PrawfsBlawg

Trade Remedies in North America

Following up on my previous post on the U.S. safeguard action regarding Chinese tires, I would like to announce a forthcoming book, entitled Trade Remedies in North America, which will be published by Kluwer Law International and which I am co-authoring with Nick Covelli, David Gantz, and Ihn Ho Uhm.  Nick is Counsel for the Government of Canada; David (as many of you know) is a chaired professor, Director of the International Trade Law Program and Associate Director of the National Law Center for Inter-American Free Trade at the University of Arizona James E. Rogers College of Law; and Ihn is a former senior economist at the Canadian International Trade Tribunal (the Canadian counterpart to the U.S. International Trade Commission).  I myself am founding director of my school's International and Comparative Law Center, although I am currently visiting away for the academic year at West Virginia University College of Law.  The book is slated for publication in early 2010.

The purpose of the book is to provide a comprehensive and comparative treatment of the trade remedy laws (antidumping, countervailing duty, and safeguards laws) of Canada, Mexico and the United States at the bilateral, NAFTA and WTO levels, and of the economic and political underpinnings of these laws.  Also included will be case studies of recent trade remedy actions, namely, Softwood Lumber IV,  U.S. safeguards on Cement from Mexico, and Canadian steel safeguards.  We believe the book is well-positioned to fill a gap in the market, due to its comparative focus and scope of coverage.  If anyone would like more information concerning the book, please let me know.

Textbooks on Kindle

I had a chat with my publisher today, and he raised the issue of offering textbooks on Kindle. There are myriad pros and cons, but I thought I might send a post to see what others think of the idea. Would you permit your work to be offered on Kindle? Should textbooks be available for students to purchase in this format?

Making Information Pay: How the Recession is Changing the Book Business

In the not-too-distant past, academic titles could be published and languish on shelves indefinitely. Now, each title needs to prove its financial value, as well as its scholarly merit. A recent article discusses this trend on the trade side, and even some of the best-known and most established academic publishers are reportedly feeling the pinch. How will this impact legal academic publishing in general and academics in particular? Could this lead to agreements being rescinded? If so, is there any recourse?

Co-authoring Strategies; books, etc.

Here's a question: have any of you tried co-authoring a law review article with someone using Google Docs? Is there some other software (preferably easy and free) to use also? I ask because I wonder what the best technology strategies are for collaboration. With the Privilege or Punish book and its related projects that I've done with Ethan and Jennifer, we basically just used Microsoft Word, redline and email attachments for everything. That strategy was reasonably effective, but it required each of us to take turns with "command" of the particular project for the most part. Not necessarily the best use of time.

Still, my fear with Google Docs is that one can't easily redline or do things with footnotes. Am I missing something--is there a way to achieve Word-type functionality through some kind of sharing mechanism?

Btw, speaking of intellectual collaborations and other distractions from grading, I thought I'd draw your attention to a cool book that literally just landed across my desk and that I look forward to reading over the summer. It's a festschrift for Morton Horwitz published by Harvard Law School (I've not seen their imprint before) but through Harvard University Press. It's called: Transformation in American Legal History (ed. by Daniel Hamilton & Al Brophy), and it's available here. Here's part of the description:

In this book, Horwitz’s students re-examine legal history from America’s colonial era to the late twentieth century. They ask classic Horwitzian questions, of how legal doctrine, thought, and practice are shaped by the interests of the powerful, as well as by the ideas of lawyers, politicians, and others. The essays address current questions in legal history, from colonial legal practice to questions of empire, civil rights, and constitutionalism in a democracy. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.

In addition to this book, HUP has a bunch of other new books that look very promising as sources of distractions or objects of focus over the summer. If you've read any of them already, feel free to weigh in with thoughts in the comments.

Abramson, Jeffrey--Minerva's Owl: The Tradition of Western Political Thought (cloth)
Garsten, Bryan--Saving Persuasion: A Defense of Rhetoric and Judgment (paper)
Grafton, Anthony--Worlds Made by Words: Scholarship and Community in the Modern West (cloth)
Lamont, Michèle--How Professors Think: Inside the Curious World of Academic Judgment (cloth) (I'm about 2/3ds of the way through this interesting study and hope to share some reactions later this summer)

Mann, Bruce H.--Republic of Debtors: Bankruptcy in the Age of American Independence (paper)
Posner, Richard A.--A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (cloth)
Powe, Lucas A. , Jr.--The Supreme Court and the American Elite, 1789-2008 (cloth)
Schauer, Frederick--Thinking Like a Lawyer: A New Introduction to Legal Reasoning (cloth)

Shachar, Ayelet--The Birthright Lottery: Citizenship and Global Inequality (cloth)
 

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

A Casual Casebook: The Canon of American Common Law

This summer I am planning to put together a casebook that is for leisurely reading, rather than a law-school course. My tentative title is "The Canon of American Common Law." 

It is an idea of mine that started with the thought that it would be exciting to give a special award to the first-year law student with the highest combined grade-point average in the three common law courses: Contracts, Property, and Torts. A good name would be the Holmes Award. But what would be a suitable prize? A perfect token, I thought, would be a book of the classic common-law cases. I think such a book would also be nice to have available for casual students of the law – people who would like to do some exploring in the law – but who are not looking for three years of law school.

Below is my very-rough draft table of contents, along with a list of “on the bubble” cases that are deserving, but that I might leave out to keep the size of the book manageable. I would be very grateful for your comments. Do any of the cases fail to qualify as classics? Am I grievously leaving something out? Am I close to closing in on a canonical list? Or am I way off?

Contracts:

Wood v. Boynton

Webb v. McGowin

Raffles v. Wichelhaus (The Peerless Case)

Hamer v. Sidway

Lucy v. Zehmer

Wood v. Lucy, Lady Duff-Gordon

Hawkins v. McGee

Peevyhouse v. Garland Coal & Mining Co.

Hadley v. Baxendale

Property:

Ghen v. Rich

Pierson v. Post

Brown v. Voss

Hannah v. Peel

Moore v. Regents of the University of California

Vanna White v. Samsung Electronics America, Inc.

State v. Shack

Boomer v. Atlantic Cement Co.

Torts:

Vosburg v. Putney

Garratt v. Dailey

Fisher v. Carrousel Motor Hotel, Inc.

Ploof v. Putnam

Katko v. Briney

Vincent v. Lake Erie Transportation Co. 

Byrne v. Boadle

Palsgraf v. Long Island R.R. Co.

Summers v. Tice

Tarasoff v. Regents of University of California

U.S. v. Carroll Towing Co.

Vaughan v. Menlove

Rylands v. Fletcher

Escola v. Coca-Cola Bottling Co. of Fresno

On the bubble:

Dougherty v. Salt

Taylor v. Caldwell

Brown v. Kendall

I de S et ux. v. W de S

Indiana Harbor Belt. R. Co. v. American Cyanamid Co.

Lumley v. Gye

MacPherson v. Buick Motor Co.

Stone v. Bolton

You’ll notice there are a few English cases in the mix, but they are ones that, I think, are nonetheless, classics of American common law, generally because of their entrenchment in the American 1L curriculum.

Also, you’ll notice I have not included any U.S. Supreme Court cases. That’s another casual-casebook project – but a worthy one. I plan to take that up separately.

University Bookstores and the Intellectual Life of Campus

My school, the University of North Dakota, recently declined to renew its contract with Barnes & Noble to run the campus bookstore. Instead, they’ve signed up with Follett. So we are in the midst of transferring control of the bookstore from one megalithic operator to another. This seems to me a real shame. I have nothing against B&N or Follett. I am sure they are generally very good at meeting contractual expectations while maintaining a profitable and tidy operation. But there are few things so wonderful as a bookstore that is neither tidy nor profitable.

As an undergrad at the University of Texas at Austin, I must have spent, cumulatively, at least a solid week browsing aimlessly in the cluttered aisles of our Co-op Society bookstore. They had, as one guy I talked to remembered, “every book in the world.” I recall once looking through a whole table of scholarly books on theoretical mathematics. Not that I understood any of it. But I felt very academic just leafing through. And it wasn’t just the books. There’s something inspiring about spectrum-ordered rows of art supplies. And I loved the fact that if I ever needed to pick up a scalpel, a stethoscope, or a box of 25 microscope slides, the bookstore was there for me.

Okay – if I wax any more tweedy, I’m going to make some one nauseous. I get that. But hey, I’m a law professor. I like the smell of books and coffee.

The last time I was down in Austin the bookstore had pared down to a neat little operation, renting out most of their A-list retail space to Barnes and Noble. What a bore. I hear Barnes and Noble has since left, but the old every-book-in-the-world Co-op hasn’t returned.

Watching UND switch from one mega-retailer to another, I feel like we are missing the chance to extend the university experience with a truly great bookstore.

I understand the new bookstore managers are interested in learning from the law faculty what books they ought to carry for law students. I would like to tell them to keep expanding their selection until at least half of the shelf inventory experiences no year-to-year turnover.

Hmmm. I don’t think they are going to go for that.

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Sobering Vacation Reads 1: Eric Schlosser's Reefer Madness

Greetings, Everyone; it's good to be back for yet another blogging stint.

I write this as I recover from my so-called vacation, which included being stranded in American and Canadian snowstorms for the better part of a week, missing connections, napping at airports and at motels reminiscent of a Coen Brothers movie, and sitting, in hostage-like setting, inside airplanes for hours with nothing to eat or drink as they de-ice. Life in San Francisco has not prepared me for such woes! But now, back in what Eddie Izzard refers to as "The Citeh", I'm happy to report that I had good books for company throughout these trying times.

One such book was Eric Schlosser's Reefer Madness: Sex, Drugs and Cheap Labor in the American Black Market (hardcover, 2003; paperback, 2004). Schlosser, author of the much better known Fast Food Nation, tackles three issues in this book: the growing and cultivation of marijuana, undocumented laborers in the Californian strawberry-picking industry, and an economic history of pornography. The book, while not unconcenrned with politics and morality, is mostly a critical examination of free market principles as applied to underground economies.

Schlosser starts with marijuana growers, providing a colorful description of what is, apparently, an inland American industry of staggering proportions. His interviews with growers, and with federal agents who spend their time tracking down vast (but well hidden) marijuana fields and in-home operations with heating lamps, expose a cat-and-mouse race culminating in prosecutions, and sometimes shockingly severe prison sentences.

The second part of the book reveals the practices of strawberry farmers, who acquire "partners" through the practice of sharecropping. Former pickers, invariably from Mexico, become "farmers" who come to find themselves deeply in debt, limited in every aspect of picking and selling their product, and facing all the legal risks transferred to them by the growers. Bringing into the mix abundant information about the special problems posed by the strawberry industry, but not forgetting the broader picture, Schlosser describes the interdependency of Californian and Mexican economies, and the variety of unsatisfactory solutions provided by policymakers, banks, and growers, to the problem of undocumented immigrants.

But Schlosser is probably at his best when he describes the rise, fall, and (brief) return of pornography king Reuben Sturman, who, as it turns out, ruled the American "empire of the obscene" for decades. It shows how dedicated tax investigators finally brought his empire to ground, ignoring the morality crusades fought by decades of FBI agents and state police forces, and focusing on tax evasion techniques. Schlosser's sophisticated account, detached and at the same time sympathetic to both sides, is a clever analysis of the emergence and workings of an industry which faces similar economic, moral and social issues as many legitimate enterprises do.

While the separate three essays are all masterful, Schlosser could have done a better job weaving them together in the book's final chapters. His introduction takes on Adam Smith's free market theories; however, he does not seem to advocate for intense regulation of illegal, or semi-legal, industries, but rather for "a few laws, strictly enforced". One theme that ties the first and third chapters together is the impact of criminalization on the prevalence and success of a market. Based on a variety of sources, and on lessons from other countries (citing, among many other sources, MacCoun and Reuter's excellent Drug War Heresies), Schlosser argues (perhaps not clearly enough) that decriminalization might lead to a brief rise in the popularity of drugs and/or porn, followed by a steady decline in their consumption. The second chapter poses a more complicated problem, to which Schlosser does not offer an express antidote. It does, however, draw attention to the impact of unrestrained markets, focusing on efficiency and profit as their sole dependent variable, on humane labor relations.

