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Lucille A. Jewel, I Can Has Lawyer?1: The Conflict between the Participatory Culture of the Internet and the Legal Profession, 33 Hastings Comm. & Ent. L.J. 341 (2010)

I. Introduction

The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. Users now have the autonomy to produce cultural meanings outside of traditional institutions such as large-scale media outlets and government entities. This new Internet-based culture of sharing and commenting has been labeled "participatory culture."2 However, some of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. Specifically, professional conflicts are emerging with respect to blogs and emails where lawyers air caustic, uncensored, and highly critical views of the legal profession and the judiciary. Although these online narratives often reflect a view that the structure of the legal system is badly broken, they may also run afoul of professional norms or ethical rules that prohibit attorneys from impugning the integrity of the legal system. This Article's thesis is that as the democratic ideals inherent in participatory culture become more deeply embedded in our society, the legal profession should also evolve and embrace a more pluralistic and unconstrained approach toward professionalism.

As I have written previously, the legal culture within the United States is a straight-laced culture, highly dependent on formalism and hierarchy.' Cultural meanings, such as what it means to be a lawyer and the correct legal analysis that flows from a case, are tightly controlled by few-law professors,' judges,' and institutions, such as the American Bar Association ("ABA").' With respect to commonly accepted narratives for the legal profession and proper legal analysis in the classroom or courtroom, an analogy can be made to the "one-to-many" model of mass media communication, where a few large entities controlled most of the information.! Now, technology has given everyone the ability to comment and participate in the creation of cultural meanings. The Internet also enables users to comment and critique with real-time immediacy, in contrast to the slower pace by which meaning was created in the older mass media system." Now that we are living in a "many-to-many" media environment, a culture clash is emerging within the legal profession where professional rules and norms have heretofore enforced a culture of restraint.

This cultural conflict can be seen in electronic narratives that go "viral,"9 where lawyers comment on the lack of humanism within big law firm firing practices, expose the alienating work environments experienced by low-level contract attorneys, or criticize judges who show hostility toward criminal defense attorneys. Within these electronic forums, lawyers regularly speak out against the characters (such as the law school administrators, judges, and elite attorneys) who they perceive to wield arbitrary power over them. Often using a sarcastic and caustic tone, these narratives portray the practice of law as a dark, lonely, and alienating experience.

These narratives question commonly held perceptions of what it means to be a lawyer and disclose experiences at odds with traditional understandings of a lawyer's professional identity. From a critical standpoint, they portray a broken legal profession, implicitly arguing that the liberal humanism the profession supposedly embodies does not apply to all lawyers. These stories are, in effect, structural critiques of the profession. Penned by the outliers of the legal profession, they provide a culturally valuable perspective on what it means to be an American lawyer in the twenty-first century.

Nonetheless, such critical postings conflict with the notion that attorneys should not criticize the integrity of the legal profession or the judiciary."o However, because they afford a valuable critique of the profession, professional norms and ethical rules should not operate to shut out these stories. It is a positive development that technology gives ordinary attorneys the power to inform the culture of the profession, as opposed to previous models where only elite and powerful practitioners were given a voice.11

Part II of this Article describes the characteristics of participatory culture relevant to the legal profession. Part III explores the emerging format of the online lawyer narrative, and Part IV discusses its cultural value. Part V analyzes the professionalism issues raised by these new narratives.

II. Participatory Culture

"The term, participatory culture, contrasts with older notions of passive media spectatorship."12 Consumers and media producers no longer operate in separate roles; instead, they interact with each other under a new paradigm.13 For example, a person purchasing a product on Amazon.com might function as a traditional passive consumer buying a product in the marketplace. However, technology also opens up the potential for the consumer to actively produce information about the product, by writing an online review. On the Internet, "[t]he producers are the audience, the act of making is the act of watching, and every link is both a point of departure and a destination."14

A culture of sharing and collaborating, often outside traditional economic incentives, is one of the hallmarks of participatory culture. New technology has created a marked increase "in our ability to share, to cooperate with one another, and to take collective action, all outside the framework of traditional institutions and organizations."15 People are also demonstrating a remarkable eagerness to contribute to online social projects even though they do not receive direct economic compensation from these activities.16 Instead of economic fruits, persons contribute to projects out of simple altruistic desire or because of the ego boost that comes from seeing their work online.17 Clay Shirky offers Wikipedia and Linux as examples of successful projects that have capitalized on the phenomenon of people desiring to collectively participate and contribute to reach an end goal.18 In the case of open-source software Linux, companies such as IBM have demonstrated that it is possible to profit from a product that is not owned in the traditional sense.19

Community is another central theme within participatory culture.20 New interactive media technology fosters new kinds of social communities, defined by common interests rather than by geography, which make valuable contributions to a society.2 1 People can now customize their social relations in ways that fit them better. Instead of relying on preexisting institutions (such as schools, religious institutions, churches, the Rotary Club, etc.) to meet one's need for social connectivity, individuals can seek out new community relationships based on subjects that interest them.22 In online communities, members develop a shared repertoire and shared language,23 often developing "in-jokes" and specialized jargon that apply to the group's identity.24 While some critics argue that technology has made life more alienating and lonely,' others argue that the Internet enables people to "form real, consequential bonds with people [they] have never met face to face-and in this world of wireless computers and mobile devices [they] can do it nearly all the time, everywhere [they] go."26

Technology has also opened up discourse to many more individuals, leading to a freer flow of information and content.27 Participatory culture contains new opportunities for "civic engagement, political empowerment, and economic advancement."a New Media theorist Yochai Benkler argues that the new information environment has the potential to increase democratic participation and ultimately foster a more critical and self-reflective culture.29 It is no longer necessary to be affiliated with a powerful industrial or state institution in order to disseminate information in a mass format.30 The decentralization of information production creates more opportunities for citizens to perform the watchdog function of society, to critique and observe public affairs."31 Thus, the relative ease by which information can be disseminated en masse has led to a more transparent and malleable culture.32 Participants can be more "self-reflective and critical of the culture they occupy, thereby enabling them to become more self-reflective participants in conversations within that culture."33

New technology also has the capacity to improve individual autonomy. Citizens are now able to "participate in public conversation continuously and pervasively, not as passive recipients of 'received wisdom' from professional talking heads, but as active participants in conversations carried out at many levels of political and social structure."34 Moreover, by authoring and disseminating narratives based on their own experiences, people can engage in "new practices of self-directed agency as a lived experience."" Although the most optimistic technophile view expressed at the dawn of the Internet Age in the 1990s-that the Internet would solve all of the world's social problems-has not come to pass, the Internet has nonetheless led to great improvements in our culture, when compared to the earlier mass-media driven culture.

A final attribute of participatory culture is its immediacy-events can be commented upon in realtime as they are unfolding.37 This immediacy, enabled by new media communication forms such as Twitter and blogs, represents a substantial change from the slower paced and highly filtered mass-media information dissemination model. Citizens around the world are now using real-time communication devices to stage spontaneous political protests and publicize governmental abuses as they occur.

In addition to the temporal change in how information is disseminated, the Internet also enables public support for an issue to build very quickly." Internet stories that receive a great amount of public interest have the power to demand action from institutions that usually move at a much slower pace. Clay Shirky gives the example of Evan Guttman, who, frustrated by the New York City Police Department's refusal to change a report of a phone from missing to stolen, turned to the Internet for public support." Mr. Guttman wrote about his frustration with the NYPD on a website devoted to the subject of retrieving the stolen phone.41 Within a matter of days, the website generated so much public interest in the phone and the police's handling of the matter that the NYPD changed its course and agreed to alter the report.42 Without the Internet's ability to quickly harness public support for his plight, Mr. Guttman would have had to resort to more prolonged and possibly futile bureaucratic processes to change the police report.43 Thus, in contrast to the time-consuming task of requesting action from traditional institutions and bureaucracies, new technology can provide a quicker way of getting things done."

If we accept a technophile view of the Internet, we can say that we have an emergent culture that is making our society more open, transparent, and egalitarian. Individuals have more chances to forge social connections across long distances that give their lives deeper meaning. Technology has also given individuals more autonomy in that they are able to disseminate cultural critiques to mass audiences. But what happens when the open ideals of participatory culture interact with the more closed system of American legal culture? We are seeing friction between these two worlds with the appearance of online, lawyer-penned narratives that offer cynically dark views of the practice of law. The next sections will study these new narratives and analyze the professionalism conflicts that they raise.

III. Online Lawyer Narratives

A. The Online Narrative Format

The Internet has led to a "radical increase in the number of storytellers and the qualitative diversity of stories told."45 Users can now tell stories across a variety of platforms, through emails, threaded posts, online debates, profiles, web log postings, and profile descriptions.46 These new narratives play a valuable role in our society, leading to new types of communities and more individual autonomy. User stories engender the formation of new communities by fostering a collective identity and sense of togetherness.47 In addition to the benefits of forming community bonds, online narratives also provide a way for individuals, previously silenced under mass media information regimes, to comment on their culture.48

B. New Media Lawyer Narratives

Within the legal profession, the Internet has enabled a new kind of lawyer-penned narrative stories that function outside the confines of the traditional culture of the American legal profession. Some of these stories detail the alienation, exclusionary hierarchy, and lack of humanity in the legal job marketplace. Other online lawyer narratives expose the hypocritical aspects of a broken criminal justice system that insists on deference and respect for judges, even when those judges exercise power over criminal defense attorneys and their clients in unfair and unjust ways. Viewed collectively, these new narratives portray the practice of law as a dismal enterprise and question the traditional wisdom that the legal profession is a "noble profession" whose members dispense wisdom from high-level positions and never have to worry about issues of financial stability.49 The next three sections will explore these new narratives.

1. New Media Lawyer Narratives as Tales of Economic Stress and Alienation

Some emerging new media lawyer stories are viewable as a reaction to the current economic stresses within the legal profession, particularly the alarming trend of law firms cutting jobs; delegating low-level legal tasks to temporary "staff attorneys" who are paid by the hour and receive no benefits; and outsourcing legal work overseas.50

The dire economic climate coupled with the legal profession's hierarchical elitism has exacerbated the plight of attorneys who attend lesser ranked law schools (often borrowing excessive sums of money to do so). As the effects of the Great Recession continue to buffet the legal job market, attorneys from the most prestigious schools, previously assured a "golden ticket" in terms of a high salary at a big firm upon graduation, are facing newfound employment challenges." Because the legal profession adheres to a rigid hierarchical structure when it comes to educational qualifications,52 the job situation for law graduates at the lower end of the prestige ladder is even bleaker.53 The result is that a large number of attorneys from lower ranked schools are saddled with high amounts of student debt, with no feasible way to pay it off.54

A host of lawyer blogs such as Temporary Attorney: The Sweatshop Edition ("Temporary Attorney")," But I Did Everything Right," Esq. Never," Shilling Me Softly, 8 and Third Tier Reality9 expose the negative experiences of attorneys caught up in this system of high student debt and limited job opportunities.' The Third Tier Reality blogger posts the following mission statement for his blog:

My goal is to inform potential law school students and applicants of the ugly realities of attending law school. Do not attend unless: (1) You get into a top 8 law school; (2) you get a full-tuition scholarship to attend; (3) you have employment as an attorney secured through a relative or close friend; or (4) you are fully aware beforehand that your huge investment job as an attorney or in the legal industry.

The reverse Horatio Alger themes within these blogs render them emotionally compelling, but there is also a great bitterness to them. The tone of these stories is often sarcastic and irreverent toward their subjects. For instance, Temporary Attorney contains a list of "beastly behavior awards."62 These awards are for those who, in the authors' view, perpetuate a system where law students, relying on law school marketing materials touting lucrative law careers for its graduates, borrow heavily from private lenders to attend law school.63 Upon graduation, students find out that their law school's optimistic tales of career success are inaccurate and based on incomplete statistics.64 In a series of postings entitled "Profiles in Hypocrisy," the Third Tier Reality blog posts caustic annotations of law schools' marketing materials, commenting on their inaccurate and misleading nature.65

According to the critiques on these websites, instead of a lucrative law career upon licensure, graduates of low-tier law schools, or "toilet"66 law schools, encounter a stagnant job market where the only available work is as a temporary attorney performing monotonous, low-level law tasks (such as document review) with no client contact and no opportunity to develop one's legal skills.67 To make matters worse, even temporary employment opportunities are shrinking, driven in part by large law firms outsourcing this type of routine legal work overseas, to places like India.68 Thus, other objects of ire on the Temporary Attorney website include law business leaders who champion outsourcing as a way for law firms to cut costs and increase profits.69

In addition to leveling harsh criticism for the profit seeking and snobbery within the legal profession and legal education, these websites provide an alternative narrative space for lawyers to share their stories. For instance, through the posting and comment functions on Temporary Attorney: The Sweatshop anonymous temporary attorney bloggers exchange reports of reviewing documents on computer screens for sixteen hours a day in poorly ventilated, cockroach-infested basements." Workers must obtain permission to use the bathroom and are not allowed to leave the premises to, for instance, walk outside to get a cup of coffee, unless it is during the forty-five minute lunch time allocation." Female attorney workers report being assaulted by other workers, yet are too afraid to report the assault for fear of losing the job.72

The posts and comments on Temporary Attorney are often ugly and sometimes contain negative racial stereotypes about the perceived behavioral traits of various staff attorneys. The anonymity of the blog forum also makes determining the truth of the posts difficult. Nonetheless, there are some instances of the blog's comments function, which allows users to question the accuracy of a particular post, serving as a type of peer-review that maintains the integrity of the forum.73 Despite the hostile and often corrosive nature of the forum, Temporary Attorney provides attorneys working in this realm with a place to vent, to feel connected, and to share similar experiences of alienation and isolation. Thus, these "new" websites have opened up spaces that did not previously exist within the profession's traditional confines: a public forum for attorney criticism and a community gathering place.

2. Viral Lawyer Emails

Lawyer narratives, in the form of viral74 emails that receive a wide audience by virtue of the ease with which an email can be forwarded across cyberspace, are also challenging and critiquing the traditional culture of the legal profession. The first widely circulated viral email of this type originated from an associate at the venerable Cadwalader, Wickersham & Taft law firm in 2001." In a farewell email of sorts sent to the entire firm, the author wrote of his perception that he was let go from his summer associate job because he asked for time off to take care of his ailing mother and because he spent time at a firm function inquiring about his sick daughter on his cell phone." Lashing out at the firm's white shoe culture, the author asked if he was fired because he "would not eat lobster tails because [he] called them giant cockroaches" or because of his Italian-American heritage. Although poorly written and executed, the email nonetheless expressed the sentiment of a disappointed future lawyer who felt excluded by the culture of a big law firm and alienated by its lack of humanity.

On May 5, 2008, Paul Hastings associate Shinyung Oh sent a mass email concerning the termination of her employment." The email was re-posted on blogs and eventually made its way to the Wall Street Journal'sLaw Blog, which interviewed her about the email., In the email, Oh explained how she was terminated just six days after having a miscarriage. She recounted that just days before her termination, a female partner simply sat stone-faced while Oh broke down in tears thinking about her miscarriage.79 Oh wrote: "[w]e are human beings first before we are partners or associates."

Oh also questioned the firm's reasoning for her termination, based on a single negative performance review, when one week prior, a partner had told her that her work was "great" and that the slow business in no way affected her performance.80 "What I do not understand is the attempt to blame the associate for not bringing in the business that should have been brought in by each of you and to hide your personal failures by attempting to tarnish my excellent performance record and looking to undermine my sense of self- esteem."81 Oh was commenting on the large law firm practice of making "stealth layoffs," which justify personnel decisions in terms of an attorney's objective performance,82 a practice that ignores the possibility that the large firm's outdated structure, combined with contemporary market forces, is what drives attorney layoffs.83

When the Wall Street Journal's Law Blog interviewed her, Oh explained that she wrote the email because she "didn't want other associates who may be laid off because of downsizing by the firm- but told it is because of their performance-to doubt their own abilities.”84 This example shows the power, inherent within New Media, for one person's critique of a powerful legal institution to make its way to a mass audience. Although it may not have affected the stealth layoff practices of the large law firms, the email did succeed as a comment on the great unfairness of the practice. It also probably helped other attorneys caught in a similar bind to feel less alienated.

3. New Media Lawyer Narratives as Critiques of a Broken Criminal Defense Culture

Online, we have also seen criminal defense lawyers lashing out at a hostile "judge-centered" culture where prosecutors and judges employ systemic strategies to encourage defendants to make plea bargains or waive other rights in an effort to lighten a judge's docket or prosecutor's caseload.85 In a criminal justice system that is notoriously overloaded and understaffed, this ingrained culture seeks to make the lives of the judges and prosecutors, and sometimes even the beleaguered criminal defense attorneys, more manageable.86 However, the culture operates at the expense of the defendant, who often receives the short end of the stick.87

On Tuesday, October 30, 2006, defense attorney Sean Conway blogged about his frustration with a Fort Lauderdale judge's practice of giving defense attorneys the choice of a too-short period in which to prepare for a trial or asking for a continuance and consequently waiving the defendant's right to a speedy trial.' Conway posted that his understanding of the relevant criminal procedure rule was that defendants and their attorneys must receive a reasonable amount of time to prepare for trial, calculated from the date a guilty plea is entered." However, in calculating the trial preparation time period, the judge Conway was appearing before used the date the attorney was appointed to the defendant, a later date that left Conway with an insufficient amount of time in which to prepare for trial.' Using colorful and irreverent language (perhaps because Halloween was the next day), Conway called the judge an "Evil, Unfair Witch," stated that she had an "ugly, condescending attitude," that she was "unfit for her position," and that she was "seemingly mentally ill."91

On the basis of this blog post, in April of 2007, the State Bar of Florida initiated disciplinary proceedings against Conway, asserting that he violated various rules, including Florida Bar Rule 4-8.2(a), which prohibits attorneys from making a statement that the lawyer "knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . "9 and Florida Bar Rule 4-8.4(d), which prohibits attorneys from "engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice.”93

After a referee's report was issued that recommended discipline for Conway, the parties agreed to resolve the case through a conditional guilty plea for consent judgment, in which Conway admitted to making improper derogatory remarks about a judge.94 Before the Florida Supreme Court approved the plea, however, it directed the parties to brief the issue of whether the First Amendment protected any of Conway's remarks.95 In response, both parties filed briefs, along with the ACLU of Florida, which submitted an amicus brief arguing against imposing discipline on Conway.96

On October 29, 2008, the Florida Supreme Court approved the conditional plea, directing that Conway receive a public reprimand and pay costs in the amount of $1,250.00.97 Because the Court approved the discipline of Conway without a written opinion, we do not know what its precise reasoning was.98 However, it appears that the Court followed its prior precedent and applied an objective "reasonable attorney" standard in evaluating lawyer violations of Florida Bar Rule 4-8.2(a),99 as opposed to the more expansive "actual malice" subjective standard used in nonlawyer libel cases involving public figures.100 Under the objective standard, an attorney can be disciplined for statements about judges if, viewed from the standpoint of a reasonable attorney, he or she did not have "an objectively reasonable factual basis for making the statements."101 The subjective "actual malice" approach would look to the actual mindset of the attorney and would not impose discipline unless he/she made the statements knowing they were false or with a reckless disregard as to their truth."102 The Florida Supreme Court also appears to have rejected the argument that Conway's comments were not actionable because they were opinions rather than facts capable of being proven true or false.103

In writing his blog post, Sean Conway believed that he was alerting other defense attorneys within his community to the unfair and prejudicial practices of a publicly elected judge.104 In response to the disciplinary complaint against him, he wrote the letter to the Florida Bar:

The article .. . [informs] all defense attorneys, prosecutors, of Judge Aleman's violation of Rule 3.160 of the Florida Rules of Criminal Procedure. Defendants depend on defense attorneys to zealously defend their rights. With people's liberty at stake, it is critical to point out Judge Aleman's illegal behavior to other defense attorneys and prosecutors."105

At the end of its Brief to the Florida Supreme Court, the Florida State Bar asserts that it is acceptable to silence lawyer criticism of the legal profession because of the important interest of upholding the integrity of the bar:

Neither the law nor the profession should lose sight of the obligation of every lawyer to conduct himself in a manner which will cause laymen, and the public generally, to have the highest respect for and confidence in members of the legal profession. When a lawyer commits any act or conducts himself in such fashion as to cause criticism of the Bar, he thereby impairs the confidence and respect which the Bar generally should enjoy in the eyes of the public ... Without the respect and confidence of the public, it is impossible for the profession to discharge its duties effectively and efficiently, which duties are graver now than ever before in history.106

The sentiment expressed in the above quote assumes that the legal profession is in good working order. In contrast to such an assumption, Conway's blog posting points to deep structural problems within the legal profession. Conway was not just criticizing a judge, but an entire institutional culture that bends the rights of criminal defendants in order to promote efficient docket management practices.107 That he called this judge an evil, unfair witch may have been ill-advised, but these words reflect the opinion of a highly frustrated lawyer operating within a broken criminal justice system.

The Conway case is one of the first cases where participatory culture, mirroring the ideals that underlie the First Amendment, has clashed with professional disciplinary rules, but more such cases are likely forthcoming. In her comprehensive analysis of the First Amendment rights of attorneys who, like Conway, are critical of the judiciary, Margaret Tarkington convincingly argues why the approach of broadly imposing discipline for attorney speech is wrong from the standpoint of both Supreme Court precedent and the policies that underlie the First Amendment.108 Tarkington's thesis is that attorney speech critical of the judiciary should be protected because it is, at its heart, political speech about governmental officials.109 That a lawyer's speech about judges is core political speech gains even more credence when we consider that thirty-nine states elect members of their judiciary, either initially or by retention elections.110 Following this line of argument, the Conway decision runs contrary to the principles that underlie the First Amendment, namely that free speech engenders participatory democracy and serves as a check against government oppression.111

The democratic ideals that underlie both the First Amendment and participatory culture would be better served by applying the subjective "actual malice" standard derived from New York Times Co. v. Sullivan,112 which would analyze the attorney's individual mindset concerning the truth or falsity of his or her statement.113 The objective standard, accepted by the majority of U.S. courts, is unworkable because it allows members of the judiciary (the subjects of the criticism) to decide as a matter of law what is reasonable criticism.114 This approach enshrines a traditional view of what it means to be a professional, leaving no room for lawyers in the minority who may have a differing view of what is "reasonable" in a professional context.

It would also be advisable to impose narrow limits on the type of attorney speech that would be subject to discipline. For instance, in Standing Committee on Discipline v. Yagman, the Ninth Circuit held that attorneys would be free to voice their opinions about judicial officers, even if those opinions are critical, harsh, and disrespectful.115 Thus, Conway's comment of the judge being an "Evil, Unfair Witch," was his opinion rather than a literal false statement of fact, and would not be grounds for attorney discipline.116 Unfortunately, however, most courts decline to follow Yagman and dismiss the fact/opinion issue as a "false dichotomy" and impose discipline whenever there is an insult to the court.117

A narrow rule imposing discipline for specific factual statements would uphold professional standards by preventing attorneys from uttering bald-faced lies.118 However, attorneys would be free to voice criticism in the form of opinions, rhetorical hyperbole, name-calling, and subjective theories.119 Protecting an attorney's right to express his or her critical opinions and theories about the judiciary is the right approach because it would support a robust, though sometimes distasteful, discourse that ultimately leads to more transparency and accountability within the judiciary.

Moreover, the accepted rationale for restricting attorney speech- that an attorney's criticism damages public faith in the legal system (of which the judiciary is a part)120-is not a strong enough reason to engage in wholesale censorship. First, as recognized by the Supreme Court, the proffered fear that the judicial system would fall apart from untrammeled criticism is generally unfounded and based on mere conjecture.121 Second, at its essence, this theory allows one branch of the government to silence criticism about itself in order to protect its reputation-exactly the type of authoritarian behavior the First Amendment was meant to curb.122

As I will explain more deeply in the next section, the outcome in the Conway case is also harmful from a professional culture standpoint because it silences critical outsider voices. When we ignore alternative viewpoints from within the profession, we are reinforcing the harmful and hierarchical strains within our culture and privileging an elite, non-pluralistic view of what it means to be a lawyer. We should not elevate concerns over the integrity of the bar and the legal profession above an individual's words,123 albeit disrespectful words, that make a structural or institutional critique.

IV. The Cultural Value of Critical Online Lawyer Narratives.

One might ask, why should we care that some disgruntled lawyers have taken to online whining about their unhappiness with the legal profession? In terms of the cultural value that these digital stories bring to the table, there are two reasons why we should care. The first reason has to do with the value that the narrative form, in particular, brings to our understanding of the legal profession. Narrative information in a digital format, such as blogs and emails, have been identified as a new kind of literature, like the novel in some ways, but ultimately breaking new ground with a new, more interactive and sharable format.124 Scholars have long argued that we can learn much from narrative perspectives from literature and film that depict life in the law.125 Richard Weisberg, outlining the history of the law and literature movement, writes that law narratives provide the "best source (outside of ourselves) of sense and sensibility."126 Law and literature pioneer James Elkins similarly writes that "[al narrative perspective is the kind of seeing that places its characters in a world that extends beyond what I, a solitary mind, can imagine."127 Thus, these blog postings and emails, viewable as a new kind of lawyer narrative, bring value to the profession by offering a different perspective on the practice of law outside of a traditionalist and formalist framework.

Second, these messages are penned by lawyers who, for some reason or another, exist outside of the wood-paneled offices where legal meaning is traditionally made in our profession. Because these lawyers exist outside the elite levels of the profession, they can be considered "outsider" attorneys, in the same way that critical theorists use that term to designate minority individuals who do not fit into mainstream or majority culture.128 Carrie Menkel-Meadow argues that "we learn so much more by including new perspectives and new knowers who are beginning to find their voices."129 For instance, an outsider voice can innovate within the formal legal system, imagining new causes of action, new legal categories, and new, less litigious ways of lawyering such as alternative dispute resolution.130

Thus, the narrative approach and the unique perspective that informs these messages bring value to our understanding of what it means to be a lawyer in the twenty-first century. We no longer live in a world where the gentlemanly small-town lawyer model applies to everyone. We now have a class of lawyers writing about experiences that differ vastly from the previously existing stories about the elite lawyers predominant in our popular culture, such as the Harvard Law School of Paper Chase131 and One-L132 fame or the large law firm culture portrayed by Louis Auchincloss in Diary of a Yuppie133 and William Keates' in Proceed with Caution.134 Moreover, these new online lawyer authors-jobless, ridden with debt, and struggling to make a living in a hostile profession-are experiencing the practice of law that contrasts mightily with another commonplace lawyer motif, the lawyer as heroic figure advancing a just cause in society.135 These lawyers are not fighting public injustice or even discussing the soulless but lucrative life of a big law firm associate; rather, they report on the daily injustices inflicted upon them on a very microlevel. They are, for instance, berated by hostile judges or spend their workday reviewing documents on a screen and entering codes on a keyboard, over and over again. The perspectives that inform these new online lawyer narratives are culturally valuable because they provide a competing view, albeit a dark and sometimes mundane one, of lawyering in America today.

