PrawfsBlawg

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

1. The first draft of everything is shit. -Ernest Hemingway
2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy

3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

You're Invited! AALS 2018 in America's Finest City

The 2018 AALS Annual Meeting is just around the corner. And it's happening here in San Diego. So I naturally should bring my hosting skills. I plan to post about top things to do in San Diego [here's something not to do: do not bring your winter coats even though the conference is Jan 3-6]. Whether you are coming with a family or on your own there is something here for everybody. Do you love beaches or cities? upscale or hole in the wall eateries? the desert or the mountains?  Here in San Diego, why choose? everything is close by. Below is a picture I snapped of one of my regular running trails (can you spot my running buddy?). Along with fellow prawfs I hope to also plan our traditional MarkelFest one of the conference evenings. 

I also want to share a few of the exciting events that I am taking part in and would absolutely love to have everyone attend. First -- You gotta come celebrate with me! On Friday Jan 5, 5:30-7 USD Law is holding a reception celebration for my book (and I will talk about it a bit) You Don't Own Me and everyone is invited. My colleague Roy Brooks also has a new book out about racial justice and will speak as well. We have a beautiful campus and it's close to Old Town if you feel like having fresh made tacos and margaritas afterwards.

Second event, in which I become evil: The IP Evil Twin Debate is an annual debate, serious in substance but lighthearted in tone, we all wait for (a highlight - we get to write up (a parody of) our evil twin's bio). Last year it was Mark Lemley v. his evil twin Rebecca Tushnet debating patent law and at the 2016 event Pamela Samuelson took on her evil twin Randy Picker on copyright. This year Michael Risch is pure evil while I stand for everything that's good in a debate about trade secrecy. Christopher Cotropia is our fierce moderator. It's at Thomas Jefferson Law School Friday 430 to 530 (and then we can go together to my campus for the book event) -  It will be fun! 

Third event, a timely serious panel moderated by Ed Rubin (Vanderbilt) with Robert Post (Yale), Will Forbath (Univ. of Texas), Jide Nzelibe (Northwestern), and myself speaking about the role of the scholar in the larger society, both in general and in response to Trump's election.  This will include questions about scholarly agendas and standards of objectivity as well as our normative obligations to our students and our ability to be neutral in highly political climates. Jan 3 at 1:30.

*** Update Will Forbath won't be making it to San Diego; Erwin Chemrinsky (Berkeley) has joined the panel instead.

Fourth event, not to neglect my employment law side -- I am part of the Employment and Labor law's section panel on The American Workplace in the Trump Era, Jan 5, 1:30. Hot-button issues - enforceability of class action waivers in arbitration agreements, discrimination on the basis of sexual orientation, joint employment doctrine, public employee speech, whistleblowing, NDAs and confidential settlements and more. 

 Other than that my dance card is completely empty - I look forward to seeing everyone!

 

 

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton

Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.

Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains. 

Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017. 

Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.

Prenups, Millenials, IP & Gender

Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations -- generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not -- to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD: From Status to Contract in IP, I warn that these developments can have negative effects on innovation as well as problematic distributional effects. 

A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP --  films, songs, software, brands and apps - to the partner who plans to develop them. Today in the New York Times I write about this rising trend and in particular raise the question about potential gender inequities. Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.

Would love to hear your thoughts - comment here or in the comments section of the NYT.

The New Cognitive Property & Human Capital Law

Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Super Behavioral Law and Economics

Levitt and Dubner have super-sized their hit. And in the legal academy, behavioral law and economics is entering the next generation. Avishalom Tor, at the law faculty of Haifa University, organized this week a fantastic and intense conference, Behavioral Analysis of Law: Markets, Institutions, and Contracts.

One of the conference participants Kim Kraweic (Duke) wrote a very nice and comprehensive post about the conference. You can read it here at the faculty lounge, and I will just highlight a couple of themes. First, as my favorite behavioral economist and I have recently argued in Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, Columbia Law Review (2008), behavioral law and economics generally presumes the ability of legal design and policy to increase rational choices, thereby improving overall welfare. Yet, next generation behavioral studies reveal a range of types of behavioral insights, some of which are better  translated into law reform than others. On Amir and I develop a distinction between Type 1 biases, which are sourced in our automatic systems and stem from reflexive or intuitive processes, and Type 2 biases, which are generated from irrationalities in the reflective system meant to override our automatic responses, and argue that cognitive errors are more readily corrected through policy when sourced in Type 1 biases. I think the papers at the Haifa conference demonstrate these complexities and provide new insights into the way law interacts with behavior, motivation and decision-making.

At the Haifa conference, I presented the forthcoming article with my repeat collaborator, Yuval Feldman (anyone currently in Israel can catch me presenting the piece next week at ILSA, Tel-Aviv). The article The Incentives Matrix: A Study of the Comparative Effectiveness of Monetary Rewards as Compliance Systems, forthcoming, Texas Law Review (2010) we report on our experimental study of a representative panel of over 2000 employees (we received a generous grant from the ABA Litigation Section Research Fund 2008-2009). The experiment compares the effects of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. We look at the comparative advantages of these mechanisms in incentivizing individual whistleblowing. Several cool findings about the costs and benefits of different regulatory mechanisms: we find inadvertent counterproductive effects of offering monetary rewards in some cases, leading to less, rather than more, reporting of illegality -- in line with the behavioral crowding out literature in the psychology of motivation. We also find the existence of a "holier than thou" effect, where basically all of us believe we are much more ethical than average. We also show that people are bad predictors of their own motivations. A finding that always gets alot of interest is our showing of robust gender differences among whistleblowers, demonstrating that women tend to respond more to protections and duties while men respond more to money. 

A final note -  Tor himself, the organizer of the Haifa conference, was exceptionally generous in taking himself off the rich program to give the forum to the rest of us to present and discuss our work. But Tor has important behavioral research, including these two articles in Psych Science on competition and the effect of social comparison on motivation.

 

 

Squeezing Every Penny Out of Regulation

In his terrific book, Steven Greenhouse explores the challenges of workers across industries and classes. As Greenhouse explained in his respond to my previous post, the book is about many different types of squeezes, some about illegal practices by employers and some concerning the social norms that drive high-skilled workers to leading unbalanced lives. I think there can be a (limited) role for law with regard to the latter, particularly if we understand this imbalance as having a disparate impact on women. But I want to focus on the question of systematic and pervasive violations of existing laws, not the creation of new protections. Employment law, as my students this semester have already seen well, is a patchwork of state and federal common law, statutory law and constitutional law. There are plenty of laws and regulations on the books and plenty of contract and tort doctrines to work with in the absence of statutory protections. Almost anything that sounds intuitively as abuse or exploitation is already covered by the patchwork. Yet violations of these laws are highly frequent.

Non-compliance happens a lot at the bottom -- the most exploitative forms of illegal behavior. In the past decade, Greenhouse’s investigative journalism has been an essential part of developing our critical understanding of contemporary American work relations.  In the Big Squeeze he describes employers who force off the clock work, manipulate time sheets, misclassify employees in order not pay overtime, refuse to give breaks and lunches (Wal-Mart has gotten into alot of trouble recently with all of these), subject workers to unsafe and unhealthy environments, and even lock up their employee in extreme circumstances. But Non-compliance with existing laws is a widespread phenomenon not only in the most abusive setting but in all types of industries and work environments. An important lesson on which agencies are increasingly focusing their attention is that regulatory resources, always limited and few must be employed in a sophisticated and efficient manner, targeting those instances of non-compliance that are most urgent and severe. An agency strapped for resources, like OSHA, can in fact become more effective if it diversifies its regulatory approaches (envisioning “new governance” approaches, if you will) so as to apply its traditional command and control powers to those workplaces that are the riskiest and where employees are most vulnerable, while at the same time building more collaborative, non-adversarial relations with industry partners who have the ability to self-monitor and improve their own compliance.