I enjoyed and appreciated Schlosser's discussion of criminalization of drugs and porn, which reminded me a lot of Troy Duster's classical work The Legislation of Morality, and of Elizabeth Comack's interesting discussuion of narcotics law in Canada. I'm sure, though, that some readers are much better versed than me in labor policy and might have some interesting take on the second part. In any case, if any of you still has a holiday journey ahead of them, you might consider taking this book with you. Me, I'm done with traveling for this winter; and, as Faith Petric says, "for me, the charm of traveling is fading, I confess."

Wrapping Up "The Big Squeeze" Book Club

Many thanks to Orly Lobel, Melissa Hart, Noah Zatz, and especially Steven Greenhouse for their terrific participation in our book club for "The Big Squeeze."  We touched on a lot of facets of the book, and we were fortunate to get such thoughtful and considered responses from the author.  I hope the club will be a resource for folks in the future who are reading the book for class or for enlightenment.

Here's a wrap-up of all the posts for the club:

• Introductory post
• Zatz: Public Responsibility for Stopping the Big Squeeze
• Bodie: Causes of the "Big Squeeze"
• Hart: "The high cost of low prices"
• Lobel: Everyone Squeezed; Everybody Squeezes?
• Greenhouse: Not Just One Big Squeeze, But Many Squeezes
• Zatz: Responsibility for the Big Squeeze: Employers, Consumers, Citizens?
• Greenhouse: Addressing Wage Theft and Other Illegalities
• Bodie: "The Big Squeeze" and the Uncorporation
• Greenhouse: Does Litigation Vindicate Workers' Rights?
• Greenhouse: The Time Squeeze for Lawyers and Others
• Greenhouse: Shareholder Primacy and How It Squeezes America's Workers
• Lobel: Squeezing Every Penny Out of Regulation

And if you'd like to purchase the book, you can get it at :

• Amazon
• Barnes & Noble
• Powell's

Thanks again to Steven Greenhouse and all our commenters for a great club.

A Friday afternoon detour

I'm sure that Prawfs bloggers and readers will be able to connect the life and work of Wallace Stegner to any number of interesting legal questions and problems.  For now, though, I thought I'd pass on this nice reflection / review ("Changes in the Land"), by Thomas Zebrowski, over at First Things.  A bit: 

. . .  Stegner was on a lifelong quest for tradition, rootedness, and a sense of community that had been denied him by his peripatetic childhood and the individualistic outlook that surrounded him.

His early years in Utah had taught him about the benefits, even the necessity, of community for survival in a harsh natural environment, and Stegner recognized that it was the Mormons’ faith in God and in the future that had enabled them alone to carve out a respectable civilization in the North American desert. Wally never embraced Mormonism or any religious faith, but Fradkin believes that in a sense Stegner shared the Eastward orientation of this biblical people. The Mormons of Salt Lake City bury their dead beneath headstones that look back towards Zion. And Fradkin places much symbolic value upon the fact that Stegner chose for his own ashes to be scattered on his summer property in Greensboro, Vermont instead of near the Palo Alto home he had occupied for more than forty years. In part, Stegner’s decision may have been a testament to the comparatively stable, if flawed, local community he had discovered there. In Fradkin’s interpretation, it was also about Stegner’s belief in the greater capacity of this more verdant land to renew its own natural resources and reverse some of the grosser effects of human spoliation.

The environmental and even social perils of the West, on Stegner’s view, have been specially conditioned by an all but pervasive aridity that, among other things, freezes the effects of human exploitation into the landscape. In the more humid Eastern and Southern climes, the vertiginous wilderness is always poised to reclaim the land at least partially from human development and control. The practically necessary power plants, dams, mines, and sprawling housing developments of the West, by contrast, scar and damage the land in ways that are irreversible within any human timeframe. A New Deal Democrat who believed in the prudent use of governmental power, Stegner supported robust federal protection of the pristine wilderness areas that still remained west of the Mississippi, going so far as to invest with spiritual significance the preservation of some Western lands in a state as much unaltered by human influence as possible. He believed there were intangible and ancient resources in those places that might somehow sustain us. . . .

If you've got some time, read Crossing to Safety.   Besides being beautifully written, it's an academic novel -- though not the Lucky Jim or Straight Man variety (also great books) -- which I tend to like.

intellectual histories of intellectuals (legal and otherwise)

I hereby commend Neil Gross's sociological study of Richard Rorty, a book that's noteworthy even if you're not particularly interested in Rorty or philosophy and would prefer to think instead about the sociology of law professors and the legal academy. Gross's project is to study the trajectory of an academic's career and thought, and how that trajectory in turn affects and is affected by the institutional, disciplinary, and intellectual worlds with which s/he interacts. Of course this is the stuff of every biography of an intellectual or academic -- if you want to a masterwork of an intellectual biography of a legal intellectual, see, for example, Nicola Lacey's biography of H.L.A. Hart. But Gross is a sociologist and neither a historian nor a philosopher, and his book is not an attempt to ask the question, "Who was Richard Rorty?" Instead, his question is, "What were the conditions that enabled someone to become Richard Rorty?" Inevitably, the answer to this question requires the stuff of biography: profiles of his parents, his upbringing, and education; a sketch of the many stops of his career, from Yale to Wellesley to Princeton to Virginia to Stanford, with points in between; and a precis of his work (which may or may not be entirely accurate -- Gross concedes that he's not a philosopher). So if you're looking for an answer to the first, traditional question, you can find it here, although somewhat inartfully rendered and without great attention to specifically philosophical questions.

But his question is one with broader, and to me more interesting, implications than those of traditional biographies. What are the conditions under which a school or approach comes to dominate a field (in Rorty's case, analytical philosophy), and how does an emerging scholar make her way with and against the grain that school or approach establishes? Although the question is implicit in any biography of a noteworthy academic or intellectual, Gross foregrounds and brings an accessible sociological approach to his answer. One could of course ask that question from the top down, with a history of the field. But a bottom-up approach that views the academy from the perspective of an individual reveals things that are lost in the big picture. Specifically, Gross argues that issues of status and identity drove not only Rorty's success but also his approach. Rorty's apparent intellectual shift "from technically oriented philosopher to free-ranging pragmatist" (p. 15), Gross claims, was as much about internal career shifts and his conception of himself as it was the result of the great revelations of a great mind that a traditional biography would identify. We know and see this in the academic world of our everyday lives -- some are certainly smarter, more creative, and more productive than others, but no one is truly transcendent and everyone must negotiate the institutional structures and carrots and sticks that the academy throws before them. The traditional intellectual biography implies transcendence. The sociological biography foreground the limits of structure and history, and therefore something both greater and smaller than individual genius. Inevitably, to emphasize the sociological aspects of intellectual work is reductive, of course, but I've got nothing against reduction so long as it's well-argued and supported.

So, inevitably, I read this book in relation to the legal academy. For a top-down version of Gross's argument, one could begin with Jack Schlegel's remarkable history of realism's empirical wing, which focused on the institutional identity of law professors and the friction that first-generation empirical scholars faced between their interest in methodology and the constrained epistemology of the pre-war legal academy. That's an essential read if, for example, you're interested in historicizing the current boom in empirical legal studies (and interdisciplinary scholarship generally). Schlegel offers some snapshots of individuals -- his take on Underhill Moore is unforgettable -- but Gross's book suggests an even more all-encompassing biographical vision offers additional insights. Ultimately, I think what's at stake in all the various legal blogosphere arguments about the direction of law schools -- from the influx of PhDs to the rankings controversy, from curricular reforms to rethinking the third year of law school -- is not only the specific issues in dispute but also, as Gross and Schlegel both show, about what it means to be a law professor and a legal intellectual. We make our way as scholars in a strange and fragmented set of institutions and intellectual worlds, attempting to satisfy our individual intellectual and professional preferences within an historical context and institutions that are well beyond our control. What we are presently doing may (if we're among the lucky few) in the future be seen as the stuff of intellectual history; but we all work in institutions that also require sociological study. Compared to the narrative drive of history and biography, sociology is boring, but it's equally important.

Shareholder Primacy and How It Squeezes America's Workers

Once upon a time, when I was circulating the proposal for my book, The Big Squeeze,  several publishers asked me , "Who are the potential audiences for my book?" Among the target audiences I mentioned were not just classes in labor relations and sociology, but also classes in ethics, business ethics, human resources.

In several of his recent posts, Matt Bodie made me think that list should have  also included law school classes in Corporations. In his post "Causes of the Big Squeeze" and in his post "The Big Squeeze and the Uncorporation," Professor Bodie discusses the notion of "shareholder primacy" and in doing so, he examines an underlying theme in my book.

In The Big Squeeze, Tough Times for the American Worker, I examines a significant problem within corporate America: the way that many corporations and corporate executives place such overwhelming emphasis on their No. 1 goal -- serving their shareholders (by maximizing share price and profits) -- that they often shortchange and sometimes cheat their employees on wages and benefits. (And too many corporations cut costs by failing to operate safe workplaces.)

Several line managers I wrote about detailed how they faced such huge pressures to minimize payroll costs to help maximize profits that they felt considerable pressure to keep wages at a minimum and even to break the law at times, by, for instance, pressuring employees to work off the clock. One Wal-Mart store manager told me of a strategy that she used to minimize payroll costs: force out older workers who earned $9.50 an hour and replace them with new hires earning $6 an hour. (One way to squeeze out older workers was to transfer them to the midnight shift unloading trucks.)

Professor Bodie is right that some inefficiencies had crept into the system during the golden era of the social contract when workers were taken care of by management. But those inefficiencies were often understandable and none too burdensome because, at the time, American companies were not yet facing huge pressures from competitors in Asia and Europe. But now with pressures from globalization and imports (as well as pressures from Wall Street to maximize share price),  it seems that many corporations have been so aggressive wringing out inefficiencies and costs that they have gone overboard. Many companies give their employees paltry raises that do not keep up with inflation, offer health plans that many workers can't afford and shed thousands and thousands of workers in wave after wave of downsizing.

This helps explain why more and more people (including some law professors) are saying there's a need to replace or reform the American model of shareholder primacy -- a primacy that is often at the expense of not just workers and their families, but also whole communities.

Professor Bodie raises the idea of the uncorporation, and that notion raises some intriguing possibilities.  Uncorporations sometimes take the form of private partnerships or LLC's that can be more specifically tailored to the parties' preferences -- like advancing social responsibility.
 
My book explores how CEOs in publicly traded corporations face huge pressures to maximize share price and profits (and minimize costs and payroll) because CEOs know  that Wall Street may demand their heads if they don't deliver. In my chapter on model companies -- model because they treat their employees so well -- I note that when Fortune Magazine first published its list of the 100 best companies to work for in 1998, 71 of those companies were publicly traded, while by 2006 just 50 were.

In my chapter, Taking the High Road (p. 158), I detail the philosophies and practices of several companies that do the right thing. I discuss Costco, Patagonia and the hotel-casinos of Las Vegas.  It's no coincidence that Patagonia, which I describe as being wonderful to work for, is not publicly traded. Each year Patagonia pays for 40 of its employees to take two-month leaves of absence to volunteer for the environmental organization of their choice. Patagonia gives eight weeks paid maternity leave and paternity leave as well as eight weeks paid leave when an employee adopts a child. As Patagonia's owner and chairman noted, it would be extremely hard for him to do these things if his company were publicly traded. Accountants and shareholders would probably throw a fit. 

I also write about Cooperative Home Care Associates, a homecare agency in the Bronx that treats its low-paid workers extremely well. Cooperative Home Care might be another species of uncorporation worth studying -- it's a worker-owned cooperative.

As Professor Bodie writes, some business entities might adopt the uncorporate form because it could make it easier for them to eschew social responsibility by, for example, treating their workers poorly. By becoming uncorporations, business entities do not have to hold shareholder meetings--meetings that critics often use to confront (and berate) executives who run companies  known for stinginess or worker mistreatment.  And uncorporations don't have to make nearly as many public filings, which often contain information that companies would prefer to hide. The Service Employees International Union has launched a campaign that is devoted solely to pressure -- and hold accountable -- private-equity firms (are they a species of uncorporation?) because some of their far-flung subsidiaries treat their workers poorly. 

For those so inclined, forming an uncorporation makes it easier to treat workers generously,  but evidently, for those otherwise inclined, forming an uncoporation can  also make it easier to treat workers ungenerously. I'm looking forward to reading the brilliant law review articles that professors and law students write someday about the advantages and disadvantages (and the generosity and stinginess) of uncorporations.