V. Professionalism Issues

The narratives described above do not paint a pretty picture of law practice. For instance, many of the websites often juxtapose images of pigs with posts about the actions of the ABA or large law firms.136 Another favorite visual rhetoric device is to juxtapose an image of a filthy toilet in connection with a post pointing out the inaccuracies in the marketing materials employed by a lower tier "toilet" law school.137 It is also common to see vicious character attacks on persons in positions of power perceived to be responsible for some of the problems within the legal profession.138 However, the recurring theme within these narratives is that there are lawyers, outside of the elite legal institutions, who believe that the legal profession is broken and feel betrayed by the dichotomy between the law profession's ideals, usually expressed in terms of liberal humanism, and the harsh reality of practicing law in an alienating and unrewarding environment.

Because these new narratives are often bitter, sarcastic, and highly critical of the bar, the first reaction of most lawyers would be to recoil in disgust, brand the authors as unethical or unprofessional,139 or reject them as having a "sour grapes" minority view of the profession and not worthy of further thought.140 However, there are at least three reasons why it would be a mistake to discipline these authors or dismiss their stories as a minority view of the profession.

The first two reasons involve a critical reconsideration of two doctrines that inform our professional identity: the ideology of liberal humanism and the profession's codified ethics rules and underlying norms. First, like most democratic institutions, the legal profession is founded upon liberal ideals of human autonomy and dignity. However, in the law profession, institutions and organizations (such as law firms and law schools) operate in a capitalistic and hierarchical environment and can actually restrict human dignity and autonomy. Nonetheless, traditional professional discourse leaves little room for criticizing the deep institutional structures of our profession. When viewed from this critical standpoint, online critical lawyer narratives are doing more than just expressing bitter dissatisfaction with the profession; they are attacking the very substrates on which the profession stands. This necessary and valuable criticism may help the profession evolve away from the elitism and mercenary profit seeking that seem to plague the culture. Second, to the extent that ethics rules or professionalism norms can be used to silence critical lawyers, we should question the premises that underlie these rules. What are these rules meant to protect and what assumptions are they based on? Perhaps the rules should be reconsidered if they fail to account for the values of a plurality of the profession.

The third reason that critical online lawyer forums should be allowed to thrive is because they provide important community and therapeutic benefits. With the Internet, non elite lawyers now have a valuable community space to commiserate, express dissent, and formulate critiques that could lead to positive change. I will discuss these three inquiries in turn. In the last part of this section, I will consider potential arguments against the legal profession embracing participatory culture.

A. Critical Lawyer Narratives as a Structural Critique

Online lawyer narratives provide a compelling structural141 critique of the liberal humanism (or liberal individualism) that informs much of the legal culture in America, including our professional ideals.142 Liberal humanism exalts notions of human liberty and agency but also requires adherence to capitalistic and institutional organizational forms that can restrict human dignity.143 Moreover, generally speaking, there is little room within liberal discourse for a deeper structural critique of how our institutions perpetuate longstanding patterns of inequality.144 For instance, in the realm of economics, rational actor theory illustrates how a liberal humanist idea leaves little space for a foundational critique. While the theory that social outcomes are a product of an individual's free choice in the market sounds egalitarian and fair, it also operates as a closed ontology that leaves no room to discuss how most differential social outcomes result from preexisting differences in capital holdings.145

Within traditional narratives about American lawyers, expressions of liberal humanism assume that our legal institutions enable lawyers to reside in autonomous positions of power, exercise wisdom, do good things in society, and make a comfortable living.146

There is the view that the practice of law is a privilege because it provides attorneys with the power and influence that comes with counseling clients, appearing in court, and otherwise impacting the lives of individuals with the law. 147 But these humanistic assumptions about the practice of law do not necessarily match the alienating experience of many of America's lawyers working in the professional hierarchy. For instance, autonomy, comfort, and the ability to impart professional wisdom do not exist for lawyers stuck performing monotonous data entry tasks for an hourly wage and no insurance benefits.148 A hardworking associate, blindsided by her termination coming just six days after a serious personal tragedy, sees little humanity within her former law firm.149 A criminal defense attorney's ability to serve society is highly constrained by a criminal justice culture that directs the attorney to make decisions that promote judicial efficiency but thwart true justice for the client.150

These lawyers can hardly be blamed for perceiving the practice of law as an onerous burden rather than an exalted privilege. If the underlying philosophical premises for American lawyer professionalism do not apply to these attorneys, we cannot expect them to blindly adhere to the culture's traditional ideals. On a psychological level, perhaps these online stories are so uncomfortable because they question the very core of our professional identity, which is based on democratic notions of fairness, justice, and human dignity. Though unpleasant, these deep questions about our profession need to be dealt with. Accordingly, these new critical voices should not be dismissed as unprofessional or untoward.

B. The Rules of Professional Conduct-A Non-Pluralistic View?

To the extent that the Rules of Professional Conduct and the norms that underlie them can be used to restrict negative lawyer comments about the legal profession, legal system, or the judiciary, we should critically examine the institutional forces that shaped them. A critical evaluation of the Model Rules of Professional Conduct supports the conclusion that they may not reflect the views of all lawyers as to what it means to behave in a professional manner. Accordingly, current rules and norms that restrict attorney speech can be viewed as limiting the kinds of lawyers who are allowed to contribute to the culture of the profession.

With respect to lawyers who disparage the legal system or the judiciary online, the Model Rules of Professional Conduct are primarily aimed at policing communication in a litigation context. The rules support discipline for statements made about specific judges151 and statements that are disruptive to a pending trial.'52 While discipline may also be imposed for the broad concept of conduct that is "prejudicial to the administration of justice,152 this rule has generally been applied only in a litigation context.153

Outside of a specific case, however, lawyers who publicly malign the legal system and legal profession in a general sense certainly violate the norms of the profession, as evidenced by the precepts embodied in the Preamble to the Rules. For instance, paragraph five of the Preamble states that "[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process."154 Preamble paragraph 6 requires lawyers to "further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority."155 And finally, preamble paragraph nine states that lawyers should maintain a "professional, courteous and civil attitude toward all persons involved in the legal system."156 Arguably, online lawyers who publicly denigrate the legal system in a way that could be viewed as crude or vulgar157… would violate these standards.

There are two relevant critiques to the ideology of professionalism, embodied in the ABA Model Rules of Professional Conduct ("Model Rules"). The first point of critique is that, as Professor Amy Mashburn compellingly points out, the ABA's Model Rules might not reflect a broad consensus of all attorneys as to what professionalism means.158 Professor Mashburn explains how, at the turn of the twentieth century, an elite and exclusive group of lawyers within the ABA formulated the first set of ethical rules for the legal profession.159 The newly promulgated rules reflected the aristocratic ideals of these "best men of the bar," codifying the idea that lawyers should not be concerned with money and that law practice should not be conducted as a business or trade.160 At the time the first ethics rules were promulgated, there was a general fear among elite attorneys that the wrong (i.e., non Anglo-Saxon) kind of persons were gaining entry into the profession.161 Mashburn argues that an elite group of attorneys continues to define the norms of the legal profession, as evidenced by the heavy influence that corporate lawyers exercise within the ABA.162

Mashburn also remarks that the exhortation that lawyers should be more civil and polite may not represent the interests of non-elite lawyers.163 In fact, concepts of decorum and civility can sometimes clash with an attorney's zealous advocacy for a client or for social change.164 The problem with a unitary view of professionalism is that it relies on the false premise that the law is a monolithic profession that places all attorneys in the same position.165 The reality is that not all attorneys can afford to treat the practice of law as a noble profession rather than a business or trade. Furthermore, not all attorneys are in a position to engage in deferential and measured behavior, particularly when they are representing the poor and powerless or advocating for radical social change.

This critique of the Model Rules can be extended to the Internet's lawyer storytellers, who are writing about experiences that do not reflect the traditional view of professionalism envisioned by America's more elite lawyers. For instance, the practice of law is not a noble profession for a lawyer being paid by the hour to key in data in an airless basement far away from the mahogany and glass offices of an elite law firm;166 who must check his or her cell phone at the door before beginning work;167 and who is often berated by supervising attorneys (usually full-time associates at a prestigious law firm) for not keying in entries fast enough.168 In these circumstances, the concept of being polite, deferential, and maintaining the public's confidence in the integrity of the legal system does not make much sense. Moreover, if Mashburn is correct and elite and powerful practitioners have monopolized the task of codifying our professional rules and norms, then it is a positive development that technology now gives all attorneys the power to inform the culture of the profession.

C. An Online Community Space for Disenfranchised Lawyers

The narrative outlets described in this paper have the potential to influence the profession to change for the better, but perhaps more importantly, they provide attorneys, shut out from the traditional social outlets of the legal profession, a place to go to feel connected and human after spending time in a distinctly non-human work environment.

One argument in favor of allowing these narratives to flourish online is that this information could reach a critical mass and influence true structural change within the profession. This argument has appeal and indeed, the content of these online narratives has been picked up by more traditional Internet news outlets, such as the Wall Street Journal's Law Blog and the New York Times.169 Moreover, after reading the contract attorney blogs, a managing partner at one law firm decided to integrate a document review department into the firm, treating its workers more like full-time employees (albeit without benefits).170 Law school administrators might also be listening in on these painful stories. Dean Richard Matasar171 of New York Law School has recently stated that law schools might be "exploiting" nonelite students by encouraging them to incur excessive debt to attend law school when there is only a slim chance that these students will find employment that enables them to keep up with their loan payments.172

However, even if these narratives are not able to achieve actual structural change, they allow these lawyers a small outlet to express the alienation they suffer on a daily basis. As Michel de Certeau writes, it is not likely that a single individual, caught up in an institutional system of power and hierarchy, will succeed in effecting true structural change.173 But what can be accomplished are forms of resistance in the way one experiences "everyday life."174 Thus, these alternative lawyer narratives validate Certau's theory that those who lack power create their own cultural forms in opposition to the dominant culture as a way of "mak[ing] do with what they have" "in a network of already established forces and representations."175

In addition, these online narratives engender a sense of community and belongingness. Lonely and alienated in the physical world, the Internet affords marginalized attorneys spaces that have the same neighborly characteristics as a traditional community marked by geographic borders.176 Although they are ugly and full of verbal wormwood, these online spaces provide frustrated attorneys with an outlet for dissent, perhaps relieving some of the stress, frustration, and disenchantment that come from working in a hostile and dehumanizing profession. In this case, the community function that the Internet affords should trump concerns over professionalism and maintaining public confidence in the legal profession.

D. A Response to Arguments Against a Participatory Culture within the Legal Profession

Worth considering are three possible arguments against relaxing the norms within the legal profession to embrace a more vibrant culture. The first deals with the concern that if we relax our professional norms and standards, more attorneys will engage in irreverent behavior and the already shaky reputation of attorneys (as evidenced in the popularity of lawyer jokes)177 will be further damaged. However, as Margaret Tarkington points out with respect to the judiciary, this type of slippery-slope argument is based primarily on conjecture and surmise.178 Moreover, although our professional culture should become more relaxed and expansive, most attorneys, from the standpoint of self-preservation, will adhere to traditional behavioral norms and will decline to speak out against the profession with the bitter vitriol and repugnant rhetoric that appears on blogs critical of the profession.179 There is a built-in disincentive to stray from the dominant code of behavior because transgressive conduct carries negative career consequences in terms of the ability to find a job and maintain credibility with clients and the courts.180 However, we should not deny the choice of some attorneys, operating at the margins of the profession, to criticize the profession from within, even if these views are expressed in unpalatable ways that run contrary to traditional notions of how attorneys are supposed to behave.

The doctrinaire view is that attorneys should always "demonstrate” a "belief in the essentiality of the chastity of the goddess of justice.”181 This quote from the Florida Supreme Court exemplifies the outdated aristocratic notions that have informed the culture of the legal profession for many years.182 However, the Internet has given voice to a group of lawyers who would vehemently disagree that there is such a thing as a gendered deity of justice or that this deity retains any type of virginal virtue. The Internet is an appropriate arena to roundly challenge the legal profession's obsolete and unworkable themes and author new narratives that reflect an evolving professional identity (for better or worse).

The second argument is that attorneys should resort to more traditional means for criticizing the legal system. If dealing with a problematic judge, for instance, the attorney should make a complaint to his or her state's commission on judicial conduct183 or appeal that judge's ruling using the available processes within the legal system.184 What this argument misses is that the beauty of the Internet is that it provides an alternative way of getting things done without having to rely on traditional institutions.185 The Internet's democratic architecture allows all voices to be heard, amplifying the most resonant in a way that is unfettered by the formal constraints of the legal system. Sole reliance on the legal system to redress problems would be slow, heavily filtered through formalistic legal procedures, and would preclude the garnering of mass public support for the problem. Limiting attorney speech to formal legal mechanisms would deny the possibility, enabled by participatory culture, of obtaining relief186 by sharing narratives that raise immediate public awareness and support.

Finally, there is the argument that criticism of the legal system should refrain from vulgarity and crudeness but should instead maintain proper decorum and respect.187 However, this argument ignores the fact that an idea's power sometimes derives from the inflammatory way in which it is expressed.188 Because the Internet amplifies the stories that hold the most resonance for an audience, transgressive rhetoric might be what causes an idea to gain viral momentum and reach exponential dimensions in exposure. Moreover, to impose such narrow restrictions on the means by which an idea can be expressed runs contrary to the democratic ideals of participatory culture, which values communication outside the bounds of traditional institutions.189

In advocating a liberty-based theory for expansive First Amendment rights, C. Edwin Baker noted the importance of individuals being able to control the means by which they express their ideas and communicate beyond the confines of traditional institutions.190 Baker wrote that communication outside the bounds of traditional hierarchical institutions has the potential to advance “increased human autonomy and self-determinism, and the attainment of a less alienated, more democratic society."191 Writing before the advent of the Internet, Baker based his thesis on the idea's democratic potential.192 As the Internet is now making this potential a reality, a too-rigid application of our professional rules and norms should not retard this progress.

VI. Conclusion

By allowing a wider swath of participants to comment on the culture of the law, the Internet is changing the face of the legal profession. The online voices of attorneys are sometimes grating and difficult to stomach, but they often expose deep problems within our profession that otherwise would not be aired. It will do no good to silence the voices that are identifying cracks in the structure of our profession simply because they do not comply with traditional professional norms. These stories are culturally valuable because their narrative approach and outsider perspective shed new light on what it means to be a lawyer in America. Further, the structural critique of law practice as an alienating, nonautonomous, and undignified enterprise is a critique that needs to be heard. Accordingly, our professional norms and ethical rules should not operate to shut these narratives out. In the interest of enriching our professional identity, we should embrace the participatory culture of the Internet and allow a diversity of viewpoints to flourish in the profession.

Footnotes

The title of this Article is a reference to the popular website http:// icanhascheezburger.com. This website allows users to upload humorous photographs of cats or "lolcats" (shorthand for cat photographs that make you laugh out loud) with accompanying speech captions. After users vote on which pictures are the funniest, the website features the most popular photos. The collective joke within this website is that many of the cats speak with poor grammar and spelling. By exemplifying how participatory culture fosters user participation, a sense of community, and a shared identity among Internet users, the whimsical icanhascheezburger.com is in sharp contrast with the culture of the legal profession, which emphasizes proper language, measured behavior, and formality. See, e.g., Jenna Wortham, Once Just a Site with Funny Cat Pictures and Now a Web Empire, N.Y. TIMES, Jun. 13, 2010, available at http://www.nytimes.com/2010/06/14/technology/internet/14burger.html.

A participatory culture is "a culture with relatively low barriers to artistic expression and civil engagement, strong support for creating and sharing one's creations, and some type of informal mentorship whereby what is known by the most experienced is passed along to novices." Henry Jenkins et al., Confronting the Challenges of Participatory Culture: Media Education for the 21st Century 3 (2006), available at http://digital learning.macfound.org/atf/cf/%7B7E45C7EO-A3EO-4B89-AC9C-E807E1BOAE4E%7D/JENKINSWHITEPAPER.PDF.

3. See generally, Lucille A. Jewel, Bourdieu and American Legal Education: How Law Schools Reproduce Social Stratification and Class Hierarchy, 56 BUFF. L. REV. 1155 (2008).

The law professor controls legal meanings by structuring classroom dialogue to emphasize precedent and procedure, which tends to greatly limit the story of what happens in a case. See ELIZABETH MERTZ, THE LANGUAGE OF LAW SCHOOL 54-56 (2007) (theorizing, from an ethnographic standpoint, how legal educational institutions reproduce formalistic thinking).

The Cardozo-penned Palsgraf decision illustrates how judicial authors use the clipped prose of legal formalism to strip all personal information and social context from a case. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928); JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 112-13 (1976). Jerome Frank also critiqued Cardozo for using "a private time-machine to transport himself back into 18th Century England" in order to translate "himself into a past alien speech environment." Anon Y. Mous (Jerome Frank), The Speech of Judges: A Dissenting Opinion, 29 VA. L. REv. 625, 631 (1943). Cardozo's language allowed him to promote his prose as reasoned analysis when, in Judge Posner's view, it was really a "substitution of words for thought." RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 119 (1990). Excised from Cardozo's opinion are the facts that Mrs. Palsgraf was a "very poor" mother of three children who made $416 a year as a house cleaner with substantial legal and medical debts. NOONAN, supra, at 125-28.

Through its model rules of professional conduct (adopted by most states), the ABA is an institution that controls the meanings with respect to lawyer professionalism. See Amy R. Mashburn, Professionalism as Class Ideology: Civility Codes and Bar Hierarchy,28 VAL. U. L. REV. 657, 672-73 (1994) (offering a perspective of the ABA's model rules of professional conduct as the product of a few elite lawyers imposing their own view of professional conduct that excludes minority views).

See, e.g., CLAY SHIRKY, HERE COMES EVERYBODY 86 (2008) (explaining traditional mass media communication as a "one-to-many" model); YOCHAI BENKLER, THE WEALTH OF NETWORKS: How SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 3 (2006) (explaining how new technology now allows nonmarket participants to produce information in a decentralized way, in contrast with the older mass-media regime).

MANUEL CASTELLS, THE RISE OF THE NETWORK SOCIETY 491 (2010).

The Internet allows information to reach viral dimensions and impact a mass audience in much the same way that a viral disease gets transmitted to the public. See Eytan Adar & Lada A. Adamic, Tracking Information Epidemics in Blogspace, 2005 INST. ELECTRICAL & ELECTRONICS ENG'RS COMPUTER SOC'Y CONF. ON WEB INTELLIGENCE 1-2, available at www.cond.org/trackingblogepidemics.pdf; David Kempe, Jon Kleinberg & Eva Tardos, Maximizing the Spread of Influence Through a Social Network, 9 ASS'N COMPUTING MACHINERY SPECIAL INT. GROUP ON KNOWLEDGE DISCOVERY & DATA MINING 137 (2003); Limor Shifman & Mike Thelwall, Assessing Global Diffusion with Web Memetics: The Spread and Evolution of a PopularJoke, 60 J. AM. SOC'Y INFO. SCI. & TECH. 2567, 2567 (2009).

See e.g., John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. TIMES, Sept. 13, 2009, at A1, available at http://www.nytimes.com/2009/09/13/us/13lawyers.html (detailing recent conflicts between attorneys who blog about their professional experiences and bar ethics rules).

Control over cultural meanings within the law profession is exemplified by the ABA Model Rules of Professional Conduct, which were first promulgated at the beginning of the twentieth century by the most elite members of the bar and continue to be molded by leadership within the ABA, the majority of which consists of attorneys with corporate law firm practices. See Mashburn, supra note 6, at 663, 669, 673 (1994).

HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 3 (2006) [hereinafter JENKINS, CONVERGENCE CULTURE].

Id.

Kevin Kelly, We Are the Web, WIRED, Aug. 2005, available at http://www.wired.com/wiredlarchive/13.08/tech.html.

SHIRKY, supra note 7, at 21.

Id. at 132-33. See also, BENKLER, supra note 7, at 7 (explaining that new technology has fostered a "robust ethic of open sharing," where production is longer dependent on exclusive property rights).

SHIRKY, supra note 7, at 132-33; ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR 53 (2001).

SHIRKY, supra note 7, at 137, 239-40.

BENKLER, supra note 7, at 124; see also, SHIRKY, supra note 7 at 258-59 ("What the open source movement teaches us is that the communal can be at least as durable as the commercial.").

Mary Chayko defines "community" as a "set of people who share a special kind of identity and culture and regular, patterned social interaction." MARY CHAYKO, PORTABLE COMMUNITIES: THE SOCIAL DYNAMICS OF ONLINE AND MOBILE CONNECTEDNESS 6 (2008). In a community, there is a sense of neighborliness, warmth, support, and belonging. Id.

Henry Jenkins et al., Confronting the Challenges of Participatory Culture: Media Education for the 21st Century 50 (2006), available at http://www.macfound.org (search for "Participatory Culture") [hereinafter Confronting the Challenges of ParticipatoryCulture] (explaining how digital networks "tap the participation of large-scale social communities."); CHAYKO, supra note 20 at 29 (explaining how online communities emerge when "people who may be spatially separated focus on the same things, in much the same way, at the same time.").

BENKLER, supra note 7, at 367. One example of a robust online community would be the some ten million persons who play the online game World of Warcraft. See CASTELLS, supra note 8, at xxix.

K. Guldberg and R. Pilkington, A Community of Practice Approach to the Development of Non-TraditionalLearners Through Networked Learning,22 J. COMPUTER ASSISTED LEARNING 159, 161 (2006).

One example of a shared jargon would be the term "hacker," which originated at MIT's Tech model railroad club, but came to mean a computer "enthusiast, . . . artist, tinkerer, [] problem solver, [and] an expert." RAYMOND, supra note 17, at xii, 4. Computer acronyms, such as "LOL" (laugh out loud), "IMHO" (in my humble opinion), and "ROFL" (roll on the floor laughing) also originated as a shared vocabulary within the hacker community but have now entered mainstream culture. See WIKIPEDIA, http://en.wikipedia.org/wikilLOL (last visited Apr. 7, 2011).

CASTELLS, supra note 8, at 387.

CHAYKO, supra note 20, at 3.

See JENKINS, CONVERGENCE CULTURE, supra note 12, at 18 (explaining how new media "raise[s] expectations of a freer flow of ideas and content" and inspires consumers to participate more fully in their culture.").

Jenkins et al., supra note 12, at 8.

BENKLER, supra note 7, at 2.

Id. at 4.

Id. at 11.

Id. at 15.

33. Id.

Id. at 130.

Id. at 137.

Although Yochai Benkler dismisses the view that the Internet has wholly revolutionized the structure of democracy in the public sphere, he maintains that new technology has led to a vastly improved information landscape compared to the older mass-media model. See id. at 10, 212-15.

CASTELLS, supra note 8, at 491; see also Andrew Keen, Twitter vs CNN: Blood on the Streets, THE TELEGRAPH, (Jun. 23, 2009, 6:01 PM), http://www.telegraph.co.uk/technology/5614541/Twitter-vs-CNN-Blood-on-the-streets.html (discussing the view that "instantaneous decentralized Twitter [is] the speedy future [of journalism]" and CNN represents "the all-too-pedestrian past.").

BENKLER, supra note 7, at 219; SHIRKY, supra note 7, at 184-87.

SHIRKY, supra note 7, at 12 (noting that "a story can go from local to global in a heartbeat.").

Id. at 5.

Id. at 5-6.

Id.

Id. at 13-14.

Id. at 22.

BENKLER, supra note 7, at 166.

CHAYKO, supra note 20, at 31 (positing the view that much of online communication can be characterized as people sharing narratives and stories).

Id. at 33-34.

BENKLER, supra note 7, at 15.

See Jewel, supra note 3, at 1178, 1220 (explaining the traditional understanding that lawyers are members of a noble profession who impart wisdom, occupy positions of power, do good things in society, and never seem to worry about making a living). See also Mashburn, supra note 6, at 668 (explaining that the dominant professional ideology of law portrays the lawyer as an aristocratic character who is not to be trifled with monetary concerns).

See generally, Larry E. Ribstein, The Death of Big Law, 2010 WISC. L. REV. 749 (explaining how recent economic trends are negatively affecting the traditional "big-law" firm business model); Marc S. Galanter & William D. Henderson, The Elastic Tournament: The Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867, 1875-77 (2008) (explaining the trend of big law firms employing staff attorneys and outsourcing strategies).

Gerry Shih, Downturn Dims ProspectsEven At Top Law Schools, N.Y. TIMES, Aug. 25, 2009, available at http://www.nytimes.com/2009/08/26/business/26lawyers.html (explaining that even graduates from the most elite institutions-such as Yale and NYU- are having difficulties securing jobs).

See Jewel, supra note 3, at 1181-85 (explaining that law degrees have differing economic values depending on the perceived prestige of the granting institution).

See Amir Efrati, Hard Case: Job Market Wanes for U.S. Lawyers, WALL ST. J., Sept. 24, 2007, available at http://online.wsj.com/public/article-print/SB119040786780835602.html (explaining the challenges that law graduates with non-elite credentials face in a shrinking job market and discussing calls for more accountability in terms of law schools reporting employment data concerning their graduates).

Justin Pope, Analysis: Law Schools Growing, But Jobs Aren't, LAW.COM, (June 17, 2008), http://www.law.com/jsp/article.jsp?id=1202422330611 (explaining the experience of one recent law graduate, who was forced to move back in with his parents as he searched for a legal job and struggled to pay off his student debts); Christine Hurt, Minding Our Own Business Forum: Bubbles, Student Loans and Sub-Prime Debt, THE CONGLOMERATE, (Apr. 19, 2010), http://www.theconglomerate.org/2010/04/death-of-big-law-forum-bubbles-student-loans-and-subprime-debt.html (explaining that the practice of investing in a legal education by borrowing heavily is analogous to the sub-prime phenomenon in that both schemes rely on the faulty promise that the subject-real estate and, in this case, a law degree-would consistently rise in value; the financial situation for students attending lower ranked schools is especially dire, given the diminished value of a law degree from those schools); Debra Cassens Weiss, 1/3 of Law Students Expect to Graduate with 120K in Debt, ABA J., Jan. 6, 2010, http://www.abajournal.com /news/article/almost_1_3_oflawstudentsexpect-tograduatewith120kindebt (1/3 of American law students now expect to graduate with over $120,000 in student debt).

helpmel23, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION, http://temporaryattorney.blogspot.com/ ("With over 5,000 daily visitors, help expose the nasty sweatshops, swindling law schools, and opportunistic staffing agencies.") (last visited Apr. 8, 2011).

BUT I DID EVERYTHING RIGHT!, http:/Ibutidideverythingrightorsoithought.blogspot.com/ ("Everyday is a cloudy day in the life of a disenchanted lawyer.") (last visited Apr. 8, 2011.)

57. ESQ. NEVER, http://esqnever.blogspot.com/ ("I'm a 2nd Tier Toilet ... err, Law School Graduate who has realized that the law isn't for me. I'll be sharing my quest to find a successful career in another field while also trying to expose the law school scam.") (last visited Apr. 8, 2011).

SHILLING ME SOFTLY, http://shillingmesoftly.blogspot.com (last visited Apr. 8, 2011).

NANDO, THIRD TIER REALITY, http://thirdtierreality.blogspot.com/ (last visited Apr. 8, 2011).

Ashby Jones, Law Blog, Thinking About Law School? These Blogs Tell You Why You Shouldn't, WALL ST. J. LAW BLOG (Mar. 29, 2010, 1:58 PM), http://blogs.wsj.com/law/2010/03/29/thinking-about-law-school-these-blogs-tells-you-why-you-shouldnt/.

Nando, THIRD TIER REALITY, supra note 59.