Differentiating between those who are true bad apples and those employers who simply run into occasional non-compliance because the regulatory requirements are complicated and burdensome is an important aspect of sophisticated regulation. Again, this is an area in which investigative analysis like Greenhouse’s, which highlight the nature of misbehavior along with the overarching culture of various workplaces and industries is helpful. Understanding motivation helps agencies interact with industry in ways that can save resources and harness positive corporate cultures to assist compliance. Finally, Greenhouse’s book highlights the many ways employees themselves could be better positioned to demand better work conditions. If new governance approaches mean decreased government control over work conditions at least in some areas and contexts, then envisioning an active role for employee monitoring, including whistleblowing and anti-retaliation protections, of corporate compliance becomes even more central.

Sports and National Pride

Europeans love their football (i.e., American soccer) teams. The lasting effects of an international victory on the collective spirit were evident last week when I spent a few days roaming the streets of bubbly Barcelona. A German friend who was showing me around the Catalan city described the link between spectator sports and national spirit as even more significant for the new Germany.  For obvious reasons, for many years displays of national pride, “Nationalstolz,” associated with the Nazi regime, were frowned upon in Germany. When Germany won the World Cup in 2006, the country was altered with a renewed patriotism.

My friend described how for the first time in his lifetime (he is 37), he and he friends felt right about hanging and waving the national flag. He talked about how he found this change to be a highly significant, positive development for a generation that grew up schizophrenic. I tend to agree with his observations that Germany by and large was forced to deal with its past in a way that other European nations were not and that allowing the return of patriotic joy is better than brewing bitterness among a young generation that felt a continued shame of expressing their identity.

As someone who has always much preferred playing than watching sports, I find the power of these international events to transform national and international moods fascinating. The events surrounding the upcoming Beijing Olympics are of course an excellent example of the highs and lows that sports events can bring to countries.

Blogger Guilt: On Being a Part-Time, Not-for-Profit Event Planner, Among Other Things…

This morning I am off for a 17 hour flight to Israel (and Barcelona and Paris in the middle) for six weeks. The Tel-Aviv University Law Faculty has kindly offered me an office during for the summer so I am hoping to establish something more or less like a writing routine during the home visit. The plan is to continue research on social enforcement within organizations, thanks to a generous ABA grant (with co-author Yuval Feldman); wrap up edits for the forthcoming Elgar Encyclopedia of Employment and Labor Law and Economics (with Ken Dau-Schmidt and Seth Harris); revise the forthcoming review essay on behavioral law and economics (with On Amir) and forthcoming article on organizational citizenship, and finally get to my two book projects, one on New Governance as the Regulatory New Deal of 21^st Century and one on IP @ Work.

In anticipation for another busy global month, I wanted to share with our readers my rational thoughts about my emotional experience with “blogger’s guilt.” I admire my co-bloggers who can juggle it all, but for me, blogging during busy research, teaching, travel, work/family activities, and social time is simply difficult. Inevitably, I face the need to prioritize. Not posting a constant stream on the blog and walking around with blogger’s guilt is of course a matter of personal choice. Here in San Diego , the law faculty is a gregarious bunch and, more generlaly, life in Southern Cal is intensely social. Looking back on this year, it turns out that one of my unplanned jobs has been a part-time, not-for-profit event planner. Just a small sample of some of these events includes five birthday parties, two showers, one going away party, an 80s disco party, four holiday events, including one mega-Hanukah party (200 invites). And that’s just at our home…It occurred to me that planning offline events is somewhat antithetical to blogging, where communities are virtual at large. There are different times of year when each of these social aspects takes priority. But the problem begins when one feels that they are neglecting one community, in this case, the online group.

I looked it up, and sure enough the urban journal already has the following entry for blogger guilt:

“A fit of guilt, physical discomfort or dysphoria that occurs when one is too busy with an actual social or professional life to properly update one's livejournal. Particularly prevalent in those who use weblogs as coping mechanisms, artistic or creative outlets or routine social tools. Popular sister terms are "blog guilt" or "livejournal guilt.”

They also have a funny illustration:

“Nashor was scratching himself and feeling more and more inadequate around his dirty, slow 2003 ibook G3. He had taken many pictures that January and spent time with many beautiful people, but never seemed to have time to upload them or talk about his experiences. "What's wrong with me?", he posed to a doctor in relation to his increasing self-loathing and inability to sit down in front of a computer. "You are suffering from Blogger guilt. I suggest you stop reading Click Opera; it will only make you feel worse. And remember, Momus is unemployed and middle-aged.”

We have had wonderful recent additions to prawfsblog permabloggers and so many terrific guest bloggers to which I am deeply grateful that they are filling up our blog with such thoughtful posts at times when some of us walk around with blogger guilt. I hope to post about my stay in Israel and the conference in Barcelona and Paris, but in the meantime, if you are also in the region, do drop me a note!

Stumble, Predict, Nudge: Amir & Lobel on Rationality and Policy

To stumble is human. Finding patterns of such stumbling and designing systems that can prevent common behavioral failures is increasingly an area of study of the legal community – asking how can policy implement insights from new social science research. In a forthcoming review essay in the Columbia Law Review, On Amir and I consider the promise, as well as challenges, of such implementation. In Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, we explore two new books which bring together some of the most significant and interesting new research on human fallibility and will prove extremely valuable to such efforts.

 

DAN ARIELY’S, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS (HARPERCOLLINS, 2008) is rich with concrete examples on how individuals make systematically poor decisions. Ariely’s case studies are all highly relevant to our daily lives. For example, in a series of experiments, Ariely finds new twists on the well-established placebo effect. He shows a placebo effect of the price of drugs, and consequently, the relative ineffectiveness of an equivalent, but marked down, or “on sale”, drug. In other sets of experiments, Ariely examines why the average person allows herself to steal office supplies or communal food, but would not steal the equivalent value of the items in cash. Dan Ariely, the Alfred P. Sloan Professor of Behavioral Economics at MIT’s Sloan School of Management, as well a founding member of the Center for Advanced Hindsight, presents in the book not only the latest social science research on the various forces that drive irrational decision-making in predictable patterns but also attempts to outline the systematic causes of such erroneous judgments and decision-making, opening the door to potential remedies of these failings. The research suggests for example that signing an honor code can bring forth awareness, or prime, individual standards of honesty and can curb subsequent dishonesty. The concrete examples as well as the broader processes analyzed in the book are thought-provoking and relevant to most any field of law.

RICHARD THALER & CASS SUNSTEIN’S, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (YALE UNIVERSITY PRESS 2008) USES the insights of behavioral economics in order to develop both an overarching theory of the role of government and a myriad of practical solutions to core regulatory problems. Thaler and Sunstein argue that if behavioral economics teaches us that people do not always act in their best interest, then policymakers must rethink the tools of regulatory command to effectively change behavior. Nudge thus urges policymakers to design policies that improve people’s well-being through “gentle nudges” rather than paternalistic or coercive measures. Nudge builds on previous work in which Sunstein and Thaler argue that “libertarian paternalism” is not an oxymoron.

 Our review essay examines both the conceptual implication that follow from adopting the field of behavioral economics into policy, including the balance between legal and non-legal control mechanisms and the boundaries between “liberal paternalism” and over-coercive solutions, as well as  some of the books’ concrete policy suggestions. The essay warns against over claiming the ability to “improve decisions,” as reads the subtitle of Nudge, simply through identifying behavioral biases. The observations that people make imperfect decisions are well established in both books. The failures described consist of a broad range of behaviors and different underlying mechanisms. Individuals have limited information, are limited in their capacity to process large quantities of data, have limited attention span, calculation capacities, and memory resources. And perhaps most distinctly, they are limited in their willpower and emotional capacities. All of these fallibilities come into play in the cases examined by Ariely, Sunstein, and Thaler but the correction mechanisms in response to each vary significantly. The review essay will highlight the biases described in the books as caused by different mechanisms, including over- and under-usage of cognitive processes. Therefore, the prescriptive nature following these findings must be cautious and narrowly tailored to address each behavioral bias. We argue that Thaler and Sunstein at times overestimate the ability of choice architecture to solve the social problems with which they are concerned. We also inquire into the notion of “debiasing” and “libertarian paternalism.” The review contemplates whether there can indeed be a line between libertarian and non-libertarian paternalism and whether the involvement of government in correcting behavioral biases creates a slippery slope of more profound intervention in people’s liberties and choices.