"The Big Squeeze" Book Club: Update

Many thanks to all the participants in the book club for Steven Greenhouse's "The Big Squeeze."  We have a great set of posts.  And I'm happy to announce that we're going to keep the book club going at least through the beginning of next week.  That means you can look forward to more posts from our commenters and our indefatigable author, Steven Greenhouse.  A special thanks to Steve for his many thoughtful responses to our comments thus far.

We encourage you to offer comments on the posts themselves.  And if you would like to start a new thread and are not a Prawfs poster, please send me an email with your post.  I'll be happy to put it up for everyone to share.

In the meantime, if you have some catching up to do, here are the posts thus far:

• Introductory post
• Zatz: Public Responsibility for Stopping the Big Squeeze
• Bodie: Causes of the "Big Squeeze"
• Hart: "The high cost of low prices"
• Lobel: Everyone Squeezed; Everybody Squeezes?
• Greenhouse: Not Just One Big Squeeze, But Many Squeezes
• Zatz: Responsibility for the Big Squeeze: Employers, Consumers, Citizens?
• Greenhouse: Addressing Wage Theft and Other Illegalities
• Bodie: "The Big Squeeze" and the Uncorporation
• Greenhouse: Does Litigation Vindicate Workers' Rights?
• Greenhouse: The Time Squeeze for Lawyers and Others

Plus, you can check out Paul Secunda's thoughts on the book over at Workplace Prof Blog.

The Time Squeeze for Lawyers and Others

Orly Lobel takes me to task for drawing parallels in my book, The Big Squeeze, between overworked lawyers who toil seventy hours a week and overworked low-income workers, like hotel housekeepers, who face huge pressures to work harder and faster.

I understand -- and sympathize with -- Professor Lobel's statement: "I am hesitant to accept too quickly the parallels drawn between the plights of these two kinds of workers. " (I am indebted to Professor Lobel for her extremely kind compliments about my book.)

An explanation: I draw parallels between overworked lawyers and overworked low-end workers in order to suggest that far too many Americans, whether those on top, like law firm partners and associates, or those on the bottom, like hotel housekeepers and meat-packing workers, work far too hard and often far too many hours. For those on top, this often results from a workaholic syndrome. And sometimes their overwork doesn't result from workaholic-ism, but from expectations from their corporation or law firm that they are to work at a minimum 60 or 70 hours a week.  In my tenth chapter, Overstressed and Overstretched, I explore this overwork phenomenon and how it stresses out workers and strains family life, leaving many with far too little time with their spouses and children and often leaving workers too stressed when they are supposedly having relaxed time with their families. (Damn that perpetually active BlackBerry and cell phone.) 

I share Professor Lobel's sentiment that workaholic business executives, law firm partners, investment bankers and doctors often take it upon themselves. Oftentimes no one is forcing them to work such insane hours. Moreover, these high-end workers generally get paid very handsomely for their hard work. So in that sense my parallel is far from perfect -- badly overworked high-end workers deserve less sympathy than badly overworked low-end workers.

It seems that some workaholic business executives -- who often see hard work as a fact of business life -- do not hesitate to pressure their subordinates into working incredibly hard. These executives think, "I'm working incredibly hard, so why shouldn't everybody who works for me?" But there are several problems here -- and this helps explain why my parallel is less than perfect. Workers lower down on the economic ladder usually not take it upon themselves to work insanely hard -- they are often forced to do so. And low-end employees who are forced to work extremely hard -- see the section of my book on meatpacking workers and hotel housekeepers -- are rarely paid handsomely. To be sure, many low-end employees work seventy-hour weeks (sometimes working two jobs), but it is not to become masters of the universe or law firm partners or to earn $600,000 a year. They usually do so to try to scrap enough money together to support their families.

Should we feel more sympathy for seventy-hour-a-week law firm associates than for seventy-hour-a-week law firm partners? Probably. Law firm associates often have those crazy hours forced upon them. But they are often halfway happy to endure those hours because of the big, hoped-for prize at the end of the marathon: a partnership. But I generally feel less sympathy for the law associate who is forced to work seventy hours a week than for the low-end worker, like a meatpacker, who is forced to work seventy hours a week.

Still, I believe that my basic point holds -- too many Americans work far too hard and long, whether they are high-end workers who do so voluntarily or low-end workers who have it forced on them, either by overdemanding bosses or by economic exigencies. Whatever the reason, these long, overstressed work lives are unhealthy for workers and  their families -- for lawyers and for nonlawyers.

In counterpoint, I describe Ernst & Young, the accounting firm (p. 194), and how its former chairman grew alarmed that the firm had so female partners. )The main reason: many women quit the firm within a few years of being hired because they saw it as too demanding a place to balance job and family.) In a very laudable and far-sighted way, Ernst & Young's chairman transformed the firm's culture (and its employees' work schedules) so that E&Y became far more family friendly. The firm tried to make sure its workers weren't feeling pressured to work seventy hour weeks. It gave them huge freedom to determine their schedules, often allowing accountants to work just twenty or thirty hours a week -- or to take summers off. Nowadays women account for one third of the people made partner each year. I believe many of us have a lot to learn from the way Ernst & Young has transformed its culture into a family-friendly one.

Does Litigation Vindicate Workers' Rights?

Matt Bodie asks a smart question about the many lawsuits I write about in my book, The Big Squeeze: Tough Times for the American Worker.

I write about various types of litigation that seek to vindicate the rights of mistreated workers, for example,  class-action lawsuits against off-the-clock work, Fair Labor Standards Act lawsuits for failing to pay the minimum wage and overtime, N.L.R.B. charges against companies that fired workers who were campaigning for a union, various complaints filed with OSHA and the EEOC.  Professor Bodie poses an excellent question:  Did these legal actions successfully vindicate workers' rights or were they exercises in futility?

I devote a chapter to the horrifying (and ennobling) story of Kathy Saumier, a courageous worker at a plastics factory  just outside Syracuse. She led the efforts to protect and vindicate workers' rights after four of the factory's 190 workers had fingers amputated over a 13-month period.  Saumier led a drive to unionize the plant and filed complaints with OSHA and the EEOC complaint.  She accused the company of discrimination because 19 of the top 20 jobs on the factory floor were held be men, while women held more than 90 percent of the worst, lowest-paying jobs.  So what did Saumier get for speaking out? The company not only fired her, but sought to disgrace her by accusing her of sexually groping two male workers right on the factory floor.

The United Steelworkers, which was seeking to unionize the plant, filed an NLRB complaint to have Saumier reinstated, and thanks to intense news media attention, the NLRB sought to act hastily in the case. Nontheless, it took 14 months before Saumier was reinstated, and that was only after a federal district court judge (acting on a motion for an injuction) ruled that the company had concocted the sexual charges against her as a pretext to get rid of her.

In a sense, Kathy's rights were vindicated by the reinstatement. But the fact that the company fired her -- and the fact that she was gone for 14 months -- effectively killed the unionization drive. Most of the factory's workers became too scared to talk up the union when they saw their courageous, rank-and-file leader get fired (capital punishmenton the job). So in a sense, the NLRB reinstatement was too little, too late.

I also tell the story of a nursing home aide who led a unionization drive in Florida. He, too, was fired on concocted charges, with various levels of judges finding that management had fabricated the story that he was fired because he had sought to choke a nurse. It took six years of litigation before he was ordered reinstated, and his reinstatement came only after the U.S. Circuit Court of Appeals in D.C. ruled on the matter, upholding the NLRB. Incredibly, even though the nursing home aide had been fired six years earlier, the nursing home had to pay just $1,757 in back wages.  The back wages were so small because the nursing home aide had found another job soon after he wsa fired (as a translator for Catholic Charities) and all the wages on that job were subtracted from the years of back pay the nursing home would have owed. During those six years, the unionization drive had fizzled out. (For the nursing home, the $1,757 was a smart investment to kill off a unionization effort.)

In Saumier's case at the plastic factory, OSHA hit the company with a $720,700 fine for not installing proper safety guards on its equipment and for not reporting more than 60 injuries on its safety log. The good news is that those penalties went far to get the company to clean up its act on safety. As for the EEOC complaint, the company announced a $782,000 settlement. As a result, dozens of women received money to compensate them for the discrimination. The bad news is that a worker still at the plant said that a vastly disproportionate share of the best jobs were still held by men.

In The Big Squeeze, I also write about the dozens of lawsuits filed against Wal-Mart, accusing its managers in various states of squeezing employees to work unpaid hours off the clock. In direct response to these many embarrassing lawsuits (and the embarrassing newspaper articles about these illegal practices), Wal-Mart jumped to attention and moved to stamp out such illegal practices (although some workers say some of these practices persist).  Wal-Mart felt even more pressure to clean up its illegal act when several judges and juries ordered it to  pay millions of dollars -- in one California case $172 million -- when it lost lawsuits over off-the-clock work and not giving workers their required breaks.

In my view,  a key lesson here is that when the NLRB, OSHA, EEOC or a plantiffs' lawsuit hit companies over the head hard enough, companies will often clean up their act, effectively vindicating workers' rights. But if legal actions result only in a slap on the wrist, many companies will blithely continue their improper practices, leaving workers' rights weakened, rather than vindicated.

"The Big Squeeze" and the Uncorporation

I wanted to build a little more on my thoughts about the role of "shareholder primacy" in "The Big Squeeze."  The book argues that "[t]he hugely greater importance of the shareholder over the worker represents a sea change in capitalism."  It describes how the "shareholders first" mentality that now pervades publicly-traded corporations is harmful to workers.  Instead of maintaining the social contract of high wages and few layoffs, companies now lay off workers even in good times, and they continually seek to cut wages and benefits.  The pressure from the moves comes from globalization, certainly, but also from shareholders who reward layoffs and punish generosity to workers.  Indeed, Greenhouse notes: "Ironically, managers of workers' pension funds often served as a catalyst for laying off workers."

Conversely, the examples of "good companies" are often privately held.  One example is Patagonia, the California outdoors apparel company that provides its workers with extensive scheduling flexibility and great benefits.  Greenhouse provides the following thoughts from Patagonia's principal owners:

Yvon and Malinda Choutard acknowledge that the company they own could not be nearly so generous toward its workers or the environment if it had gone public.  "I went through the process of what it means to go public," Choulinard says.  "It would have been the death of my company.  You lose all power.  You can't take risks.  The accountants would say, 'When you do this or that, there is no benefit to the company.  What are you doing with the other people's [the shareholders'] money?'"

Larry Ribstein has written extensively about the possibilities of the "uncorporation" -- private partnerships or LLCs that are more specifically tailored to the parties' preferences.  Ribstein focuses on how these firms have key partnership-type features such as distribution and liquidation rights and strong-form manager incentives.  Because of these features, he argues that uncorporations will care less about corporate social responsibility or shareholders-rights initiatives.  However, uncorporations might also be suited to run in a different direction -- to be more oriented towards social responsibility than the general market would allow.  With a nimble, private structure, uncorporations could make decisions that the market might normally frown upon.

All of this is to say that union pension funds and other employee-oriented investors might want to think more carefully about how they invest their money.  It feels good to be touting shareholders' rights when it comes to issues like executive compensation.  But as "Big Squeeze" points out, shareholder primacy may not be the best way to support pro-worker changes in the economy.  Uncorporations may provide new ways for funds to invest in companies with employee-oriented policies.

Addressing Wage Theft and Other Illegalities

In his post, Public Responsibility for Stopping the Big Squeeze, Noah Zatz had some smart and kind comments about my book, and I very much appreciate that.

While I wholeheartedly concur with Professor Zatz's call for more law enforcement to stop labor law violations, I nonetheless dissent in part from this statement of his: "Unfortunately, I worry that the overall thrust of Greenhouse's argument leaves us ill-prepared to make the case for government action.  Almost every story has the same basic structure:  big corporation stomps on noble worker, or in more complex cases, big corporation forces small corporation (or middle manager) to do the stomping.  This way of telling the story lets almost all real people off the hook:  either we are fellow sufferers, or we are innocent bystanders.  That's great for focusing anger on the corporate miscreants, but I fear that it falls short, both morally and politically, when the solutions require all of us to put skin in the game."