See, e.g., helpmel23, Open Letter to Dean Richard Slimeball, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION, http://temporaryattorney.blogspot.com/2009/11/open-letter-to-dean-richard-slimeball.html (Nov. 16, 2009, 9:59 AM) [hereinafter Dean Richard Slimeball] (Dean Richard Matasar of New York Law School "won" the Beastly Behavior award for 2009 for a perceived conflict of interest for serving as chairman of the Access Group, a student lending organization, and for serving as the head of New York Law School); helpmel23, 2007 Beastly Behavior Award: Joan King, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION, http://temporaryattorney.blogspot.com/2007/12/2007-beastly-behavior-award-joan-king.html (Dec. 27, 2007, 6:10 PM) (Career Services Administrator Joan King, of Brooklyn Law School, "won" the beastly behavior award for 2007 for allegedly publicizing optimistic, but incomplete, employment data for Brooklyn Law Graduates). See also, Andrew P. Morriss & William D. Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, 83 IND. L.J. 791 (2008) (generally critiquing the "gaming" strategies that law schools in engage in to maximize post-graduate employment data, which in turn affects the schools' U.S. News and World Report rankings).

See sources cited supra note 62.

Nando, Profiles in Hypocrisy: TTT Dean Thomas, THIRD TIER REALITY, http://thirdtierreality.blogspot.com/2010/04/profiles-in-hypocrisy-ttt-dean-thomas.html (Apr. 20, 2010, 5:35 AM).

One of the markers of an Internet community is a shared language or new type of jargon. See supra notes 21-24 and accompanying text. On these websites, the word "toilet" and the acronym TIT (third tier toilet) have emerged as terms for law schools outside the top two tiers (the top 100 law schools) listed in U.S. News and World Report's annual ranking. See helpmel23, Toilet Law Schools Popping Up, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION, http://temporaryattorney.blogspot.com/2008/06/toilet-law-schools-popping-up.html (June 12, 2008, 3:24 PM).

See Arin Greenwood, Attorney at Blah, WASH. CITY PAPER, Nov. 19, 2007, available at http://www.washingtoncitypaper.com/display.php?id=34054.

See Arin Greenwood, Manhattan Work at Mumbai Prices: Inside India's Hottest Legal Outsourcing Firm, 93 A.B.A. J. 36, 40 (2007), available at http://abajournal.com/magazine/manhattanworkatmumbai-prices/; Daniel Brook, Made in India: Are Your Lawyers In New York or New Delhi, LEGAL AFFAIRS, May/June 2005, available at http://www.legalaffairs.org/issues/May-June-2005/scene-brookmayjunO5.msp.

See helpmel23, Beastly Behavior Award: David Perla, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Dec. 30, 2008, 2:46 PM), http://temporaryattorney.blogspot.com/2008/12/2008-beastly-behavior-award-david-perla.html (awarding David Perla, CEO of outsourcing firm Pangea3, the website's beastly behavior award in 2008).

Julie Triedman, Slaves of New York, THE AM. LAWYER, Mar. 2006, at 19.

See id. See also helpme123, The "Update Legal" Shearman and Sterling Project, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Jan. 28, 2008, 12:16 AM), http://temporaryattorney.blogspot.com/2008/01/update-legal-shearman-sterling-project.html (detailing the work requirements for a document review job at New York law firm Shearman and Sterling).

helpmel23, Another Assault at LabaToilet?, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Mar. 24, 2010, 3:29 PM), http://temporaryattorney.blogspot.com/2010/03/another-assault-at-labatoilet.html ("I quit labaton several weeks ago after I too was assaulted in front of several witnesses in the eating area and no one confronted/reported the asshole who hit me to anyone, including me because we were all afraid of losing our jobs, just as happened to other people recently.").

For instance, the posting about the woman being assaulted at a document review project was questioned in several comments. See Comments to helpmel23, Another Assault at LabaToilet?, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION, http:// temporaryattorney.blogspot.com/2010/03/another-assault-at-labatoilet.html (Mar. 24, 2010, 3:29 PM). Yochai Benker refers to this process of accuracy questioning, played out within the comments section of a blog, as peer accreditation. BENKLER, supra note 7, at 76-80 (explaining how peer accreditation works on Slashdot, a user moderated technology news website).

For an explanation of the viral concept as applied to the Internet, see supra note 9 and surrounding text. Neal Stephenson's novel Snow Crash affords the best explanation of the viral concept within new media culture: We are all susceptible to the pull of viral ideas. Like mass hysteria. Or a tune that gets into your head that you keep on humming all day until you spread it to someone else. Jokes. Urban legends. Crackpot religions. Marxism. No matter how smart we get, there is always this deep irrational part that makes us potential hosts for self-replicating information. NEAL STEPHENSON, SNOW CRASH 399-400 (1992).

See Ben McGrath, Oops, THE NEW YORKER, June 30, 2003, available at http://www.newyorker.comlarchive/2003/06/30/030630ta-talk-mcgrath (identifying this email as "2001's most celebrated legal e-mail."). Although the email was widely circulated in 2001, it has mostly disappeared from cyberspace, but its text is still available at autoadmit.com, a forum for prospective and current law students. See posting of h4ck3d 4ccOunt, AUTOADMIT.COM (Feb. 23, 2005, 5:01 AM), http://www.xoxohth.com/thread.php?thread-id=140158&mc=140&forumid=2.

Id.

The email was picked up and reposted on the popular Above the Law blog. See David Lat, Breaking:A Dramatic Farewell (and Proofof PaulHastings Layoffs), ABOVE THE LAW (May 5, 2008, 3:48 PM), http://abovethelaw.com/2008/05/breaking-a-dramatic-farewell-emailand-proof-of-paul-hastings-layoffs-/.

Amir Efrati, Law Blog, Fired PaulHastings Associate Talks to Law Blog, WALL ST. J. (May 8, 2008, 9:01 PM), http://Iblogs.wsj.comlaw/2008/05/08/fired-paul-hastings-associate-talks-to-law-blog/.

Lat, supra note 77. Ms. Oh further wrote: "[E]ven a few words of sympathy or concern would have made a world of difference. What kind of people squander human relationships so easily?" Id.

Id.

Law Shucks, More Hypocrisy in Stealth Layoffs, LAW SHUCKS, (Feb. 6, 2009), http://lawshucks.com/2009/02/06/more-hypocrisy-in-stealth-layoffs/ (explaining the phenomenon of "stealth layoffs," which occurs "when firms lay off attorneys supposedly for performance reasons, but in fact are doing so by imposing arbitrarily tighter standards due to economic conditions."). See also, David Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in CorporateLaw Firms?An InstitutionalAnalysis, 84 CAL. L. REV. 493, 533-34 (1996) (explaining that law firms are incentivized to portray associate layoffs in terms of objective performance rather than as a result of market forces).

See Ribstein, supra note 50 (explaining the current shrinkage of large law firms as the product of an outdated firm structure and current market forces).

Efrati, supra note 78.

See Jonathan Rapping, You Can't Build on Shaky Ground: Laying the Foundation for Indigent Defense Reform Through Values-Based Recruitment, Training and Mentoring,3 HARV. LAW AND POL'Y REV. 161, 162-63 (2009); John Henry Schlegel, But Pierre, If We Can't Think Normatively, What Are We To Do? 57 U. MIAMI L. REV. 955, 965-66 (2003) (describing criminal defense bar as a culture that emphasizes efficient resolution of cases that discourages defense attorneys from zealously advocating on behalf of their clients).

See Rapping, supra note 85, at 162-63, 166-67.

See id.

Sean Conway, Judge Aleman's new (illegal) "One-week to prepare" policy, JAABLOG (Oct. 30, 2006, 9:11 PM), http://jaablog.jaablaw.com/2006/10/30/judge-alemans-new-illegal-oneweek-to-prepare-policy.aspx. See also Letter from the Florida Bar to Sean William Conway 2 (Apr. 13, 2007), available at http://www.citmedialaw.org/sites/cit medialaw.org/files/2007-04-03-Letter%20Notifying%20Conway%20of%2OBar%20Investigation.pdf; John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. TIMES, Sept. 13, 2009, available at http://www.nytimes.com/2009/09/13/us/131awyers.html.

89. Conway, supra note 88.

Id.

Id. The subject of Conway's post, Judge Cheryl Aleman, was reprimanded by the Florida Supreme Court in a separate incident for engaging in "arrogant, discourteous, and impatient" behavior with lawyers. John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. TIMES, Sept. 13, 2009, available at http://www.nytimes.com/2009/09/13/us/13lawyers.html.

FLA. RULE OF PROF'L CONDUCT 4-8.2(a) (2010). This rule is identical to MODEL RULE OF PROF'L CONDUCT 8.2(a) (1983).

93. FLA. RULE OF PROF'L CONDUCT 4-8.4(d) (2010). This rule is identical to MODEL RULE OF PROF'L CONDUCT 8.4(d) (1983).

Brief of Complainant at 2, Fla. Bar v. Conway, 996 So. 2d. 213 (Fla. 2008) No. SCO8-326 [hereinafter Brief of Complainant, Fla. Bar v. Conway].

See id. See also Fla. Bar v. Conway, No. SCO8-326, docket entry for June 23, 2008.

See Fla. Bar v. Conway, No. SC08-326, docket entry for July 14, 2008.

Fla. Bar v. Conway, 2008 WL 4748577, *1 (Fla. Oct. 29, 2008).

98 Obtaining clarity on the Court's reasoning is further hampered by the fact that Conway signed a plea agreement, admitting that his comments about the judge were improper and a rules violation. See Brief of Complainant, Fla. Bar v. Conway, supra note 94, at 2.

Id. at 6-8 (citing Fla. Bar v. Ray, 797 So. 2d 556, 558-59 (Fla. 2001)).

Brief of Complainant, Fla. Bar v. Conway, supra note 94, at 7 (citing New York Times v. Sullivan, 376 U.S. 254 (1964)).

Fla. Bar v. Ray, 797 So. 2d 556, 559 (Fla. 2001).

See, e.g., Matter of Green, 11 P.3d 1078, 1084 (Colo. 2000); Okla. Bar Ass'n v. Porter, 766 P.2d 958, 969 (Okla. 1988); Ramsey v. Bd. of Prof'1 Responsibility, 771 S.W.2d 116, 121-22 (Tenn. 1989), cert.denied,493 U.S. 917 (1989).

Brief of Complainant, Fla. Bar v. Conway, supra note 88, at 10 (citing In re Nathan, 671 N.W.2d 578, 584 (Minn. 2003)) ("Merely cloaking an assertion of fact as an opinion does not give the assertion constitutional protection."). On the other hand, the one circuit court case on point, Standing Committee on Discipline v. Yagman, held that if an attorney's remark is an opinion, then the First Amendment protects the speech. 55 F.3d 1430, 1438 (9th Cir. 1995).

Letter from Sean Christopher Conway to Alan Anthony Pascal, Bar Counsel, in The Florida Bar 1 (Apr. 17, 2007), available at http://www.citmedialaw.org/sites/ citmedialaw.org/files/20070403Letter%2ONotifying%2OConway%20of%2OBar%20Investigation.pdf).

Id.

Brief of Complainant, Fla. Bar v. Sean William Conway, supra note 94, at 19 (quoting Fla. Bar v. Wagner, 212 So. 2d 770, 772-73 (Fla. 1968)).

See Rapping, supra note 85, at 162-63, 166-67.

Margaret Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, andJudicialReputation, 97 GEO. L.J. 1567 (2009).

Id. at 1575.

Id. at 1577.

Id. at 1575-76 (citing Alexander Meiklejohn, The First Amendment is Absolute, 1961 Sup. CT. REV. 245, 255 (1961) (discussing the idea that free speech provides the means for democratic self-governance)); id. at 1579-80 (citing Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 527 (1977) (discussing the other core ideal within the First Amendment, as providing a "checking-value" against the abuse of power by public officials)).

376 U.S. 254, 279-80 (1960).

Only three states have adopted the subjective Sullivan standard for evaluating attorney speech critical of the judiciary. See Matter of Green, 11 P.3d 1078, 1084 (Colo. 2000); Okla. Bar Ass'n v. Porter, 766 P.2d 958, 969 (Okla. 1988); Ramsey v. Bd. of Prof'l Responsibility, 771 S.W.2d 116,121-22 (Tenn. 1989).

114. See Tarkington, supra note 108, at 1590, 1607. The problem is that in these proceedings, "[t]he Court acts as judge, jury, and appellate reviewer in a disciplinary proceeding." Id. at 1607 (quoting In re Wilkins, 777 N.E.2d 714, 720-21 (Ind. 2002) (per curiam) (Boehm, J., dissenting), modified, 782 N.E.2d 985, 987 (Ind. 2003).

55 F.3d 1430, 1438 (citing Milkovich v. Lorain J. Co., 497 U.S. 1, 19 (1990)).

See id.

See Steven Wisotsky, Incivility and Unprofessionalism on Appeal: Impugning the Integrity of Judges, 7 J. APP. PRAC. & PROC. 303, 304-05 (2005) (citing In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991)).

It would also be appropriate to discipline attorneys whose speech poses a "substantial likelihood" of materially prejudicing a pending proceeding. See, e.g., Yagman, 55 F.3d at 1442; MODEL RULES OF PROF'L CONDUCT RS. 3.5 (prohibiting conduct that is disruptive to a tribunal), 3.6 (prohibiting trial publicity that has a substantial likelihood of materially prejudicing a pending proceeding).

119. See Yagman, 55 F.3d at 1438, 1440-41. The First Amendment protects opinion- based speech because there is less danger that members of the public would take such statements at face value. See id.at 1439.

Tarkington, supra note 108, at 1630-31 (quoting Yagman, 55 F.3d at 1437).

Id. at 1637 (citing Landmark Commc'ns, Inc. v. Va., 493 U.S. 829, 841 (1979)).

See id. at 1632-33.

When questioned as to why he blogged about the judge, Conway replied that he felt that "[aIll I had left were my words." Schwartz, supra note 88.

124. See Steve Himmer, The Labyrinth Unwound: Weblogs as Literature,INTO THE BLOGOSPHERE (2004) http://blog.lib.umn.edu/blogosphere/labyrinth-unbound.html (arguing that the web log form is a "distinct literary form" that shares many narrative attributes with the novel); Laura J. Gurak & Smiljana Antonijevic, DigitalRhetoric and Public Discourse, in THE SAGE HANDBOOK OF RHETORICAL STUDIES (Lundsford, ed., 2009) and LAURA GURAK, PERSUASION AND PRIVACY INCYBERSPACE 61-62 (1997) (situating email messages within concept of digital rhetoric).

See e.g., Carrie Menkel-Meadow, The Sense and Sensibilities of Lawyers: Lawyering in Literature,Narratives,Film and Television, and Ethical Choices Regarding Career and Craft, 31 MCGEORGE L. REV. 1, 2 (2000) (arguing that literature and film depictions of lawyers function as an important reflection upon the ethics and morality of lawyering); Lance McMillian, Tortured Souls: Unhappy Lawyers Viewed Through the Medium ofFilm, 19 SETON HALL J. SPORTS & ENT. L.31, 34 (2009) (positing that we have much to learn from "the portrayal of tortured attorneys through the medium of film.").

Richard Weisberg, Coming of Age Some More: "Law and Literature"Beyond the Cradle, 13 NOVA L. REV. 107, 110 (1989).

James R. Elkins, The Stories We Tell Ourselves in Law, 40 J. LEGAL EDUC. 47, 53 (1990).

See, e.g., Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258, 1261-65 (1992) (categorizing African Americans, Mexicans, Native Americans, and Asians as "outsiders" within popular culture).

Carrie Menkel-Meadow, Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law, 42 U. MIAMI L. REV. 29,35 (1988).

Id. at 35-50. Menkel-Meadow writes about the impact that feminist voices have had in the legal system.

JOHN OSBOURNE, THE PAPER CHASE (1971) (fictional account of Harvard Law School in the late 1960s and early 1970s that aptly captures the terrifying elements of the Socratic method through the book's Professor Kingsfield character, who was later played by John Houseman in the Paper Chase movie and television series).

Scorr TURROW, ONE L (1977) (Turrow's memoir of his first year at Harvard Law School that recounts the cutthroat competition, frustration, and the ultimate intellectual rewards that came to him at the year's completion).

Louis AUCHINCLOSS, DIARY OF A YUPPIE (1986) (short novel about a young associate structuring corporate takeover deals at a large New York City law firm during the "me" decade (the 1980s)).

WILLIAM R. KEATES, PROCEED WITH CAUTION: A DIARY OF THE FIRST YEAR AT ONE OF AMERICA'S LARGEST, MOST PRESTIGIOUS LAW FIRMS (1997) (nonfiction account of the stressful and demanding life of a highly paid associate at a large New York City law firm).

The obvious example of a heroic lawyer model would be Atticus Finch. HARPER LEE, TO KILL A MOCKINGBIRD (1960).

See Nando, ABA Pigs at a Trough, THIRD TIER REALITY (Apr. 1, 2010, 3:58 AM) http://thirdtierreality.blogspot.com/2010/04/aba-pigs-at-trough-law-school-is-poor.html (using a photograph of pigs in conjunction with a post on the ABA); helpmel23, 2009 Most Profitable Year Ever for the Paul Weiss Slave Drivers, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Feb. 1, 2010, 5:10 PM) http://temporaryattorney.blogspot.com/2010/02/2009-most-profitable-year-ever-for-paul.html (using imagery of pigs in conjunction with a post on large law firm Paul Weiss).

See Nando, Call the Plumber: Seton Hall University School of Law, THIRD TIER REALITY (Apr. 8, 2010, 4:11 AM), http://thirdtierreality.blogspot.com/2010/04/call-plumber-seton-hall-university.html.

See, e.g., supra notes 65, 70, and accompanying text.

The term "professional" represents a higher, normative concept that looks at what attorneys should do as opposed to what they must do, which is the province of the ethics rules. See Benjamin H. Barton, The ABA, The Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approaches of the Canons, 83 N.C. L. REV. 411, 440-41 (2005) (discussing how "ethics" has become synonymous with the minimum rules governing attorney conduct whereas "professionalism" embodies a more normative standard as to what lawyers "should" do); Jeffrey A. Maine, Importance of Ethics and Morality in Today's Legal World, 29 STETSON L. REV. 1073, 1077-78 (2000) (explaining that disciplinary rules such as the Model Rules of Professional Conduct contain the minimum ethical standards whereas true professionalism requires one to go beyond the bounds of the disciplinary rules). As the example of Sean Conway shows, Model Rule of Professional Conduct 8.2(a) (as adopted in most states, including Florida) provides a strong basis for imposing attorney discipline for negative stories about judges. A few states have professional rules that support discipline for more general criticism of the profession. In Illinois, for instance, attorneys may be disciplined for conduct that brings "the courts or the legal profession into disrepute." See, e.g., ILL. SUP. CT. R. 770. Additional authority for disciplining attorneys for general critiques of the legal system can be found in the preamble to the ABA Model Rules of Professional Conduct, which exhorts lawyers to "respect the legal system and for those who serve it, including judges, other lawyers, and public officials." See Steven Wisotsky, Incivility and Unprofessionalismon Appeal: Impugning the Integrity of Judges, 7 J. APP. PRAC. & PROCESS 303, 309, n.34 (2005) (citing 5-H Corp. v. Padovano, 708 So. 2d 244, 245-46, 248 (Fla. 1997)). See also, Preamble, 1 6, MODEL RULES OF PROF'L CONDUCT (2002) ("A lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority."). Outside the context of criticizing judges or prejudicing an ongoing trial, the case law does not generally support the idea of imposing attorney discipline for broad- based critiques of the legal system. Such criticism would, however, violate the implicit professional norms that underlie the ethics rules. See infra notes 152-54 and accompanying text.

See, e.g., Knut, All You Need to Know About the "Scam-Blogs": An Evolution and a Guide for New Readers, FIRST TIER TOILET (Jan. 11, 2011), http://firsttiertoilet.blogspot.com/2011/01/all-you-need-to-know-about-scam-blogs.html (explaining that in the first few years of the anti-law school scamblogging movement, "[alnyone who dared to raised [sic] his voice about the serious problems in legal education and legal employment would be viciously insulted as an embittered loser.").

As a sociological perspective, structuralism has many academic variations but all of them are generally concerned with studying the organizational forms that emerge from human interactions. See Bruce H. Mayhew, Structuralism v. Individualism: Part 1, Shadowboxing in the Dark, 59 SOCIAL FORCES 335, 335-39 (1980). Structuralists are concerned with "identifying deeper, underlying ... patterns that find expression in surface level cultural forms." John W. Mohr, Introduction: Structures, Institutions, and Cultural Analysis, 27 POETICS 57, 57 (2000). Susan Carle uses the term structural to refer to how social structures determine inequalities of power and resources that can in turn affect how lawyers approach advocacy for their clients. Susan Carle, Structure and Integrity, 93 CORNELL L. REV. 101, 114-16 (2008).

In general, the law uses themes of equality and objectivity (liberal humanism ideals) to foster the ideas that social outcomes are the fair result of neutral processes rather than the result of preexisting inequalities. See MERTZ, supra note 4, at 4-6, 212-14 (explaining the process by which the law employs abstract and formalistic legal reasoning, which emphasizes procedure and precedent, at the expense of social context and moral issues); Jewel, supra note 3, at 1157-60 (explaining Bourdieu's theory of how the law emphasizes neutrality and objectivity in order to instill public faith in the system, a process that tends to obscure how legal outcomes often favor dominant groups).

From a critical theory perspective, David Baker provides a good explanation of the internal conflict within liberal humanism between individual autonomy and institutional organizations: [L]iberalism has normative, institutional, and theoretical content. The key normative content, which is the most persistent and fundamental aspect of liberalism, exalts the values of human equality, self- determination, and self-realization-that is, of liberty and autonomy. Historically, the institutional content of liberalism has included capitalist or market economic forms, bureaucratic organizational forms, and, at its best, democratic political forms. The theoretical content attempts to explain and justify liberal institutions in terms of liberal norms, and sometimes to explain and justify liberal norms themselves. In this theoretical component, liberalism faces the impossible task of explaining how its key values of liberty and autonomy are consistent with a social structure that in reality controls and limits human choice. David Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. CAL. L. REV. 293, 304 (1984).

Thus, "[p]rogress within liberal thought requires first exposing the contradictions between its institutions and its values and then recommending the reform or transformation of those institutions." Id. at 304.

See, e.g., Jewel, supra note 3, at 1163-64. See also MERTZ, supra note 4, at 212. The concept of individual merit is another example of a liberal humanist idea that leaves little room for a deeper critique. The traditional idea is that an individual's merit (in the form of school prestige, test scores, grades, etc.) determines where he/she ends up in society. However, the merit narrative leaves no space for the empirical reality (at least within the legal profession) that one's place in society is highly influenced by the amount of social, cultural, and economic capital one holds prior to entering the education/career system. See Jewel,supra note 3, at 1173-75.

See generally, ANTHONY KRONMAN, THE LOST LAWYER 299 (1993) (The ability to exercise practical wisdom on behalf of a client requires lawyers to suspend their own (financial) self-interest and "clear an affective space in which his client's interests may be entertained with real feeling."); Susan Carle, Structureand Integrity,93 CORNELL L. REV. 101, 117 (2008) (citing DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 36 (2007)) (Carle places David Luban's conceptions of lawyer professionalism, wherein the lawyer should always strive to promote human dignity, as being based on a philosophy of liberal individualism).

See In re Snyder, 472 U.S. 633, 646-47 (1985) (citing People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-71 (1928)).

See supra notes 51-73 and accompanying text.

See supra notes 88-106 and accompanying text.See supra notes 78-85 and accompanying text.

See supra notes 88-106 and accompanying text.

See MODEL RULES OF PROF'L CONDUCT R. 8.2(a) (2009).

See MODEL RULES OF PROF'L CONDUCT R. 3.5(d) (2009).

See generally, 7A C.J.S. Attorney & Client § 84 (2010) (collecting and annotating discipline cases concerning lawyers who engaged in conduct prejudicial to the administration of justice). See also, 16 IA. PRAC., LAWYER & JUDICIAL ETHICS § 12:4(d)(1) (2010) (the rule prohibiting conduct prejudicial to the administration of justice "attaches to lawyer conduct that inappropriately disrupts the legal process, impairs the ability of a participant in the process to effectively present a case, impedes progress of the matter ... or perverts the disposition of a matter.").

The disapproval of crude and vulgar lawyers can also be viewed as the legal profession's attempt to maintain its image as an upper-class culture built around distinction and good taste. The concept of vulgarity, as a polar opposite to the concepts of distinction and taste, is a cultural marker for the lower classes. See Jewel, supra note 3, at 1170-71, 1197-1201.Preamble, 5, MODEL RULES OF PROF'L CONDUCT (1983).

Id. at sec 6.

Id. at 9.

Mashburn, supra note 6, at 663-69.

159 Id. at 668-69.

Id.

Id. at 669.

Id. at 672, 675-76.

Id. at 655-58, 87.

Id. at 686.

165 Id. at 665-67.

helpmel23, The Lexolution Chicken Coop is Once Again Open for Business, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Feb. 15, 2010, 10:15 AM), http://temporaryattorney.blogspot.com/2010/02/lexolution-chicken-coop-is-once-again.html.

helpmel23, Discover Ready, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Mar. 20, 2010, 9:24 AM), http://temporaryattorney.blogspot.com/2010/03/discoverready.html; helpmel23 Blacklisted by Lexolution, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Nov. 17, 2009, 10:08 AM), http://temporary attorney.blogspot.com/2009/11/blacklisted-by-lexolution.html.

168. helpmel23, Jones Day: A Follow Up, TEMPORARY ATTORNEY: THE SWEATSHOP EDITION (Feb. 12, 2010, 12:10 AM), http://temporaryattorney.blogspot.com/2010/02/jones-day-follow-up.html.

See, e.g., Ashby Jones, Law Blog, Thinking About Law School? These Blogs Tell You Why You Shouldn't, WALL ST. J., (Mar. 29, 2010, 1:58 PM) http://blogs.wsj.com/law/2010/03/29/thinking-about-law-school-these-blogs-tells-you-why-you-shouldnt/; Amir Efrati, supra note 78; John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. TIMES, September 13, 2009, available at http://www.nytimes.com/2009/0913/us/13lawyers.html; Arin Greenwood, Attorney at Blah, WASH. CITY PAPER, Nov. 19, 2007, available at http://www.washingtoncitypaper.com/display.php?id=34054.

Julie Kay, ContractLawyers: Cheaperby the Hour,THE NAT'L L.J., Jan. 12, 2009, available athttp://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202427338861 (the managing partner stated: "I've read the blogs, and we just felt it was not healthy for us, for the profession or the clients if there's a bad environment.").

Temporary Attorney: The Sweatshop Edition singled Matasar out for its 2009 "beastly behavior award" because of a perceived conflict of interest for concurrently serving as the chairman of a student loan company lending to New York Law School and as Dean of the law school. See Dean Richard Slimeball, supra note 62.

Debra Cassens Weiss, Law School Deans Says Schools Exploiting Students Who Don't Succeed, A.B.A. J., Jan. 20, 2009, http://www.abajournal.com/news/article/law_dean-saysschools-exploitingstudentswhodontsucceed/. In the article, Matasar is quoted as saying: We took them. We took their money. We live on their money.. . . And if they don't have a good outcome in life, we're exploiting them. It's our responsibility to own the outcomes of our institutions. If they're not doing well . . . it's gotta be fixed. Or we should shut the damn place down. And that's a moral responsibility that we bear in the academy. Id. Despite being singled out as a target worthy of attack, Dean Matasar appears to be aware of the problems faced by non-elite students and has compellingly written that law schools should behave as fiduciaries toward their students, as opposed to self-interested market actors. See Richard A. Matasar, Defining Our Responsibilities: Being an Academic Fiduciary,17 J. CONTEMP. LEGAL ISSUES 67 (2008).