We welcome your thoughts!

Green Living: Let go of your stuff & find a reuse group

Through my yoga practice, I have learned to let go of many things, tangible and intangible. I teach consumer law and I am always struck by how little we question why is consumption in our society so high in the first place.  In other words, why do we think we need so much STUFF. Well, spring has sprung, and it is time for some cleaning and recycling. I found this cool organization. Here is how they describe themselves: The Freecycle Network™ is made up of 4,341 groups with 4,906,000 members across the globe. It's a grassroots and entirely nonprofit movement of people who are giving (& getting) stuff for free in their own towns. It's all about reuse and keeping good stuff out of landfills. Each local group is moderated by a local volunteer (them's good people). Membership is free.

There are also many other reuse groups around the world, and you can find one in your area here.

...Because things are not so bad the way they are… (on the law review front)

In response to a lot of interesting and important thinking about law reviews, law schools and legal education this past week, for example here and here, I thought I would try and offer a partial defense of the-way-things-are-right now on the law review front:

1. Don’t romanticize the alternative: When one begins to publish in the peer-reviewed world, the whole romantic notion of blind review becomes somewhat tainted -- in all of the fields I am familiar with -- psychology, economics, business, political science, history and sociology reviews (and also in the fields I am less familiar with, according to my hard scientist friends)  -- there is still A LOT of noise in the system: because of conferences, networks, SSRN and the like, it is VERY easy for reviewers to figure out who the authors are. There is a lot of tit-for-tat -- same folks publishing and editing in the A-journals in their fields. To think that a top name (the Cass Sunstein equivalent in any one of those fields) does not impact the decision of her peers is naïve. And even more so because the double blindness from the author's side is also often tainted -- at times, people can guess pretty easily (or hear about it in the process) who the reviewers are. At least with law review editors, the repeat players "problem" is ameliorated--but of course repeat players have many strengths as well in terms of expertise and knowledge about the field and quality of scholarship.
2. There are in fact quite a few law or law related peer-reviewed journals so we are already in a world of choice and a world of competition.
3. Law reviews themselves do consult quite frequently it seems with faculty advisors on accepting pieces. It is also my understanding that some of the top law reviews, like the Harvard Law Review, do really have blind review process, and their process is a multi-layered, multi-tiered serious one.
4. The law review kids actually offer a lot of good editing after the article has been accepted, often better, and most of the time involving more eyeballs, than those of peer-reviewed journals.
5. I suspect many law professors, like other faculty, would not like Ann’s suggestion to take away the prestige, the wins and losses of the game, of sending out one’s article to journals outside one’s own institution. Our work is intangible enough to not want to give away some passing rewards and signals of success however noisy they are. This is similar to suggesting that we do away with rankings – we should keep rankings, just make them far more meaningful. Remember, type A people strive on competition.
6. There is something really cool about the speed and timeliness in which law reviews make decisions and then publish articles. Peer-review articles often take years upon years to come out and the review process may mean that things are not relevant by the time the article sees the light of day.
7. There is also something cool about law review editors having some productive ignorance. It's ok if they sometimes get things “wrong” – its part of what shakes things up, puts some off ideas on the frontlines and disrupts some of the inner-breeding and self-referential work that at times stales the legal academy.

Bottom-line, the baby water and the baby have some advantages.

cross posted at Madisonian.

On Law and Loyalty

My article, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, forthcoming California Law Review 2008, is now posted on ssrn. The article explores a deep ambivalence in the law about the role of individual dissent within public and private settings and offers a way to reconcile the conflicting demands of organizational loyalty and legal compliance. It describes the vast inconsistencies that currently exist in the laws of private sector wrongful discharge, public employee First Amendment rights, and the fiduciary duties of institutional players. Broadening the inquiry beyond employment law contexts to legal debates over family privileges, community ties, civic disobedience, and professional roles, I try to bring some analytical clarity to recurring dilemmas regarding following rules while maintaining independent judgment. In particular, I propose a sequenced approach to protecting dissent within groups, forming a reporting pyramid which prioritized internal problem-solving over external opt-outs when feasible. I very much hope to get feedback on the article.

Citizenship/Organizational Citizenship is the first step in a broader project of mine, employing the lens of conflicting obligations to analyze the broad range of laws on retaliatory discharge, immunities, and protections for informants, including post-Enron legislation (SOX) and other recent legislative reforms, such as the 2006 Tax Relief and Health Care Act authorizing federal offices to enhance their whistleblower programs, together with recent Supreme Court adjudication, such as Garcetti v. Ceballos (2006), which limits the First Amendment rights of public employees, and Rockwell. v. United States(2007), which narrows the scope of qui tam claims by employee informants. These questions are facing rapid changes in the statutory arrangements at both the federal and state levels. Current legislation has been approved by the House of Representatives that would cancel the effect of Garcetti. In December 2007, the Senate passed the Federal Employee Protection of Disclosures Act designed to enhance the protection for federal employee whistleblowers by expanding the scope of protected activity to cover complaints within an employee’s chain of command. A 2008 conference between the House and the Senate is attempting to agree on final legislative language. State law has similarly witnessed rapid developments and increased attention to whistleblower protections in the past three years. For example, in January 2008, New Jersey became the twentieth state to pass its own version of the federal False Claims Act, which provides informants with a share of the recovered “bounty.” Less than five years ago, only a handful of states had passed such laws. Moreover, from a litigation perspective, retaliation for reporting misconduct is the fastest growing claim in employment and labor law cases.

Citizenship/Organizational Citizenship tries to bring together the legal questions with recent empirical insights of new governance studies, including the findings of my recent experimental studies with my collaborator, social psychologist/behavioral law-econ professor Yuval Feldman. In our article Behavioral Versus Institutional Antecedents of Decentralized Enforcement: An Experimental Approach, forthcoming Regulation & Governance, we analyze experiments we conducted in United States and Israel, examining the behavior of individuals when confronting workplace unlawful conduct. We find that the likelihood and the manner of reporting will vary depending on the type of illegality and is strongly correlated to perceptions of legitimacy, job security, and voice within the workplace. Comparing illegalities, employees prefer to report clear violations by rank-and-file employees rather than violations by managers. At the same time, external reporting to government or media entities is most likely when violations involve the organization as a whole or implicates top management. The study also finds cultural and gender differences in reporting patterns. Finally, the study provides support for the understanding that social norms are more predictive of social enforcement than expected organizational costs.

Again, I welcome your reactions, ideas and discussion of related projects and areas.

When your parents are in town...

Do you invite them to attend your classes?

My parents are here, all the way from Israel, until the end of Passover. When I was little, I used to enjoy sitting in my mom's psychology lectures and hanging out in my father's research lab. But up until now, the thought of them sitting in one of my lectures has given me the chills. I actually would rather take them down to the famous Black's beach than have them in a front or back row. But I am loosening up on the issue. Recently, I have brought my folks to a faculty workshop (where I only introduced the speaker) and several other work events/dinners.  (I do plan to take them to Black's by the way, because it's simply a stunning beach and we were raised well.)

Spring Has Sprung - Eat Dirt!

This is what I am making tomorrow for my Kindergartner's pre-break party. Delicioso.

Get the recipe here.