If anything, I believe, my book should leave us better prepared to make the case for government action. One reason I wrote The Big Squeeze was to help make sure that the public sees  -- and that the nation's lawmakers see -- how common it is for corporate managers to break workplace laws. These practices are disconcertingly widespread, whether it's failing to pay time-and-a-half for overtime or making employees work off the clock or shaving hours from employee time cards or brazenly flouting safety regulations or hiring undocumented workers to skimp on wages and benefits or illegally firing union supporters. I'm not suggesting that these illegal practices are universal, but I did hope to make the case that these practices are far more prevalent that many people realize.

In the many tales I tell of companies and managers breaking workplace laws, in no way did I intend to leave companies or their managers off the hook. I write of senior corporate executives who assign unrealistically low payrolls to store managers or restaurant managers, knowing full well that those managers will feel pressured to break the law-- by, for instance, demanding off the clock work -- if they hope not to exceed their assigned payroll.  By writing about this, I'm not letting these senior executives off the hook. Rather I'm hoping that I might help persuade or even pressure senior executives to assign middle managers and line managers more realistic payrolls so those managers don't feel the need or temptation to break the law. I also hope that senior executives will alter some incentives for lower-level managers because those managers often feel tempted to cheat their employees when they know that their bonuses are tied to how low they keep payroll.

Nor do I let the line managers off the hook. I recognize that these managers are often assigned unrealistically low payrolls and often face huge pressures on the job, shouldn't these managers -- before breaking the law -- question their superiors about the unrealistically low payroll levels they've been assigned. Too often they too blithely flout the law.

And I like to think that my book puts shareholders on the hook. By serving notice  that many large, well-known companies are engaging in wage theft and violating safety laws, I would hope that some enlightened shareholders would push to make sure that their companies have firm policies (and realistic payrolls) to help discourage and prevent such lawbreaking.

My hope is that my book will spur reader, be they workers, union members, concerned professors, concerned lawyers or concerned clergy, to urge workplace regulators to regulate more vigorously and to urge lawmakers to enact stronger penalities to create disincentives to wage theft. Here's one law that needs strengthening: the federal penalty for falsifying wage documents (i.e. shaving hours) is just $1,000.

In my chapter of recommendations, I say it would be smart for federal and state lawmakers to allocate more money for workplace investigators. Some lawmakers and taxpayers might hesitate to spend more money on hiring more investigators. But I can imagine a way to increase the size of investigative staffs without raising the cost to taxpayers. I would think that good investigators could unearth enough workplace wrongdoing and mete out enough fines that they would more than pay for themselves.

Responsibility for the Big Squeeze: Employers, Consumers, Citizens?

In my earlier post I suggested that The Big Squeeze's focus on employer wrongdoing left us under-prepared to argue for vigorous, and costly government intervention.  Melissa Hart's responds by arguing that consumers implicitly are responsible for "the high cost of low prices" and that they will need to pay "one way or another" for change.

I tend to agree, but once we pivot to consumers from unethical or mean-spirited employers (or their managers, to whom Steven Greenhouse turns in his own followup), how far to do we get with tales of employer-employee abuse?  After all, the consumer says, "*I* didn't do anything wrong.  Why should I have to pay for someone else's wrongdoing?  And besides, I'm hurting plenty myself."

Once we shift focus from nasty employers to the systemic consequences of relentless price competition, the problem (and its solutions) might start to look pretty different.  Indeed, one possibility is that the problem isn't even that prices are "too low" but that some people are getting left behind through no fault of their own while others are getting ahead through pure good fortune.  That would push us toward focusing on the mutual responsibility among citizens, not necessarily consumers' ill-gotten gains.

Let me give one example that relates back to Orly Lobel's reluctance to put "lawyers and accountants and investment bankers" in the same box as low-wage workers.  I think there's a pretty good argument that many non-managerial professional employees are benefitting a lot from what Greenhouse describes, not only through lower prices but also through the advantages that their children get relative to the children of other workers in our massively unequal system of access to education and jobs.  So they're (we're) employees but coming out on top.  And on the other hand, I think there's a pretty good argument that plenty of small businesspeople (who never appear as protagonists in the book -- and rarely even appear as employers, despite the fact that about half of U.S. workers are employed by very small firms, not the behemoths we repeatedly see) work very hard and are getting squeezed, too.  But when the oppression of employees by employers organizes the story, the professional employees are off the hook and a struggling employer is on it.

Not Just One Big Squeeze, But Many Squeezes

I 188am delighted -- and honored -- to be invited to be a guest blawger for PrawfsBlawg. And I am impressed -- and honored -- by the thoughtful postings about my book, and I plan to respond to them one by one.

For starters, I want to say that when I researched and wrote my book, The Big Squeeze, I saw that workers were suffering not just from one squeeze, but from several squeezes. There is of course an economic/financial squeeze with wages stagnating and health and pension benefits getting worse. Then there is a time squeeze with Americans working 1,804 hours a year on average -- 135 hours or nearly three-and-a-half fulltime weeks more than the typical British worker, 240 hours or six fulltime weeks more than the typical French worker and nine fulltime weeks more than the typical German worker.  (Those of you who answer work emails at 11 p.m. know what I'm talking about.) The United States is the only industrial nation without laws guaranteeing workers paid vacation, paid sick day and paid maternity leave. (In the 27 countries of the European Union, workers are guaranteed at least four weeks vacation.)

For lack of a better phrase, workers also face a squeeze over dignity and respect. To a shocking degree, many "respectable" companies treat their workers with a surprising lack of decency or dignity. I think of the company that fired a computer engineer on the very day that his eight-and-a-half-year-old daughter was visiting on Take Your Daughter to Work Day. And I also think of the booklet that Northwest Airlines distributed to laid-off workers, giving them pointers on how to make ends meet. The booklet was called, "101 Ways to Save Money,' and among the tips it gave were "Borrow a dress for a big night out," "Shop at auctions or pawn shops for jewelry," and "Don't be shy about pulling something you like out of the trash."

Then there's another type of squeeze that I found quite surprising and appalling: the frequency with which many companies break the law in how they treat -- and cheat -- their workers. Perhaps I'm naive, but I was shocked at how prevalent such lawbreaking was.  Or perhaps because I went to law school (N.Y.U. Class of '82), I drank the Kool-aid and thought that corporate managers would actually behave better and  would try very hard to comply with the law.

Both in my job as labor and workplace reporter for The New York Times and in my work researching the book, I came across corporate lawbreaking time and again: Managers at Wal-Mart and many other companies strongarming subordinates into working off the clock. Many corporate managers do not let employees take their required lunch breaks and rest breaks. Many cleaning companies made immigrant janitors work 30 days a month and refused to pay them time-and-a-half for overtime. (And it was of course all off the books.) There were managers who treated undocumented female workers as sexual prey, there for the asking. Many construction companies  turned a blind eye to some of the most basic safety precautions, the result being that workers died in easily preventable accidents. (See trench collapses.)  Then, to derail unionization efforts, many companies break the law by firing outspoken workers who are trying to form a union.

And then there was the tale of Drew Pooters, who served in the Air Force for 17 years, serving in Somalia, Iceland and the first Persian Gulf War. When he returned home, he took a job at a Toys R Us in Albuquerque as the head of its electronics department. One day he was in the manager's office to check whether an item had been delivered, and he saw his supervisor sitting at a computer, erasing hours (recorded by computer) that he and other employees had worked.  Pooters protested, and soon was out the door. Pooters next went to work at Family Dollar, and in running one of its discount stores, he ran afoul of his supervisor, who told him he was spending too much money on payroll and should thus go into the computer and erase some hours from his employees' time cards.  Pooters refused, and was soon out the door. In his next job, at Rentway, a company that sells furniture, computers and electornics by installment, he often had to work through his lunch hour, but he said his boss erased those lunch hours as hours he had worked. Three jobs in a row Pooters, as patriotic American as you'll ever meet, suffered from this practice of "shaving hours."  (I should note that Toys R Us, Family Dollar and Rentway all say they have firm policies directing their managers to always comply with the law.)

I write about all this because I'm surprised at how broken many of the nation's workplaces seem to be. (Wall Street is so broken that I guess I shouldn't be surprised at how frequently workplace managers flout the law. Hasn't the Wall Street cataclysm resulted from cascades of fraud and foolishness, of cupidity and stupidity--overreaching mortgage brokers, dishonest packagers of mortgages into securities, foolhardy or dishonest credit rating agencies. The list goes on.)

After I finished writing my book, I kept wondering, Why do so many corporate managers break the law? Why do they show so much contempt for the law and for their workers? Yes, they often face tremendous pressures to keep their payroll costs to a minimum. But I always thought, evidently naively, that that the desire to follow the law would serve as a powerful brake on managers breaking the law and cheating employees.  What exactly, I often wonder, are the managers of today and tomorrow learning in the ethics classes and human resources classes that they take in business school?

Everyone Squeezed; Everybody Squeezes?

The Big Squeeze is a tour the force exploration of the American labor market, employment relations, and the realities of American workers. Steven Greenhouse does an extraordinary job mapping a broad range of industries, companies, and jobs. Greenhouse describes the shocking and the mundane, the “downright Dickensian” and the out of luck programmers, “workplace hell” and the overstretched supervisors, the huge squeezes and the little squeezes. Greenhouse is correct in many of his connections. The way we conceptualize and order work relations in any industry and context represents our collective values and principles, our priorities and social norms. At the same time, we need to be cautious about overstating what the big squeeze is about and what can and should be done with regard to various “squeezes”.

In the Big squeeze we are introduced to high skilled white collar workers and to low-skilled blue collar workers. For example, in chapter 10, Greenhouse tells us about lawyers in law firms being overstressed and overstretched:

“Not just young lawyers seeking to make partner but even many law firm partners in their forties and fifties are toiling seventy hours a week, staying in the office until two a.m. to finish drafting a contract or writing a brief. Middle managers, investment bankers, and many accountants and attorneys complain of being called on their cell phones while on vacation, having to jump to attention to answer the boss’s demands.”

Then, in the immediate next paragraph, Greenhouse shifts our attention to a different type of worker:

“At the other end of the economic ladder, low-end workers face a different version of on-the-job stress. Some hotels have ordered housekeepers to clean sixteen rooms each eight-hour shift, up from fourteen rooms, pressuring many to work through their lunch breaks and coffee breaks…”

I am hesitant to accept too quickly the parallels drawn between the plights of these two kinds of workers.

It may be true that lawyers and accountants and investment bankers work too much. But it is not clear that this should be alarming to us as a society, perhaps putting aside questions about gender equality [and I realize that this is a big thing to put aside, but I would like to nonetheless for the purpose of questioning the scale of plights and squeezes]. I worry that depicting everyone as overworked and vulnerable to job pressures, mistreatment by their bosses, and layoffs overshadows the vast differences between the weakest sectors and those at the top of the ladders, and also everyone in between. The regulatory implications for making distinctions are significant. While corporate America would like to call everyone “supervisors,” distinctions between those who are economically vulnerable and those who are well equipped to manage their careers and make choices about their dedication to the job even during downturns in the economy are highly important for interpreting and enforcing much of the existing protective labor legislation. In a subsequent post, I will say more about the policy reforms that may follow from Greenhouse’s expose and the current state of the economy.

"The high cost of low prices"

The Big Squeeze is a remarkable collection of anecdotes and data that leaves the reader almost overwhelmed by the circumstances faced daily by so many American workers.  Steven Greenhouse highlights the full range of problems workers today face -- long, undercompensated, and often uncompensated, work hours; dangerous work conditions; discrimination and other illegal mistreatment; lack of health care coverage or reasonable leave to attend to family responsibilities.

Particularly interesting to me what Greenhouse's discussion of how these conditions have changed over time and especially his focus on the post-World War II attitude of employers and the government and the social contract that benefitted workers in the middle part of the 20th century.  It is helpful to remember that today's workplace conditions are not inevitable, but are the consequences of shifting attitudes and priorities that could again shift.

In this regard, Wal-Mart is an interesting example because the story of Wal-Mart so closely mirrors the story Greenhouse tells about changes in the relationship between employee and employer over the past four or five decades.  Sam Walton, founder of Wal-Mart, was legendary for giving employees an impression that they were family, and that they were being heard.  Greenhouse tells and extraordinary story of current Wal-Mart  CEO Lee Scott's early days at the company.  He started as an assistant director of trucking, and when one employee violated a rule, he would send warnings to all employees.  The drivers ultimately complained directly to Sam Walton, who "told Scott to apologize and made he tell the drivers that he appreciated that they had used Wal-Mart's Open Door policy to go over his head to complain."  (138)  This is in such stark contrast wit hthe stories from earlier chapters in the book of workers disciplined and even fired for pointing out gross misconduct by their supervisors.  And it stands in stark contract to Wal-Mart's current policies.  While Wal-Mart still likes to tout itself as the natural outgrowth of its roots as an employee-first business, it is today the prototype of what is not working for workers.