MICHEL DE CERTEAU, THE PRACTlCE OF EVERYDAY LIFE xiv (1984). In describing the alienating environment of modern work life, de Certeau borrows Michel Foucault's concept of "discipline," which describes how modern institutions employ myriad of micro rules, regimentations, and time tables imposed on our everyday life, ensuring the retention of social order and the status quo. See e.g., MICHEL FOUCAULT, DISCIPLINE AND PUNISH 205, 216, 220 (1979).

DE CERTEAU, supra note 173, at xiv.

Id. at 18, 32.

See supra notes 20-26 and accompanying text (discussing the ways that the Internet supports new kinds of communities).

See, e.g., Patricia L. Garcia, Did You Hear the One About the Lawyer? 70 TEX. B. J. 960 (2007); Ward Blacklock, Lawyer Bashing:It's Time to Turn the Tide, 24 ST. MARY'S L. J. 1219 (1993) (reflecting the view that the proliferation of lawyer jokes encapsulates the public's lack of confidence in the legal profession).

178. See supra note 123 and accompanying text.

To support her point that the judiciary does not need protection from attorney criticism, Margaret Tarkington cites to an article by David Pimentel arguing that the adversary system incentivizes lawyers to restrain their criticism of the judges they practice in front of. Margaret Tarkington, A Free Speech Right to Impugn Judicial Integrity in CourtProceedings,51 B.C. L. REV. 363, 430 n.390 (2010) (citing David Pimentel, The Reluctant Tattletale: Closing the Gap in Federal Judicial Discipline, 76 TENN. L. REV. 909, 933-34 (2009)). The loss of goodwill from the bench and loss of respect from professional peers can negatively effect an attorney's reputation and ability to make a living. Id. Thus, there is a certain amount of self-regulation that goes on within the legal profession. This reasoning can be applied beyond the context of judicial criticism, supporting the prediction that relaxing our rules and norms would not unduly harm the legal profession.

See Jewel, supra note 3, at 1178 (explaining how the image of the virtuous passive attorney exemplifies the belief that only attorneys of preexisting wealth and means are capable of maintaining "professional" ideals). The aristocratic/chivalrous view of the legal profession is also reflected in the prohibition on direct solicitation of clients. This rule, now canonized as ABA Model Rule of Professional Conduct section 7.3, derives from the opinion of the elite lawyers who drafted the first ethics rules for the profession in 1908. These lawyers believed that attorneys should not dirty their hands by actively soliciting clients but should instead passively await clients "[1]ike young maidens awaiting suitors." See Jewel, supra note 3, at 1178 (citing JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 41 (1976)).

In re Shimek, 284 So. 2d 686, 690 (Fla. 1973) (quoted in Tarkington, supra note 108, at 1569).

See Jewel, supra note 3, at 1178 (explaining how longstanding professional rules against lawyer advertising and solicitation were designed to uphold a lawyering model based on passive restraint, which reinforces the aristocratic idea that only lawyers of pre-existing wealth and means have the ability to maintain the dignity of the legal profession).

See Tarkington, supra note 108, at 1602, n.210 (collecting authorities supporting the idea that in cases where there is a problem with a judge, the appropriate response is to file a complaint with the relevant judicial disciplinary authority).

184. See Witosky, supra note 117, at 314-15 (arguing that if a trial or appellate judge erred, the professional thing to do is to present the error on its merits to a higher court).

See SHIRKY, supra note 7, at 22 (explaining how new technology has created "novel alternatives for group action" in competition with "traditional institutional forms for getting things done.").

"Relief" refers to the emotional release that comes with sharing one's story as well as possible remedial action by institutions in response to public awareness of the problem.

The rhetoric on websites such as Temporary Attorney: The Sweatshop Edition, Esq. Never, and Third Tier Reality has been referred to as "vulgar" and "disgusting." See Brian Tamanaha, Wake Up, Fellow Law Professors, to the Casualties of our Enterprise, BALKINIZATION (June 13, 2010, 6:48 PM), http://balkin.blogspot.com/2010/06/wake-up-fellow-law-professors-to.html.

Justice Rehnquist recognized this point with respect to crude political cartoons, noting that a cartoon's success as political commentary seemed to be related to how far it went "beyond the bounds of good taste and conventional manners."' Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (quoting CHARLES PRESS, THE POLITICAL CARTOON 251 (1981)).

See Benkler, supra note 7, at 212-14 (explaining the concept that the Internet's elimination of mass communication costs has had a democratizing effect on American society).

See C. Edwin Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. CAL. L. REV. 293, 337 (1984).

Id.

#law #practice of law #legal profession #culture #work culture #internet #public affairs #The Way We Live Now #communication #free speech #media #participatory culture #freedom #narrative #democratic ideals #ABA #american bar association #critique

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Carrie Menkel-Meadow, Can They Do That? Legal Ethics in Popular Culture: Of Characters and Acts, 48 UCLA L Rev 1305 (2001)

This Essay describes the depiction of modern lawyers' professional ethics in literature, films, and television, and distinguishes between personal and professional character and specific acts. Depictions of lawyers in modern popular culture are more complex and nuanced than older treatments and allow law students, lawyers, and legal academics an opportunity to examine both ethical rule violations and "micro" behavioral choices, as well as character and more "macro" professional career choices and philosophies in a variety of contexts and serialized plot, treatments. Treatments of professional ethics in more recent popular culture are also contrasted to more literary examinations of both lawyers' and other professionals' moral choices. Whether modern popular depictions of lawyers reveal more villains than heroes remains an interesting, if unanswerable question. Lawyers are more diverse in their demography and work settings, and the complexity of the sociology of ethical choices is now more often depicted than it was in the "golden age" of popular lawyer heroes.

Introduction

Consider these two thought experiments: First, what was your first image of a lawyer and where did it come from? Was the lawyer a "good" lawyer? A "good" person? Did the lawyer do good deeds or commit bad acts? Did your first image of a lawyer come from real life or from a movie, a television show, a popular novel, or literature?1

Second, what popular, cinematic, or literary image would you select as being "exemplary" of the good lawyer? Do you imagine a person of good character or one who does good deeds? Who seeks justice, possibly at great personal or professional risk to self, or who is "good or helpful" to other people, including clients and third parties? Is a "good" lawyer a person who performs his or her craft well or a person who is fair, kind, and just? Do you see a courtroom trial advocate, ready with razor sharp questions and pithy- but moving-closing arguments? Do you see a skillful draftsperson or law office counselor advising people to do the right thing or create new and interesting entities?

Many critics of lawyers in popular culture have argued about whether recent images of lawyers in movies, popular novels, legal thrillers, and even more complex "high" literature reveal a declining ethicality, or faith and trust in lawyers. Some separate the heroes from the villains, and see a decline in the heroism of lawyers.2 Others see a more complicated alternation of good and bad images of lawyers in American history as different periods of American cultural representations reflect the vagaries of historical appreciation. or deprecation of lawyers, beginning with the period immediately after the American Revolution, and-most agree- culminating in the zenith or "golden age" of lawyer appreciation in the films of the late 1950s and early 1960s.3 From a period of virtual or actual canonization of such figures as Atticus Finch,4 Sir Thomas More5 and television's The Defenders,6 we are now in a period that not only creates its own more morally and ethically ambiguous lawyers, but also seems to be engaged in some revisionist re-readings of even such heroes as Atticus Finch7 With the vast increase in novels, mysteries, thrillers, movies,8 and television shows about lawyers, images of lawyers-good, bad, indifferent, complicated, and nuanced-are proliferating. These recent depictions present a greater variety of lawyer images to choose from, which, while perhaps still not "representative" (in a socially scientific way) of all lawyers, present a more accurate choice of complex lawyer images to analyze than ever before.

As I will suggest in this Essay, the greater variety of genres and increasing numbers of lawyers in popular literature and culture present an excellent opportunity for students of legal ethics to examine the work of lawyers in both their "macro" (choice of career, choice of client, role in legal institutions) and "micro" (choice of particular actions and behaviors) contexts, and allow us to examine the many different criteria we might apply to evaluate whether a lawyer is a good or bad actor, or a good or bad person.9 It is also interesting to ask why lawyers have so frequently been depicted as the repositories of professional morality, and used in critiques of morality in American culture, compared to other professionals with ethical dilemmas such as doctors,10 architects,11 police officers,12 and business managers,13 not to mention other kinds of workers (such as British butlers14 or French executioners15), and ordinary human beings. I will focus here on some comparative professional ethics, as depicted in popular culture and literature, as another way of looking at how ethics are presented in modern culture and to illustrate how lawyers have come to be considered one bellwether of American morality.

The variations of genre allow different aspects of the lawyer's persona to be developed. Long novels and television series allow "character" to be more fully developed.16 Movies and superficial thrillers or mysteries tend to focus more on acts and discrete plot turns rather than on character. Thus, the multiplicity of ways in which lawyers are represented allow us to create a sociologist's "four-fold table.17 We can examine and map examples of expressions of legal ethics or morality demonstrated in popular culture, considering lawyers' characters and acts in positive and negative columns, representing both professional and personal choices.18 I supply some examples in the following chart:

Longer treatments of lawyers' actions in serialized television shows and longer novels allow more panoramic, less "snapshotted" pictures of lawyers to be painted, than in movies or short stories, which, in turn, can be used effectively to highlight particular decisions.20 Depictions of lawyers' actions in novels, movies, and television shows allow us to view (from multiple "sight-lines") the beginning of the action (what led up to a particular choice point), the action itself, and the consequences of such actions. Thus we are provided multiple ways of seeing (backward, sideways, and forward) the consequences of a lawyer's action, which are often missing from an appellate case as read in the conventional professional responsibility class.21

Responses to my opening questions above have included such conflicting descriptions of good lawyers as smart, winning, self-sacrificing, analytic, compassionate problem-solving, honest, independent, loyal, defenders of unpopular causes/clients, tough, caring, incisive, sensitive, strong, firm, flexible, creative, and justice-seeking. Descriptions of bad lawyers have included such attributes as dishonest, greedy, manipulative, mean, selfish, crafty, wily, disloyal, conforming, adversarial, argumentative, naysaying, negative, fee-focused, and rapacious, among others.

When asked to provide concrete examples or illustrations of these attributes, it is remarkable how many readers or viewers consistently name Atticus Finch, Sir Thomas More, Clarence Darrow (both as a real and as an imaginatively presented character),22 Perry Mason,23or E.G. Marshall in The Defenders as emblematic of the good qualities, but any number of John Grisham's characters or Al Pacino's character in The Devil's Advocate24 as evil. But, what are we to make of Rusty Sabich in PresumedInnocent," a good prosecutor, prosecuted for murder because of his adulterous relationship with a coworker. Or Michael Brock of John Grisham's The Street Lawyer26 who begins as a greedy partnership-seeking lawyer in a major Washington D.C. firm and ends as a lawyer for the homeless? Or Bobby Donnell in The Practice,27 who defends both the guilty and the innocent, using a variety of tactics, including skillful cross-examinations and questionable tactics like "Plan B" (falsely suggesting someone else did it)?28 As character and concrete acts of professional and personal life are depicted over time and in settings increasingly more diverse than the dramatic courtroom, these modern protagonists in popular culture often present a more complex and nuanced picture of the modern lawyer, neither all heroic nor all evil.

In this Essay, I want to explore a few examples of depictions of lawyers in popular culture to suggest that modem lawyers demonstrate a full range of moral and ethical behavior, both personally and professionally, and that these depictions of lawyers in popular culture are actually extremely effective exemplars of legal ethics from which we can teach and learn much. I am particularly interested in contrasting lawyers' characters or macroprofessional choices (deciding what kind of law to practice, what clients to choose, how to live one's life) with their particular actions or microbehavioral choices (as consumers of popular legal culture learn to ask, when viewing or reading lawyer stories, "Can they do that?").

At least one other teacher of professional responsibility has already developed a full course of legal ethics, by asking his students to systematically explore the ethical dilemmas presented on The Practice.29 And, in a new and emerging genre, what I call "bill and tell" stories,30 real lawyers, mostly who have left the practice, tell stories (some fictionalized, some real) of their actual practices that provide deeply contextualized and literal, as well as literary, accounts of their ethical choices.

Finally, by comparing depictions of lawyers' ethical dilemmas to those of other professionals and other workers, we can ask why lawyers are expected to be ethical within their professional rules and why lay consumers of popular culture are permitted to judge them by more than their own professional constraints.31

I. Of Characters and Acts

Moral philosophers have long debated the subject of whether the morality of a person (or a professional) is to be judged by that person's character or by the concrete acts that he or she commits.32 The study of professional ethics has also concerned itself with whether particular roles, such as soldiers, doctors, lawyers, or butlers provide a role-differentiated set of moral or ethical expectations. In one sense, this can be seen as a conflict of disciplines. Philosophers are more likely to expect virtues of the person, as expressed in "dispositions" in a person's character that are enacted in various situations throughout a person's life.33 Sociologists, beginning with the work of Emile Durkheim, 34 have acknowledged first, the division of labor and then, the moral division of labor by roles in our society, leading to organic order and social functioning.

Some of the recent debates in legal ethics scholarship reenact debates of the 1950s functional-structuralists with the post-Watergate 1970s demands to revisit both personal and professional moral character.35 These issues have also recently been revived during the impeachment debates, as we considered whether particular bad "acts" constituted "high crimes or misdemeanors" within a role-differentiated functionality, when what was most disturbing to most people was really the former president's "character" flaws.36

William Simon's persistent arguments for allowing ethical discretion in lawyer decision making37 suggest that lawyers must develop ethical dispositions by exercising judgment with well-internalized values and prudent exercise of both rationality and human care for others (including clients and those in relationship to clients) in increasingly complex contexts, rather than respond mechanistically, like Oliver Wendell Holmes's "bad man," to the "authoritarian and categorical"38 letter of the code of the Model Rules. Thus, Simon, like other realist "contextualists,”39 finds value in the highly contextualized stories of modern popular culture that depict lawyers demonstrating their "moral pluck," in actions which he defines as "transgressive and resourceful.”40 Lawyers take such action when they have to choose courses of action that require independent thinking, when rules are too rigid, contradictory, ambiguous, or non-existent.

Kantian-like moralists,41 who would impose categorical ethical imperatives, particularly having to do with character or absolute rules42 ("thou shalt never lie"), or those who believe that positive rules and laws can and should provide adequate guidance for the ethical lawyer,43 are opposed to the more discretionary form of ethical decision making suggested by some legal ethicists.

The claim that stories, with their non-universal contexts and particular "truths" are the best way to teach about good character (through illustration), good decision making, and action (through empathic understanding) is hardly new. Philosophers and literary critics have made such claims for years, and law professors have joined the argument.44 James Boyd White is the father of a "law and literature" movement, which suggests that it is only through study of the humanities side of law that a lawyer can become fully human." Use of "high" literature (Greek myths, philosophy,46 classical plays, the "great novels," and selected short stories) to teach about professional and even legal ethics has become quite common. But, as the examples below will illustrate, it is probably the more commonly viewed movies and television shows and the more commonly read popular novels that instill legal ethical curiosity in the modem-day law student and that carry some penetrating lessons for the practicing lawyer.

II. Legal Ethics Characters in Popular Culture

If Atticus Finch, Sir Thomas More, and Clarence Darrow represent, in both fiction and fact, the pinnacle of lawyer character, it is useful to examine what about their characters makes them exemplary. If there is one quality that unites lawyer heroes, it is their commitment to principle(s), and often to causes and people that represent "justice" to them, usually at some great personal risk. We honor those lawyers who seek to serve the ends of justice (law is only the means47) by representing unpopular clients, by seeking justice in the form of equality for the subordinated or dispossessed, by seeking vindication for the wrongfully accused, by obtaining compensation for the wrongfully injured, or representing a larger social principle (such as Darrow's defense of the teaching of evolution in the Scopes trial).

Note that heroic lawyers sometimes, not always, seek the truth (that is the "honor" of scientists and academics). Justice occasionally requires an untruthful turn. The ironies of many stories about lawyers is that a lawyer seeking justice must occasionally trample on the truth or on an ethical rule to get there (as in the transgressions of several of John Grisham's youthful heroes on their way to unmasking the greed or evil of either other lawyers or bad corporate forces).48

And, like many real heroes,49 good lawyers are devoted to their professional causes and sometimes neglect families or have unfullfilling personal lives. Atticus Finch serves as a model-if sometimes harsh-father. But he is a widower, who has to "soldier on" alone,50 and in the end, he too, agrees to lie in order to do a more perfect justice.51 Sir Thomas More lost his life and his devoted family in the name of a principle.

And heroes do lose. Clarence Darrow was known to lose a few cases. Even our heroes are not perfect. (Perry Mason lost three cases during the run of the television version of Erie Stanley Gardner's creation, and, after some complaints that the prosecutors were always winning on Law & Order,52 even that star prosecutorial team lost a few cases). As David Papke has suggested,53 The Defenders has been regarded as "heroic," because of its courageousness in taking on the social issues of the day, including civil liberties, racism, abortion, the death penalty, and conscientious objection, especially when compared to Perry Mason, which was still on the air when The Defenders began. In one sense this social critique function is now played by The Practice, in contrast to L.A. Law,54 both written by David E. Kelley, as the former addresses difficult social and legal issues (assisted suicide, date rape, criminal environmental hazards), along with a steady diet of murders and drug deals, while L.A. Law tended to feature up-scale divorce, high-end products liability cases, and tax law, with a few pro bono cases handled by Ann Kelsey (she also raised a few issues about women in the law).55 Today's stories of lawyers with "character" show them as more flawed and also as likely to lose some cases (more realistic portrayals I believe), but the good lawyer is resilient and most importantly committed.

It seems somewhat odd to me and consistent with those who have chronicled the more negative depiction of modem lawyers in the media that one of the only recent "lawyers as hero" in popular fiction is Michael Brock of The Street Lawyer.56 Although Grisham is not known for deep character development, Michael Brock demonstrates character change. He begins as a greedy, selfish, overly busy, and ambitious associate, but becomes a lawyer for the homeless after being taken hostage and confronting the excesses of his life in a world of privilege. Grisham uses all the devices of traditional thrillers and mysteries to work a plot that has Brock exposing his former law firm as a nasty organ of unlawful evictions in the name of corporate real estate development.57

The Street Lawyer also demonstrates another modem turn on the hero's character. Real heroes in modern legal stories are often not lawyers, but paralegals or legal secretaries, close to, but not of, the legal profession. The paralegals Sofia Mendoza (who works in the homeless clinic) and Hector Palma (the big firm paralegal who steals files to right the wrongs his firm has committed) are more committed to justice, people, and causes than are most of the lawyers around them (with the exception of Mordecai Green, the hardworking founder of the homeless clinic). Like the recent depiction of Erin Brockovich,58 a paralegal who almost single-handedly takes on the corporate water polluters, these paralegals suggest that not enough lawyers are available to work for "the little people," when everyone seems to be chasing those L.A. Law dollars. These days, only those outside of the profession seem to take on the unpopular cases or the dispossessed and injured.

On the other hand, as modern literature has moved from fiction to memoir, we find our lawyer-heroes these days more frequently in different forms of popular culture-the legal memoir or journalistic account of the actual case. Starting perhaps with The Buffalo Creek Disaster59 and culminating with the recent bestseller success of a journalist's reporting of Jan Schlichtmann's role in A Civil Action,60 lawyers seem to need to tell their own stories of commitment to causes (mass torts, corporate misfeasance, serious death, and illness) and to people, whereas the fiction and film worlds have taken a more cynical turn. Books like The Buffalo Creek Disaster and A Civil Action61 often document character changes not unlike that of Michael Brock, as in Gerald Stern's commitment of time, labor, and money to a complicated public interest case from within the comfort of his large Washington D.C. law firm, or Jan Schlichtmann's literal "betting the firm" on his fight for people with leukemia caused by toxic dumping in the Wobum water supply. These men, like the transformed hero of Schindler's List,62 are ordinary men, working either within corporate privilege or in traditional small law firm struggles, but they are "moved" by their work to commit their professional lives, money, and often, their personal lives to people and causes outside of their usual ken.

Perhaps one of the richest explorations of modern-day legal heroes can be found in the non-fiction reportage of Melissa Fay Greene in Praying for Sheetrock,63 in which a group of dedicated legal services lawyers help a black community gain political power in a southern town marked by decades of white rule, through the filing of lawsuits and the use of political action. Her story demonstrates that the real unsung heroes of lawyering are those who labor with little pay and much commitment to cases and people who seldom gain the attention of klieg lights.64

Modern-day heroes are crafted in a more complex world, where there is more than the local community and the self to serve. More often than not, the better treatments of "character" in popular culture demonstrate change or redemption65 of the lawyer character. Michael Brock becomes a street lawyer after being taken hostage and losing a wife who, as a doctor, also worked long, hard, relationship-killing hours, and realizes that he could be employing his considerable legal skills in more fulfilling ways. Frank Galvin, the drunken "anti-hero" of The Verdict66 finds salvation, redemption and recovery of his personhood and professional career by becoming committed to his comatose medical malpractice client and by fighting off a large and somewhat unscrupulous law firm (even though Galvin is also not above bending a few ethical rules).

For these more complicated characters, who are neither all good nor all bad, character is constituted in the complex relationship .of personality and circumstance. While being a lawyer tempts one to do everything for a client (including pushing over the line of permissible legal ethics), or to do everything for oneself and for personal aggrandizement, being a lawyer also offers one the opportunity to respond to legal or personal challenges and to recommit to the justice-based values of the profession. Redemption is possible for lawyers who find meaning in serving others and in rediscovering the value of their professional selves.

As Robert Coles has recently demonstrated in Lives of Moral Leadership,67 today's hero must be effective and must act; it is not enough to be idealistic and to care about justice or good causes. Thus, the lawyers who re-find their efficacy by accomplishing something-a career change (Michael Brock), the ability to work hard and win a case again (Frank Galvin), or the courage to keep representing unpopular clients (Bobby Donnell and Eugene Young on The Practice) after "tests" of their modern mettle-seem to represent our own version of the more modest Greek drama of professionalism.

Another element of modem character development is significant to note-the recognition of small worlds of professional communities. Many of the earlier depictions of modem heroes focus on the strength, courage, redemption, or recovery of the individual lawyer. But, there are also interest- ing depictions of some of the lawyers' commitments to each other and to the professional communities they create. Over thirty years ago, one commentator noted the creation of "professional communities" on a variety of the early lawyer and doctor television programs, in which lawyers help and succor each other while performing difficult, but important, public service." Many of the dramatizations of professionals on television in the "golden era" of the 1950s and 1960s69 involved character development in the training and mentoring of a younger professional by an older and wiser professional-the senior Lawrence Preston (The Defenders) guiding his son, Kenneth, Dr. Gillespie and Dr. Kildare (Dr. Kildare°), Dr. Zorba and Ben Casey (Ben Casey1"), now replicated in Leland McKenzie on L.A. Law, and an only slightly older, but clearly more experienced, Bobby Donnell on The Practice. Gene Hackman's father figure does much the same to turn his daughter, big-firm defender of corporate interests, into a lawyer also seeking social justice in Class Action.72 These "learning communities" of lawyers (and other professionals) demonstrate that being a professional does require good character (loyalty, ongoing learning, honesty (at least with one's col- leagues, if not the system), and devotion to the larger public and to social good). Hear what one television critic has said of the television professionals of the 1960s and consider how much of it is still true:

[Tihey know that without such work the quality of everyday life would plummet, society would flounder. Their jobs, in short, are the best of all possible jobs: they offer both inner meaning and public worth. Television's city-dwelling professionals thus serve as living proof that work in the modem world can be beautiful .... The professionals of these programs are not only public servants; they are also spokesmen of society, and their behavior reveals the way society operates to take care of its own .... The professionals themselves are tireless, selfless, and profoundly equitable .... In the presumably cold, dead heart of contemporary life and society, television's professional dramas have managed to find nothing less than the pulse of the good community. The living there may have its difficulties, admittedly, but in the end the problems are only superficial ones. For this is a place that offers meaningful work,[73] a public devotion to the common good, and secure, vital values.

More recent professional series demonstrate an even more equalitarian sense of community. Although Leland McKenzie presided over highly fictionalized daily firm meetings, the lawyers of L.A. Law and The Practice, like their compatriots on ER, mostly soldier on together in relative equality and with unrepresentatively little concern about partnerships and hierarchy. Occasionally there are treatments of partnership and income, but these modern-day professionals mostly help each other through their difficult cases. They seem to be more likely to help and to fall in love with each other (which involves all kinds of conflicts of interests that the shows do not portray with much ethical accuracy75) than to engage in the kind of ruthless competition with each other that is the presumed culture and frequent depiction of legal education.76 Indeed, while police detectives have to deal with and often complain about their hierarchical bosses on N.Y.P.D. Blue78 and Homicide,78 there is little critique of senior partners and much less depiction of ethical conflicts between senior and junior lawyers on television than in the days of "yore,”79 in real life,80 or in other media.81

Like other reflections of society in popular culture, treatment of professional character mirrors issues in the real world. Following the recent political scandals of the Bill Clinton presidency, questions about what good character is, and how it relates to professional duty and responsibilities, have been raised in all venues, from the movies to Sunday school to Sunday talk shows.82 While The West Wing83 ends this season with an exploration of presidential truth telling about arguably private matters with public implications (the president's health), the recent movie The Contender,84 took on the relevance of a political figure's sex life to her professional duties. When a seemingly documented scandal accuses vice presidential nominee Laine Hanson of engaging in a college-day fraternity sex orgy,85 she refuses to discuss the matter, demonstrating commitment to the principle that whatever she may or may not have done in her youth is irrelevant to her current qualifications to be vice president. The Contender not only cleverly reworks the Clinton ethical and political quandaries, but suggests that professional character may also have gendered dimensions.. Laine Hanson's commitment to silence and her refusal to discuss publicly this "private" matter also confronts the question of whether a woman's character in professional life may be judged differently. As the number of women (and other previously excluded demographic groups) increases in media portrayals of lawyers we will have an increased opportunity to explore whether popular culture is ahead, in step with, or behind the reality of the integration of the profession.86

Whether the moral character of lawyers is related to who they are personally and demographically is also a fascinating question to examine from the perspective of popular culture, sometimes reflecting, sometimes challenging more scholarly treatments of the same issue I have argued for years that women may bring a different moral sensibility to the practice of law by seeking to do less harm, solve more problems, be more concerned with human relationships of both clients and of those who interact with clients, and to deal with others more honestly and fairly.87

Therefore, it should be no surprise that one of my favorite depictions of the struggles of modem lawyers is the film All of Me.88 In this film, which uses a now standard plot of bump-on-the-head transformation into someone else,8 Steve Martin, playing a stereotypically aggressive and dishonest lawyer, becomes literally embodied by the soul of Lily Tomlin, a deceased, dogooding woman. In what has to be one of the funniest and most serious critiques of the character of lawyers, Lily Tomlin and Steve Martin literally, figuratively, and linguistically fight over the control of both body and soul of a lawyer who, in Steve Martin's body, makes a dishonest closing argument, as Lily Tomlin struggles to push the truth out of Steve Martin's mouth. (Of course, this scene can be read not only as a gender critique of lying male lawyers," but as the standard-layperson as moral, lawyer as good professional but bad person-critique found in much moral philosophy.)91 On The Practice,Eugene Young's recent defense of his work as a criminal defense lawyer, against his ex-wife's claim that he should not have custody of his young black son who was arrested for possession of drugs in a school locker, courageously depicted these lawyer character issues (commitment to justice and equal treatment) with the added social dimension of race.92 Eugene's defense of his profession and its purpose is, in my mind, the most eloquent defense of the criminal defense lawyer's calling and commitment to justice seen in the popular media in decades.