The Next AALS Will Be Warm, Sunny and Bright (as will be several other upcoming events in the Spring and Fall)

It is January and around campus my students are wearing flip-flops. "America's finest city" - as every radio caster here describes it - deserves some love after a smoky few weeks last Fall. Truly naturally beautiful and with something for everyone, San Diego is the perfect destination for some upcoming conferences:

In a few weeks from now, February 15-16, we will host an exciting international and comparative employment and labor law conference. 

October 23-25 2008, the three law schools in town are co-hosting the Third Annual Colloquium on Current Scholarship in Labor & Employment Law. A website is soon to come but registration is underway, just email Ruben Garcia at [email protected]. 

And of course AALS 2009.

My NYC (or: What I Didn't Do Today at Noon...)

Here is what I didn't do today between 12 and 2 -- don't tell anyone, not my dean at least.

I didn't go to any session, didn'™t schedule any schmoozing lunch, in fact I didn™'t even go pick up my name tag from the AALS registration desk.

Here is what I did do: I went to one of the best yoga classes ever. It was a two hour master-class with Sri Dharma Mittra. Intense stuff -- the small, beautiful, bearded, warm man with twinkling kind eyes decided to critically pick on me in almost every pose, I guess because I was new (or simply needed the critique). Yogi masters don't get any better than this guru.

So, to give our readers a suggestion about an alternative space to the huge spaces of the Hilton and Sheraton lobbies, check out the studio's scheudule.

BUT to balance things out, let me also encourage you to attend two particular panels on Friday and Saturday. On Friday, the plenary session is one that I was involved in organizing as part of my work on the AALS Committee for Curricular Reform. There are 1000 people registered to attend this which we were told is an unprecedented number. This should indicate the great interest in the topic at this particular moment in time.

2:15 - 4:00 p.m.
AALS Concurrent Plenary Session:
Rethinking Legal Education For The 21st Century
Trianon Ballroom, Third Floor, Hilton New York
Moderator: Edward L. Rubin, Vanderbilt University Law School
Speakers: Vicki C. Jackson, Georgetown University Law Center
Robert Mac Crate, Esq., Senior Counsel, Sullivan and Cromwell, New York, New York
Martha L. Minow, Harvard Law School
Suellyn Scarnecchia, University of New Mexico School of Law
William M. Sullivan, Senior Scholar The Carnegie Foundation for the Advancement of Teaching, Palo Alto, California
Judith W. Wegner, University of North Carolina School of Law

Here is the description:

There is a growing sense among legal educators that it is time to re-think legal education.  Dissatisfaction with the Langdellian model, now over a century old, has combined with enthusiasm about new approaches to both content and pedagogy to produce a potential turning point in the way we educate our students.  A number of law schools have announced major initiatives in the past few years, and others are planning to do so.  The Carnegie Foundation, long a leader in American higher education, released a comprehensive report on law school in March, and will follow up by partnering with legal educators in an effort to implement some of the ideas in its report.

But change is never easy, and rarely uncontroversial.  Law schools are complex, ongoing institutions, and the age of its educational model can be regarded as tradition as well as obsolescence.  External demands for change are not insistent; employers seem willing to train starting lawyers on the job, the ABA has been quiescent since the MacCrate Report -- which found more resonance among practicing lawyers than legal academics -- and universities are typically content to tax their law schools and be done with them.  Most of the material incentives for legal academics these days depend on scholarly production, so it is not always easy to engage a law school faculty in educational reform.  Nonetheless, as conscientious educators, many legal academics are increasingly committed to new approaches that recognize the tremendous changes in both the substance of law and legal practice and the understandings of and approaches to learning that have occurred during the past century.

This plenary session will provide a general picture of the possibilities for changing legal education, and the challenges that such changes necessarily confront.  The subject encompasses both curriculum and pedagogy: content and form; at the same time, the session will consider the related processes of institutional change. It will describe new ideas that are currently in operation or under consideration at various law schools, the major recommendations of the Carnegie Foundation report,  and some aspects of learning theory that support these ideas and recommendations.  It will also explore the role of change agents, the difficulties they face, and some strategies for their success.  Finally, the session will assess the need for change and the limitations on its potential scope.

The second panel I recommend - how can i not-- is on Sat at 3:30:

"Economic Analysis of Labor and Employment Law in the New Economy"

The session will look at the impact of the new information technology and the globalization of the economy on the employment relationship and the regulation of that relationship. Topics and speakers will include:

1) "Hi-Tech Workers: Issues of Intellectual Property and Restrictive Covenants in the Information Economy" Alan Hyde (Rutgers--Newark) commenter Michael Risch (West Virginia University)

2) "Lo-tech Workers: Issues of Immigration in the Global Economy"

Jagdeep Bhandari (Florida International University) commenter Ruben J.

Garcia (California Western)

3) "International Labor Regulation" Richard Block (Michigan State

University) commenter Orly Lobel (University of San Diego)

The Intersection of Rights and Regulation

A new book from Ashgate, edited by Bronwen Morgan, inquires about different approaches to regulation and governance. Here is the blurb:

Policy makers and social actors increasingly face inter-related and inter-penetrated levels and realms of governance. The effect is that some of the intuitive contrasts between rights and regulation are no longer tenable. As the essays collected in this volume show, different combinations of rights and regulatory claims serve as barometers of current changes in political economy. These are not only restructuring political space, but also changing the assumed relevance of rights and regulation. Bringing together a range of fresh perspectives on socio-legal scholarship from a variety of disciplines, The Intersection of Rights and Regulations will have worldwide interdisciplinary appeal.

An excerpt from a review by Stuart Scheingold describes: 'This book challenges the conventional wisdom that views rights and regulation as incompatible and irreconcilable instruments of policy, arguing that they are better understood as "overlapping and complementary aspects of…disputing and rule-elaboration." This surprising finding is firmly grounded in the well-theorized original research that this volume presents, ushering in a promising new line of inquiry in socio-legal scholarship.'

In addition to an excellent introductory chapter by Morgan, the chapters explore a range of issues from the perspective of the tensions and complementarities of the rights and regulation framework, such as minority and gender rights, land-use planning,  and human rights and policies the World Bank. The second chapter in the book, entitled, Form and substance in labour market policies, is by yours truly. I think the book is great for anyone who researches or teaches in the areas of civil rights, human rights, law and development, and the administrative state.

To Be a Tourist in Your Own Country

Following Dan’s lead on traveling armchairs and hot vacation spots for this summer, my plan is to write over the next few weeks about Berlin, Shanghai, Chengdu, China’s Gateway to Tibet and Melbourne, tracking the places I plan to visit, for business and pleasure, over the next few months. But first and foremost, a report about my vacation/work time in Tel-Aviv is due. I am in the midst of a homeland visit and things in Israel are as intense as ever. If you happen to be visiting here over the summer, here are a few highlights, of legal conferences, political events, and pure fun in the sun.

Legal conferences are in abundance in Israel in June. The main reason is that the Spring semester is still in its midst here (especially after a long student strike), while summer has already begun in North America. June is also a good time to get foreign speakers to come to conferences, because it is not yet as humid and hot as July and August promise to be. This week, Tel-Aviv held an interesting conference titled: Legal Pluralism, Privatization of Law and Multiculturalism. I didn’t attend all of the sessions, but two good talks I heard were by Christine Parker from University of Melbourne, on the Pluralization of Business Regulation, and by Menny Mautner from Tel-Aviv, entitled, From Honor to Dignity: How Should a Liberal State Treat Non-Liberal Cultural Groups?, exploring the promises of a move from a liberalism framework to a framework of universal human rights.

Next week, at Hebrew University, there is a fascinating conference entitled, Democracy and Rationality, which will include such political figures as Ehud Barak, Yuli Tamir and Dan Meridor, and scholars such as Samuel Issacharoff, speaking on "Democracy and the Problem of Collective Decision-Making"; Richard Pildes, and Michael Walzer.

Politically, as always, somewhere along the Israeli borders, this time the Gaza Border, there are heated conflicts, , while everywhere else, life goes on, normalized and routinized. I am reminded of my friend Gabi Blum’s new book, Islands of Agreement, which shows how peace and war coexist within long enduring conflicts.

