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Abstract:
Research in the field of behavioral economics indicates that humans stumble in their decisionmaking in predictable ways that can often be corrected by a gentle nudge from the appropriate regulatory authority. Two new books -- Dan Ariely's Predictably Irrational and Richard Thaler and Cass Sunstein's Nudge -- recount the findings of behavioral research on predictable patterns in human decisionmaking and lay the foundation for regulation through choice architecture that recognizes these human stumbles. In this Review Essay, we provide a critical account of remaining gaps in behavioral economics research and suggest that some types of behavioral insights may be better translated into law and policy reforms than others. We further argue that Nudge's concept of libertarian paternalism both understates and exaggerates the jurisprudential and policy implications of regulatory innovation. While key insights from the behavioral field may lead to effective regulation systems with minimal intervention, these systems entail costs, have distributional effects, solve macro coordination problems, and are inevitably value driven. Moreover, policy nudges serve merely as a first stage of sequenced regulation where, inevitably, more coercive measures are required in later stages. The idea of choice architecture is then related to the growing body of regulatory studies collectively termed new governance. We conclude with a call for a more nuanced account of the range of mechanisms as well as the limits, costs, and consequences of applying lessons from the field of behavioral economics to law.

behavioral economics, psychology and the law, administrative law, public policy, regulation, social norms, incentives and motivation, health law, new governance

Abstract:
The limits of law in bringing about social change have long preoccupied legal thinkers. A recent development, however, is that new schools of thought build upon the critical understanding of these limits to produce a body of literature that privileges in a variety of ways extra-legal activism. These writings present themselves as alternatives to the path of legal reform, avoiding the risks of cooptation and deradicalization which have been the fate of earlier legalistic activism. Three extra-legal focal points emerge in this literature: (1) a move away from professionalism to "lay lawyering"; (2) a move from the legal arena to an "autonomous sphere" of action; and (3) a departure from formal legal norms to softer, "informal" normativities. The article demonstrates how these recent developments are misdirected, as they draw erroneous conclusions from critical understandings about the cooptative risks of legal strategies. In particular, contemporary proposals of extra-legal reform strategies fail to recognize ways in which such alternatives are frequently subject to the same shortcomings they seek to evade by opting out of the legal arena. Linking historical examples of critical analysis of the labor and the civil rights movements to contemporary public interest literature, the article charts a more nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding out effects, institutional limitations, and legitimation. The article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extra-legal truism, which rejects law reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist - that the state is no longer able to ensure socially responsible practices in the 21st century economy.

social movements, labor and employment law, civil rights, lawyering

Abstract:
Over half a century ago, the New Deal signified a paradigm shift in the American polity. Under the mandate of relief, recovery, and reform, the modern regulatory administrative state was created. At the beginning of the twenty-first century, a new paradigm is emerging that ties together recent developments in the political-economy with advances in legal and democratic theory. This article introduces the new vision as a shift from the traditional New Deal Regulatory model to a Renew Deal Governance model. The article both asserts the emergence of a new model and critically explores the interplay among its various elements. It unpacks the widespread claims of newness in the field of law, asking why legal projects seek to be innovative and to what they respond. At the same time, it offers a comprehensive map for understanding renewal projects collectively, including the internal competition among the possible meanings and interpretations of the emerging paradigm. Integrating into a unified framework central works at the micro-level of doctrine, at the macro-level of administrative and constitutional law, and at the meta-level of jurisprudence, the article explores the possibility of renewal through adoption of a new legal model. Through both theoretical inquiry and case study, the article describes the organizing principles of the governance model, which consist of increased participation of non-state actors, public/private collaboration, diversity and competition, decentralization and subsidiarity, integration of policy domains, flexibility and non-coerciveness (soft law), adaptability and learning, and finally, legal orchestration. These features are closely analyzed in three leading domains of governance - new workplace policies, civic environmentalism, and cyberdemocracy. The article argues that new governance is purposely and ingeniously designed as a school of theoretical and practical hybridization, drawing together elements from rival schools of thought and critical insights concerning both regulatory and market failures. Through the pragmatic synthesis of legal approaches, the governance model confronts the false dilemma of centralized regulation and deregulatory devolution. The article concludes with a discussion of the normative challenges that are evoked in the nascent governance regime of the twenty-first century, and suggests ways in which democracy, accountability, and legitimacy are advanced in the Renew Deal Era.

administrative law, jurisprudence, legal thought, employment, enviornmental, Internet