Perhaps the most troubling of lawyer character issues depicted in the popular media, which replicates the debates among legal philosophers and ethicists, is the tension, in a lawyer of good character, between commitment to law and commitment to justice. As Americans and lawyers, we argue throughout the world for the sanctity, as well as the instrumental fairness, of the rule of law. Some legal ethicists seek clarity and conformity in the "law of lawyering."93 Writers of popular fiction, movies, and television mirror the challenge that William Simon and others have posed to the law of legal ethics. Consider that within one year Gregory Peck portrayed both Atticus Finch94 and Sam Bowden (the law-abiding southern gentleman lawyer of the first Cape Fear95). In both roles, he served as a righteous trial lawyer attempting justice in the courtroom (in the first instance, seeking acquittal of a black man falsely accused of rape, and in the second, defending a white man accurately accused of rape). At the conclusion of both films, however, this gentlemanly southern lawyer has been forced to take the law into his own hands, ultimately violating the law in both cases (covering up a murder in one and actually committing a perhaps justified (self-defense) murder in the other), all in the name of justice. We, the audience, complicitly applaud this man of noble character who achieves justice with all the American approbation of a good western well fought.96

Is lawyer character constituted from ordinary human mettle? Strength of character? Commitment? Loyalty? Honesty? Selflessness and protection of others? Good judgment?97 Leadership? Or, is good lawyerly character supposed to be faithful to the rules of law, ethics, and procedure? Literary and popular depictions of lawyers dramatize these tensions, as legal philosophers debate the differences between morality and positive law." In the movies and on television good lawyer character just as often demonstrates a departure from the rules of law in the name of a greater justice,99 as it does conformity to it. We may want to question why this is so-do these fictional depictions help us develop role models committed to justice, or is there also a danger that good and strong character allows us to take justice, and law (as long as we are "worthy" and morally justified) into our own hands? Perhaps it is in our actions that our true characters are revealed, and it is to those particular acts that I now turn.

III. The Ethics of Acts in Popular Culture

When I began teaching legal ethics and professional responsibility over twenty years ago, it became clear to me that for law students who had yet to practice law, legal ethics issues became most interesting and salient to them when they could view or read about a concrete ethical dilemma that plagued a lawyer (especially if the action was not complete and choices were still to be made). And so, I began to teach legal ethics with "stories ripped from the headlines,"100 as I wrote simulations and role-plays for students to enact, discuss, and dissect in class.101 Sometime after I began teaching professional responsibility, L.A. Law premiered in my then-hometown, Los Angeles, and students were never more eager to talk about legal ethics as they asked after each show "can they do that?" As a pedagogue with a long pedigree in experiential education, I learned a valuable lesson from my students-legal ethics and professional responsibility issues were best learned and studied in situ. If students could be in role and have to act as lawyers, they would really confront the intersections of rules,102 professional and personal conceptions of morality, and the sociology of the profession's influence on legal ethics actions (hierarchical, economic, and social demands on the professional). Role- plays and simulations are one way to place students in the role of a lawyer who must make actual ethical choices and decisions about actions. But over the years I have tapped the richness of vicarious experiential learning that can occur by studying legal actions taken as depicted in literature, movies, and television.103

Watching lawyer stories in the movies and on television, or reading mysteries and legal thrillers now enables us to spot issues by the hundreds,' and really requires that all lawyer and law student viewers keep their ethics rules close at hand. Seeing acts taken or contemplated vividly depicts the actual ethical dilemmas that lawyers face and helps us consider what other choices are available.

Modem popular culture has gone so far as to actually depict ethical proceedings, though often inaccurately. Ethics claims and charges were occasionally brought on L.A. Law (for solicitation of clients, conflicts of interests, and such) and are now quite common on The Practice, where we have actually viewed several disciplinary proceedings. Most often the writers, probably for dramatic reasons, allow ethics issues to be raised in the case-in-chief,105 when in fact they would most often be dealt with separately, either in a disciplinary hearing or in a malpractice action.106 Beyond ethical rule violations, popular culture treatments of lawyers raise such compelling professional and personal moral issues as what to do with incriminating physical evidence,107 sleeping with opposing counsel,108 one's client, a juror, or the presiding judge,109 whether to falsely accuse an innocent person,110 how to get information or documents from the other side without formal discovery,111 and when and how a lawyer may reveal confidential information to others. While The Practice has literally become an ethics course112 with at least one ethical issue an episode (and sometimes more), legal ethics and personal morality are clearly on the minds of all modem writers about legal issues.

While I do not assert here that the ethics issues dramatized in popular culture are necessarily representative of what actually happens in law practice,113 it is useful for scholars to study the actual occurrence of ethics violations and compare them to treatments in popular culture. It is instructive to canvass and analyze what legal acts have been demonstrated as ethical quandaries or dilemmas in the popular media.

It is possible to construct a temporal template of ethical issues depicted in the popular media from the beginning of the lawyer-client relationship to the end of an appeal or transaction (or to a murder for those relationships that end really badly). Russell Banks's The Sweet Hereafter114 tells the fictionalized story of an actual bus accident that killed a number of children and had a great impact on many lives. The story is told from the point of view of many different participants in the story, but from Mitchell Stephen, Esq., we learn how clients are involuntarily solicited, because lawyers are angry and are able to harness their anger to compensate other people. For Mitchell Stephens, "[there are no accidents115-someone is always responsible for things that go wrong, and it is the plaintiffs lawyer's job to find someone (with deep pockets) to blame and to pay up so the injured can be compensated. This is class justice and the lawyer must orchestrate it: "I wanted a mean lean team, a troop of vengeful parents willing to go the route with me and not come home without some serious trophies on our spears.116 As Stephens describes himself, he lives for these "disaster negligence suits .... Nothing else provides me with the rush that I get from cases like this .... It's almost like a drug. It's probably close to what professional soldiers feel, or bullfighters.117 Stephens tells us how he ropes in mourning parents and what he does when one of them, Billy Ansel (who has lost two children), resists him, and how he lies to make his case. We also learn how Stephens appears to his clients (from their point of view), as one of the injured children, Nichole Burnell, takes his measure when she is interviewed and prepped for a deposition (which she later deliberately ruins by telling her own truth and seeking justice against another wrongdoer, her own abusive father, rather than against any of the actors in the accident). Although Nichole likes Mr. Stephens, he makes her feel greedy and dishonest by preparing for a deposition to get the money her parents want from her injury. Nichole overhears a conversation Billy Ansel has with her father about how the lawyers are all suing each other because some plaintiffs have signed up with more than one lawyer, and the reader feels the pain of grieving parents trying to make sense of what has happened and what could happen to them, while the lawyers fight to profit from their misery."'

In contrast, Jan Schlichtmann's real-life, initially unwanted plaintiffs grow slowly from distrust of a legal system that will not do anything for a widening group of injured people (never big enough for the class action numbers that would have been possible in the Buffalo Creek disaster119) to become increasingly committed to their lawsuit, and to see their lawyer as a mixed bag of altruistic and selfish motives.

Atticus Finch is actually pressed into service in representing Tom Robinson by the judge handling the case, but he tells a good story to his daughter about the responsibility of lawyers to take unpopular clients and cases (the "n" word is used in both the book and the movie, circa 1960-1962). In so doing, he has given us all a model and argument for the importance of pro bono publico and even court-appointed work, especially in criminal law. Representing unpopular clients and taking court appointments has continued on The Practice, while in past years, paying clients have been more the rule on L.A. Law and on the short-lived Murder One121 (a show inspired by the public's hunger for criminal celebrity trials following the coverage of the O.J. Simpson trial). A Civil Action made the economics of contingent-fee lawyers clear to the viewing public, and began to address the inevitable conflicts of interests that accompany virtually any payment scheme for lawyers.122

From client acquisition, modem films and movies depict a variety of ethical dilemmas in representation (still mostly restricted to the more dramatic world of litigation and courtrooms, rather than transactional lawyering'2 2). For example, The Practice has several times, in different settings, explored issues of confidentiality-when must or can a lawyer reveal private, confidential information to others?' And when Bobby and Helen were dating, the show explored difficult, but I suspect increasingly common, professional dilemmas when lawyers on opposite sides of cases date or live with each other, hear confidential information in phone conversations, and see messages and papers left lying around the house. 4

The lawyers on The Practice have grappled with what to do with physical evidence, when they can "rat" on their own client, and many thorny witness preparation issues. In a modern replay of the now classic client "coaching" scene of Anatomy of a Murder, 5 lawyers tell their clients what the law is before learning the facts. A guilty-feeling Helen, as prosecutor, actually testifies against one of her colleagues whom she believes wrongfully suggested testimony to a material witness. Ellenor Frut commits one of the most egregious, but clever, unethical acts (can you think of what ethical rules she violates?) when she advises a client who has been in an accident and has been drinking, to finish the open bottle at the scene of the accident "to calm his nerves"-and thereby destroy the accuracy of any breathalyzer test. The lawyers of The Practice have conflicts of interest galore-they sleep with each other and the judge, they work both sides of a case, they take on civil matters beyond their competence, but at least they have explicit ethical conversations about what they are doing. There is not only talk about the law, possible ethical violations, and consequences to their firm and their clients, but they do in fact get called on some of their questionable behavior.

Competence is questioned in popular culture, whether by the satire of Joe Pesci's performance in My Cousin Vinny,'26 by the too-young and inexperienced colleague in Grisham's The Rainmaker,' by the all-too-common substance abuse of Frank Galvin in The Verdict,2' by the actual Rule 11 motion filed against Jan Schlichtmann for not adequately investigating and supporting his complaint filing,'29 or by the impressionability of a lawyer who believed she was zealously representing her client, but who may in fact have been subject to a "con job" that cost her her freedom and her law license.' ° Scott Turow counters these images of incompetence by providing perhaps the most detailed and accurate accounts of the hard work that both prosecutors and defense counsel put into their jobs-in investigation, case preparation, courtroom strategy, and courtroom execution'31 -even if some of the lawyers and judges turn out to be corrupt or worse.12

As most popular culture continues to explore the drama of the court- room, I am personally interested in recent turns to more typical locales of lawyers' work-the bargaining table. Still located mostly in litigation contexts, the ethics and practices of lawyers in settlement conferences present serious ethical dilemmas, hardly responded to by the rules. While The Practice lawyers engage in plea-bargaining and tense settlement negotiations every time they take on a medical malpractice or products liability case, the settlement conference is becoming a more common staple of legal drama. My personal favorite is the blatant ethical violation in The Verdict, the premise of which is needed to fuel the rest of the film. Frank Galvin turns down a large, and certainly likely to be accepted by his client, settlement offer from the Catholic Church (which controls the hospital which mistreated his comatose client) without even talking to his client (the family of the comatose woman). In direct violation of Rules 1.2, 1.3, and 1.4 (and all of their predecessors that were in effect in Massachusetts at the time of the film133), Galvin turns down the offer. Thus, the case (and the film) can proceed to the more dramatic confrontation in the courtroom, where Galvin, overcoming his alcoholism and violating some laws by stealing mail to get information, triumphs over a major and well-staffed law firm.

Michael Brock's lawsuit against the developer who wrongfully evicted his homeless clients is completed in a settlement conference, this one in a judge's chambers with Brock's own ethical transgressions (deception used to get evidence and confidentiality violations) as part of the negotiation agenda.' Similarly, while nothing overtly in violation of the rules transpires, Jonathan Harr's descriptions (from one side only') of the various settlement negotiations (meetings at the Ritz Carlton in Boston and W.R. Grace headquarters in New York) in A Civil Action provide us with some entry into the world of lawyer impression management, guarded information exchange, and normal "deception.

Modem treatments of lawyers demonstrate good acts as well-not all is sex, lies, and videotape. Lawyers like Frank Galvin and Jan Schlichtmann, as well as paralegal Erin Brockovich, demonstrate the power of persistence and the necessity of hard, long, and detailed fact investigation. Although in trial movies and television shows it sometimes looks like victory goes to the clever and the articulate, in truth we seldom see anymore the contrived final question of a devastating and surprising Perry Mason-like cross-examination. As discovery has replaced surprise in trial, popular culture is slowly catching up with what makes good lawyers in real life-hard work!

Hard work and long hours get their share of criticism, ruining marriages in The Firm37 and The Street Lawyer, not to mention adultery on the job with coworkers. No one could accuse modern lawyers depicted in the media as a lazy bunch-even the "you can have it all" glamour pusses of L.A. Law. Good lawyering (as well as realistic lawyering) takes hard work, as the "bill and tell" books painfully recount, and virtually all of these modern tales, both fact and fiction, do want us to consider the consequences of hard professional labor on personal lives.

Changes in the practice of law, both in the work done and in the demographic composition of the legal profession, are beginning to seep into modem depictions of discrimination issues (partnerships, power, decision- making authority for minority and women attorneys, and sexual harassment). In this, L.A. Law showed us other kinds of lawyer work, including Arnie Becker's divorce work,38 tax, and corporate work. Leland McKenzie even served as an arbitrator in what has to be the first depiction of ADR on screen."' As creators of popular culture begin to realize that lawyers do many things besides trying cases, I look forward to depictions of some of the equally difficult and dramatic ethical issues that are encountered in other forms of legal work: conflicts of interest in alternative dispute resolution involving repeat players, corporate deal making, disclosure obligations in transactional negotiations and public offerings, lawyers paid with stock options in dotcoms, and now the fall-out from "dot-gones."' °

IV. Professional Ethics in Popular Culture

I have very briefly here reviewed some of the ethical issues, large and small, that lawyers face in practice when that practice is dramatized in the popular media. Lawyers as people confront the challenges of making choices about what work to do, what clients to represent or serve, how to act on their behalf, and how to connect their professional selves with their personal beings. I have suggested here that the images of lawyers are far more interesting, complex, and nuanced than earlier and more cardboard, or caricatured, depictions have been. Atticus Finch is no longer the uncomplicated hero that we once thought he was when we measure him against current standards of complicity with a wrongfully racist society. Frank Galvin was a drunk who found redemption and reconnection to his profession in taking one case seriously. Eugene Young, Ellenor Frut, and Bobby Donnell hang out with us week after week, as they explain them- selves to each other and to us, with all the complexities of life in a tough urban criminal practice. The sideline stories about the relations of personal lives to professional ones in most earlier depictions of lawyers have given way to more about the whole person. Increased professional and public debate about both lawyers4 ' and lawyers' complicated ethical codes4 ' have themselves complexified the answer to the question "can they do that?"

Yet, before I conclude, I want to consider how lawyers depicted in popular or high culture compare to other professionals with ethical problems.

It is surprising that with all the burning issues in biomedical ethics (abortion, euthanasia, scarcity of donor organs, and high drug prices for the developing world), the depiction of doctors in the popular media continues to be mostly ethically "favorable"-attention is drawn more to substantive issues of diagnosis, treatment, cure, or personal lives, than to medical ethics. Although the classic treatment of professional character in my view is George Eliot's Middlemarch,' in which Dr. Lydgate confronts43 conflicts between his idealistic hopes for modern science and the greedy economic needs of his wife and the traditional values of his community, few modern medical shows have looked at the individual doctor's medical ethics with quite the same scrutiny as that applied to lawyers. It is true that ER has looked at substance abuse and dysfunctional personal lives, but with the exception of Dr. Kovac's recent lapse in his treatment of a drunk driver, these doctors seem never to do any harm44 and pitch in for each other whenever they can. Real medical decisions about when to intervene and when to either let die or facilitate death have captured the Supreme Court and much scholarship.45 We know these life and death decisions go on every day in real life, but they are somewhat absent in some of our more prominent movie and television depictions-are the issues scarier to the public than the misfeasance of lawyers? We will all die, but not all of us have to use lawyers-is that it? Shouldn't we care just as much about the ethics of the doctors that we all go to?

Recent political scandals and the new television program The West Wing have increased the depiction of ethical dilemmas faced by our public figures and politicians. Here once again, George Eliot was there early on with her novel, Felix Holt,46 in which she used character studies to depict the utopian promises and goals of politicians who seek the common good, with those who are more content to muddle along in the status quo for personal aggrandizement or personal gain.47 In political ethics, the juxtaposition of the relation of the possible to the good provides challenges at both public and personal levels that can echo some of the dilemmas of legal ethics.

Writing some decades later than George Eliot, William Dean Howells, in his time a rival in American literary popularity to Henry James, touched on the nascent ethical issues facing American journalism in the late nineteenth century. Often considered the first novel about American divorce, In a Modern Instance 48 also reports on the transformation of American

journalism from independent reporters to owner-dominated editorials. It is interesting that popular and scholarly accounts of journalistic ethics continue to speak of "objectivity" in the news,"' when as early as 1880, literary treatments of journalism suggested an already-compromised set of ethical standards as owners of newspapers selected topics and "slants" on the news. William Dean Howells would have known first hand of these conflicts, having moved, like so many of our modem lawyer-authors, from his first craft of magazine editor to his second of novelist. Bartley Hubbard, the protagonist who practices "the new journalism," represents the "fraying of the social fabric" of American ethics when he succumbs to "the new journalism" in stealing the writing of a story from his friend, drinking, and cheating on his wife (which leads her, a symbol of pure American New England solidity, to have to divorce him). The divorce in this novel, though located in conjugal relations, is clearly meant to represent the separation of "old" American ethics in journalism and work from the newer, more commercial forms. Does the theme of increased commercialism sound familiar?

Journalists became heroes again, briefly, in American popular culture with the unfolding of the Watergate saga and the tireless investigation of Woodward and Bemstein50-so that all journalists wanted to be "investigative journalists." As our investigative stories have turned more tawdry, and as some of them have been exposed as falsifications,51 journalists should be on the popular ethical chopping block too. But are they? One recent attempt to depict an investigative reporter52 (by the creators of Law & Order) failed after only a few weeks, even as more lawyer shows were beginning to appear.53 Don't more people read newspapers and magazines than hire a lawyer? Why aren't they interested in how their news is written and produced?

In popular culture's most recent depiction of professional ethics, which has been very evocative for legal ethics teachers, Ishiguro's The Remains of the Day' focuses on a single butler who loyally serves his master, a British gentleman with diplomatic ties to the German Nazi regime. Stevens, the butler, has inspired a movie ' and much legal commentary.'56 His loyalty to his master provokes lawyers, and all who serve as agents, to question whether we can be judged by association with those whom we choose to serve. Is Stevens complicit in his master's political leanings by caring for his household? Ishiguro suggests that he is. In his efforts to be a loyal servant to his master, Stevens misses his father's death on the evening of a meeting with the Germans at the master's estate, and he loses his chance for romance and a fulfilling relationship with the sensitive Miss Kenton. Ishiguro's butler, Stevens, is emblematic of the issues discussed here. Stevens appears to be of impeccable character-loyal to a fault, efficient, honest, and hardworking. But, his slavish devotion to his professional identity and the tasks set before him everyday cause him to miss the answers to the big questions in life. At the end, he has come to question his devotion to his master, whom he begins to conclude is not the honorable man he thought him to be. He realizes that by performing his acts reflexively, one after another, as a person puts one foot before another, he has lost himself in the high quality of his professional performance. We, the reader, are witness to each act, as they cumulate to make a character. We can see the folly of the choices he makes.

Stevens, the butler, can tell us many things about lawyer ethics in popular culture and in reality. First, it is the cumulation of choices and acts that make the character of a man (or woman) in professional role, and it is important to witness each one, as recent television shows and movies allow us to do.57 Character dispositions form the default choices that suggest themselves to characters. But in the movies, as in real life, there is always the chance that a particular circumstance will cause one to act differently, or to make a particular choice, or the chance that a single act or event may change our very being (or at least our professional orientation, as Michael Brock from The Street Lawyer demonstrates). Second, it may indeed help to have a professional code of ethics. It is harder for Stevens to ask if he can "do that" (refuse his master's orders) without an ethical code beyond that of the human ethical code to guide him. Butlers must serve or quit; lawyers may have legally sanctioned grounds to withdraw when particular acts or client goals are unsavory."8 Third, we do learn to think ethically and empathetically by reading or viewing other people's (and other professional's) stories. Stories situate the action, provide some arguable justifications for actions taken, and provide the context in which the actor must act. In answering our question, "can they do that," we must look to sources such as ethics rules, cases, our consciences, or other professionals with whom to discuss our dilemmas.

Finally, I think in the end we realize that lawyers are not butlers, and that we are better served by the complexity of the competing loyalties of our professional roles. I think there are more depictions of lawyers' ethical dilemmas in popular culture than of other professionals precisely because we have several masters. As lawyers, we serve the private interests of clients, but we also serve the public interest of the justice system, as well as ourselves and our families. To have a job which, at the same time, faces both inward and outward, with private duties and responsibilities, but with public consequences, sets up a dramatic tension that creators of stories and other cultural artifacts cannot resist. To view the character and acts of lawyers, who are duty bound to do justice and must also serve and defend flawed human beings, appears to be an act of cultural consumption to which we cannot avert our eyes. My hope is that as the work of real lawyers becomes ever more complicated and diverse, the images of lawyering depicted in popular culture will reflect that complexity, so we can continue to ask "Can they do that?" with even greater sophistication and nuance.

Footnotes

For my recent discussions of sources of lawyer images and ethical models in both "high" literature and popular culture, see Carrie Menkel-Meadow, Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics, 69 FORDHAM L. REV. 787 (2000) [hereinafter Menkel-Meadow, Telling Stories], and Carrie Menkel-Meadow, The Sense and Sensibilities of Lawyers: Lawyering in Literature, Narratives, Film and Television, and Ethical Choices Regarding Career and Craft, 31 MCGEORGE L. REV. 1 (1999). For other scholars' treatments of the images of lawyers derived from popular culture, see, for example, Anthony Chase, Lawyers and PopularCulture: A Review of Mass Media Portrayals of American Attorneys, 1986 AM. B. FOUND. RES. J. 281, and Robert C. Post, On the PopularImage of the Lawyer: Reflections in a Dark Glass, 75 CAL. L. REV. 379 (1987). For a description of lawyers' images derived from actual interviews with both lay people and lawyers, see Marvin W. Mindes & Alan C. Acock, Trickster, Hero, Helper: A Report on the Lawyer Image, 1982 AM. B. FOUND. RES. J. 177. See also The Lawyer in Popular Culture: A Bibliography, available at http://www.law.utexas.edu/lpop/lpopbib2.htm (last visited July 29, 2001) (providing the University of Texas Law School Tarlton Law Library's compilation of works on the issue of popular culture and the law).

See, e.g., Michael Asimow, Bad Lawyers in the Movies, 24 NOVA L. REV. 531 (2000) [hereinafter, Asimow, Bad Lawyers]; Michael Asimow, When Lawyers Were Heroes, 30 U.S.F. L. REV. 1131 (1996); Michael Asimow, Lawyers as Fallen Idols: Whatever Happened to Our Golden Image?, NAT'L L.J., Feb. 8, 1999, at A22.

See, e.g., Chase, supra note 1 (attributing the "golden age" to the champions of individual civil liberties and group civil rights in fiction, modeled on some realities); see also Maxwell Bloomfield, Law and Lawyers in American PopularCulture, in LAW AND AMERICAN LITERATURE: A COLLECTION OF ESSAYS 125 (Carl S. Smith et al. eds., 1983); Lawrence M. Friedman, Law, Lawyers and Popular Culture, 98 YALE L.J. 1579 (1989); Marc Galanter, The Faces of Mistrust: The Image of Lawyers in Public Opinion, Jokes, and PoliticalDiscourse, 66 U. CIN. L. REV. 805 (1998); Stewart Macaulay, Popular Legal Culture: An Introduction, 98 YALE L.J. 1545 (1989); Francis Nevins, Law, Lawyers and Justice in Popular Fiction and Film, HUMAN. EDUC., May 1984, at 3.

See HARPER LEE, TO KILL A MOCKINGBIRD (1960); Monroe Freedman, Argumentum ad Hominem: Atticus Finch as Hero?, N.J. L.J., Mar. 1992, at 15; Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181 (1981).

See ROBERT BOLT, A MAN FOR ALL SEASONS (1960); A MAN FOR ALL SEASONS (Columbia Pictures 1966) (starring Paul Scofield, Wendy Hiller, Leo McKern, Orson Welles, and Susannah York).

The Defenders (CBS television broadcast, 1961-1965); see David Ray Papke, The Defenders, in PRIME TIME LAW: FICTIONAL TELEVISION AS LEGAL NARRATIVEs 3 (Robert M. Jarvis & Paul R. Joseph eds., 1998).

See Monroe H. Freedman, Atticus Finch-Right and Wrong, 45 ALA. L. REV. 473 (1994); Steven Luber, Reconstructing Atticus Finch, 97 MICH. L. REV. 1339 (1999); John Jay Osborn, Jr., Atticus Finch-The End of Honor: A Discussion of To Kill a Mockingbird, 30 U.S.F. L. REV. 1139 (1996); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511 (1994); Joseph Crespino, The Strange Career of Atticus Finch, S. CULTURES, Summer 2000, at 9.

See Tim Appelo, Atticus Doesn't Live Here Anymore, CAL. LAW., Aug. 1992, at 174; David Margolick, The Cinematic Law Firm of Greedy, Vain & Immoral, N.Y. TIMES, July 4, 1993, § 2, at 9.

In a recent article, more fully discussed in the text, William Simon has recently argued that modern depictions of lawyers on television and in popular novels demonstrate lawyers utilizing more nuanced actions or what he calls "moral pluck," that are more deeply affected by context and discretionary choices than by the mechanistic application of the Model Rules of Professional Conduct. See William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, 101 COLUM. L. REV. 421 (2001) [hereinafter Simon, Moral Pluck]. Simon's readings of John Grisham's protagonists and the lawyers on L.A. Law (NBC television broadcast, 1986-1994) and The Practice (ABC television broadcast, 1997-current) comport with his arguments that all lawyers should engage in more discretionary ethical deliberation, depending on the context and situation in which legal ethics problems arise. See WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998); William H. Simon, Ethical Discretionin Lawyering, 101 HARV. L. REV. 1083 (1988) [hereinafter Simon, Ethical Discretion].

On a recent episode of ER, Dr. Luka Kovac clearly chose to inflict some unnecessary pain on an injured and drunk truck driver, who had just killed a mother and child in a traffic accident, thereby not "doing no harm" as the Hippocratic Oath requires. See ER: Rock, Paper, Scissors (NBC television broadcast, Jan. 11, 2001).

In another recent depiction of modern professions, the architect of Once and Again, Rick Sammler, acknowledged during grand jury proceedings that his big project to design a large corporate urban center involved the paying of bribes to inspectors, city officials, and labor unions. See Once and Again: Armageddon PartI (ABC television broadcast, Apr. 11, 2001).