So what changed? 

This is where I might disagree slightly with Noah Zatz's argument that The Big Squeeze to some extent lets "real people" off the hook for what is going on in the workplace.  While many elements of Greenhouse's argument, and the extraordinary stories he recounts, do take the form of exposing corporate mistreatment of workers, I think the question of who should pay for a better system is never far from the surface of the argument.  As Greenhouse says of Wal-Mart, "rock-bottom costs make its rock-bottom prices possible."  In other words, a business model that seeks to drive prices to their lowest possible point cannot sustain a culture that treats employees well.  The only way conditions for workers will change is if all of us, one way or another, pay more to make that happen. 

The pressure on retailers to keep prices at their lowest possible point, and even to continue to lower them, is in direct tension with any improvement in working conditions.  There may be government solutions to this tension, and certainly pressure from shareholders and CEO salaries is some part of the problem.  But one of the things a book like The Big Squeeze might ideally do is to force consumers to think about "the high cost of low prices."

Causes of the "Big Squeeze"

"The Big Squeeze" eloquently captures the plight on particular workers caught up in the machinery of our modern economy.  Along with these vignettes, Greenouse also sketches the broader trends that are driving the pressures being placed on workers.  I wanted to follow up on Noah's thoughtful post by talking about some of the potential causes for the squeezes being felt by many Americans.  While globalization and increased productivity are among the causes, I wanted to single out two others for further discussion here.

• Violations of current law.  The workers chronicled in "The Big Squeeze" come from a variety of backgrounds and professions.  But almost all of them have suffered from some form of alleged illegality -- deleted hours, pressures not to join a union, and sex or disability discrimination.  Often, they are found in the midst of litigation -- after the case has been brought, but before a resolution has been reached.  I'd be curious to know more about the end of some of these stories.  Did litigation bring any assistance -- money for health care, reinstatement, a new start?  Or did it just stretch on, providing little if any help at the end of the process?  The tale of Kathy Saumier presents a mixed message in that regard.  Saumier was a worker at Landis Plastics who was fired for supporting the union.  She was reinstated to her position and was hailed as a fighter for workers' rights.  In addition, she and other workers reached a $782,000 settlement on sex discrimination charges.  However, she ultimately left the factory to work at a law firm, and Landis workers are not unionized.  Is Saumier an example of the law's success in vindicating worker rights or a tale of its impotence?  Or both?
• The "shareholder primacy" norm.  As someone who studies both corporate law and labor and employment law, I appreciated Greenhouse's look at "shareholder primacy" as a potential cause of the deteriorating workplace.  In many ways, Greenhouse's narrative of the 20th century is the inverse of the traditional corporate law narrative.  Greenhouse discusses the "golden era" of the social contract, in which workers were taken care of by management.  In corporate law, however, this era is often described as one in which cocooned CEOs paid too little attention to the bottom line and, as a result, allowed ineffiiciencies to creep in across the board.  Greenhouse chronicles how in the 1980s the management policies of Jack Welch and "Chainsaw" Al Dunlap led managers to focus on shareholders and, by extension, share price as the ultimate measure of success.  To Greenhouse, this brought about the end of the social contract; to many corporate law scholars, this was the beginning of a new era of greater corporate efficiency.  Both narratives are, to some extent, correct.  But I wonder if last week's events will cause the pendulum to swing back the other way.

Public Responsibility for Stopping the Big Squeeze

It's a pleasure to be part of this discussion of Steven Greenhouse's masterful, though depressing, The Big Squeeze.  The book is impressive in scope, weaving together changes in corporate structure like outsourcing and contingent work, faces of globalization ranging from immigration to offshoring, shifts in management philosophy, and the assault on labor unions.  Greenhouse also tacks effectively between compelling, illustrative stories of individual workers and bigger picture analysis of trends backed up by a wealth of statistics and snippets of expert commentary.

Before raising some questions and concerns, I want to highlight an important piece of Greenhouse's analysis that often is missing from tales of workers' woes and what to do about them:  labor law enforcement.  Again and again, we see workers cheated out of wages by being required to begin work before they clock in, continue while nominally on breaks, finish tasks after they clock out, and even then having their hours deleted from payroll records at the stroke of a key.  Related themes are retaliatory firings for union organizing and workers exiled from employment's benefits or protections through misclassification as independent contractors or shunting into fly-by-night subcontractors.  Against this  backdrop, legal reforms like raising the minimum wage or strengthening union rights may be meaningless unless they can be enforced more effectively, and Greenhouse's policy recommendations helpfully reflect this pragmatic point.

Thinking about enforcement immediately puts the spotlight on the government and, more generally, the citizens and taxpayers.  Enforcing labor law, after all, takes money to hire the inspectors whose ranks, Greenhouse notes, have thinned, and it takes a political commitment to use public power on behalf of workers.  Unfortunately, I worry that the overall thrust of Greenhouse's argument leaves us ill-prepared to make the case for government action.  Almost every story has the same basic structure:  big corporation stomps on noble worker, or in more complex cases, big corporation forces small corporation (or middle manager) to do the stomping.  This way of telling the story lets almost all real people off the hook:  either we are fellow sufferers, or we are innocent bystanders.  That's great for focusing anger on the corporate miscreants, but I fear that it falls short, both morally and politically, when the solutions require all of us to put skin in the game.  I'll leave it there for now, but in subsequent posts I'll suggest a few ways of broadening the frame, both to think more about relationships among workers and to think more about relationships between the labor market and other institutions.

Book Club: "The Big Squeeze"

"You work for a company for ten years and you give a hundred and fifty percent.  Customers call in and say how much they like you.  I used to go above and beyond.  And then I get sick, something totally out of my control.  And then to get fired."

-- Jean Capobianco, former driver for FedEx Ground who was terminated after being diagnosed with stage-4 cancer

Welcome to PrawfsBlawg's Book Club on "The Big Squeeze" by Steven Greenhouse.   Along with myself, our participants will be:

• Melissa Hart
• Orly Lobel
• Noah Zatz
• Steven Greenhouse

We encourage everyone -- club participants, author, readers -- to join in the comments. 

You can call up all of the posts in the book club by clicking on the "Books" category.  If you'd like some further discussions of "The Big Squeeze", here are some links:

• Center for American Progress forum (includes video)
• The Firedoglake Book Salon
• AFL-CIO interview with Steven Greenhouse
• Democracy Now! interview with Steven Greenhouse

Anathem

It's the title of the new book by Neal Stephenson.  It's brutally good.  If I may speak in Nerd for a moment, it's Cryptonomicon good.  It is messing with my deadlines, cutting short my sleep, and generally fooling with my head.  In other words, it's available at your local bookstore now.

Reminder: "Big Squeeze" Book Club next Monday

Just a reminder: please join us Monday for our book club on "The Big Squeeze".  Steven Greenhouse, Melissa Hart, Orly Lobel, Noah Zatz and I will all be participating.  It should be particularly interesting to discuss the book in light of this week's events in the financial sector.  Please join us on Monday.

weekend suggestions

Since I'm sure at this point in the semester/ fall you have nothing better to do, here are a couple of semi-obscure suggestions for things to waste your time on:

If you liked Deadwood, you might consider reading Oakley Hall's novel Warlock. I got to it because the current NYRB Classics edition has a blurb from Thomas Pynchon and an introduction by Robert Stone, two of my favorite novelists. But don't let that scare you away. It's a really literate western, like Deadwood in that it's about a frontier town (this time in the southwest), but more concerned with the issue of law enforcement -- specifically, the relationship between failed public law enforcement and a privately hired marshal whose employment and practices and friends have a number of unanticipated consequences for the town of Warlock.

If you like crime dramas and political thrillers, you might want to rent State of Play, a BBC miniseries from 2003 which played originally on the cable channel BBC America and is finally now out in the US on DVD. British TV tends to do spy thrillers (see especially the two Alec Guinness/ Le Carre series), political thrillers (see House of Cards), and crime drama (see Prime Suspect) better than the Americans, and this is just as good as the best of those -- very fast-paced, thrilling, and thoughtful. In episode one there's a classic moment where a newspaper calls in its attorney to go over its legal options after it has just received some very hot evidence crucial to a murder investigation. It seems both incredibly realistic and hilariously funny, all at the same time, and gives one a sense of how the press (from whose perspective the series views the world) views its lawyers.

Book Club on Steven Greenhouse's "The Big Squeeze"

I'm delighted to announce an upcoming PrawfsBlawg book club.  This club will be discussing "The Big Squeeze" by Steven Greenhouse, the labor and workplace reporter for the New York Times.  "The Big Squeeze" is Greenhouse's wide-ranging exploration of the plight of the American worker.  Looking at both broad trends and individual stories, he paints a fairly grim picture of inequality and unfairness in the workplace.  "The Big Squeeze" has been praised as "an important and infuriating book . . . [that] tells, in detail, how far we as a nation have sunk from the standards of workplace decency that once existed here and that many Americans still take for granted."

Joining Orly Lobel and me for the club will be Melissa Hart and Noah Zatz.   Melissa is a professor at the University of Colorado Law School.  She has written extensively on employment discrimination issues, with a focus on litigation and compliance.  Her paper "Learning from Wal-Mart" can be found here.  Noah is a professor at UCLA School of Law.  His research interests include employment & labor law, welfare law and antipoverty policy, work/family issues, feminist legal & social theory, and liberal political theory.  This year Noah is a fellow in the Program on Law and Public Affairs at Princeton University.

Steven Greenhouse will also be joining us for the discussion.  Greenhouse's articles are must-reads for labor and employment law professors, and I expect that many profs will be interested in hearing more about "The Big Squeeze."  In fact, I have heard that the book is already finding avid readers in law school seminars.  Greenhouse is an alum of NYU Law, having finished first in his class, so it's not surprising that his work is so adept in its legal analysis.  He is also a graduate of Wesleyan University and the Columbia Graduate School of Journalism.

The Book Club will begin on Monday, September 22.  We look forward to seeing you then. 

Literature as Scientific Endeavor

In the Sunday New York Times Book Review, Walter Kirn reviews James Wood's new book How Fiction Works.  According to Kirn, Wood views literature as a scientific endeavor to credibly capture human nature.  It seems to me that there is a growing strain of legal thought that tries to do something similar.  See, e.g., here, here, and here. 

Here are Kirn's words:

His essential point is this: Novels and short stories succeed or fail according to their capacity (a capacity that has progressed over the centuries rather like the march of science) to represent, affectingly and credibly, the actual workings of the human mind as it interacts with the real world. The mind and the world, as Wood defines them, are dependable, fixed phenomena, for the most part, possessed of natural, intrinsic qualities that fiction writers in their ink-stained lab coats measure, prod, explore and seek to illustrate using a rather limited range of instruments that can be endlessly adjusted.

A Patent Lie

Paul Goldstein is a distinguished intellectual property scholar and author of both Copyright’s Highway, perhaps the best layman’s introduction to copyright law there is, and Goldstein on Copyright, one of the essential treatises for copyright experts. He’s also a mad prolific casebook author, and, if you believe the wrong sources, a crackerjack tennis player. But did you know he’s also a mystery novelist?

In fact, he writes—get this—intellectual property thrillers. His first novel, Errors and Omissions, managed to make Copyright Office paperwork the stuff of high drama. I enjoy a good murder mystery thriller as much as the next guy, but reading one in which my own area of the law plays such a prominent role is a special treat. In Errors and Omissions, New York City litigator Michael Seeley’s personal and professional lives are close to bottoming out when he reluctantly accepts an offer to go to Los Angeles and make some easy money certifiying the chain of title in the copyrights for a blockbuster movie series. As Seeley discovers, however, there’s something off about the sequence of assignments, and someone is more than willing to kill to clear up any clouds on the title.