As for fun times, the list is infinitely long. Here are some personal highlights:

Surf School: even though favorite social psychologist tells me that where we live has some of the best surfing in the world, I decided to opt for warmer waters and probably less waves. Try the Israel Surf Center Topsea in Hof Hazuk.

Favorite beach hangout: Mezizim cafe, on the Tel-Aviv beach, where, a couple of days ago, attending a small party of a childhood friend I hung out with insightful British journalist Tom Gross.

New Yoga Studio: The yoga scene in Tel-Aviv has flourished in the past two years, and one of the best new ones is at the Tel-Aviv, a studio that overlooks the sea.

Best running trails: we've found some good ones in the fields of my childhood, between Ramat Aviv and Ramat Hasharon. There are nice summer breezes there and hills and valley, even though the citrus trees from the 1980s are no longer there. There is something beautiful about touring your home country after living abroad for several years. Its like discovering your childhood chocolate milk in the local supermarket after it went of the market for a while. Tel-Aviv in my mind is one of the most vibrant cities in the world, and if you are planning on being here over the next few weeks, do shoot me an email and I will gladly offer additional recommendations.

Saving Your Children’s Art

Here is a dilemma that may sound odd to people who do not have children, but believe me, strangely familiar to most people who do. Kids come home from day care every week with piles of crafts and drawings, work sheets and colored shapes, cut outs and pasted collages. Particularly those with more than one child know that these art pages pile up, month after month, year after year. At first you are excited, saving each little scribble that your 18 months old ingeniously made for you. At some point however, the piles become heaps and the drawers, boxes and shelves becomes full. How do you decide what to save and what to throw away? One friend told me she saved one representative art work from each season. Another offered a more critics choice perspective, saying she selected “only the good ones and threw away the rest.”  Another option I can think of is to ask your 4 year old to select their favorites for keepsakes, but mostly parents who throw away some of the delivered cubby art (and my case is that we are talking about the majority of parents) prefer not to tell the child about this practice, with the likely prediction that the child will forget about some of these sheets and be happy with the half pile that was saved. This raises the questions: who and what purposes do these designated art souvenirs serve, present and future?

Curricular Reforms and New Governance

I’ve been thinking some about curricular reforms for several reasons. It’s on the agenda of my school as with many other schools. Indeed, in some schools, like Vanderbilt and Harvard, it has recently been a major driving force of debate and change.  Also, I have been recently appointed to serve on the AALS committee on curricular reform. Chairing the committee is Dean Edward Rubin, who has been extremely innovative in his thinking about curricular changes for Vanderbilt JDs. Also on the committee is Martha Minow, who chaired the HLS reform.

There has been much talk about Harvard successful completion of a reform committee’s work, unanimously adopted last week by the faculty. More than the fact that uniting such a large, and at times conflicted, faculty around a significant reform was a personal accomplishment for Dean Kagan, the reform itself is interesting and I look forward to hearing about its implementation and whether other schools will move in similar directions. Of course, as Brian Leiter was quoted saying, other schools have already been adopting similar reforms, but I think the significance of this reform is both in its breadth and in the fact that this is Harvard. So what is the HLS reform about? Basically it is about cutting down the hours of the traditional first year courses (contracts, torts, civ pro, crim, property) to make way for additional mandatory 1st year offerings. The three new course requirements are a new course on legislation and regulation; a course on international/comparative law; and a course on “problems and theories”.

This last course offering is the most interesting to me, because I see it as very much part of what I have termed “the rise of governance in contemporary legal thought”. Here is how Harvard described their problems and theories course: “the new course…will allow students to reflect on what they have learned through systematic treatment of methods of statutory and case analysis, discussion of different theories of law and work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work. The course’s focus will be on complex problem solving. The basic materials used will be case studies of complicated situations involving facts and diverse bodies of law and demanding both creativity and analytic rigor in generating and assessing solutions.”

Overall, the three new focal points are intended to achieve the following goals, the last two again resonate particularly well with contemporary ideas about regulatory innovation and participatory governance:

"greater attention to statutes and regulations; introduction to the institutions and processes of public law; systematic attention to international and comparative law and economic systems; opportunities for students to address alone and in teams complex, fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies; more sustained occasions to reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines, and to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions."

Again, this sounds a lot like new governance theory – a shift away from a narrow focus on adversarial legalism to a broader study of the entirety of the legal process, a deeper understanding of public management techniques, and the many techniques through which private and public institutions can be designed to better solve problems efficiently and legitimately.

Seniority Rights and Parental Leaves

The employment discrimination listserv has been engaged in a debate about whether women who take maternity leave should be entitled to the same seniority count as other employees. Euguene Volokoh today presents a hypothetical:

Imagine that an employer has two employees. One has worked for the employer since seven years ago, but has worked all seven years, and has had seven years' worth of job experience. The other has worked for the employer since eight years ago, but has worked only five of those eight years, because she has taken three years off for pregnancy and maternity leave. She therefore has five years' worth of job experience. Both employees are women. While the latter has chosen to have three children, the former has chosen to have zero children, possibly because she doesn't want children, or because she is physically unable to have children and doesn't want to adopt. Should we treat the employer as "penalizing" the second employee for her pregnancy, when it counts the first woman as having seven years seniority, and the second woman as having five years' seniority, corresponding to the actual time spent on the job and the actual experience the women acquired? Should we therefore insist that the second woman be given more seniority than the first, even though the first has more experience? Should the law mandate such preference for women with children over women who are childless?

The discussion began with the work law blog folks presenting a recent decision by the European court, ruling that “women who take maternity leave forfeit the right to earn the same pay as male colleagues who are doing the same job but haven’t taken time off.” As Richard Carlson points out, seniority protecting seniority systems from the impact of discrimination law is common, for example, in the U.S., Title VII states:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin....

The FMLA has a provision 29 C.F.R. 825.215(d)(2):

An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. Benefits accrued at the time leave began, however, (e.g., paid vacation, sick or personal leave to the extent not substituted for FMLA leave) must be available to an employee upon return from leave.

There are several important questions that should be worked through with regard to maternity leave. First, if maternity leave is protected by the FMLA and pregnancy and post-labor leave should not be penalized for seniority, should we distinguish between those periods and more extended periods for which parents take time away from work? These first periods are distinguishable because they are largely considered physically necessary. Second, is it a penalty to deduct seniority privileges (which have value for pay, benefits, promotions, reputation) for maternity leave? Even if from the perspective of the individual employer, it is important to maintain the seniority count on the basis of time actually at work, should the state in effect subsidize people who have children to order a system that maintains their time count?

Before and After: A Before Snapshot in Anticipation of my Laptop Detox Desert Weekend

Before:

Desk: piles and piles of teaching notes; drafts; research projects; grant proposals; conference announcements; books; reprints…

Desktop: a dozen opened windows, five word docs; outlook; two email accounts; internet explorer; Westlaw; TWEN; typepad; 2 power point files…

Me: Wired

It’s been such a long time since I left my laptop behind for several days. Tomorrow I am off to the desert -- to a cabin in Joshua Tree -- ten yogis, retreating for practice and hiking, sans wireless communication. How will it feel?

Too Cool for School? High Culture, Low Culture and the Academy

A few years ago, as a graduate student, there were often times when I would find myself in the minority as someone who likes pop culture, enjoys Hollywood, loves HBO sitcoms, gazes at Vanity Fair, Vogue, and needs the occasional guilty pleasure fix of a People’s magazine, especially when stranded in airports after a long academic conference. I remember one particular moment when I was having lunch with my fellow fellows at Center for Ethics and Professions. I mentioned a new TV show I watched the night before, and several of my friends, indeed most of the people at the table proclaimed that they don’t own a TV. That’s right – not that they didn’t watch the show or that don’t watch a lot of television, but that they never ever get near the lowly technology. The Center was a fabulous experience, probably one of the most intellectually fulfilling years I had in Cambridge and the people there were amazing. Yet, I found myself wondering whether the strict separation between high culture and low culture was an essential feature of great academic environments. Was there indeed a strong presumption in North East institutions that applied ethics and light entertainment didn’t mesh?