Virtually each week of N.Y.P.D. Blue (ABC television broadcast, 1993-current) involves a classic and now formulaic performance of the "prisoner's dilemma" in which two com- patriots in crime are separately locked up and coerced into "defecting" against each other by confessing, sometimes after obviously brutal physical force has been applied. See WILLIAM POUNDSTONE, PRISONER'S DILEMMA (1992), for a full description of the game theoretic origins and applications of the prisoner's dilemma.

See JOSEPH L. BADARACCO, JR., DEFINING MOMENTS: WHEN MANAGERS MUST CHOOSE BETWEEN RIGHT AND RIGHT (1997); Lynn Sharp Paine, Moral Thinking in Management: An Essential Capability, in ETHICS IN PRACTICE: LAWYERS' ROLES, RESPONSIBILITIES AND REGULATION (Deborah L. Rhode ed., 2000). See also David Luban, The Ethics of Wrongful Obedience, in ETHICS IN PRACTICE, supra, for a discussion of ethics in large organizations.

See KAZUO ISHIGURO, THE REMAINS OF THE DAY (1989). Both the novel and the movie, THE REMAINS OF THE DAY (Columbia Pictures & TriStar Studios 1993), based on the novel are now commonly taught to raise issues of professional ethics and loyalty to clients of objectionable goals. See, e.g., Rob Atkinson, How the Butler Was Made to Do It: The Perverted Professionalism of The Remains of the Day, 105 YALE L.J. 177 (1995); David Luban, Stevens's Professionalism and Ours, 38 Wm. & MARY L. REV. 297 (1996).

See the description of the morality and professionalism of Charles-Henri Sanson, the executioner of Paris who survived and retained his office from the regime of monarchy through the many changes of the French Revolution, in ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES: THE MORALITY OF ROLES IN PUBLIC AND PROFESSIONAL LIFE (1999).

Modern television shows with their weekly installments of lawyer plots, especially when continuing stories are used, are replicating the serialization of nineteenth century novels. Just as with most of Charles Dickens's novels, hungry consumers of the stories anxiously await the latest plot turns or characterizations.

The "four-fold table" represents the distribution of two bivariate variables. In the text, I have actually created a more complex table to reflect the multidimensional way in which we might consider lawyers' characters and acts in both their professional and personal lives.

The relationship of a lawyer's personal life to his or her professional responsibility or legal ethics is a complex subject that I explored in Carrie Menkel-Meadow, Private Lives and Professional Responsibilities? The Relationship of Personal Morality to Lawyering and Professional Ethics, 21 PACE L. REV. 365 (2001). See also Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491 (1985).

For example, what duty of care did the narrator-lawyer owe his clerk, Bartleby the Scrivener, when the latter "preferred not" to work or leave his office? See HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL STREET (1853); see also Brook Thomas, "Bartleby the Scrivener": Fellow Servants and Free Agents on Wall Street, in CROSS EXAMINATIONS OF LAW AND LITERATURE: COOPER, HAWTHORNE, STOWE AND MELVILLE (1987); Robin West, Invisible Victims: A Comparison of Susan Glaspell's Jury of Her Peers, and Herman Melville's Bartleby the Scrivener, 8 CARDOZO STUD. L. & LITERATURE 203 (1996).

Indeed, at least two lawyer-writers of short "stories" have used actual or slightly fictionalized story forms in order to explicitly highlight the dilemmas of ethical choices made in lawyering. See, e.g., LAWRENCE J. Fox, LEGAL TENDER: A LAWYER'S GUIDE TO HANDLING PROFESSIONAL DILEMMAS (1995); JAMES L. KELLEY, LAWYERS CROSSING LINES: NINE STORIES (2001). See also the fictionalized literary stories about lawyers in LAWRENCE JOSEPH, LAWYERLAND (1997) and the many legal short stories of Louis Auchincloss, discussed more fully in the text. See, e.g., LOUIS AUCHINCLOSS, THE ATONEMENT AND OTHER STORIES (1997); LOUIS AUCHINCLOSS, DIARY OF A YUPPIE (1986) [hereinafter AUCHINCLOSS, DIARY OF A YUPPIE]; Louis AUCHINCLOSS, THE PARTNERS (1973); LOUIS AUCHINCLOSS, POWERS OF ATTORNEY (1963); see also William Domnarski, Trouble in Paradise:Wall Street Lawyers and the Fiction of Louis Auchincloss, 12 J. CONTEMP. L. 243 (1987).

See my argument for the particular usefulness of stories (both real, as in clinical cases, and fictional) in teaching legal ethics in Menkel-Meadow, Telling Stories, supra note 1. See also ROBERT COLE, THE CALL OF STORIES: TEACHING AND THE MORAL IMAGINATION (1989); LAW STORIES (Gary Bellow and Martha Minow eds., 1996). And, for stories about lawyers' ethics and the search for legal justice, told by those who are acted upon in the law (clients and other "outsiders" to law), see PATRICIA EWICK & SUSAN S. SILBEY, THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE (1998), which reports on an empirical study of how laypeople view the law and lawyers, and OUTSIDE THE LAW: NARRATIVES OF JUSTICE IN AMERICA (Susan Richards & Porter Shreve eds., 1997).

As demonstrated in both the play, JEROME LAWRENCE & ROBERT E. LEE, INHERIT THE WIND (Dramatists Play Service, Inc. ed. 1963), and movie INHERIT THE WIND (United Artists 1960), the movie COMPULSION (20th Century Fox 1959) (portraying Darrow's defense of Leopold and Loeb), as well as in his biographies, see ATTORNEY OF THE DAMNED: CLARENCE DARROW IN THE COURTROOM (Arthur Weinberg ed., 1989). See also MILNER S. BALL, THE WORD AND THE LAW 61 (1993), for a discussion of Clarence Darrow's inspirational force among public-interest-minded lawyers.

See Perry Mason (CBS television broadcast, 1957-1966).

THE DEVIL'S ADVOCATE (Warner Bros. 1997).

SCOTT TUROW, PRESUMED INNOCENT (1987).

JOHN GRISHAM, THE STREET LAWYER (1998) [hereinafter GRISHAM, THE STREET LAWYER].

The Practice, supra note 9.

An interesting twist on the Perry Mason trope, where someone else usually did do it-revealed at the end, following an incisive cross-examination by Perry Mason.

See Steven Goldberg, Bringing The Practice to the Classroom: An Approach to the Professionalism Problem, 50 J. LEGAL EDUC. 414 (2000).

See, e.g., PAUL M. BARRETT, THE GOOD BLACK: A TRUE STORY OF RACE IN AMERICA (1999); DAVID HEILBRONER, ROUGH JUSTICE; DAYS AND NIGHTS OF A YOUNG D.A. (1990); WILLIAM R. KEATES, PROCEED WITH CAUTION: A DIARY OF A FIRST YEAR AT ONE OF AMERICA'S MOST PRESTIGIOUS LAW FIRMS (1997); CAMERON STRACHER, DOUBLE BILLING (1998); see also LINCOLN CAPLAN, SKADDEN: POWER, MONEY, AND THE RISE OF A LEGAL EMPIRE (1993) (depicting a biography of a law firm); EDGAR JONES, MR. ARBITRATOR (2000) (describing a fictional chronicle of the author's real-life arbitration experience, displaying decision making in real cases, law school cases and family issues). Professor Ted Jones, now retired from UCLA School of Law, taught labor and arbitration law from 1951-1991 and made his own contributions to law and popular culture by appearing as the judge in several ABC fictionalized court programs (Accused (ABC television broadcast, 1958-1959); Day in Court (ABC television broad- cast, 1958-1965); Traffic Court (ABC television broadcast, 1958-1959)), all of which predated People's Court (nationally syndicated television broadcast, 1981-1993) and the new "reality television." Unlike the angrier "bill and tell" stories of the younger generation, Professor Jones seeks to model ethical behavior and to teach love of the law, the development of personal integrity, and self-discipline. Mr. Arbitrator reminds us of the now republished first entry into this genre, ARTHUR TRAIN, YANKEE LAWYER: THE AUTOBIOGRAPHY OF EPHRAIM TUTT (1999), a fictionalized series of stories based on Train's own experience, which his son describes as that of a "foxy, kindly, courtly, old-fashioned lawyer who treasures justice for the unfortunate above the letter of the law." John Train, Introduction to the Common Reader, in TRAIN, supra, at x; see also Francis M. Nevins, Mr. Tutt's Jurisprudential Journey: The Stories of Arthur Train, 19 LEGAL STUD. F. 57 (1995); Philip H. DeTurk, The Tutt Stories:A Review, WASH. ST. B. NEWS, Oct. 1991, at 19.

The question of whether a good lawyer can be a good person and whether we may judge lawyers by ordinary "personal" morality, rather than solely by "role morality" has been with us for much of modern legal scholarship on lawyer's ethics. See, e.g., THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS (David Luban ed., 1983); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613; Gerald J. Postema, Moral Responsibility in ProfessionalEthics, 55 N.Y.U. L. REV. 63 (1980); Abbe Smith, Can You Be a Good Person and a Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355 (2001); Richard Wasserstrom, Roles and Morality, in THE GOOD LAWYER, supra.

See, e.g., ALASDAIR MACINTYRE, The Virtues, the Unity of a Human Life and the Concept of a Tradition, in AFTER VIRTUE (2d ed. 1984) (contrasting "the unity of a human life" as more than a series of "unconnected episodes" or role enactments or "single actions"); see also JUDITH N. SHKLAR, Bad Characters for Good Liberals, in ORDINARY VICES (1984) (discussing Aristotelian and Kantian conceptions of good character as avoidance of vice or pursuit of the good); BERNARD WILLIAMS, Persons, Character and Morality, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980 (1981); Virginia Held, The Division of Moral Labor and the Role of the Lawyer, in THE GOOD LAWYER, supra note 31, at 60 (addressing the question of whether or not the unity of professional role morality suggests specific ways to judge acts within the context of a particularized role and not according to the usual "virtues" attributed to Aristotelian concepts of the good person); Bernard Williams, Professional Morality and Its Dispositions, in THE GOOD LAWYER, supra note 31, at 259; Susan Wolf, Ethics, Legal Ethics and the Ethics of Law, in THE GOOD LAWYER, supra note 31, at 38. For these philosophers and others, "what we look for both in public officials and in friends is character. Not a set of discrete heroic, ethically significant decisions, but the imperceptible choices of dispositions that are manifest in the course of a lifetime." Shklar, supra, at 243.

For two useful and sometimes amusing applications of these philosophical principles to the living of everyday life, see JOSHUA HALBERSTAM, EVERYDAY ETHICS: INSPIRED SOLUTIONS TO REAL-LIFE DILEMMAS (1993), and JOHN SABINI & MAURY SILVER, MORALITIES OF EVERYDAY LIFE (1982). See also ROBERT NOZICK, THE EXAMINED LIFE: PHILOSOPHICAL MEDITATIONS (1989), for a more serious philosophical look at everyday ethical dilemmas. The novelist Alain de Botton has recently attempted to apply the teachings of serious philosophers to everyday life as well. See ALAIN DE BOTTON, THE CONSOLATIONS OF PHILOSOPHY (2000).

See, e.g., EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIL MORALS (Cornelia Brookfield trans.,1992).

Following the Watergate crisis, the American Bar Association made professional responsibility a required course for all law students in 1975 on the belief that ethics instruction would improve lawyers' characters, and, at the very least, apprise them of the formal rules for which they might be disciplined.

As popular culture now has to take its truth-is-stranger-than-fiction scripts from real-life, recent episodes of The West Wing are exploring whether the president and his wife's statements about his health (he has multiple sclerosis, which was not disclosed to the public who elected him) are serious and impeachable offenses. See The West Wing: Bad Moon Rising (NBC television broadcast, Apr. 25, 2001); The West Wing: 17 People (NBC television broadcast, Apr. 4, 2001). See also the recent novelizations based on President Clinton's scandalous behavior: JOE ESTERHAUS, AMERICAN RHAPSODY (2000), and ERIK TARLOFF, FACE-TIME (1998).

See Simon, Ethical Discretion, supra note 9.

Simon, Moral Pluck, supra note 9, at 423.

See David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 468 (1990). 1 count myself among the realist contextualists, having spent the last five years drafting ethics rules and best practices for lawyers in a particular context-that of third party neutrals, in which "ordinary" and categorical rules about advocacy are inapposite. See Carrie Menkel-Meadow, Ethics and Professionalismin Non-Adversarial Lawyering, 27 FLA. ST. L. REV. 153 (1999); Carrie Menkel-Meadow, The Silences of the Restatement of the Law Governing Lawyers: Lawyering as Only Adversary Practice,10 GEO. J.LEGAL ETHICS 631 (1997).

Simon, Moral Pluck, supra note 9, at 422.

See IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS (James W. Ellington trans., 1981).

See, e.g., WILLIAM J. BENNETT, THE BOOK OF VIRTUES: A TREASURY OF GREAT MORAL STORIES (1993).

See, e.g., GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT (2d ed. 1990); Geoffrey C. Hazard, Jr., Law Practice and the Limits of Moral Philosophy, in ETHICS IN PRACTICE, supra note 13, at 76 (associating himself with the "situated" ethics school in denouncing the ability of philosophical "universals" to give adequate guidance to lawyers who are making ethical choices in "real-world, not hypothetical situations"); Geoffrey C. Hazard, Jr., Legal Ethics: Legal Rules and ProfessionalAspirations, 30 CLEV. ST. L. REV. 571 (1982).

See, e.g., MARIA ARISTODEMOU, Language Ethics and the Imagination in Toni Morrison's Beloved, in LAW & LITERATURE: JOURNEYS FROM HERE TO ETERNITY (2000); WAYNE C. BOOTH, THE COMPANY WE KEEP: THE ETHICS OF FICTION (1988); JOHN GARDNER, ON MORAL FICTION (1978); MARTHA NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND THE PUBLIC LIFE (1995); RICHARD A. POSNER, The Edifying School of Legal Scholarship, in LAW AND LITERATURE: A MISUNDERSTOOD RELATION (rev. ed. 1998); LEO TOLSTOY, WHAT Is ART? (Richard Pevear & Larissa Volokokhonsky trans., 1995); RICHARD H. WEISBERG, THE FAILURE OF THE WORD: THE PROTAGONIST AS LAWYER IN MODERN FICTION (1984); RICHARD H. WEISBERG, POETHiCS: AND OTHER STRATEGIES OF LAW AND LITERATURE (1992); ROBIN WEST, CARING FOR JUSTICE (1998); Robin West, Law and Fancy, 95 MICH. L. REV. 1851 (1997) (reviewing Nussbaum); James Boyd White, Acts of Hope: Creating Authority, in LITERATURE, LAW AND POLITICS (1994); cf. Jane B. Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 YALE L.J. 1059 (1999) (suggesting we can misread literature as a lesson for legal interpretation and legal ethics when we fail to recognize the limits of interdisciplinary study).

See, e.g., JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990); JAMES BOYD WHITE, FROM EXPECTATION TO EXPERIENCE: ESSAYS ON LAW AND LEGAL EDUCATION (1999); see also ROBIN WEST, NARRATIVE, AUTHORITY AND LAW (1993). The literary critic and historian Robert Ferguson has argued that in our country's formative years, lawyers were more well-rounded humanists in their characters because the study of classical literature (as well as literary authorship) characterized both good legal education and the character of a good lawyer. See ROBERT A. FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE (1984).

For example, a number of us have been teaching PLATO, GORGIAS (Walter Hamilton trans., 1960) (380 B.C.) as an argument about professional ethics (the ethics of the Greek orator and teacher of rhetoric, likened to that of the advocate). See, e.g., HOWARD LESNICK, BEING A LAWYER 29-33 (1992); James Boyd White, The Ethics of Argument: Plato's Gorgias and the Modern Lawyer, 50 U. CHI. L. REV. 849 (1983).

"Justice is the end, law is the means" is a quote found on the Edward Bennett Williams Law Library at Georgetown University Law Center, attributed to a former student. Many of the lawyers we find exemplary in literature, if not in life, are those who serve justice in spite of, not because of, the law. Sir Thomas More represents the appeal to a "higher law," whether God's "natural law," or a higher principle than the instrumentally created law of Henry VIII (seeking to justify his divorce from his wife Mary) or of the Catholic Church. Like Sir Thomas More, Antigone represents a character who rejects state law in seeking a different kind of justice, whether considered religious, familial, "natural," or personal. See SOPHOCLES, ANTIGONE (Dover Thrift ed. 1993) (442 B.C.); see also JEAN ANOUILH, ANTIGONE (Barbara Bray trans., 2001); JUDITH BUTLER, ANTIGONE'S CLAIMS: KINSHIP BETWEEN LIFE & DEATH (2000).

See JOHN GRISHAM, THE FIRM (1991) [hereinafter GRISHAM, THE FIRM], JOHN GRISHAM, THE PELICAN BRIEF (1992), JOHN GRISHAM, THE RAINMAKER (1995) [hereinafter GRISHAM, THE RAINMAKER], and GRISHAM, THE STREET LAWYER, supra note 26, as examples.

Biographers have chronicled the less than exemplary personal lives of such heroes as Mahatma Gandhi, see ERIK H. ERIKSON, GANDHI'S TRUTH: ON THE ORIGINS OF MILITANT NON-VIOLENCE (1969), Martin Luther King, Jr., see DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR. AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (1986), and John F. Kennedy, see SEYMOUR M. HERSH, THE DARK SIDE OF CAMELOT (1997).

Sam Waterston's character in the remarkable series I'll Fly Away, Forrest Bedford, is at least partially based on Atticus Finch, a widower raising three children and struggling with the nascent civil rights movement in the South, as he watches his familiar community change around him. Unlike Finch, he is also able to see somewhat closer at hand the effects of racism in his community by watching the growing political activism of his maid, Lily, while he takes on the role of prosecuting civil rights violators as the district attorney (not criminal defense attorney). See I'll Fly Away (NBC television broadcast, 1991-1993).

By changing the reported facts surrounding the murder committed by Boo Radley at the end of the story, a chastened Atticus Finch begins to have some doubts about the absolute justice of the rule of law when measured against humane and retributive justice. See Lubet, supra note 7.

Law & Order (NBC television broadcast, 1990-current).

See Papke, supra note 6.

L.A. Law (NBC television broadcast, 1986-1994).

See John Brigham, L.A. Law, in PRIME TIME LAW, supra note 6; see also Christine Alice Corcos, Women Lawyers, in PRIME TIME LAW, supra note 6.

GRISHAM, THE STREET LAWYER, supra note 26.

Why is it that, at least as of this writing, this is one of Grisham's books that has not been filmed? Homelessness is not as cinematic as extortion, deaths of supreme court justices, law firm fraud, and covered-up civil rights violations.

ERIN BROCKOVICH (Jersey Films 2000).

GERALD M. STERN, THE BUFFALO CREEK DISASTER (1976).

JONATHAN HARR, A CIVIL ACTION (1995); A CIVIL ACTION (Paramount Pictures et al. 1998).

These are not the only such popular culture books about particular legal struggles that reveal the character of lawyers. PAUL BRODEUR, OUTRAGEOUS MISCONDUCT (1985) chronicles the work of worker's compensation lawyers who champion the asbestos cause (and become wealthy in the process). Richard B. Sobol tells a similar tale for the plaintiffs' lawyers in the Dalkon Shield case, in RICHARD B. SOBOL, BENDING THE LAW (1991). Several books have attempted the tale of the persistent plaintiffs' lawyers in the tobacco wars, see, for example, DAVID KESSLER, A QUESTION OF INTENT: A GREAT AMERICAN BATTLE WITH A DEADLY INDUSTRY (2001), and DAN ZEGART, CIVIL WARRIORS: THE LEGAL SIEGE ON THE TOBACCO INDUSTRY (2000). See the movie THE INSIDER (Buena Vista Pictures 1999) for the story of a nonlegal whistle blower. For another form of hero depicted in modern popular culture, see also SILKWOOD (20th Century Fox 1983), as inside workers reveal facts to lawyers and the press that corporate lawyers and actors sought to hide.

THOMAS KENEALLY, SCHINDLER'S LIST (1994).

MELISSA FAY GREENE, PRAYING FOR SHEETROCK (1991).

See Carrie Menkel-Meadow, The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 31 (Austin Sarat & Stuart Scheingold eds., 1998).

See Paul Bergman, The Movie Lawyers' Guide to Redemptive Legal Practice, 48 UCLA L. REV. _ (2001).

THE VERDICT (20th Century Fox 1982).

ROBERT COLES, LIVES OF MORAL LEADERSHIP (2000) (suggesting that good character requires the ability to get things done, as he chronicles Martin Luther King's ability to mobilize people and effectuate civil actions of a different, not legal, sort, and Robert Kennedy's political shrewdness in passing important legislation targeted to reduce child hunger and poverty).

Harris Dienstrey, Doctors, Lawyers and Other TV Heroes, in 35 COMMENTARY (1963), reprinted in TELEVISION: THE CRITICAL VIEW (Horace Newcomb ed., 1976).

Are these years of television now considered "golden" because so many of us of a certain age grew up watching them? At the time television premiered serious cultural critics decried this new medium as "lowering" our cultural standards. See Dienstrey, supra note 68.

Dr. Kildare (NBC television broadcast, 1961-1966).

Ben Casey (ABC television broadcast, 1961-1966).

CLASS ACTION (20th Century Fox 1991).

See William H. Simon, Ethics, Professionalism and Meaningful Work, 26 HOFSTRA L. REV. 445 (1997), for a different view. Simon argues that much of modern literature portrays lawyers as losing their moral agency (discussing Dickens, Dostoevsky, Kafka, and Melville's lawyers as alienated from role, purpose, and moral agency).

Dienstrey, supra note 68, at 83-85.

Echoing that great classic of romantic conflicts of interest between lawyers is ADAM'S RIB (MGM 1949), starring Spencer Tracy and Katharine Hepburn as spouses on opposite sides of a criminal case.

See CHRIS GOODRICH, ANARCHY AND ELEGANCE: CONFESSIONS OF A JOURNALIST AT YALE LAW SCHOOL (1991); RICHARD D. KAHLENBERG, BROKEN CONTRACT: A MEMOIR OF HARVARD LAW SCHOOL (1992); MICHAEL LEVIN, THE SOCRATIC METHOD (1987); JOHN JAY OSBORN, THE PAPER CHASE (1972); SCOTT TUROW, ONE L (1977).

N.Y.P.D. Blue (ABC television broadcast, 1993-current).

Homicide: Life on the Street (NBC television broadcast, 1993-1999).

Dramatic moments on The Defenders, Dr. Kildare, and Ben Casey all included instances of mutual learning, when the elder professional learned something from a new kid on the block. See Dienstrey, supra note 68.

See, e.g., JAMES STEWART, THE PARTNERS: INSIDE AMERICA'S MOST POWERFUL LAW FIRMS (1983) (describing the unethical activity of senior partners in the Kodak antitrust litigation); see also Lawrence J.Fox, I'm Just an Associate ...at a New York Law Firm, 69 FORDHAM L. REV. 939 (2000).

My favorite depiction of the changing order of modern legal ethics can be found in AUCHINCLOSS, DIARY OF A YUPPIE, supra note 20, in which the younger, more aggressive Robert Service (in service to his clients) wants to engage in a search of his opponent client's discarded garbage (an 'abandoned property' search," id. at 8) in a hostile takeover and his senior partner (a representative of a more "gentlemanly," if homogeneous era) chastises him for violating the professional code ("there's no place in my law practice for obscenity," id. at 10).

See, e.g., WILLIAM J. BENNETT, THE DEATH OF OUTRAGE: BILL CLINTON AND THE ASSAULT ON AMERICAN IDEALS: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1998); RICHARD A. POSNER, AN AFFAIR OF STATE (1999); JEFFREY TOOBIN, A VAST CONSPIRACY: THE REAL STORY OF THE SEX SCANDAL THAT NEARLY BROUGHT DOWN A PRESIDENT (1999).

The West Wing (NBC television broadcast, 1999-current).

THE CONTENDER (Battleground Productions 2000).

Somewhat presciently "foreshadowing" the disclosure of college-day "youthful indiscretions" of our current President George W. Bush's documented difficulty with alcohol and rumored difficulty with drugs. As I write this, the president's daughter has been arrested for underage drinking, raising further questions about the divisions between private and public life and how wide the ring of responsibility is around certain professional office holders.

See Corcos, supra note 55; Louise Everett Graham & Geraldine Maschio, A False Public Sentiment: Narrativeand Visual Images of Women Lawyers in Film, 84 KY. L.J. 1027 (1995-1996); Diane Klein, Ally McBeal and Her Sisters: A Quantitative and QualitativeAnalysis of Representations of Women Lawyers on Prime-Time Television, 18 LOY. L.A. ENT. L. REV.. 259 (1998); Carrie Menkel-Meadow, Excluded Voices: New Voices in the Legal ProfessionMaking New Voices in the Law, 42 U. MIAMI L. REV. 29 (1987); Carole Shapiro, Women Lawyers in Celluloid: Why Hollywood Skirts the Truth, 25 U. TOL. L. REV. 955 (1995); Cheryl Smith-Khan, African American Attorneys in Television and Film: Compounding Stereotypes, 22 LEGAL STUD. F. 119 (1998); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Blacks inCorporate Law Firms? An InstitutionalAnalysis, 84 CAL. L. REV. 493 (1996).

See, e.g., Carrie Menkel-Meadow, The Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers, in LAWYERS IN SOCIETY: COMPARATIVE THEORIES (Richard L. Abel & Philip S.C. Lewis eds., 1989); Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 BERKELEY WOMEN'S L.J. 39 (1985); Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism and Legal Ethics, 2 VA. J. SOC. POL'Y & L. 75 (1994); Carrie Menkel-Meadow, What's Gender Got to Do with It? The Morality and Politics of an Ethics of Care, 22 N.Y.U. REV. L. & SOC. CHANGE 265 (1996); Carrie Menkel-Meadow, Women's Ways of Knowing Law: Feminist Legal Epistemology, Pedagogy and Jurisprudence, in KNOWLEDGE, DIFFERENCE AND POWER (Nancy Goldberger et al. eds., 1996).

ALL OF ME (Universal Pictures 1984).

See WHAT WOMEN WANT (Paramount Pictures 2000) as the latest entry in this genre. Mel Gibson's character suddenly is able to hear what goes on inside women's minds.

See the even more over-the-top and explicit critique of lawyers as liars in Jim Carrey's LIAR LIAR (Universal Pictures 1997).

See supra note 31.

See The Practice: Cross-Fire (ABC television broadcast, Mar. 4, 1999); The Practice: Target Practice(ABC television broadcast, Mar. 7, 1999).

Most recently codified in the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2001).

See TO KILL A MOCKINGBIRD (Universal International Pictures 1962).

CAPE FEAR (Melville-Talbot Productions 1962). See Francis M. Nevins, Cape Fear Dead Ahead: Transforming a Thrice Told Tale of Lawyers and Law, 24 LEGAL STUD. F.611 (2000). (This version of Cape Fear was screened at the symposium at which the papers in this issue were presented.)

For similar claims about the complexity of our adherence to the rule of law, good character, justice, and the white hats winning in American film, see Steven Lubet, The Man Who Shot Liberty Valance: Truth or Justice in the Old West, 48 UCLA L. REV. 353, 359 (2000), which argues that the man who shot Liberty Valance should have been indicted for murder.

