme Court in particular, have constraints placed on them that keep them from promoting social reform, and that we should only expect the Court to take a more change-oriented approach when certain conditions are met. The constraints are:.

  • Courts are bounded by constitutional rights that prevent that from hearing many reform-oriented cases.
  • The judicial branch is not sufficiently independent from other governmental branches to promote reform.
  • Courts lack the capacity and the tools to actually implement social reform (and therefore it is pointless for them to pursue a reformist agenda).

Read the rest of this entry »

Written by brayden king

June 22, 2011 at 10:30 pm

SC rules on Wal-Mart vs Dukes

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.

Written by Kieran

June 20, 2011 at 4:17 pm

has the public corporation reached its twilight?

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:

ABSTRACT

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:

Gerald F. Davis, 2011. The Twilight of the Berle and Means Corporation, Seattle University Law Review.
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Be sure to check out the other articles in this “Berle and Means” special issue.
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Written by teppo

June 14, 2011 at 10:21 am

What is at stake for Sociology in Walmart?

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.]

Read the rest of this entry »

Written by Chris Winship

May 28, 2011 at 11:07 pm

Wal-Mart and Beyond: Can Social Science be Itself in Court? (Response to Professor Winship)

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.”

Read the rest of this entry »

Written by orgtheoryguest

May 20, 2011 at 6:50 pm

academic journals and copyright control

Via Duke Library’s Kevin Smith, an update on what academic publishers want from the Georiga State Copyright Case that’s now coming to trial:

… 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.

Written by Kieran

May 19, 2011 at 2:08 pm