Recently, here in California, I discovered something shocking about a fellow young prawf (FYP). The conversation went something like this:

[FYP: something about changing norms of adoption]

Me: Angelina Jolie and Brad Pitt contributed to this shift.

FYP: Who?

Me: Brangelina!

FYP: Pitt – is he an actor? what was he in? who is the other one?

Me: Speechless.

So here is my contention: we work in an ivory tower, yes. We have the immense good fortune to be able to spend our worklives thinking about ideas, thinking about thinking, developing ourselves intellectually. If we cut ourselves completely from popular culture, we are missing out in various ways. We loose one lifeline to what captures most people’s imagination; images, smokes, mirrors, and fantasies. We also loose ways to relate to our students, who are mostly younger and cooler. Being a professor in a professional school already presents deep challenges because of the positioning gap between teachers and students. There really is no need to widen the gap by becoming oblivious to anything that isn’t printed by a university press, SSRN, NPR or the front page of the NY Times. Another reason to reject this high/low production boundary is that there happens to be a lot of good stuff out there that gives one insights to social issues and legal debates. And finally, I am convinced, and I am sure cutting edge neuroscience studies will confirm, that it is useful to give your mind a break by watching Entourage or Curb Your Enthusiasm. You can end up with better scholarly work (and live longer) if you allow yourself some heart laughs.

Creative Faculty Workshops

Last week was our first Fall 06 faculty workshop at USD. Instead of the usual paper/talk format, our faculty used the occasion of the first colloquium of the semester to have several of our faculty members make short presentations about recent development in their field. In particular, the format was a Supreme Court review in several fields, with an expert in each field reporting and commenting on the major decisions of the term. I thought it was an excellent session. It allowed the faculty to interact on a substantive level without the dynamics of a paper presentation. It reminded me of something that one of our dean candidate’s last year mentioned he had done at his faculty. He described how the faculty at UVA was brought together to monthly meeting/retreats to basically continue their legal education drawing on each other’s strength. They even invited one outside professor to teach them a mini course in analytical jurisprudence, as that was an area where they all felt they could use some back-to-fundamentals training.

I often think that when I have more time, I will want to take some of my colleagues courses/seminars. But there are of course limits to that, and the level of discussion might not really get to what you hope for it to be. Isn't it great to develop some more of these sessions that draw on our greatest strengths – the fact that we are all teachers and scholars under one roof - to continue teaching and learning from each other, in more ways than just the paper talk?

In Waikiki, Jusitce Kennedy Discusses the Rule of Law

Dahlia Lithwick covers today Justice Kennedy’s address at the ABA annual meeting:

"[Kennedy]  is charging the assembled attorneys to do the job of selling to a doubting world "the essentiality of the rule of law." "Make no mistake," he warns, "there's a jury that's out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case." Referring to terrorism and violence and totalitarianism, he says, "The tide has gone out, and we are on the beach…

To that end, he assigns himself a seemingly impossible task: He wants to define "rule of law" so we can start to peddle the concept worldwide. It is not enough to sell the world on the U.S. Constitution, he says. That is merely a set of "negative commands." He is looking for a positive formulation for the rule of law. "

Banning Laptops from the Classroom

A good friend who teaches at a great east coast law school recently told me she had her very best class this year. She has been teaching law students for many years and always had good evaluations, but had felt that it was difficult to keep second and third year students engaged in her upper level elective. This year, she decided laptops had a great deal to do with her students distractions. She made them the following offer – they would begin the semester with two weeks of a no-laptop policy. She would in turn post her teaching notes on TWEN. After the first two weeks, the students would take an anonymous vote on whether the no-laptop policy should remain for the rest of the semester. The results: the students loved it. They found themselves more engaged, more involved in the class discussions, and the course evaluations were the best of all years. My friend told me however she would be worried about trying out this classroom policy as a non-tenured new prawf, because there are some students who were, at least initially, resistant.

My understanding is that in business schools there is a trend of banning laptops. According to the Chicago Tribune, at the University of Michigan Law School, a computer system has been installed to block students accessing the Internet during their scheduled class times: “Some students get around the system by borrowing the account names and passwords of students who aren't in class at the same time. “One of my jokes is that I'm willing to compete with Minesweeper, but not with the entire Internet," said Michigan law professor Don Herzog, who initiated the faculty discussion that led to the Internet ban. Herzog said that when he first suspected students were checking the Internet during class, he sat in the back of his colleagues' classes as an experiment and saw that about 85 to 90 percent of students were surfing. Even a special lecture by a popular faculty member didn't stop students from getting distracted.” The Tribune also reports that Harvard University law professor Bruce Hay, along with another handful of HLS prawfs, banned computers from his wireless-enabled lecture hall this past year. "Frankly, if I was in their position, I would be tempted to check my e-mail. I understand it," said Hay, who teaches civil procedure and law and psychology. "But when a lot of people do it, it becomes demoralizing and distracting."

Finally, on the other side of the debate is the University of Chicago Law School, professor Randy Picker, who reportedly “has no intention of banning laptops or Internet access. About 90 percent of his students bring computers to class, and he encourages them to use the university's wireless connection to pull up his PowerPoint slides or research a topic raised during class discussion. "Obviously the Web is something of a distraction, but there are a lot of distractions," Picker said. "My job is to make them want to pay more attention to me than what is on the screen."

I am wondering how much do prawfs in other schools find laptops to be a distraction to quality classroom learning and whether there is a broader trend in various schools.

Some dark humor from Tel-Aviv

This morning I got this list that is being circulated amongst friends. Some of you know about these Israeli compilations that reach everyone. I think it offers a little window to the Israeli culture of maintaining a humor in a constant state of conflict. I remember these little bits helping me stay sane when I was a teenager during the gulf war and scuds fell in Tel-Aviv near my home…I will try to make justice to it in the translation. The title is 10 pieces of advice to Tel-Aviv residents afraid of the missiles.

1. When told to go down to the shelter, that means immediately. Not a short espresso in Aroma café; not an almond croissant in Arccafé. Immediately.
2. If you hear an annoying sound, going up and down – its not a war alarm, its Ninette’s (popular young Israeli singer) new album.
3. In case of an attack, be prepared for the worse of all – the cancellation of the planned concert of Depeshe Mode.
4. When you are recruited to the reserve forces, do not mention the new show of the Barabash brothers.
5. When the media is talking about “Operation Rolling”, they don’t mean Zara’s hangers.
6. When a missile falls on your neighbor’s car, run quickly – you might manage to catch is parking space.
7. If you have daughters, this is the time to hide them. The president may show up for a visit [referring to President Katsav’s recent accusation by five women of sexual harassment]
8. Make sure to bring to the shelter a full variety of take out/delivery menus.
9. When all are talking about the “red dawn”, they are not referring to Almodovar’s new film.
10. Even if a missile falls on your apartment, you can still rent it for $650.

Over the past couple of weeks, the internet has been filled with blogs in which Israelis and Lebanese are writing about their deepest fears and hopes (see for ex the NYT take on it yesterday). Studying the effects of this kind of conflict communications using internet, emailing and blogs would be a worthwhile research project.