Abstract:
Pressures to redesign public policies in ways that account for more flexibility, responsiveness, and private participation present an opportunity to revisit law's traditional emphasis on adversarialism. Rather than aligning legality with conflict and informality with cooperation, a new concept of administrative governance expands the framework of the legal process. In the context of workplace regulation, new governance structures must reflect the conditions of the new economy and the relationships between employers and workers. Studying the field of occupational safety, the article advances three arguments. First, the introduction of third-way governance-based approaches, including regulatory requirements on internal safety planning and worker participation at the individual firm-level, complementing regulatory and market approaches, is necessary for occupational risk prevention. Second, normative and methodological principles can be developed to evaluate the consequences and legitimacy of shifts away from the command-and-control approach to occupational safety, and in particular, to distinguish new governance approaches from deregulation. Third, the article argues that central doctrines of administrative procedure and labor law have served as impediments for diversifying state action in regulating the new labor market. In particular, two key reforms - combining targeted enforcement with a cooperative choice and mandating employee safety committees - were abandoned following legal disputes and the use of categories which rely on an adversarial understanding of legal action. A set of understandings, embedded in legal doctrine from former eras, continues to impede the shift to a more comprehensive, effective, and legitimate worker safety regime. The distinction in the Administrative Procedure Act (APA) between substantive rule-making and procedural policy-making and the distinction of the National Labor Relations Act (NLRA) between bargainable issues and managerial prerogatives have limited the legal reach of workplace governance. Both policy areas are based on concepts of hierarchy, autonomy, control, conflict, and adversarial one-shot interactions.

administrative law, employment law, labor law, occupational safety and health, osha, governance, new governance, coopertative regulation

Abstract:
In our contemporary legal landscape, a student of the law of the workplace has scarce opportunity to encounter an integrated body of scholarship which analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. This essay, reviewing two new books on workplace policies - Katherine V. W. Stone, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE (2004) and Raymond L. Hogler, EMPLOYMENT RELATIONS IN THE UNITED STATES: LAW, POLICY, AND PRACTICE (2004) - offers a vision for integrating the fields of "employment law," "labor law," "employment discrimination" and the tax-oriented "employee benefits law" under the conceptual framework of Work Law. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four fields overlap significantly and it is increasingly problematic to study and regulate them separately.

workplace, worker rights, employment law, technology, globalization, welfare, labor

Abstract:
Private non-profit organizations are increasingly assuming key roles as human service providers within the new political economy. This paper aims to contribute to our understandings of how the participation of nonprofit intermediaries can modify the outcomes of the market and how such participation dynamically relates to policy and regulation. Developing an integrated approach to the question of sectoral difference and cross-sector collaboration, the paper focuses on the challenge of reform and sustainability in a particular social field - Workforce Development - situated at the intersection of law, market, and society. In an era of privatization, welfare-to-work reforms, and a "devolution revolution," government agencies must often decide whether to support and cooperate with for-profit or nonprofit intermediaries, and how to structure the relations between them. Often, through newly adopted voucher systems, the choice is left to individual consumers to decide between service providers that vary in organizational form. Focusing on the emerging roles of non-profits as they respond to the changing realities of work and service provision, the paper questions conventional assumptions about divisions between sectors. In particular, the paper analyzes a series of quantitative and qualitative studies on differences in performance among publicly funded vocational training providers. By comparing the complex circumstances in which nonprofit initiatives in a mixed industry produce interventionist and redistributional effects with those in which organizational form seems insignificant, the goal is to provide a better normative understanding of the comparative advantage of different organizational forms in changing social contexts.

Abstract:
Multinational firms are increasingly facing pressures from consumer groups and activists to become more socially responsible. These pressures include calls for more environmentally safe production, improved labor conditions, and fair trade among transnational subsidiaries. While some describe the effects of globalization and the Consumer Social Responsibility (CSR) movement as ratcheting up transnational social standards, others claim that these efforts merely serve as a legitimizing mechanism of global capitalism, which sustains unequal distributional effects under the rhetoric of human rights. By tracing CSR activism surrounding the apparel industry (focused on Nike) and the mass-retail industry (focusing on Wal-Mart), this article offers a more nuanced analysis of recent developments in the quest for socially and environmentally responsible global production.