Does good judgment include the ability to judge with discretion and wisdom, and not be overly restricted or cabined by the law and the rigidity of rules? See Simon, Ethical Discretion, supra note 9; Simon, Moral Pluck, supra note 9.

See, for example, LON L. FULLER, THE MORALITY OF LAW (rev. ed. 1969), and H.L.A. HART, THE CONCEPT OF LAW (1961).

There are many examples in popular culture of lawyers violating both "little" rules, ethics rules, or major laws in order to accomplish greater justice. Consider, for example, Frank Galvin's stealing mail to get information in The Verdict, the deception used to get important files in IN THE NAME OF THE FATHER (Universal Pictures 1993), or the theft of confidential files in GRISHAM, THE STREET LAWYER, supra note 26, at 144-80. From watching modern movies or reading modern novels and thrillers, one would certainly conclude that the end justifies the means for most lawyers and justice-seeking paralegals.

This is the current tag line used in advertising for NBC's Law & Order.

See MURRAY L. SCHWARTZ & CARRIE MENKEL-MEADOW, LAWYERS AND THE LEGAL PROFESSION: CASES AND MATERIALS (2d ed. Supp. 1991); MURRAY L. SCHWARTZ & CARRIE MENKEL-MEADOW, TEACHER'S MANUAL FOR LAWYERS AND THE LEGAL PROFESSION (1985).

In California such rules are complicated by the fact that California has never passed the American Bar Association's MODEL RULES OF PROF'L CONDUCT (1999), but has its own Business and Professions Code, CAL. BUS. & PROF. CODE §§ 6067-6228 (Deering 2001), and Rules of Professional Conduct, CAL. RULES OF PROF'L CONDUCT (2000).

See Menkel-Meadow, Telling Stories, supra note 1.

When the movie Class Action premiered, I gave "extra credit" on my legal profession exam for those students who could at least "spot" all the ethical issues depicted in that film. By my count there were over thirty separate potential rule violations or other questionable activities, including among other things, obvious conflicts of interest (father and daughter on opposite sides of a case and talking about it, a hidden document, frivolous and harassing discovery behavior, and witness hiding and coaching, just to name a few). While issue spotting takes some of the fun out of entertainment media, it has a powerful learning effect by making dry rules come to life and remain both vivid and remembered. The challenge for teachers, of course, is that students should remember the "ethically correct" responses to a dilemma, not the often more lurid and dramatic (but effective), transgressions that turn out, at least in the movies, to right grave injustices.

As in the final settlement negotiations with the judge in The Street Lawyer.

Exceptions, of course, include motions to disqualify counsel in conflicts of interest situations, which would be heard in the context of a substantive case, and FED. R. Civ. P. 11 claims about frivolous or incompletely investigated claims or statements. Discovery rules, such as Federal Rules of Civil Procedure 26, and 37 also permit consideration of sanctions and other penalties for unethical conduct during the discovery phases of a lawsuit.

Did Ellenor have to turn over to the prosecutor .the severed head brought to her office by the accused (and, as we later learn, guilty) defendant? See The Practice: The Battlefield (ABC television broadcast Oct. 25, 1998).

Bobby Donnell and Helen the prosecutor sleep together' on two episodes of The Practice.

Jimmy has a relationship with a judge on The Practice.

On The Practice the defense team routinely tries to incriminate someone other than the accused defendant under its notorious "Plan B."

See, e.g., A CIVIL ACTION, supra note 60; CLASS ACTION, supra note 72; IN THE NAME OF THE FATHER, supra note 99; THE VERDICT, supra note 66.

See Goldberg, supra note 29.

See, e.g., Asimow, Bad Lawyers, supra note 2 (contrasting and comparing polling data on perceptions of lawyers in the general population with depictions in the movies); Stewart Macaulay, Images of Law in Everyday Life: The Lessons of School, Entertainment and Spectator Sports, 21 LAW & SOC'Y REV. 185 (1987); Macaulay, supra note 3; see also William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar, 22 PEPP. L. REV. 485 (1995); Manuel Ramos, Legal Malpractice: No Lawyer or Client IsSafe, 47 FLA. L. REV. 1(1995); Manuel Ramos, Legal Malpractice: The Profession's Dirty Little Secret, 47 VAND. L. REV. 1657 (1994); Manuel Ramos, Legal Malpractice: Reforming Lawyers and Law Professors, 70 TUL. L. REV. 2583 (1996) (suggesting that large-firm lawyers commit as many, if not more ethical transgressions as the commonly assumed ethical violators-solo or small-firm lawyers); SUSAN SHAPIRO, TANGLED LOYALTIES (forthcoming 2002) (reporting an empirical study of conflicts of interests practices in all sized practices).

114. RUSSELL BANKS, THE SWEET HEREAFTER (1991); THE SWEET HEREAFTER (Fine Line Features 1997). See Tory McAdams, Blame and The Sweet Hereafter, 24 LEGAL STUD. F. 599 (2000), and Austin Sarat, Imagining the Law of the Father: Loss, Dread and Mourning in The Sweet Hereafter, LAW & SOC'Y REV. (2000), for more detailed treatments of this narrative of loss and the legal system told from the point of view of many different participants in the story.

BANKS, supra note 114, at 91.

Id. at 113.

Id. at 120-21.

What a passage from which to teach the spaces between permissible and impermissible solicitation. See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978).

When Gerald Stern, the lawyer in the Buffalo Creek dam disaster and author of one of the first lawsuit memoirs, see STERN, supra note 59, is queried by my civil procedure classes about why he didn't file that lawsuit as a class action, he answers that he wasn't taught about class actions when he attended law school-so what we teach matters! Of course, at the time Gerald Stem brought his suit, no one thought that Federal Rule of Civil Procedure 23 applied to tort claims, in which injuries were thought to be individualized. See Carrie Menkel-Meadow, Ethics and the Settlements of Mass Torts: When the Rules Meet the Road, 80 CORNELL L. REV. 1159 (1995).

Murder One (ABC television broadcast, 1995-1997).

The contingent fee puts a premium on quick settlement for the plaintiff's lawyer and the hourly fee may result in "overworking" a case. See Murray L. Schwartz & Daniel J.B. Mitchell, An Economic Analysis of the Contingent Fee in Personal Injury Litigation, 22 STAN. L. REV. 1125, 1137-39, 1143 (1970); see also HERBERT M. KRITZER, LET'S MAKE A DEAL: UNDERSTANDING THE NEGOTIATION PROCESS IN ORDINARY LITIGATION (1991).

There are a few wonderful exceptions to this litigation rule, most notably the novels of Philadelphia lawyer, Arthur R.G. Solmssen, particularly ARTHUR R.G. SOLMSSEN, THE COMFORT LETTER (1975), which chronicles the ethical and other issues in a tender offer. See also JAMES C. FREUND, ANATOMY OF A MERGER (1975) and a variety of non-fictional accounts of lawyers' roles in big deals, for example, STEWART, supra note 80, and JAMES B. STEWART, DEN OF THIEVES (1991).

See MODEL RULES OF PROF'L CONDUCT R. 1.6 (1999). California protects client confidentiality, with relatively few exceptions, more strongly than any other jurisdiction. See CAL. Bus. & PROF. CODE § 6068(e) (Deering 2001).

The questions of spousal immunity for testimony combine with conflicts of interest when lawyers who are related to each other are on different sides of the same matter are complex enough, see MODEL RULES OF PROF'L CONDUCT R. 1.8(i), without considering more modern living and dating patterns (not to mention same-sex partners, who will not have the full protection of spousal immunity to prevent them from testifying about what they hear from each other about legal cases worked on).

ROBERT TRAVER, ANATOMY OF A MURDER (1958).

MY COUSIN VINNY (20th Century Fox 1992)

GRISHAM, THE RAINMAKER, supra note 48.

Drug and alcohol abuse is one of the most common causes of disciplinary action and incompetence in case handling. See, e.g., RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 533-54 (1995).

See HARR, supra note 60, at 85-119.

130 See JANET MALCOLM, THE CRIME OF SHEILA MCGOUGH (1999); Steven Lubet, Rumpled Truth on Trial, 94 Nw. U. L. REV. 627 (2000) (reviewing Malcolm skeptically).

See, for example, SCOTT TUROW, BURDEN OF PROOF (1990), ScoTT TUROW, THE LAWS OF OUR FATHERS (1996), ScoT TUROW, PLEADING GUILTY (1993), Sco-r TUROW, PRESUMED INNOCENT (1987), and more recently in SCOTT TUROW, PERSONAL INJURIES (1999).

Scott Turow was himself implicated in a disciplinary charge in Chicago, because he continues to practice law while writing about it. This, in addition to his great talent, might explain why his thrillers are so much more legally accurate and interesting than the work of his fellow bestselling authors. More recently, Turow, as a result of his own involvement as appellate counsel in two death penalty cases, has begun speaking out against the death penalty. See Scott Turow, Speech at Harvard Law School (Apr. 2001).

See MODEL RULES OF PROF'L CONDUCT R. 1.2, 1.3, 1.4 (1999), especially comment 1 to Rule 1.4 in which lawyers are admonished to communicate all settlement offers to their clients and provide them with enough information to evaluate the offer. Some have defended Galvin, because the settlement offer was not in writing, as required for some civil offers (criminal plea offers must be transmitted no matter how communicated, see Rule 1.2(a)). See also MODEL CODE OF PROF'L RESPONSIBILITY EC 7-7, EC 7-8 (1980), which was in effect in Massachusetts in the early 1980s.

Grisham needs to bone up on his legal ethics studies. The judge in the case would have no authority to mete out suspension-from-practice penalties within the substantive case, but it does have dramatic appeal, especially by adding another issue to the negotiation agenda.

Jonathan Harr wrote his journalistic account of A Civil Action by shadowing Schlichtmann. See HARR, supra note 60. For the most part, the defense counsel did not share their strategies or other information with him. This is why fiction may illuminate more than fact. In fictional works, we often get entry into the lawyer's heads and actions from all sides of a case (see, for example, BANKS, supra note 114), especially if there is an omniscient narrator.

See MODEL RULES OF PROF'L CONDUCT R. 4.1 cmt. 1 (1999), which permits some lack of candor in settlement negotiations.

GRISHAM, THE FIRM, supra note 48.

138 Now depicted in the lawyer shows focusing on female attorneys, such as Family Law (CBS television broadcast, 1999-current) and Judging Amy (CBS television broadcast, 1999-current).

So far as I can tell, the second was Michael Crichton's seriously flawed and distorted mediation scene in the movie version of DISCLOSURE (Warner Bros. 1994). But as always with Michael Crichton, he wanted to demonstrate that he was on the "cutting edge" of a topical issue-mediation is clearly one of those for the legal profession.

How will lawyers with stock options be involved in picking bankruptcy counsel? Some of these issues revisit old and dramatic issues for lawyers, such as serving on boards of directors or having conflicts of interests when companies have problems. See supra note 20.

See, e.g., MARY ANN GLENDON, A NATION UNDER LAWYERS: How THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE (2001).

See, e.g., ETHICS INPRACTICE, supra note 13; SIMON, supra note 9; see also THE GOOD LAWYER, supra note 31; DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988).

GEORGE ELIOT, MIDDLEMARCH (David Carroll ed., 1992) (1872).

But see the season finale: Dr. Mark Greene lets a murderer/child abuser die, rather than try to revive him via electric shocks. And, he covers up his actions by repeatedly shocking the air. ER: Rampage (NBC television broadcast, May 17, 2001).

See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 110 S. Ct. 2841 (1990); Louis Michael Seidman, Confusion at the Borders: Cruzan, "The Right to Die" and the Public/Private Distinction, 1991 Sup. CT. REV. 47.

GEORGE ELIOT, FELIX HOLT: THE RADICAL (Lynda Mugglestone ed., 1995) (1866).

While Felix Holt was often called her "political novel," George Eliot was, in fact, more interested in character study and how the concrete politics of the Reform Act of 1832 had not entirely succeeded. See id. Introduction. The novel is ultimately about the ethical wielding of power, both public and personal.

WILLIAM DEAN HOWELLS, IN A MODERN INSTANCE (Edwin Cady ed., 1988) (1882).

See MICHAEL SCHUDSON, DISCOVERING THE NEWS: A SOCIAL HISTORY OF AMERICAN NEWSPAPERS (1978).

See ROBERT WOODWARD & CARL BERNSTEIN, ALL THE PRESIDENT'S MEN (1974).

See, e.g., Robin Pogrebin, Rechecking a Writer's Facts, A Magazine Uncovers Fiction, N.Y. TIMES, June 12, 1998 at Al; New Republic Associate Editor Stephen Glass Fired for Fabricating Stories, at http://www.ndsn.org MayJune98/netnews5.html.

See Deadline, (NBC television broadcast, 2000).

See 100 Centre Street (A&E television broadcast, 2001); Ally McBeal (Fox Network television broadcast, 1997-current); Family Law (CBS television broadcast, 1999-current); First Years (NBC television broadcast, 2001); Judging Amy (CBS television broadcast, 1999-current).

ISHIGURO, supra note 14.

See THE REMAINS OF THE DAY (Columbia Pictures 1993)

The story in The Remains of the Day appears to be a fictionalized account of "the Cliveden set," which describes Lady Nancy Astor's (an American and the first woman to sit in the British parliament) and her husband's rather cozy relationship to several Nazi office holders. Cliveden had a butler, who served as loyally as Stevens for many years, and found even his resignation would not be accepted by Lady Astor. See JAMES Fox, FIVE SISTERS: THE LANGHORNES OF VIRGINIA (1998); see also supra note 14.

This is why despite the higher production values of movies, I prefer television depictions of lawyers. There we can see more actions of the people we are watching and can feel the quotidian qualities of their existence. To the extent that character change occurs, we can see it coming from weeks of knowledge, and when it seems too sudden or unexplained by daily acts, we know it isn't real.

See MODEL RULES OF PROF'L CONDUCT R. 1.16 (1999).

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bluewatsons · 3 years

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Alexandre Calame, The Winter (1851)

#images #paintings #art #1850s #alexandre calame

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bluewatsons · 3 years

Text

Markus M. Mobius & Tanya S. Rosenblat, Why Beauty Matters, 96 Amer Econ Rev 222 (2006)

Abstract

We decompose the beauty premium in an experimental labor market where ‘employers’ pay wages to ‘workers’ who perform a maze-solving task. This task requires a true skill which we show to be unaffected by physical attractiveness. We find a sizable beauty premium but no evidence for direct taste-based discrimination. Instead, we can identify three indirect transmission channels. (1) Physically-attractive workers are more confident which helps them to obtain higher wages. This effect explains about 20 percent of the beauty premium. (2) Physically-attractive workers are (wrongly) considered more able by employers. This direct stereotype effect is responsible for about 30 percent of the premium. (3) Physically-attractive workers have certain skills (such as communication and social skills) which raise their wages when they interact verbally with employers. This indirect stereotype effect contributes to the remaining 50 percent of the beauty premium.

1 Introduction

In their seminal work, Hamermesh and Biddle (1994) found that physically attractive workers derive sizable rents from their looks. Workers of above average beauty earn about 10 to 15 percent more than workers of below average beauty. The size of this beauty premium is economically significant and comparable to the race and gender gaps in the US labor market.

How does physical attractiveness translate into such a large wage differential? An obvious explanation is that physically attractive workers are simply more productive when interacting with customers and coworkers. There is some empirical support for this hypothesis in certain occupations: Biddle and Hamermesh (1998) conclude that physical attractiveness raises lawyers’ wages because clients prefer attractive lawyers and Pfann, Bosman, Biddle, and Hamermesh (2000) show that physically attractive executives in advertising agencies benefit from physical attractiveness due to better interaction with both customers and coworkers. However, productivity-related compensation does not seem to contribute significantly to the overall beauty premium which has been measured across occupations. Hamermesh and Biddle (1994) find that accounting for the intensity of interpersonal interaction with customers and co-workers has almost no effect on the cross-sectional beauty premium. Therefore, it is quite plausible that the higher wages of the physically attractive versus their less beautiful but equally qualified compatriots arise during the wage determination game between worker and employer where the physically attractive manage to extract greater rents.

We study how such rents are formed during a wage determination process in an experimental labor market. Our subjects, drawn from a pool of undergraduate and graduate students from Tucuman, Argentina are divided into workers who are “hired” to perform a skilled task of solving computer mazes, and employers who set their wages. All workers become employed but can receive different compensation. Workers solve one practice maze at the start of the experiment. Compensation incentives are set to induce them to truthfully reveal how many mazes they believe they will be able to solve during a 15 minute “work period”. Before the “work period” begins, workers interact with employers who determine their wages. Similarly, the incentives for employers encourage them to set wages that correspond to their impressions of workers’ maze-solving skills. Finally, workers are paid a piece rate for each solved maze. Our beauty measure is constructed from ratings by a panel of independent evaluators. Hatfield and Sprecher (1986) document that physical attractiveness ratings of facial photographs are remarkably stable across genders and cultures.

The advantage of our experimental methodology is that we can observe the interaction between employer and worker in our artificial labor market. In survey data, such information is typically not available and the entire wage negotiation process has to be treated instead as a black box.

We find a sizable beauty premium in our experiment which is comparable to the beauty premium found in the real-world data. However, we also show that physically attractive workers are in fact no better in solving mazes than less at- tractive ones. We build a simple model to decompose this beauty premium. We assume that both employer and employee enter the wage negotiation with some prior beliefs about the worker’s ability. We call physical features of the worker which bias the employer’s prior perception of his ability stereotypes. We call the worker’s prior belief of his ability his confidence. After interacting with the employee, the employer makes a wage offer which equals her best posterior belief of the worker’s ability. If an employer has a taste for rewarding a beautiful employee she can shade her wage offer and set a wage which is higher than her belief of the worker’s ability.

The model allows us to identify four different channels through which the beauty premium can arise. First, worker’s beauty can raise the employer’s perception of his ability through the stereotype channel. We further distinguish between the direct stereotype channel which operates through simple visual interaction and the indirect stereotype channel which requires verbal communication. We can attribute about 80 percent of the beauty premium to these two channels - 30 percent due to direct stereotype effects and 50 percent due to indirect effects. Second, we show that beauty raises worker’s confidence which in return raises her wage. This effect explains about 20 percent of the beauty premium. Third, we test for the presence of a persuasion channel in which beauty increases the weight the employer attaches to the worker’s confidence versus his own prior. We find no evidence for this channel. Finally, it is possible that neither employers’ nor workers’ beliefs are affected by physical attractiveness but that employers simply have a taste for employing beautiful workers. We also find no evidence for this Becker-type discrimination hypothesis.

The decomposition is possible because we can control the mode of interaction in our experiments. Each worker interacts with five different employers. All employers can see the “resume” of the employee. In addition to the basic information regarding education, age, previous employment and hobbies, the “resume” also includes the time it took the employee to solve the practice maze. The first employer evaluates only the “resume” information. The second employer additionally sees the facial photograph of the worker. The third employer conducts a telephone “interview” but does not see the photograph. The fourth employer both talks to the worker on the telephone and sees the photograph. Finally, the fifth employer is presented with the richest set of stimuli - a face-to-face “interview” with the worker.

Our stereotype hypothesis builds on a large body of work in social psychology on the physical attractiveness stereotype. Often summarized under the catchphrase “beauty is good” this research has demonstrated that beauty is perceived to be correlated with intelligence, social skills, health and sexual warmth to name just a few of the positive attributes bestowed upon physically attractive people. Interestingly, this line of research has found no actual correlation between physical attractiveness and cognitive ability which is consistent with the findings of our experiment where physical attractiveness did not affect maze-solving ability.

Our confidence hypothesis reflects the growing consensus that (a) non-cognitive skills contribute crucially to labor market success; and (b) that physical attributes such as beauty and height can affect the acquisition of non-cognitive skills. Evidence from early childhood intervention programs such as the Perry preschool program demonstrates that these programs can raise lifetime earnings by improv- ing students’ social skills and motivation rather than through gains in cognitive abilities which are short-lived and dissipate over time (see Heckman (2000)). Persico, Postlewaite, and Silverman (2001) analyze the well-known height premium which is comparable in magnitude to those associated with beauty, gender and race. They find that only height at 16 rather than adult height matters: this suggests that height promotes the acquisition of non-cognitive social skills such as confidence and the ability to interact socially with others, which then in return increases wages. The fact that this indirect channel rather than the direct effect of adult height has an impact on wages raises the question whether physical attractiveness also increases wages by promoting the acquisition of non-cognitive skills. Certainly, there is overwhelming anecdotal evidence that people do recognize the income-enhancing effects of confidence: almost every self-help book emphasizes the need for “positive thinking” and for self-esteem as one of the keys to success. Parents are continuously reminded to use positive reinforcement in interactions with their children in order to build self-esteem and instill confidence in them. Team sports and group activities are encouraged not just because students benefit from physical activity but because they can enhance self-esteem.

The balance of the paper is organized as follows. In section 2 we discuss re- lated literature in economics and social psychology. Section 3 presents a simple theoretical framework for decomposing the beauty premium. Section 4 describes the design of the experiment and our empirical strategy. Section 5 discusses our experimental data. In section 6 we establish that there is a beauty premium and test for the various channels through which beauty raises workers’ wages in our experiment. Section 7 concludes.

2 Literature Review

Our work is related to three bodies of literature on the role of physical attractiveness in the labor market: a small but growing literature in labor economics starting with the seminal paper by Hamermesh and Biddle (1994), a large and well-established literature on physical attractiveness in the fields of social psychology and human resource management, and a small number of experimental papers which look at the link between physical attractiveness and economic outcomes.

When exploring the sources of the beauty premium, the empirical labor literature has focused on the question whether physical attractiveness makes workers more productive in occupations where there is a great deal of interpersonal inter- action with customers or co-workers. There are two basic explanations for such productivity differences: pure discrimination of customers and co-workers against the non-beautiful and a greater ability by the beautiful to acquire social skills which in return give rents. These skills include interpersonal skills such as persuasion which might be productivity enhancing in dealings with customers. Beauty might also increase the ability to cooperate with coworkers which are shared with the employer.1 Pfann, Bosman, Biddle, and Hamermesh (2000) show that the social capital hypothesis is the most likely explanation for the observed correlation between executive beauty and firm revenue growth in their analysis of the Dutch advertising industry.

Hamermesh and Biddle (1994) attribute most of the beauty premium to employer discrimination2. However, this assertion cannot be adequately tested without knowing details about the nature of interaction between the worker and the employer: as explained in the introduction the beauty premium might also be generated through an indirect channel such as employer stereotypes and worker confidence. Moreover, the fact that none of the height premium is attributable to direct discrimination against short people should make us at least suspicious of Becker-type discrimination as a full explanation (Persico, Postlewaite, and Silverman 2001).

Another reason for the scarcity of empirical studies on stereotypes and confidence effects in labor economics might be the assumption of standard models that agents have unbiased beliefs about their own ability and the ability of others. However, at least for workers it is not obvious that there exists a Bayesian notion of belief in a job interview context. Most jobs are only incompletely described and the distribution of a worker’s true future performance in some specific job is at least somewhat unknown. This gives the worker some degree of discretion in choosing her belief about her own ability. In our experiment, for example, “workers” systematically underestimate their ability to solve mazes by a factor of almost 30 percent.

In contrast, the social and experimental psychology literatures have for a long time looked at non-Becker type effects of beauty. One of the main questions of this literature is how beautiful people are perceived by others? The main experimental findings are that more beautiful people are viewed superior along several dimensions: personality traits (sociability, dominance, sexual warmth, modesty, character), mental health, intelligence and academic ability, and social skills (Feingold 1992, Eagly, Ashmore, Makhijani, and Longo 2001). The correlation is intermediate for personality measures, weak for intelligence and strongest for social skills. This observation is often referred to as the physical attractiveness or beauty-is-good stereotype.

The social psychology literature also analyzes to what extent there is a kernel of truth to this stereotype. There is substantial evidence that attractive people are treated better by others throughout their life-cycle.3 Moreover facial attractive- ness rating does not appear to change much both during childhood (see Adams (1977a) and throughout adulthood (see Adams (1977b)). Physically attractive people might therefore develop different expectations and skills (particularly social skills) from less attractive people. The attractiveness stereotype can thus become a self-fulfilling prophecy giving rise to confidence and persuasion ability effects in our setup. In his large meta-analysis comprising between 900 and 3000 subjects Feingold (1992) found that there is only a trivial correlation between physical attractiveness and most measures of personality traits and cognitive ability.4 However, he also showed that there is intermediate correlation between beauty and absence of social anxiety, and significant correlation between beauty and popularity (about .29) and, in particular, social skills (about .25).5

Confidence is therefore a potential transmitter of beauty effects. The social psychology literature has employed various measures to capture confidence, self-esteem and ‘self-efficacy’ which are designed to assess optimistic self-beliefs to cope with a variety of difficult demands in life (see Cassidy and Long (1996), Lorr and Wunderlich (1986) and Mittag and Schwarzer (1993)). The measures are by construction broad and lack an obvious metric. An advantage of a task-specific measure of confidence such as ours is that it can overcome both of these problems and thereby reduce measurement errors and make the estimation results easier to interpret.

The use of an experimental framework to decompose the beauty premium is novel to the best of our knowledge. Notable exceptions are the contributions by Solnick and Schweitzer (1999) who look at the influence of physical attractiveness on ultimatum game decisions, and Mulford, Orbell, Shatto, and Stockard (1998) as well as Kahn, Hottes, and Davis (1971) on the Prisoner’s Dilemma. However, we view neither the Prisoner’s Dilemma nor the ultimatum game as adequate descriptions of wage setting in labor markets because there is no notion of skill in these games.

3 Theoretical Framework for Decomposing the Beauty Premium

We use a simple model of wage determination to analyze our data. The central part of the model describes the belief formation of the employer about the worker’s ability. The employer has some prior belief μE about the worker’s ability and the worker has his own belief μW captured by his confidence. The employer forms a posterior belief w which represents her best guess about the worker’s ability. If there is no direct taste-based discrimination the employer should set the wage to be his posterior belief w. Otherwise, the final wage will be w + D(B) where the discrimination component D(B) is an increasing function of B.

We describe the posterior belief formation process in greater detail below. The following thought experiment helps to fix ideas. Imagine the following stylized job interview which consists of two stages: “first impression” and “job discussion”. In the first few moments of the interview, worker and employer engage in small talk unrelated to job requirements or candidate’s qualifications. The employer is going to form her “first impression” of the worker. At this point, what we call the stereotype channel is going to influence employer’s beliefs about worker’s ability. The direct stereotype channel works through visual interaction. The employer is going to associate a higher skill level with a more physically attractive candidate. This is a consequence of beauty-is-good stereotype from the psychology literature that we discussed earlier. In conjunction with pure visual interaction, the employer will have a chance to engage in oral communication and observe social skills of the candidate. During this verbal interaction indirect stereotype channel can have an impact on employer’s beliefs. Kernel-of-truth hypothesis from the psychology literature suggests that beauty-is-good stereotype might in fact be justified because good looking people have developed better (social) skills through preferential treatment or genetics. If the skills that are correlated with beauty can manifest themselves in verbal interaction such as better rhetorical and overall communication skills, then a more physically attractive person will successfully increase employer’s beliefs about his ability. Both direct and indirect stereotype channels will have an impact on employer’s belief about worker’s ability, μEmployer.