Well, Michael Seeley is back, and the title of A Patent Lie tells you we’re not in copyright country anymore. (May I suggest “Naked License” as the title of the inevitable trademark thriller to follow?) Seeley has retreated to his hometown of Buffalo to lick his wounds; he’s calmly, if not happily, scratching out a two-bit practice when his estranged brother Leonard walks in the door with an offer Michael ultimately can’t refuse. Leonard’s biotech startup is suing a multinational Big Pharm for patent infringement on a potential blockbuster AIDS drug, the trial counsel has just jumped in front of a train, and someone needs to take his place. Once Michael arrives in San Francisco, however, he finds that nothing is right about this patent infringement case. He’ll need to deal with a second chair who seems to be trying to undermine his case, a client who won’t tell him key facts, an unlikely pretrial stipulation of priority, and, quite possibly, a murderer on the loose. How Seeley fits the pieces of the puzzle together is only half as interesting as how this seasoned litigator starts digging his way out of the hole he’s landed in.

A Patent Lie is not a perfect book. I generally like my mysteries to have at least two major conspiracies to disentangle; part of the fun is trying to figure which crimes and clues go with each other. A Patent Lie, however, has only one, quite large conspiracy, and while some of the conspirators are working at cross purposes, all of the secrets and doublecrosses flow ultimately from that single source. (Errors and Omissions was this way, too, but Goldstein did better there at keeping a few absolutely crucial details of it from the reader until the final chapters.) There’s also so much trial time that I never got much of a sense that Seeley was in serious danger. But on the whole—and especially if you’re an IP type—A Patent Lieis a great read. In addition to the cleverly handled trial at the center of the book and the remarkably cynical scheme behind it, it also conveys a wonderfully rich sense of melancholy. This is a novel about broken families, failed dreams, and the lawyer’s virtue of always, always soldiering on.

"Save the World On Your Own Time"

That's the title of Stanley Fish's latest book.  In the book, as the dust jacket says, Fish argues that "the only goal appropriate to the academy is the transmission and advancement of knowledge.  When teachers offer themselves as moralists, political activists, or agents of social change rather than as credentialed experts in a particular subject and the mthods used to analyze it, they abdicate their true purpose. . . . Those who do this will often invoke academic freedom, but Fish argues that academic freedom, correctly understood, is the freedom to do the academic job, not the freedom to do any job that comes into the professor's mind."  He is, in short, an anti-Gutmann, an anti-Nussbaum (although, wrongly in my view, he doesn't mention either of these scholars).

I'm only a third of the way through the book, but it's a great read so far.  I hope to put up a series of more substantive responses to it (and yes, as always, I'm looking for a law review that might be interested in a review of this very timely book).  I make note of it now because it seems pertinent to many of the questions we've been airing in the past few days, and some that have lurked behind our discussion: Are religously affiliated schools proper "academic" enterprises in the sense in which Fish uses the word?  Is the "academic" enterprise necessarily as narrow as he suggests, or should we have a broader conception?  Should an "elite" education be measured by any other metrics than the most academic ones?  Is there any room for a pluralistic conception of the mission of higher education, or is there only a narrow definition of "academic" and a series of other schools, focused on religious mission or social change or any number of other values, that may be fine but aren't "academic" as such?  And are law schools, which mix intellectual inquiry and practical training, really part of the academy in the first place? 

I think Fish is too monistic in his view of the university, and hope to expand on that point soon.  In the meantime, however, let me say that Fish is characteristically spirited and fun and, so far in my reading, has made many incisive, if repetitive, points.  He is particularly useful in arguing that the academic enterprise, in its seeking after truth, should eschew a sense of urgency, which is the realm of politics, in favor of a certain sense of timelessness -- a point I have made here before, and probably a sticking point for law schools and much legal academic writing, and for the endless and distorting quest for "novelty" among both authors and law review editors. 

And it's all very Fishy, written with a tremendous sense of joie de vivre and Peck's bad boyishness.  After the jump, a few quotes.  Note, in particular, the quote questioning whether law schools belong in the university at all, the discussion of whether it would have been right for academics in the '50s to make any positive declarations about segregation, and the very anti-Nussbaumian argument that reading novels doesn't make you a better person.

"Moral capacities (or their absence) have no relationship whatsoever to the reading of novels, or the running of statistical programs, or the execution of laboratory procedures  . . . . "

"Anyone who asks for more [than academics in a narrow sense] has enlisted in the 'we-are-going-to-save-the-world' army along with Derek Bok . . . ."

"[I]sn't the university primarily a place for the unfettered expression of ideas?  The answer is no.  The university is primarily a place for teaching and research.  The unfettered expression of ideas is a cornerstone of liberal democracy; it is a prime political value.  It is not, however, an academic virtue, and if we come to regard it as our primary responsibility, we will default on the responsibilities assigned us and come to be what no one pays us to be -- political agents engaged in political advocacy."

"If you're not in the pursuit-of-truth business, you should not be in the university."

"[W]hat about professional schools and professional training? . . . [I]f students [at such schools] are taught methods and techniques in the absence of any inquiry into their sources, validity, and philosophical underpinnings[,] that professional school is not the location of any intellectual activity and is 'academic' only in the sense that it is physically housed in a university."

"The judgment of whether a policy is the right one for the country is not appropriate in the classroom, where you are (or should be) more interested in the structure and history of ideas than in recommending them (or dis-recommending them) to your students."

"In the 1950s the legal and moral status of segregation was a live political question working its way through legislatures and courts, which were (and are) the proper venues for adjudicating the issue.  Faculty members were free to air their views in public forums and many did, but those who used the classroom as a soapbox were co-opting a space intended for other purposes."

"[A]s for ethical judgment in general, no doubt everything you encounter helps to shape it, but reading novels by Henry James is not a special key to achieving it; and indeed -- and there are many examples of this in the world -- readers of Henry James or Sylvia Plath or Toni Morrison can be as vile and as cruel and as treacherous as anyone else."

Michael Heller's The Gridlock Economy

This past weekend, I read Michael Heller's new book The Gridlock Economy:  How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.  The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends.  The Gridlock Economy is one of those rare books that makes important theoretical points while being an easy, enjoyable read.  Like Hernando de Soto's The Mystery of Capital, The Gridlock Economy is clearly written and illustrates its points with engaging examples.  You could assign the whole book for a week's reading in a class and not feel guilty about overwhelming your students.

The book's core points build on insights that Heller first developed in The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.  The basic idea of the anticommons is that highly-divided ownership of property can lead to the underutilization of resources.  If too many people have control over a resource, decisionmaking gets gummed up, transaction costs multiply, and resources are underused.  Heller's iconic example of the anticommons is Moscow storefronts, where the right of many "owners" to veto various uses led to stores that remained vacant while kiosks thrived on the sidewalks just outside.  If the tragedy of the commons can be seen as being caused by an absence of property rights, the tragedy of the anticommons can be seen as being caused by an overabundance of property rights.  Heller argues that we should be seeking the sweetspot between too much and too little property:  "Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse." (p. 19).

The Gridlock Economy explores this theme in a number of interesting settings, including biotech patents, broadcast spectrum, land use regulation, and land assembly.  My one quibble is that the book occasionally crams problems that don't seem to fit into the anticommons category.  One example is the fiasco of underutilized broadcast spectrum owned by television broadcasters. (p. 96)  If the broadcasters had stronger property rights in this spectrum, it probably would not be underutilized to such a degree.  This particular problem therefore seems to be more about too little property, rather than too much property.  Another example is the problem of highly-fractionated interests that results from multiple generations of a family passing property through intestacy.  After a few generations, a single plot of land can have scores of owners.  These multitude of owners can lead to real anticommons problems -- just imagine trying to get the consent of thirty cousins to do anything with a piece of property.  As a remedy for this sort of multiple-ownership problem, the law allows the property to be partitioned.  For property with many owners, partition is usually achieved through a judicial sale of the property, with the proceeds divided among the owners.  As Heller describes (p. 121)the partition process has a ton of flaws, and needs to be reformed.  But Heller's complaints about partition are about the flaws in a remedy for an anticommons problem, not the anticommons problem itself.

As noted, these are just quibbles.  This is a great book.

Ben Barros

cross posted to propertyprof blog

Lives of Lawyers Revisited

I owe a debt of gratitude, and apology, to Michael J. Kelly, who sent me his recent book, Lives of Lawyers Revisited: Transformation and Resilience in the Organizations of Practice, some time ago.  Through no fault of his, I have neglected to mention the book yet on the blog.  Let me remedy that by saying that Kelly's book is a rich and interesting read and should be of interest to any student or sociologist of law and legal practice.  His book's summary of its theme, and its endorsers, say it better than I can:

The past two decades have seen profound changes in the legal profession. Lives of Lawyers Revisited extends Michael Kelly’s work in the original Lives of Lawyers, offering unique insights into the nature of these changes, examined through stories of five extraordinarily varied law practices. By placing the spotlight on organizations as phenomena that generate their own logic and tensions, Lives of Lawyers Revisited speaks to the experience of many lawyers and anticipates important issues on the professional horizon.

"Michael Kelly believes that professional values and conduct are not realized in codes, but in the experiences of practice, and that practice draws its routines and ideals from organizations. Through his studies of lawyers in various firms, closely observed and sympathetically described, Kelly reveals how differently organizations adapt to the intense pressures of today's practice environment. His method of linking individual life-experiences to organizational strategies and the external constraints of competition and client demands infuses realism and richness into the concept of professionalism and makes this one of the most interesting and original books on professions and professionalism to appear in years."
—Robert W. Gordon, Yale Law School

"In his two volumes of Lives of Lawyers, Michael Kelly explores legal ethics in an unusual, and unusually rewarding, way. Rather than focusing on rules or arguments, Kelly looks at the kind of lives lawyers lead. Ethics, Socrates thought, is about how to live one's life, and Kelly takes the Socratic question to heart. He explores the institutions lawyers work in and the choices they make. He writes with intelligence, great insight, and above all with heart. This is a superb book."

—David Luban, Georgetown University

Highly recommended.  My apologies, Michael, for the delay in promoting a fine book. 

What I learned about blogging from Bill Bishop's book on polarization & geographic sorting

It is still early to be picking favorite books of 2008. But I think it unlikely that anything in the Non-Fiction/Popular Poli Sci category will beat Bill Bishop, The Big Sort: Why Clustering of Like-Minded America is Tearing Us Apart (Houghton Mifflin 2008). The essential theme of Bishop's book is that there has been a remarkable increase in county-level sorting based on ideology since 1965, and that this sorting is leading to polarized politics and culture. Aided by Robert Cushing, a Professor of Sociology and Statistics, Bishop has assembled a striking array of data showing that inter-county migration based on ideology has increased precipitously in the last 43 years: Republicans and Democrats are both seeking out counties where their preferred candidate is likely to win by a landslide (i.e., 20% or more). Liberals head for Travis County (Austin), TX; Washtenaw County (Ann Arbor), MI; San Francisco County, CA. Conservatives head for Lubbock, TX; Grand Rapids, MI; Orange County, CA; etc. Bishop also provides a powerful argument that, contrary to some recent claims by respectable political scientists (e.g., Morris Fiorina, Culture War? The Myth of a Polarized America), this geographic sorting has made Americans far more ideologically polarized than they were prior to the 1970s. Indeed, Bishop shows that we Americans are now ideologically segregated in our basic consumption choices -- the news shows we watch (Fox versus NPR), the beverages we drink (micro-brews versus, well, macro-brews), even the pets we own (yes, there is a significant correlation between owning a dog and being a resident of a Republican-landslide county).

There is much one could write about this remarkable and accessible book. Despite its being essentially a popularization of existing academic literature, The Big Sort may even eventually join the ranks of classics on local spatial economies -- a literature that has blossomed since Wallace Oates based an entire economic literature on Tiebout's now-classic A Pure Theory of Public Expenditures. Best of all, Bishop transcends his own identity as an Austin, Texas liberal by dispassionately -- even hilariously -- describing the paranoia of both Left and Right.

But I would like to focus on the book's relevance to (of all things) blogging, a topic that Bishop does not discuss. The Big Sort sheds light on a mystery (at least, to me) of this medium: viz., the touchiness of bloggers, Left and Right, and their willingness to invoke the alleged bad faith or stupidity of their opponents as an explanation for ordinary ideological disagreements. Here's the explanation that Bill Bishop might offer: Blogs allow geographically segregated groups to interact. According to Bishop, this sort of trans-county and trans-ideological interaction is unfamiliar to the participants. They predictably use the medium as a cathartic outlet to lambast unseen ideological opponents with whom they lack daily dealings.