Corporate Social Responsibility, Labor Markets and Globalization, MNCs

Abstract:
Privatization has been traditionally perceived as a threat to social justice from the perspective of progressive lawyers. The concept has been understood as an inherently conservative project that must be resisted. However, recent developments in both theory and practice illuminate the ways in which privatization processes can and should be pluralized conceptually and pragmatically. Progressive scholars must seize the opportunity to explore the question of privatization in terms of participatory citizenship and democratic governance. Privatization has incorporated under its conceptual umbrella a vast range of processes including selling government assets, leasing, outsourcing, contracting-out, deregulating, franchising, vouchering, and shifts from direct public action to grants, loans, loan guarantees, and subsidies of private action. As a result of the disengagement of progressive reformers with privatization, the social and democratic aspects of privatization alternatives have been underdeveloped. The article introduces a nascent progressive intervention in the discourse of privatization. It discusses a variety of domains where recent experimentation with public-private partnerships reveal the potential to enrich our concepts of democracy and progressive law and lawyering. Three central strategies of the new progressive engagement are discussed. The first strategy is the pluralization of the projects of privatization, revealing how the term privatization is already employed to signify a myriad of governance mechanisms, processes, and structures. Second, the inclusion of recent initiatives of public/private partnerships within the range of privatization possibilities enables a more robust concept of progressive participatory privatization. The emerging vision is brought to bear on three areas - workfare, school reform, and budgeting restructuring - in which aspiration and practices of alternative privatization processes are unfolding. The final step is therefore to recognize the implications of innovative governance architecture for the on-going roles of government and the legal system in the new political economy.

Privatization, outsourcing, administrative law, education, schooling, deregulatiuon

Abstract:
This chapter, for the forthcoming Encyclopedia of Labor and Employment Law and Economics, provides an overview of legal and economic analysis of contractual and regulatory constraints on the use of knowledge, skill and information acquired during the employment relationship. Three interrelated areas of employment regulation are discussed: (1) Covenants not-to-compete; (2) trade secrets and non-disclosure agreements; and (3) employee inventions, including pre-invention patent assignment agreements. Drawing both on theoretical literature and empirical analyses of different parts of the labor market, the chapter considers the effects of employment-based intellectual property ('EIP') law on market innovation and mobility and analyses recent studies of high velocity markets in relation to EIP law.

intellectual property, employment law, human capital, labor markets, high-tech markets, information economy, mobility, innovation, growth, law and economics

Abstract:
This short article is a sureply to Bradley Karkkainen's article New Governance in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping written in response to my article, The Renew Deal: The Fall of Regulation and the Rise of Governance. The article refines the arguments on law and new governance as a body of literature that crosses regulatory fields.

administrative law, jurisprudence, legal thought, employment, enviornmental, regulation, regulatory theory

Abstract:
Ranging from strict disclosure prohibitions to generous monetary incentives for informants, the legal approaches to conflicts between organizational loyalty and legal compliance reveal a deep ambivalence about the role of individual dissent in group settings. In fact, recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct. This article argues that, particularly in light of broad shifts from command-and-control regulation to new governance processes, the corollary to skepticism about government's ability to remedy organizational illegalities is the ability of individuals to internally confront violations. The article develops a way to reconcile the pervasive tensions of conflicting obligations by connecting organizational citizenship to both institutional learning and broader civic obligation and by developing a systemic linkage between the substance of dissent and its form. It calls for the adoption of sequenced protections creating a reporting pyramid that prioritizes internal problem-solving when feasible. The analysis of mediating the conflicting demands of citizenship and organizational citizenship extends more broadly to legal debates on family immunities in criminal procedure, civic disobedience and military hierarchies, and professional roles in legal ethics, bringing analytical clarity to dilemmas about following rules while maintaining independent judgment.

employment law, agencies, whistleblowing, reporting channels, speech

Abstract:
This chapter offers a critical assessment of a range of regulatory tools in the context of heath and safety regulation. It explores the struggles surrounding OSHA, an administrative agency fraught with budgetary constraints, political resistance, and a limited legal mandate. The chapter describes new programs that expand the responsibility of the agency's Office of Cooperative Programs and considers the effectiveness of new governance approaches that rely on stakeholder involvement, self-regulation, beyond compliance certification, and cooperative incentives. It demonstrates how attention to the organizational dynamics within workplaces and industries are key to successful implementation of such programs.

employment law, labor law, health and safety, administrative law, governance, OSHA, industrial relation, regulation, regulatory theory

Abstract:
Social enforcement, the decentralized action by organizational actors of monitoring, identifying, and reporting legal violations, is widely recognized as a key factor in ensuring good governance. This article reports on a study conducted in the United States and Israel examining the behavior of individuals when confronting unlawful conduct within their workplaces. The study provides novel insights into the relationships between state-based, organizational-based, and employee-based enforcement. It finds 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 demonstrates that social norms are more predictive of social enforcement than expected organizational costs.

corporate self-regulation, decentralized enforcement, motivations for social sanctioning, social norms, whistleblowing