Dr. Prawf and Mr. Cool

A fun item for the weekend:  My USD colleague Junichi Semitsu who teaches legal writing has landed a pretty cool gig this summer. He is the blogger official for the country rockin’ Dixie Chicks. According to the Washington Post, Junichi was told to simply write anything he feels like writing: "I don't know of any other artist of their caliber that's essentially invited a non-music journalist into their entourage." More from WP:

“He is one of the music industry's first embedded bloggers, assigned to be everywhere and write whatever about this lightning rod of a country-music group. He posts the blogs at spaces.msn.com/3dixiechicks. And we do mean whatever: In one of his earliest, Semitsu -- who is a fan but by no means a sycophant -- wrote about some of the pseudonyms the Chicks have used at hotels, a common if rarely discussed practice in the celebrity strata. On Wednesday, he posted this: "Emily showed up to the concert in London sloppy drunk. She was so inebriated she couldn't speak, much less sing. Natalie and Martie, in a panic, yelled, 'You're drunk again?'  But in the very next sentence he revealed that it all was just one of Robison's "anxiety dreams… There's also the screening process for his posts, though Semitsu says it's in place only to ensure that he doesn't violate anybody's privacy or release confidential information. "They don't screen for editorial content….When Semitsu first met the Chicks, he says, the musicians told him they didn't want him to come across like their fan-club president or a member of their marketing team. "They said, 'Want you to be honest. Feel free to criticize us and make fun of us.'"

A Stanford law grad, Juichi also runs a politics and pop culture blog, Poplicks.com. Blogging and hanging out with three awesome chicks for a living, while maintaining (at least partial) journalistic freedom, you go Junichi!

New Research in Regulation: Report from LSA’s Regulatory Governance Collaborative Research Network

This year I found the regulatory governance CRN, co-chaired by Cary Conglianese (Penn Law), John Braithwaite (ANU) and Christine Parker (Univ.of Melbourne), to include the most exciting development . Bob Kagan (JSP/Boalt), one of the leaders in regulatory research and an active participant in the CRN, was awarded this year the prize (John Braithwaite, ANU, was awarded the prize two years ago, the first non-American to be awarded the prize since the organization was founded—not coincidently, notice below the number of terrific Aussies that have been dominating the field of regulatory research).

Here are some examples of interesting work presented through the CRN (I described more regulatory research here).

Christine Parker (Univ.of Melbourne) presented her empirical study of compliance in Australian firms with antitrust requirements. In, Do Compliance Systems Make a Difference? Testing the Impact of Complaince System Implementation on Compliace, she finds that answer to be more complex than simply the “yes, greatly effective” versus “no, merely cosmetic” responses that are often formulated in relation to internal compliance requirements. Using both quantitative and qualitative data she finds that while compliance systems do not have an immediate and direct effect on compliance, they  have a positive effect on compliance culture. Compliance culture is the development of a shared institutional belief in the importance of following the regulatory norms. This commitment to compliance eventually leads to better compliance overall.

Fiona Haines (Univ.of Melbourne), an important contributor to the regulatory research field, presented her new study Safety, Security Politics and Fact: Shaping the Regulatory Solution, on responses to catastrophic risks. Her research presents empirical findings on recent responses to industrial disasters and terrorist attacks, responses that emphasize a particular style of “co-regulation”, in which sites are required to create detailed risk management regimes approved by the regulator. She argues that while these regimes can be effective, the context of catastrophic risk in particular lends itself to manipulation by fears of political liability, resulting in excessive and inefficient numbers of rules and procedures.

Dorothy Thornton (UC Berkeley), Bob Kagan (UC Berkeley) and Neil Gunningham (ANU) presented their work, Regulating with Carrots, Regulating with Sticks. Their work explores the U.S. regulatory program to reduce harmful emissions from diesel-powered vehicles, such as trucks and buses. The program employs both traditional command-and-control techniques and financial incentives, offering a subsidy for acquiring newer less polluting vehicles. They conduct an empirical study comparing California which relies on both carrots and sticks) with Texas (which mostly relies on carrots) but without conclusive results. They theorize that in circumstances when regulatory targets cannot pass on the costs of pollution prevention to their customers or clients, and when the services are crucial and must be maintained, then there are likely to be programs that subsidize pollution. They find that the subsidy programs have had substantial effect in reducing emissions.

Garry Gray (Toronto), studies developments in regulatory approaches to occupational safety in Ontario. In his paper, From Victims to Health and Safety Offendors, he describes how the Canadian OSH agency has begun ticketing employees for safety violations, even in instances when the employer receives no reprimand for the violation. This puts workers in the uneasy position of both relying on the agency for greater protection while becoming the target of regulatory enforcement.

In Information Based Regulation in the European On-line Sales Environment, Mary Donnelly & Fidelma White (Ireland) present an empirical study of information based consumer protection in e-commerce, within the legal framework of the EC Distance Selling Directive. Their results challenge the conventional idea of a well-informed consumer that can process available information well. They suggest that a more accurate paradigmatic consumer shopping online is the “ill-informed, confident consumer” who is not aware of legal protections but believes she is knowledgeable about her rights.

Session on How to Get a Teaching Job - Live Blogging LSA

In a roundtable organized by the conditions of work committee, two junior law faculty and two junior social sciences (sociology/political sci/criminology) talked about their experiences on the job market.

Vanessa Barker (Univ of Florida; Criminology/Sociology) talked about going on the market ABD, the challenge of needing to complete a dissertation, to publish, all while having to engage faculties in a social setting. Barker however stressed that there might be a point in which a graduate student feels she has done enough research, has a strong research agenda, and is ready to become part of a faculty. Even though that person has not published much, they are able to convey that they are ready to make the transition from student to professor, and will not  remain “needy grad students” as colleagues.

Kay Levine (Emory; Law) stressed that for law schools, it is absolutely crucial to submit the FAR application on the first round (August). She also emphasized the importance of supporters that will communicate directly with faculty members while the candidate is on the job market, as a way to get a committees attention when the FAR channel is so inflated. Levine also stressed the significance of a research agenda in law schools—committees fear a “one trick pony”.

Rose Corrigan (CUNY; Poli/Sci) talked about the experience of being on several job markets—several different fields and the need to develop different sets of materials for each type of department. Corrigan suggested that at the fly out stage, what separates a strong candidate from a weaker one is not how smart they are (“we are all very smart”), but how social and interesting they are. Be prepared to show that you can talk about a range of research and non-research issues during dinner.

Orly Lobel suggested the importance for a candidate to recognize her own preferences in the job search. Using the dating metaphor, Lobel argued that just schools are searching for a new colleague, so are is the candidate looking for a new intellectual, social and geographical home. Rather than being a passive “piece of meat”, suggested by the name “meat market”, it is empowering to have an understanding of what one is looking for in joining a faculty – preferences about faculty dynamics, size of the junior faculty, available teaching packages, particular research strengths and programs at each law school and the existence of strong faculties and research institutes at the university at large. While entry-level candidates are deemed unsophisticated about rankings and are expected to simply follow U.S. news, it is increasingly advisable for candidates to find their own agency in the process by developing a more complex idea of rankings and by positively signaling their preferences to those faculties that they find particularly attractive. We all agreed that the job market should also be considered for its long term benefits of forming collegial connections around the country, and not only its immediate one-shot results. It is a wonderful career, and we are lucky to be part of the academic endeavor!

Live Blogging from LSA Baltimore – Regulatory Governance and Accountability

This morning I presented my paper, Deep Throat Revealed: Vertical and External Reporting of Wrongdoing in Complex Organizations on a Panel on Accountability and Regulatory Governance. Here are some highlights from the panel:

Carol Heimer and Lynn Gazely from Northwestern/ABF presented their research on four HIV clinics, in the U.S., Thailand, South Africa and Uganda. They studied the interaction between regulators and regulated parties at the point when monitors and regulators come to visit the clinics and check compliance with health regulations. The find that clinic members “perform” regulation in the sense that they prepare specific signals to show conformity. They argue however that when monitors perform alongside clinic members and gain access to the backstage, performing together shifts the balance between superficial and deeper monitoring, making the rituals of regulation less likely to be empty or cosmetic.