Hence, the hyper-ventilated tone of blog comments on ideologically coded topics like free trade, habeas writs, or "hate speech" regulation. Judges who read Article I, section 9's protection of the habeas writ are not merely mistaken about the best reading of the law: They are corrupt, rent-seeking ideologues. Politicians who want to restrict "hate speech" are not merely misguided or over-zealous: They are the stooges of Left-wing commissars of political correctness. Advocates of tariff protection for American labor are not simply making a poor policy decision: They are xenophobic or economically illiterate. (I myself am a fairly doctrinaire free-trader -- but I was taken aback by the snide or strident tone of my fellow free-traders in response to one of my own posts).

(Of course, I am not exempt from deploying polarizing rhetoric. Sadly, my own ideology is the lonely one of being a booster for decentralization of various stripes -- in particular, localism and federalism. (Hence, my irate post on Riley v. Kennedy). I have yet to find a county where we decentralizers form a majority: When I do, I'll move there and contribute in my own little way to Bishop's Big Sort).

In such an atmosphere, one cannot write in a ironic vein on any topic on which the "Reds" or "Blues" have passionate feelings without inviting a cascade of savage -- indeed, sometimes apparently hate-filled -- invective. Of course, angry comments are harmless: It is not as if Sumner is being caned by Butler on the Senate floor. But one does detect an oddly similar level of intense hatred, even though the practical stakes are exactly zero. Moreover, there is an apparent eagerness to sniff out the author's hidden ideological agenda even when such an agenda is hard to imagine. For instance, if one hazards a guess that Canadian politicians and press will ultimately put the kibosh on over-enforcement of Canadian "hate speech" regulation, one must be a fan of censoring conservative speakers. (I was accused of harboring such a desire to see conservatives censored by the Canadian Human Rights Commission even though I described Canadian constitutional doctrines as "appalling" and Canadian bureaucrats as "petty Robespierres" and "thought police." Incidentally, I was a registered Republican until I moved to NYC, where such a party affiliation prevents one from voting in the only contest that counts -- the Democratic Primary -- and I am undoubtedly to the Right of most of my colleagues at NYU Law School).

What lesson should one take away from this ideologically over-charged atmosphere? If one had an earnest and reforming bent, one might use the geographically boundless blog to transcend ideological divisions that, according to Bishop, are increasingly mapping on to geography. If one wanted to undertake such a worthy mission, one would have to adopt an unctuously cautious tone, phrasing every statement in the most qualified subjunctive to avoid driving off Reds or Blues. One could imagine that a blog, run along these lines, might be a sort of United Nations, binding together Red and Blue counties

Sadly, I lack such a reformer's zeal, so I shall continue writing in my usual sloppy way, oblivious of the ideological land-mines that I explode as I blunder about. And if you, Gentle Reader, are moved to obscenity by what you take to be my hidden agenda, please feel free to let fly your most eloquent hyperbole. But pick up Bill Bishop's book after you relieve your desire to vent your ire. You might have a moment of shocking self-recognition -- but, in any case, you certainly will be in for a good read.

Summer Reading Recommendation - Alan Furst's The Spies of Warsaw

I still run out and buy the new John LeCarre as soon as it hits the bookstores, even though nothing he has written since the end of the Cold War has measured up to the George Smiley era.  Tinker, Tailor, Soldier, Spy may be my all-time favorite book, and Smiley's People isn't far behind.  He just was a lot better when his target was intelligence agencies, and not the vast global corporate conspiracy.  I'm hoping that the rise of Russian nationalism under Putin will inspire one last great spy novel from him.  (I tried to send him an e-mail suggesting that, but his website didn't have a working contact link.)

In the meantime, my "pre-order" author is Alan Furst, who has written a series of ten novels, beginning with Night Soldiers, all of which are set between 1933 and 1945 in Europe, and all of which involve a hero in the secret world.  There is a formula going on here, but it is very, very well done.  One recurring motif is that something always happens in his "Brasserie Heininger" in Paris, which is modeled on the real Bofinger near the Bastille (unmistakably described in the books, if you've been there).

The newest entrant in the series is The Spies of Warsaw, which I just finished.  If you like historical fiction, European cities, espionage stories, and a nice break from whatever else you're doing, I recommend it.

The Hollow Hope, Take 2

The University of Chicago Press has just published a second edition of Gerald Rosenberg’s The Hollow Hope. Rosenberg argues forcefully in this careful study of constitutional litigation that “U.S. courts can almost never be effective producers of significant social reform,” and that litigation is a drain on the scarce resources of reform advocates who could achieve more through the political process. He also asserts that “courts are in a weak position to produce change [since] . . . [o]nly a minority of Americans know what the courts have done on important issues.” Rosenberg’s claims are based on careful empirical and historical analysis of U.S. Supreme Court decisions regarding racial segregation, abortion, environmental protection, electoral reapportionment, and criminal procedure reforms. The second edition of The Hollow Hope adds a new study on same-sex marriage.

Rosenberg’s sweeping claims about the inefficacy of litigation as a strategy for social change are based exclusively on his analysis of constitutional litigation. Surprisingly, Rosenberg ignores civil litigation, where lawsuits have been an engine of social change in areas such as product safety, environmental protection, and risk management. Perhaps the most dramatic example of the power of litigation to prompt social reform is the recent wave of clergy sexual abuse litigation. This litigation exposed the scandal in the first place; focused attention on the need for institutional reform; and prompted Church officials, law enforcement, and state legislatures around the country to take action. Clergy sexual abuse litigation compensated thousands of victims, held bishops publicly accountable for their misconduct, spurred these same bishops to institute nationwide training programs to prevent abuse and to report it when it happens, prompted law enforcement to investigate allegations and prosecute wrongdoers, and fueled law reform efforts in state legislatures around the country that strengthen enforcement of existing laws designed to protect children.

I make a more detailed case for the power of civil litigation as a strategy to address pressing social problems in Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press, 2008).

One might be temped to say that when one looks beyond Rosenberg’s study of a handful of high-profile examples of constitutional litigation—to the much more common activity of civil claims—it is Rosenberg’s thesis, rather than the promise of litigation, that appears hollow.

Magnum Opus

Kent Greenawalt, my teacher and mentor, has just published the second and final volume of his magisterial study, Religion and the Constitution.  Volume One focused on Free Exercise issues; Volume Two focuses on Establishment Clause issues.  It is a characteristically Greenawaltian work: careful, nuanced, rich, attentive to particulars, and generous in spirit.  I hope law review editors are paying attention and getting ready to commission reviews of the two-volume set, which will be one of the standard works in the field for years to come.  Get your copy hot off the presses here, and don't dally about picking up the first volume either.   

Bluebook factoid?

A colleague stopped by office to whine about what law review editors were doing to his writing.  S/he is one of those lovable grumpy types who likes to talk about the good old days; so long as they were old, they were good.  During the anti-Bluebook part of his speech, s/he claimed that standard form back in those good old days only required last names in citing articles and books (though s/he suggested that books used first initials).  That sounded right and coheres with what old articles look like.  Since I've grown up as a scholar under the "new" rules, I don't give them much thought; it seems rational enough to include full names.

But then s/he claimed something I hadn't heard before: that the Bluebook started requiring full names in citing articles and books "so that law review writers would be more transparent about the gender of the authors they were citing in their articles."  In short, s/he claimed that law review editors are engaging in a form of feminist activism by requiring full names.  Although I don't really care about this particular rule in the Bluebook (whereas the "et al." rules strike me as quite dated and worth fighting against -- especially for the citation of articles where I am a second or third author), I do find it rather funny, if it is true.

Is it?  Were you part of this generation of Bluebook editors that adopted this change?  Did you imagine that it would help women and reveal the patriarchy for what it is?  Is this tale made up?  Do tell.   

Some Weekend Reading: A Review of Posner and Powell

Looking for something to do this weekend?  I have just the thing for you.  Here is a short draft review, which should hopefully be destined for a popular practice journal, of two great new books: Richard Posner's How Judges Think, and H. Jefferson Powell's forthcoming Constitutional Conscience: The Moral Dimension of Judicial Decision.  Both are splendid, and I hope the review is a nice introduction.  I hope fans of virtue jurisprudence will find it particularly interesting, but it should be of general interest to students of and kibitzers in constitutional law and people who are interested in the judge's craft -- that is to say, everyone who reads this blog.  Here's the abstract:

This is a short review of two new books on judging -- Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And here's a brief snippet comparing the two authors:

Powell would drape the figure of Lady Justice in new and glorious robes, albeit robes of ancient design.  Given his druthers, Posner would criticize the cut of Justice’s robes, scoff that they aren’t warm enough to have any useful function, and digress to note that the taboo against nudity is itself a historically contingent and only locally applicable social norm.  (Seriously.  Doubters may consult the index entries on “nudity” in Posner’s Sex and Reason.)

Enjoy.  May I add self-servingly that I would love to expand this short review into a full-on treatment for a law review, and I invite law review editors who might be interested to let me know. 

Ravitch's Law and Religion, 2nd Edition

Congratulations to Frank S. Ravitch on the publication of the second edition of his casebook, Law and Religion, A Reader.  Casebooks may not always get much respect from law professors (envy, yes -- I'd very much like to be an editor of a con law or law and religion casebook!), but the best of them are interesting and valuable enterprises, and I think this latest and much-expanded edition fits the bill.  Among other things, kudos to Prof. Ravitch for remembering, in an area in which our focus is so often on the Supreme Court, that there are such things as "lower courts," and that their opinions in this area may be illuminating, if only by way of showing us how little the Supreme Court has actually given us. 

Browse the whole thing!

Chabon on Price's Lush Life

Anyone can write a reasonably interesting review of a book that’s bad. It’s much harder to write an entertaining review that says why a book is good. The current issue of the New York Review of Books has a review by Michael Chabon of Lush Life, the new novel by Richard Price, that manages to do just that.  If you haven’t read any of Price’s novels but have seen HBO's The Wire (many episodes of which were co-written by Price), you’ll have a sense of the gritty urban crime world of which he is master.

Criminal law types are bound to get a particular thrill from his work. As Chabon puts it, “[b]y now Price has the police procedural down cold, both in his technical knowledge of the workings of the criminal justice system and in his control over pacing and point of view.” What makes Price the truly exceptional novelist that he is, however, is his extraordinary ear for dialogue, “his ability to capture and reproduce the rhythm, tone, and evanescent vocabulary of urban life. . . . Resorting with miraculous infrequency to the use of dialect spellings and other orthographical tricks, Price gets his characters' words to convey subtle nuances of class, occupation, education, even geographical gradations of neighborhood, while also using them as a powerful vehicle for the transmission, in fits and starts, evasions and doublings back, of their interior lives.”

Both his insight into the criminal justice system and his ear for language are apparent in a typically well-rendered moment described by Chabon:

Late in the novel, two members of Price's Quality of Life Task Force, a squad of plainclothes who in their bogus taxicab patrol the Lower East Side and the novel itself like meaty Furies with flattop haircuts, apprehend one of the principals in the Marcus murder, a stick-up artist named Little Dap. The kid carries in his wallet a trophy from one of his muggings: a check made out by the cashless victim for a hundred dollars, drawn on a bank in Traverse City, Michigan:

"Hey, you jux [a synonym for mug] someone from out of state? That's a guideline felony."

"A what?"

"Classical guideline felony."

"Plus this whole area is historically landmarked," Lugo reminding Daley, "which makes it. . . "

"Pre-indicted."

"As in federal."

"And federal crime. . . "

"Means federal time."

"The fuck! It's just a check, man, I ain't even cashed it!"

"They'll just take him away from us, the Feds."

"I hate those pricks, everybody's bin Laden to them. Won't even listen to us."

"I don't feel too good," Little Dap slurred.

"You're kidding me."

"Where am I?" Lolling his head, then resting on the bars.

"About two inches from a supermax."

If you haven’t read Price, Lush Life is a good place to start, though at least two of his earlier novels, Clockers and Samaritan, are arguably even better.

Out of Our Armchairs and Into the Lab

Greetings, and thanks to PrawfsBlawg for having me back for another go at the cyber-soapbox.  Last time, as I recall, I talked mostly about white collar crime.   This time, I plan to range a bit more widely.