Abstract:
This chapter for the Encyclopedia of Labor and Employment Law and Economics, discusses government regulation of the labor market in the 21st Century, with a particular emphasis on the need to maintain competitiveness in an era of globalization. The chapter first considers the 'race to the bottom' analysis, which predicts that a nation will experience depressed compensation and downward pressures on its regulatory system if the system provides comparatively high protections. It identifies theoretical and empirical findings both supporting and refuting predictions of a race to the bottom and portrays a more complex picture of the effects of globalization on national regulation. The chapter then describes the declining but continuing role of the state in the global economy. Mandatory labor market regulation is a common response to market failure. At the same time, traditional regulation is itself prone to a range of inefficiencies and failures. Given the continuing need for government intervention, the limits of traditional command-and-control regulation, and the growing pressures to liberalize markets, regulators around the world have developed increasingly innovative third-way approaches to regulation, often collectively referred to as the 'new governance model.' New governance approaches to regulation involve a more active role for private companies and organizations. Examples from various countries are discussed.

globalization, national regulation, race-to-the-bottom, employment law, labor markets, new governance, growth, law and economics, empirical economics, comparative law, European union

Abstract:
Wal-Mart matters to the form and substance of law and social reform in several distinct ways. This article describes Wal-Mart as serving three key purposes - as target, symbol, and model - in the contemporary social reform landscape. First, Wal-Mart, the largest employer in the United States is an effective target, serving as a deep, large pocket which impacts huge numbers of stakeholders. Second, Wal-Mart as a familiar, visible, and brazen corporation serves as a compelling symbol of the dilemmas about the costs and distribution of benefits of for-profit enterprises. And third, Wal-Mart serves as an experimental model for strategically exploring the efficacy of alternatives in legislation, litigation, and political struggles for social reform. Describing these three key purposes, the article demonstrates how recent confrontations between Wal-Mart and the environments within which it operates are shaping contemporary forms of political deliberation, legal strategies and social reform activism. In particular, the article links these three ways in which Wal-Mart has been shaping legal debates by examining developments in Wal-Mart anti-discrimination suits, including the Dukes v. Wal-Mart Stores recently certified class action, ADA suits, and wage and hour claims against the superstore. The article further focuses on efforts by local governments and state legislature to target, and use big-box retailers as a symbol of record wealth gaps and a model for welfare reform, in the areas of health care provision and living wage ordinances.

employment law, labor law, health law, benefits, local government, social policy, social movement, civil rights, legal strategies, wal-mart

Abstract:
Many of our laws designed to prevent noncompliance rely upon arbitrary, and frequently incoherent, enforcement mechanisms. While statutes increasingly rely on individuals to report misconduct from within the organization, the incentives they provide to encourage such enforcement vary significantly. Some statutes are designed to protect employees against retaliation when they resist or report illegal activities. Other laws state an obligation of the individual to report, with or without including penalties for failure to report. Yet another class of incentive-based systems, such as the bounty programs of the FCA, IRS and SEC, encourages reporting by sharing part of the funds recovered from a report of corporate fraud. In addition to the range of direct reporting incentives and protections, regulatory strategies across policy fields are increasingly aimed to encourage internal compliance systems, expecting organizations themselves to provide direct incentives for employees to report misconduct. Corporations, frequently approximating regulatory agency design, now regularly implement such internal reporting channels. The existence of a range of mechanisms designed to increase compliance and the widespread and growing reliance on private enforcement underscore the significance of understanding the effectiveness and comparative advantages of varying regulatory strategies. Still, despite the clear policy benefits that flow from such an understanding, the factors underlying social enforcement behaviors in the legal context remain largely understudied.

Using experimental surveys, this article examines the behavior of individuals when confronting unlawful conduct at the workplace. The experiments compared the affect of different regulatory mechanisms on individual motivation and behavior in the context of legal compliance by examining four primary incentive systems: monetary rewards, protective rights, positive obligations, and liabilities. By exploring the interplay between internal and external enforcement motivation, these experiments provide novel insights into the comparative advantages of mechanisms that incentivize compliance and social enforcement. At the policymaking stage, our findings offer important practical and theoretical advances to several strands of inquiry, including framing effects, the existence of a “holier-than-thou” bias in the legal context, and gender differences among social enforcers. Together these findings portray a psychological schema that offers valuable guidance for regulatory design and structure. At a broader level, the study contributes to the empirical literature about individual and group behavior, including debates on motivational crowding-out, trust, misperception of norms and attribution and the ability of individuals to rationally balance the costs and benefits of their decisions.