Eric Orts (Penn) introduced themes from his forthcoming book A Social Theory of the Business Enterprise: An Interdisciplinary Perspective [Oxford University Press (2007)]. He explores in the book the definitions and conceptions of the corporation from several different disciplinary perspectives, on history, law, economics, politics, sociology, and applied philosophy, with the aim to develop a theoretical cross-disciplinary perspective. that combines these perspectives. He argued that new governance mechanisms that draw on corporations as active, rather than passive, norm-generating entities must adopt a fuller concept of the corporation as including multiple stakeholders.

Dorit Rubinstein introduced her comparative research on how agencies justify their behavior in relation to one issue, when acting as enforcers. She looks at various European Telecommunications and Electricity agencies to explore agencies’ notions of accountability in newly liberalized markets. She finds various patterns of justification that agencies use, ranging from formal legalistic through highly technical to consensus-building responses.

Orly Lobel spoke on her research on post-Enron employee whistle-blowing protections in relation to new governance approaches to corporate compliance. More on that later…

Unsolicited Advice on How to Have a Successful LSA Experience (and other oversized conferences)

In anticipation of the Annual Law and Society Association meeting in Baltimore this week, it might be useful to offer some thoughts on making the most of the meeting. I love LSA and have been going every year since I started my graduate studies in Cambridge. But I remember that the very first time I went to the annual meeting in Budapest, I had a pretty miserable time. My expectations of the conference and my panel were not met and I felt pretty lonely and lost. Every year since then the conference has improved for me personally, as I altered my expectations, got to know many of the conference regulars, and developed some strategies for a successful meeting. So here are my Top Ten Dos and Don’ts for a Fulfilling LSA Conference:

1. Don’t try to go to every single panel slot. LSA is a huge event, with four days of a full packed schedule, with over a dozen concurrent panels in every hour of the day. In Budapest, I tried to attend all the panels and was frantic about missing out on some presentations when there were several simultaneous sessions that seemed interesting to me (and having just started my graduate program, everything seemed interesting, relevant, exciting and…cutting edge). I was inevitably disappointed and overwhelmed. Going to 7 panels per day for four days is much too much for one person to tolerate; even more so when many of the presentations are not amazing. LSA is one of those conferences that accepts any paper title that is submitted, without screening and without requiring a full paper submitted in advance. This necessarily means that there will be half/quarter/one-tenth baked presentations by all sorts of presenters (and of course, lots of excellent full baked ones). More importantly, going to every single panel takes away time from some interesting conversation that happens outside of the formal conference rooms.

2. Do hang out in the Hallway - There are so many interesting people to meet at LSA. Don’t be shy--introduce yourself at the end of a panel to the speaker or in the elevator as you cross paths with someone whose work you’ve read. Exchange business cards, watch the message board, and always wear your name tag, even in the last day, in the elevator, at the cocktail. There are three general receptions, one in every evening of the conference. There is also an international breakfast, the purpose of which is “to encourage the building of relationships between U.S. and international members and to discuss ideas and suggestions on ways LSA can best serve its international members and facilitate international scholarly activity.” Every year, there is also a highly interesting labor history tour that brings to life some of the important moments of the city in which the conference takes place. All of these special events are worth attending and the possibilities for new collegial connections are great in these relatively relaxed settings.

3. Don’t expect your own panel to be the highlight of the conference. Following the first point, lots of people figure out quickly that there is no reason to constantly attend the panel presentations. Some time slots prove better than others and there are some panels that are not so well attended. One trick is to organize a panel in advance and submit the papers together rather than submitting your abstract individually. This increases the chances of a cohesive theme of the panel. Having said this, do prepare seriously for the panel – LSA is an excellent place to share your work with people from a broad range of disciplines and methodological approaches. The fact that most panels include presenters not from your field is one of the strengths of LSA. I am chairing a panel this year, in which all the speakers have met my firm deadline of paper circulation three weeks in advance to all other panelists. The papers are of high quality and I am sure the presentations will be great. As the discussant on the panel, I will prepare written comments on each paper and I hope we will have a very productive session.

4. Do Plan Some Meetings in Advance – when you skim the conference program, think about scheduling a meeting with someone you would like to discuss your work with by emailing them in advance. They might be completely busy or there for only one day, but they might have some time and will be happy to schedule a breakfast meeting or an afternoon tea. There is also a Meeting Discussion Bulletin Board that is designed to allow scholars to network with others in their areas of interest before the meeting. Similarly, do follow up after the conference on some fruitful conversations, with an email or a reprint.

5. Don’t Use Travel as an Excuse for Not Exercising – Do Stay Fit – ok, this is a personal thing of mine, having been on the road quite a bit lately for various conferences and wanting to keep training on track. The LSA has a 5K fun run. I am planning to do it next Sunday, meeting in the lobby at 6:45 AM – so do say hello if you join! I also make it a habit of scheduling some of my meetings as walking meetings, rather than coffee/cake ones. It’s a great way to keep moving and seeing bits of the city while catching up with colleagues.

6. Do Go to the Saturday Presidential Luncheon – to me, this is usually one of the highlights of the conference. The luncheon includes a presentation by each of the prize committee chairs (book, article, grad thesis, life time achievement) of the committee’s choice and it is a wonderful opportunity to get a sense of innovative research in law and society. Following the prize announcement, the presidential address of the outgoing president of LSA is always a treat. The presidential address is published each year in the Law and Society Review, followed by commentaries by leading people in the field. I particularly recommend Joel Handler’s 1992 POSTMODERNISM, PROTEST, AND THE NEW SOCIAL MOVEMENTS, and Lauren Edelman’s 2004, RIVERS OF LAW AND CONTESTED TERRAIN: A LAW AND SOCIETY APPROACH TO ECONOMIC RATIONALITY, Presidential addresses.

7. Don’t forget about the CRNs – the Collaborative Research Networks (CRNs) are groups that have been formed to facilitate research collaboration and submission of panel/papers in a more focused way. Submitting your paper through a CRN increases the paper will not be assigned to a panel that does not really have a unifying theme. It is also a good way to connect to people in your field, as CRNs usually also organize a dinner or breakfast at the conference and a listserve that functions throughout the year.

8. Do Market Your Work, and at the Same Time Help the LSA – The LSA has a good sized book and paper display. The paper display invites each participant to bring 20 reprints/photocopies of their recent or in-progress work. Each paper is sold for $1and proceeds benefit the organization. Also at the book display, publishers set up tables and some university presses are there to find out what you are working on and what is of interest to the LSA community. And consider starting to build up a collection of the annual LSA T-shirt on sale at the conference.

9. Don’t Overlook Some Satellite Ventures of LSA - these can jumpstart your involvement at LSA and introduce you to the organization in smaller formats. If you are a graduate student, consider attending the annual Graduate Student Workshop always held on the day immediately preceding the annual meeting. I did this in my second year coming to LSA Vancouver. You need to apply in advance and you receive travel fare and some portion of accommodation costs. Every two years, the LSA also sponsors a Summer Institute for newer professors. Again, this requires advance application and the LSA covers most of the participation expenses. Last year, I participated in the Oxford Summer Institute, and this year in Baltimore, several of us are re-uniting for finishing touches on a collaborative book, edited by Brownen Morgan on Rights and Regulations, the theme of the Oxford summer institute.

10. Do Attend Some of the Professional Development Sessions – in the scheduled panel sessions there are always several offerings on professional issues of general interest. For example, this year, on Thursday, I am speaking at a roundtable on the academic job market, bringing together junior and more senior faculty to discuss their experiences on the teaching market and their first years as faculty members. And again, if you come to the roundtable, do say hello and introduce yourself if you attend the panel!

Exciting news!

On behalf of everyone at PrawfsBlawg, I'm very excited to announce that later this week, Prof. Orly Lobel (aka Orly) will be joining us fulltime as a permaprawf.  Orly teaches at University of San Diego and writes prolifically about workplace governance issues.  There's a wonderful profile of her over here.  Please welcome her to our ranks!