One of the most intriguing books I’ve read in recent months is Kwame Anthony Appiah’s Experiments in Ethics, an engagingly-written exploration of how new findings in empirical psychology and neuroscience can illuminate age-old problems in moral philosophy.  Appiah’s writing is so good that he manages to breathe new life even into that old war-horse, the trolley problem – the thought experiment in which subjects are asked to decide whether it is morally permissibly (or even required) to flip a switch which would cause an out-of-control trolley heading toward five people tied to a track to change course and run down a different track with the result that just one person would be killed.  I have always been skeptical about the notion that we could learn anything interesting about the trolley problem by looking at MRI scans of experimental subjects thinking about it.  Appiah hasn’t necessarily convinced me otherwise, but he does do an excellent job of showing, more generally, how moral theorists can benefit from getting out of their armchairs and into the lab.  (Christopher Columbus Langdell notwithstanding, I suppose the same thing might be said about getting law professors out of the library.)

I’ve been thinking about what Appiah has to say in connection with a book I myself am writing, on the theory of theft law.  The book offers an argument as to why the mid-20th century consolidation of the various traditional common law offenses of larceny, false pretenses, embezzlement, extortion, receiving, finding, and the like, into a single undifferentiated offense of “theft” is misguided, in part because it fails to reflect the kind of moral distinctions that people intuitively make in their everyday lives.  Most of the book will consist of normative theorizing and policy arguments.  But, partly as a result of reading Appiah’s work, I’m also hoping to incorporate some empirical data on how real people (assuming undergraduate psychology majors qualify as such) would rate the relative seriousness of various theft scenarios.  To that end, I’ve been working with Kevin Grobman, a social psychologist here at LSU, to design a study that will test people’s intuitions about the wrongfulness of various forms of theft.  I’m also hoping to organize an AALS Criminal Justice Section mid-year meeting panel titled something like “Experiments in Criminal Justice Ethics.” I’d be interested in hearing about any new work of this sort that blog readers know about.

Ristroph on Terror in the Balance

My friend and occasional sparring partner in crim law theory, Alice Ristroph (Utah to Seton Hall via Harvard Ethics), has unleashed the dogs of war on "Professors Strangelove," Chicago's Eric Posner and Harvard's Adrian Vermeule. Up on SSRN now, you can find her bare-knuckled critique of Posner and Vermeule's book, Terror in the Balance: Security, Liberty and the Courts. The review essay appears in the Winter 2008 issue of Green Bag. Here's an excerpt:

And after comedy, there is farce. With no discernible comedic
intent, a number of lawyers and law professors have reprised roles
from Kubrick’s famous film [Dr. Strangelove]. Insisting that the war on terror is too
important to be left to anyone other than the President, scorning
opponents of torture as sissies afraid to muss their hair, and rapidly
collecting promotions and personal citations, these lawyers are
teaching America to stop worrying and love the waterboard – and
the wiretap, and the ethnic profiling, and the indefinite detention,
and all the other strategies of our new war that might be funny if
they weren’t so deadly serious.

In the academy, the distinguished professors who advocate torture,
executive absolutism, and other departures from the rule of
law have been met with respectful, and inconsequential, disagreement.
Indeed, if law professors such as John Yoo, Eric Posner, and
Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others
in the legal academy are more akin to President Merkin Muffley.
The balding, bespectacled Muffley is the only character in Dr.
Strangelove who fully appreciates the moral implications of nuclear
war, but his hesitancy and unfailing politeness render him a mostly
ineffective counterweight to his war-mongering colleagues. He is
the voice of reason, but that voice is timid and faltering. Today,
academic counterparts to Merkin Muffley take exception to the bellicose
program of the Professors Strangelove. But “debates” over
national security in the American legal academy are choreographed
events among gentlemen, usually featuring excellent sportsmanship
all around. Neither side wins or loses; everyone shakes hands at the
end; and everyone keeps his job, his viewpoint, and his dignity.

It is unlikely that the apologists for torture and executive absolutism
will persuade many others in the legal academy to join their
cause. But that is not the point. The Professors Strangelove play to
an audience beyond the academy. They provide a degree of intellectual
legitimacy to an ideology and a political program that has been
developed, for the most part, outside the ivory tower.
Eric Posner and Adrian Vermeule have recently published Terror
in the Balance, a new defense of executive power. That is, the book
is new. Its central argument is the familiar claim that in times of
emergency, the executive must curtail liberty to ensure security,
and the courts should not interfere.

Sunday Book Blog -- Reality Books

Okay, so perhaps this genre hasn't caught on fully yet.  But I'm in the middle of a captivating book that could lead this category (it doesn't really seem to fall into "Memoirs").  It's called The Year of Living Biblically: One Man's Humble Quest to Follow the Bible as Literally as Possible, by A.J. Jacobs.  If the title weren't self-explanatory enough, I'll tell you that this is the true story of a secular NYC Jew who decides that reading the Encylopedia from cover to cover and writing a book about that isn't enough; so, he decides to spend a year trying to live as ancient believers did.  (For those who are wondering, yes, his wife is often displeased.)  He writes with good humor and a touch of sentimentality, and the book is, overall, quite entertaining.  See here for an excerpt.  I recommend it.

Sunday Book Blog

It's hard somtimes to believe that I have any time to read for pleasure, but I basically force the time because I love to do it.  Reading for me is what music may be to others (not that they are at all mutually exclusive, of course), so I thought it might be fun to complement Zak's Sunday Music Blog with a Sunday Book Blog today.

Today I'll recommend what is probably my favorite comic novel, Straight Man, by Richard Russo.  It's about the chair of an English department at a Pennsylvania college, his neuroses and wit, and the divisiveness of the faculty.  It is fall-out-of-your-chair funny.  Check it out.

So what are your nominations in the category of Best Comic Novel?

Annan On Faculty Hiring

I've had occasion before to praise the late Noel Annan's wonderful book The Dons: Mentors, Eccentrics and Geniuses, a warm yet unsparing collection of portraits of some leading characters at Oxford and Cambridge.  Here's a timelessly relevant snippet from Annan's portrait of Maurice Bowra.  It feels positively Moneylawish, doesn't it?  Enjoy.

[T]o Bowra appointments were by far the most important issue in the university, and in this he was right.  Appointments matter more than anything else -- more than syllabuses, cost effectiveness, plot ratios, student load, and all the other terms of art with which scholars, if they are to continue to run their affairs, have to concern themselves.  The right men -- outstanding and productive scholars, devoted and stimulating teachers, men of originality and imagination, open-hearted and magnanimous -- are the life-blood of a university.  But where are the paragons to be found?  At the moment of choice the scrupulous quaver.  Original, yes -- but is he sound?  Full of vitality, but a trifle too vulgar?  Draws an audience, does he? -- are we sure he is not a charlatan?  A difficult man -- hardly likely to be acceptable to our colleagues?  And so the inoffensive and second-rate slip in.

Hillary Clinton and Covering

While at AALS (sitting through rather familiar papers), I read Kenji Yoshino's Covering.  Reviews of the book abound -- and since I'm late to the party, I don't have much to add.  Except this: I think the book's insights about the demand to cover and the demand to "flaunt" one's non-white-male identity in public is perfectly on display in Hillary Clinton's campaign for the presidency.  She is required both to prove she is a "real" woman and that she is "manly" enough to take the job.  It is a hard position for her to navigate -- and does, perhaps, suggest that we still may have much to do in guaranteeing civil rights for women.  In light of the whole recent crying episode and its reception, it struck an even deeper chord. 

I'm wondering, though, is Obama is under a similar set of demands in light of his similarly non-white-male identity?  If he isn't, does that tell us anything?  And does their ascendency to head of the pack suggest that covering is pehaps too nuanced a worry for civil rights advocates? 

Race, Crime, and Jobs

I've been reading Devah Pager's fascinating new book Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press 2007). Pager, a Princeton sociologist, conducted an experiment here in Milwaukee in an attempt to quantify the effects of race and criminal history on the evaluation of job applications. Here is her description of the study:

[The experiment involved] sending matched pairs of individuals (called testers) to apply for real job openings in order to see whether employers respond differently to applicants on the basis of selected characteristics. The current study included four male testers, two blacks and two whites, matched into two teams--the two black testers formed one team, and the two white testers formed the second team. The testers were college students from Milwaukee who were matched on the basis of age, race, physical appearance, and general style of self-presentation. The testers were assigned fictitious resumes that reflected equivalent levels of education and work experience. In addition, within each team, one auditor was randomly assigned a criminal record for the first week; the pair then rotated which member presented himself as an ex-offender for each successive week of employment searches . . . .

For the white testers, Pager found that a criminal record reduced the likelihood of a callback by 50 percent. For the black testers, a criminal record reduced the chances of a callback by 60 percent. "A criminal record," she notes, "can thus confirm negative stereotypes against blacks"--a finding that is especially troubling in light of the documented racial disparities affecting so many other aspects of the criminal justice system. "[T]he findings of this study suggest that black offenders may be doubly disadvantaged: not only are blacks more likely to be incarcerated than whites; according to the findings presented here, they may also be more strongly affected by the stigma of a criminal record."

Pager's book strikes me as a helpful addition to the burgeoning literature on prisoner reentry and another reason to welcome legislation like the Second Chance Act (H.R. 1593), which was passed by the House of Representatives last month. The SCA would authorize about $340 million in spending on reentry-related initiatives, most notably in the form of grants for state and local efforts that incorporate not only law enforcement and corrections agencies, but also diverse public and private social services agencies. Returning prisoners face tremendous challenges in obtaining employment, housing, education, medical care, and substance abuse treatment. Successful reintegration into the community seems unlikely for many former prisoners without more extensive planning and support than is typically supplied today. And, as Pager's research suggests, the needs may be especially pressing for minority offenders.

oPtion$ Book Club: Some Final Thoughts

Thanks to all who have participated in the "oPtion$" book club.  Many thanks to Renee Jones, Darian Ibrahim, Michael Dorff, David Zaring, and especially Daniel Lyons for sharing their thoughts on the book, backdating, Steve Jobs, corporate law, and the nature of CEOs.   Thanks as well to the commenters for their thoughts comparing the backdating at Apple with other scandals of recent vintage.

I wanted to close the club with some final thoughts about a deeper theme I found in the book.  Yes, it's a parody, and yes, it's a delightful and breezy read.  But I think Lyons is getting at some deeper issues here as well.  One issue that I haven't really seen discussed is the book's view on Jobs's semi-messianic role in our consumer society.  Jobs's religious fervor, and his cult-like following, are certainly ripe subjects for parody.  But Lyons tries to go a little deeper into this phenomenon, in a scene that's reminiscent of the story of the Grand Inquisitor in the Brothers Karamazov.

In the scene, a younger Jobs has traveled to India to study under a guru named Krishna Neeb Baba.  Baba, a former psychology professor at Harvard, has a coterie of followers who travel from far and wide to hear his pronouncements.  But Jobs soon realizes that Baba is a fake.  In a scene back at Baba's house, Jobs accuses him of being a fraud.  (pp. 184-87)  Baba responds:

Look, is Catholicism a racket?  Is Christianity a racket?  Or Judaism, or Islam?  Just because you or I don't believe in those religions doesn't mean they're rackets.  They serve a purpose.  A good and noble purpose.  So do I.

Baba argues that people need something to believe in -- they have a hunger for meaning.  Religion tries to provide that, but only for some.  Then Baba provides Jobs with the critical insight he later exploits. "America is all about commerce," he says.  "Someone is going to figure out a way to create material things and to imbue them with a sense of religious significance."

So is the iPod the new version of bread and circuses -- the 21st Century opiate for the masses?  Perhaps.  But there's also a sense that Jobs himself buys into the religion.  After all, he is the genius behind the design.  The iPhone is not a fraud, in that sense, because it does serve a purpose -- even if it's merely a consumer good.  Despite his many flaws, fake Steve does has a sense of the aesthetic.  And this "religion" is what keeps him going.  When he's jousting with board chairman Tom Bowditch at the end of the book, fake Steve ruefully makes the following assessment:

For a moment it seems as if he's going to turn around and give me some big lecture about capitalism, and tell me how all my ideas, all my struggles, all my fights and failures and late nights meditating on products are nothing more than a way for people like him to make money.

In the end, money and aesthetics are too intertwined for fake Steve to ever pull them apart.  But there is that final sense, here and at the novel's end, that money really comes second.  And that is reassuring.  Apple worship may be a thin and vulgar religion, but at least it has its own sense of integrity.