After employer forms her prior belief, the next stage of the interview takes place in which job requirements are discussed and the worker has a chance to persuade the employer about his ability. The worker comes into the interview room with his own prior about his ability. He forms this belief based on his confidence about performing the task. If beauty enhances worker’s confidence, then we can expect more good-looking candidates to form more optimistic estimates based on their initial trial time. Physical attractiveness then influences worker’s belief about his ability, μWorker, through the confidence channel. To summarize, before engaging in conversation about the job itself, both employer and employee form their respective estimates of employee’s ability. During the second stage of the interview, the wage w = αμW orker + (1 − α)μEmployer gets determined. The coefficient α is influenced through the persuasion channel. A more physically attractive candidate might be more successful at convincing the employer that his own estimate of his ability is correct.

4 Experimental Design and Procedure

In our experiment there are workers and employers who interact in an artificial labor market. Workers have the task to solve as many computer mazes as possible within a 15 minute period. The mazes can be found at the Yahoo website.6 These mazes were first used in experimental research by Gneezy, Niederle, and Rustichini (2002). It is important for us that maze solving requires a certain type of cognitive skill and the ability to concentrate for an extended period of time. It does not require any non-cognitive skill such that we can abstract away from productivity-enhancing explanations of the beauty premium.

We allow subjects to perform a practice maze at the easiest difficulty level (there are five levels of difficulty from the easiest, level 1, to the hardest, level 5). Each worker is then interviewed by employers who set his wages based on their estimates of his productivity. Finally, workers perform in the 15 minute trial and are paid a piece rate.

Maze-solving exhibits various dimensions of uncertainty. First, there is considerable variation in ability: in our sample the mean number of solved mazes is 9.53 with a standard variation of 3.86. Second, for almost all workers and employers the task is unfamiliar. Third, there is a significant amount of learning going on during the 15 minute trial: the average level 1 practice maze takes 127 seconds to solve while the average level 2 maze is solved in only 94 seconds. Fourth, the practice maze is only somewhat informative about a worker’s ability since there is significant variation in the difficulty of mazes even within the same level and because the 15 minute trial has harder mazes (we do not show level 2 mazes to the workers before the trial). Fifth, there is no obvious focal point (other than simply extrapolating from the performance in the practice maze).

Taken together, these different layers of uncertainty make it hard for both workers and employers to predict the productivity. For this reason we expect confidence, persuasive skills and stereotypes to play a large role in determining wages. We believe that such an environment is representative of real labor market conditions where it be might easy to establish the formal qualification of a worker for a specific job but where there remains considerable uncertainty about the match quality.

4.1 Description of Experimental Design

We now describe the experimental design in detail. In our experiment ten subjects are invited to the lab - five of them are assigned the role of the ‘worker’ and the other five are ‘employers’ numbered 1 through 5. The group of workers and each employer are moved to separate rooms where the instructions of the game are read to them. The instructions for workers and employers in Spanish and English are provided in appendix A and B.

Workers fill out a resume form which asks for their age, sex, university, matriculation year, previous job experience and extracurricular activities. This basic resume information can be later viewed by all five employers on a standardized form. We also collect the same information from employers. Employers start with an initial account of 4000 credits. Workers have no credits at the beginning of the game.

Workers are explained that they have to solve as many randomly generated computer mazes as possible during a 15 minute period at the end of the experiment. They are told that there are various levels of difficulty and that mazes can vary in their difficulty even within a single level. They are also informed that players frequently improve their maze-solving skill substantially through practice.

Each worker then goes on to solve one practice maze at the easiest level. His time is top-coded after 5 minutes and becomes part of his resume - thus every employer can see the practice time of every worker she interviews. None of this information is shared amongst workers who are instructed not to talk to each other.

After the practice maze each worker j is asked to reveal his best estimate Cj of his performance in the 15 minutes trial at the end of experiment. This information is kept secret from all other players. However, for any discrepancy between the estimated number of mazes and the actually solved number of mazes 40 credits are subtracted from the final winnings for each maze. The workers are explained in the instructions that the statistically optimal answer to this question is to report the median of the perceived productivity distribution.7 We equate the estimated number of mazes with the confidence of the worker.

Each worker then interviews with all of the employers. The order in which players interview with employers is randomized to avoid order effects. All employers see the same resume of each worker (including practice time) but differ in the mode of interaction with the worker:8

0: Employer 0 only sees the resume of the worker. P: Employer P sees the resume and a frontal facial passport-like photograph of the worker.

T: Employer T sees the resume and conducts a free-form telephone interview with the worker of up to 5 minutes in length.

PT: Employer PT sees the resume, the photograph and also conducts a telephone conversation of up to 5 minutes in length.

FTF: Employer FTF sees the resume, the photograph and also conducts a face-to- face free form interview with the worker of up to 5 minutes in length.

Employers can take notes during their interviews with workers. After an employer i (where i ∈ O,P,T,PT,FTF has interviewed all five workers j = 1..5 she has to determine a ‘wage’ wij for all five interviewed workers simultaneously. Payoffs to employers are structured in such a way that the wage setting game resembles a competitive labor market where workers are paid according to their expected productivity. In our experiment the employer does not pay wages directly - instead they are paid out by the experimenter. With 80 percent probability a worker j receives 100 credits times employer’s wage and with 20 percent probability the worker receives the average wage w set by all employers in this experimental session times 100 credits. The actual wage Wˆ ij of worker j from employer i is therefore:

The employer in return is penalized by 40 credits per maze for any discrepancy between the wage wij and worker j’s productivity Aj (measured by total number of mazes solved during the subsequent 15 minute trial). The total winnings Πi of employer i are calculated as follows:

The optimal strategy of the employer is to set the wage of the worker always equal to her median estimate of the ability of the worker regardless of whether he actually sets the wage. This wage setting procedure is carefully explained to employer subjects.optima The optimal strategy of the employer is to set the wage of the worker always equal to her median estimate of the ability of the worker regardless of whether he actually sets the wage. This wage setting procedure is carefully explained to employer subjects.

Neither the worker nor the employer know during the interview whether the employer will in fact determine the wage of the worker: they only know that the employer will do so with 80 percent probability. Only after the interviews when inputting the wages for each worker the employer finds out which worker will receive the wage and who will receive a wage average. This randomization tests for pure discrimination: if the employer has a taste for physically attractive subjects we expect the employer to set higher wages if the worker will also receive that wage.9

After all the interviews are over, workers go through the 15 minute work period solving mazes of difficulty level 2. They are paid a piece rate of 100 credits for each solved maze. One implication of our experimental design is that the effective piece rate of workers is 140 credits for each maze as long as they stay below their estimate and only 60 credits for each maze thereafter. Unfortunately, there is no way to elicit truthful revelation of workers’ beliefs before they start the trial without distorting incentives during the trial. However, we chose a sufficiently large exchange rate from credits to money to ensure that even 60 credits represent a salient reward. The total compensation Πj of the worker can be calculated as follows:

4.2 Measurement of Confidence

We use the worker’s estimate of his productivity as our measure of worker confidence. This implies that a subject with high maze solving ability will on average have greater confidence if she is at least somewhat aware of her ability. The colloquial use of confidence is quite imprecise: at least some of our colleagues preferred an alternative measure of confidence such as the difference between the estimated and the actual number of rounds in order to distinguish between ‘justified’ confidence and ‘excess’ confidence.

We decided to use the simple estimated productivity as our confidence measure because it gives us the greatest flexibility. We find it hard to distinguish between ‘justified’ and ‘excess’ confidence: a subject who is convinced she can solve 15 mazes during the 15 minutes trial cannot make this decomposition if, for example, his true ability is only 10 and his excess confidence is 5. Presumably, if he had known that his true ability is only 10 he would have said 10 instead of 15.

In any case, there is no formal difference when we use the estimated number of rounds or the deviation of the estimate from the true number. In all our regressions we control for actual productivity interacted with modes of communication dummies. Therefore the estimated coefficients on both confidence measures would have been identical.

4.3 Experimental Procedure

We conducted 33 experimental sessions at Universidad Nacional de Tucuman (UNT), Tucuman, Argentina from August 2002 to March 2003. Subjects were recruited at three different university campuses in the city of Tucuman - Universidad Nacional de Tucuman, Universidad del Norte Santo Tomas de Aquino (UNSTA), Univesidad Tecnologica Nacional (UTN) with approximately 87% of subjects coming from the (UNT) campus. Both UNT and UTN are public universities with tuition of 20 pesos per year. UNSTA is a private university that typically draws students from upper middle class families since tuition ranges from 1300 to 2700 pesos per year depending on the major. UTN is an institute of technology with engineering and computer science majors only. Upon arrival to the UNT experimental lab, subjects were randomly assigned to be either an employer or employee. We took special precautions to make sure that subjects did not know each other prior to the experiment and did not communicate with each other before the start of the experiment.

Each subject received a participation fee of 12 Peso plus his winnings from the experiment. The average hourly wage at the time in Tucuman was about 6 Peso. For calculating the earnings we used an exchange rate of 100 credits ∼= 0.25 Peso. The game lasted on average one to one and a half hours and the average winnings were 14.34 Peso. Subjects were paid in cash at the end of the experiment.

The five workers were sitting in the main computer lab and the employers were allocated to different rooms. The entire game including instructions and exit questions was played on the computer using a web-based Spanish interface. The instructions were also read aloud and included practice questions with answers to check whether subjects had understood the instructions.10

We were careful to present the pictures of workers in a uniform manner. The pictures were taken using a digital camera and immediately converted to uniform size showing a frontal facial image of the worker. There are two reasons for restricting ourselves to facial photographs only. First of all, we did not want to reveal to employers how workers dressed (except in treatment FTF with face-to-face communication where it was unavoidable). Hamermesh, Xin, and Junsen (1999) have shown that workers invest considerable resources in improving their appearances, for example, through expensive clothing. Second, while there is broad cross-cultural agreement on the ranking of facial photographs, the same is not true for body types. In some developing countries, for example, a high body mass index is considered to be a desirable sign of affluence (Hatfield and Sprecher 1986).

We also tried to ensure that workers in the main lab did not communicate with each other during the experiment so that they would not be influenced by the performance of other players when making estimates.

5 Data

5.1 Summary Statistics

Subject pool characteristics are drawn from information subjects provided when they registered for the experiment, their answers on entry and exit questionnaires administered before and after the experiment, and their performance during the experiment.

We describe the characteristics of the resulting employee pool in table 2. Sub- sequently, all variables relating to employers are distinguished with a prefix EMP. Table 3 shows the characteristics of the employer pool which are very similar to those of the worker pool.

Variables UNIV1, UNIV2, and UNIV3 are dummy variables that denote the particular campus at which employee subjects were studying, UNT, UNSTA, and UTN, respectively. Almost 85% of our workers came from the large public UNT university.

About 56% of the employee subject pool was male summarized by a dummy variable MALE which takes on values 0 for females and 1 for males. Variable AGE records the age of subjects. The average age in the sample is 22.9. While there were both undergraduate and graduate students in the employee subject pool, both age and undergraduate matriculation year (MATRIC) suggest that there were more graduate students. Subjects’ intended or actual majors are summarized by variables COURSE BIZ, COURSE SCIENCE, COURSE IT, COURSE HUMAN, COURSE MED, COURSE ARTS indicating whether subjects concentrate on business, science, information technology, humanities, medicine, or arts. About 33% of subjects are from arts and humanities; 46% are from sciences, medicine and computers, and 21% are from business (including economics). We included the indicator variable INTERNET which takes a value of 1 if a subject has access to Internet at home as a rough indicator for a subject’s family wealth because only households with a computer can dial-up from home. In Argentina personal computer ownership is lower than in the US which makes this a reasonable proxy for income.11 On average, about 51% of subjects reported Internet access at home.

Not surprisingly, 80% of subjects from UNSTA, a private university had access to Internet, compared to 45% for subjects at the public universities. We asked our subjects about their participation in team sports since it could have a positive impact on interpersonal communication skills and confidence. This information is recorded in the variable TEAMSPORT with 1 indicating previous participation. Approximately 61% of subjects had such experience.

The number of previous jobs held by a subject are captured by PREVJOBS and the number of job interviews by INTERVIEWS. About 43% of subjects had no previous work experience and 63% of those never interviewed for a job. We expect subjects with field experience in job hunting and working to also perform more effectively in the laboratory labor market negotiations. The nature of previous employment for those with work experience is denoted by variables JOB EDUC, JOB IT, JOB RETAIL, JOB BIZ, JOB GOV, JOB ART, JOB FOOD, JOB IND indicating employment in education (20 percent of subjects with some previous work experience), information technology (7 percent), retail sales (27 percent), business (20 percent), public sector (11 percent), arts (11 percent), food production and service (2 percent) , and industry (2 percent). INTERACTION DEGREE is a variable that describes the intensity of interpersonal interactions required in each job on a scale from 0 to 5, 0 implying no interactions and 5 being the most intense as for a secretary or a waiter. Again previous experience with interpersonal interactions is likely to improve negotiation outcomes.

We collected information on subjects’ interests and hobbies. This information was coded using HOBBY IT for computers, HOBBY REC for recreation (e.g. watching TV or listening to music), HOBBY CREA for creative tasks (e.g., writing, drawing, or composing music), HOBBY SPORT for sports. If a subject reported several hobbies that were of the same category, the number of hobbies were added up and a total score reported. For example, writing, drawing and composing music was assigned a value of 3 for HOBBY CREA. No hobbies in a certain category resulted in an entry of 0.

Table 4 shows the practice and actual performance as well as the confidence of workers. The average maze during the 15 minute trial took 94 seconds to solve whereas the practice maze took on average 127 seconds. We find that subjects were systematically underconfident: their self-estimated ability is on average 24 percent below their actual ability.

For our analysis we work with the log ability LNACTUAL and log confidence LNESTIMATED. This makes our results easier to interpret because estimated coefficients are elasticities. PREDICT is the log of the extrapolated number of rounds using the practice time:12

Table 5 finally shows the wage and log-wage of employers. Since every employer evaluates 5 workers and there are 165 employers all together we have 825 data points. SETWAGE is a dummy variable which is set to 1 if the employer actually determines the wage of the worker and is 0 if the worker receives an average wage.

5.2 Measuring Beauty

We follow Biddle and Hamermesh (1998) in having pictures of all 330 subjects evaluated by a group of independent evaluators on a scale of 1 to 5 (plain to above average beautiful). Our evaluators were 50 high school students from Tucuman. We presented our evaluators with the same facial photographs which were previously shown to employers in the three treatments P, PT and FTF.

The average interitem covariance for the raters was 0.349 and the scale reliability coefficient was α = 0.9596 which both compare favorably to Biddle and Hamermesh (1998). However, rather than define BEAUTY of each subject simply as the mean rating of all our raters we instead normalize the ratings first. Formally, for each rater i we take her average beauty rating rˆ and subtract it from each raw rating rij for subject j in order to define the centered rating r ̃ =r −rˆ. ij ij ij i

The measure BEAUTY for subject j is then defined as the mean over all raters’ centered ratings:

Effectively, this procedure strips out the measurement error which arises because each rater has a distinct definition of ‘baseline’ beauty: the mean ratings have a standard deviation of 0.66 while the standard deviation of the raw beauty measure is 1.23 units. Therefore this baseline error is quite large compared to the total variation in ratings. The normalized beauty measure on the other hand only has a standard deviation of 1.04.

Our results all go through if we use the raw beauty measure: however, the estimated coefficients are slightly smaller and the standard errors slightly bigger as one would expect from using a more noisy measure of physical attractiveness. We finally normalize the beauty measure by dividing through the standard error. This allows us to interpret the coefficients on BEAUTY in our regressions as the effect of a one-standard deviation increase in physical attractiveness.

5.3 Ability and Beauty

We first analyze the determinants of maze solving ability to check whether physical attractiveness has any effect. For that purpose we regress as shown in table 6 actual productivity measured by LNACTUAL on the demographic variables AGE, MALE, family wealth (proxied by INTERNET), university dummies and physical attractiveness. Column (3) excludes subjects’ decision variables such as team sports, hobbies and job experience and column (4) includes these controls.

Not accounting for differences in decision variables allows us to estimate the gross effect of physical attractiveness on ability. If decision variable controls are uncorrelated with beauty, both specifications give the same result. However, if beauty is correlated with decision variables the effect of beauty on ability might be transmitted through other channels such as a subject’s choice of college major.13

The estimated coefficients are quite similar for both specifications. The significant variables are gender and having internet at home. Men do more than 30 percent better than women. This can be seen also by looking at summary statistics: men solved 10.9 mazes on average while women only solved 7.8 mazes during the 15 minute trial. Our gender gap is smaller than the gender gap in the mixed tournament treatment (15 versus 10.8) documented by Gneezy, Niederle, and Rustichini (2002)14. The positive coefficient on INTERNET could reflect greater familiarity with using computers rather than a direct effect of wealth. Worker’s age has no effect on his overall productivity.

Importantly, physical attractiveness does not raise productivity. Therefore at least for our task any measured beauty premium cannot be an ability premium. We get similar results when we analyze the performance in the practice round in table 7: men do better in the practice round and beauty does not matter. Additionally, older subjects do better (there are decreasing returns to age since AGE*AGE has a negative coefficient). A possible explanation for the age effect might be that older subjects are more experienced with taking tests and tackling unfamiliar problems. However, during the 15 minute practice less experienced subjects catch up such that age is no longer significant when we replace practice performance PREDICT with actual performance LNACTUAL in table 6.

Practice performance does predict actual ability but is clearly a noisy predictor. In columns (1) and (2) of table 6 we include PREDICT with and without controls for decision variables into our ability regression and find that a one percent increase in practice performance translates into a 0.18 and 0.16 percent increase in actual productivity. MALE is still very significant and almost as large as in regressions (3) and (4). This implies that men improve faster at the maze solving task even after controlling for their superior performance in the practice round.

5.4 Confidence and Beauty

In table 8 we show the results from regressions of confidence measured by the estimated number of rounds on demographic variables, practice performance and physical attractiveness. In column (2) we also control for actual ability LNAC- TUAL and in columns (3) and (4) we add CV controls for the verbal parts of the resume.

In all four specifications BEAUTY increases confidence. The effect is large: one standard deviation increase in BEAUTY raises confidence by 12 to 13 percent. The coefficient on PREDICT is close to 1 in all specifications indicating that subjects do extrapolate from their performance in the practice round. In particular, the coefficient on PREDICT is much larger than the estimated coefficients in the actual ability regression of table 6.

In the first specification of column (1) male subjects seem more confident than female subjects. However, once we control for actual ability the effect disappears - men are not more confident compared to women at least when estimating their ability at solving mazes.

Moreover, physical attractiveness raises confidence for men and women equally as column (4) shows: the interaction term between BEAUTY and MALE is not significant.

6 Decomposing the Beauty Premium

We start by showing that there is a substantial gross beauty premium in treatments P, T, PT, and FTF where employers have visual and/or verbal interaction with the worker. We then decompose this beauty premium and distinguish between the stereotype, confidence, persuasion and direct discrimination channels as well as Becker-type discrimination. We conclude that most of the beauty premium is transmitted through the stereotype and confidence channels rather than Becker-type discrimination.

6.1 Evidence of the Beauty Premium

We have already shown in the previous section that a profit-maximizing employer should not grant a beauty premium: there is no interaction with customers or co-workers and we also do not find any evidence that the beautiful are better maze-solvers than the less physically attractive.

We run the following regression in order to estimate the beauty premium:

where

By including the dummy variable SETWAGE we can distinguish between contributions to the beauty premium arising from employers’ tastes and all other channels.

At this point we have to be careful whether to include decision variables such as participation in team sports, choice of major, hobbies and previous job experience in our vector Xj of workers’ characteristics. Neal and Johnson (1996) and Heckman (1998) advise not to include decision variables when estimating the effects of labor market discrimination because some of the effects of physical attractiveness might be transmitted through these decision variables. However, we are interested in decomposing the beauty premium. Our experimental design only varies the mode of interaction between worker and employer during one specific wage negotiation process but does not allow us to vary past decision variables such as participation in team sports and choice of hobbies.15 Therefore, we follow Hamermesh and Biddle (1994) and focus on the marginal effect of looks after accounting for all the other sources of variations in earnings that are usually measured in labor economics; and it is only this marginal effect which we attempt to decompose. We calculate the gross (undecomposed) beauty premium both with and without controls for workers’ past decision variables but subsequently always include all controls when we decompose the beauty premium.

We estimate the beauty premium separately for each of our five treatments to allow coefficients on covariates to change. In our 33 experimental sessions we have 33 distinct employers and each employer evaluates 5 workers. This provides 165 data points for each treatment. We use fixed effects estimation in order to control for employer fixed effects αi.

Table 9 shows the estimation results without controls for team sports, hobbies and job experience and table 10 presents the same results with all controls. The estimated coefficients are similar for both regressions and we will focus on table 10.

There is no beauty premium in treatment 0 and significant beauty premia in treatments P to FTF, ranging from a 9.8 increase in wages for a one standard deviation increase in beauty in treatment P, to a 12 to 13 percent increase in treatments T and PT and a 17 percent increase in treatment FTF. These numbers are of a similar order of magnitude as the beauty premia found by Hamermesh and Biddle (1994) in their cross-sectional analysis of North American wage data. What is interesting is that there is a beauty premium in treatment T where workers can only interact verbally but not visually with the employer. Moreover, in face-to- face communication with the employer the beauty premium is significantly larger. Both of these facts suggest that beauty is correlated with certain characteristics which raise workers’ wages when there is verbal interaction.

We do not find any evidence for Becker-type discrimination: the coefficient on SETWAGE*BEAUTY is not significant in any of the five regressions. This does not imply that discrimination based on employers’ tastes is necessarily unimportant in real world labor markets: if employers derive utility from interacting with an attractive employee over an extended period of time our experimental design cannot account for this effect. All we can show is that employers who interact personally with an employee only during the experimental wage negotiation process do not set higher wages because they derive utility from setting higher wages for good-looking workers.

We will discuss the other significant covariates such as gender and practice performance in the next section when we start to decompose the beauty premium.

6.2 Decomposition I - Controlling for Confidence

As shown in the previous section beauty raises confidence considerably. This raises two questions:

Does greater confidence increase wages?

How much of the beauty premium can be explained because more attractive subjects are also more confident?

To analyze these two questions we include our confidence measure LNESTIMATED in our wage regressions and estimate the following extended specification:

where

We interact confidence with SETWAGE to control for employers’ tastes for confident workers.

The estimation results are shown in table 11. First of all, we note that there is a significant return to confidence in treatments T, PT and FTF where workers can interact verbally with employers. We do not find a confidence premium in treatments 0 and P which is consistent with the fact that these are the only treatments where the employer cannot interact verbally with the workers. A one percent increase in confidence increases wages by about 0.2 percent in treatments T and PT and .3 percent in treatment FTF.

Hamermesh and Biddle (1994) include measures of self-esteem in their wage cross-sectional regressions and find that these measures are significant just as the confidence variable is in our analysis. However, there is little effect on the size of the beauty premium in their estimation and only a weak correlation between beauty and self-esteem. These differences can be explained by greater measurement error of confidence. Hamermesh and Biddle (1994) have to rely on a psychometric measure of general self-esteem in their survey data whereas we can extract a cardinal measure of confidence in solving the specific experimental task with a natural scale. Furthermore, our experimental setup allows us to interpret the coefficient on confidence as a causal effect rather than a correlation coefficient: we do not have to worry about reverse causality such that more highly paid subjects enjoy greater self-esteem. Finally, the fact that confidence only matters in the treatments with verbal interaction indicates that our confidence measure is not just a proxy for omitted variables.

The beauty premia in treatments P to FTF decline when we control for confidence but are still significantly different from 0. This suggests that at least part of the beauty premium is transmitted through greater confidence of physically attractive workers. We can decompose the beauty premium in treatments T, PT and FTF by using the following back of the envelope calculation. One standard deviation in beauty increases confidence by about 12 percent according to our regression results in table 8 (we assume SETWAGE is zero for simplicity). In treatment T a one percent increase in confidence increases wages by 0.20 percent. Therefore, the total increase in wages of a one standard deviation increase in beauty which is transmitted through the confidence channel is:

The residual beauty premium after controlling for confidence in treatment T is 8.7 percent for a one standard deviation increase in beauty. The sum of both effects is 11.1 percent which is reasonably close to the gross beauty premium of 12.8 percent that we estimated for treatment T. Table 1 presents the same decomposition for treatments PT and FTF. These results suggest that under verbal communication between 17 and 25 percent of the beauty premium is transmitted through an increase in confidence.

SETWAGE has no effect on its own or when interacted with BEAUTY or LNESTIMATED except in treatment FTF where more confident subjects whose wage is set by the evaluator receive a lower wage. As before we therefore find no evidence for the presence of direct taste based discrimination against the less beautiful.

Table 1: Contribution of confidence channel to gross beauty premium in treatments T, P and FTF

The entries are wage increases in percentage points for each one standard deviation increase in beauty. They are calculated using the estimated coefficients in tables 10 and 11. SETWAGE is assumed to be zero.

We attribute the estimated residual beauty premia in table 11 to the direct and indirect stereotype channels which make the beautiful appear more able in the eyes of the employer. The direct stereotype effect (treatment P) raises wages by about 10.5 percent for each one standard deviation increase in beauty when employers only see a picture of the worker. Interestingly, there is also a strong indirect stereotype effect even in treatment T where employers have no visual information about the worker but only interact verbally over the phone. This suggests that beauty is correlated with certain verbal skills other than confidence which raise employers’ expectations about a worker’s ability. These stereotype effects do not seem additive: in treatments PT and FTF where employers and workers interact both visually and verbally the beauty premia are only marginally greater but not significantly so.

We also test whether the beauty premium is non-linear. Hamermesh and Biddle (1994) found that the ‘plainness’ penalty is slightly bigger than the premium on being of above average beauty. To replicate their analysis we divide our workers into three groups of equal size - the ‘below-average-looking’, the ‘average-looking’ and the ‘above-average-looking’. BEAUTYHIGH is set to 1 if the worker is above average looking and 0 otherwise. Similarly, BEAUTYLOW indicates below-average looks. Table 12 shows the modified regression 9 where we replace BEAUTY by BEAUTYHIGH and BEAUTYLOW. We lose power but the coefficients on BEAUTYHIGH and BEAUTYLOW are of the correct sign. We cannot reject the hypothesis in any treatment that the coefficients are equal. We therefore do not find evidence for significant non-linearity in the stereotype beauty premium.

6.3 Decomposition II - Controlling for Persuasion

The persuasion channel is another, more subtle channel through which a beautiful worker can obtain higher wages than a less beautiful worker with the same confidence level: the beautiful worker might be more successful in persuading the employer about his ability than his less good-looking counterpart.

To test for the presence of persuasion effects we interact BEAUTY with confidence and estimate the following model:

If the beautiful are indeed more persuasive than the less beautiful we would expect the estimated coefficient β6 to be positive in treatments T, PT and FTF.

Table 17 shows that the interaction term is insignificant in all treatments. We find no support for the persuasion channel in our data.

6.4 Effects of Other Covariates

It is instructive to look more closely at the estimates for the other covariates in the regression summarized in table 11. Except for confidence and physical attractiveness only the practice performance is consistently significant.

A one percent increase in practice performance raises wages by about .4 percent in treatments 0 and P and .3 percent in treatments T, PT and FTF. While not statistically significant at the 5 percent level the decline is nevertheless consistent with the hypothesis that employers put less emphasis on practice performance when they can also interact verbally with the worker.

Actual ability (measured by LNACTUAL) is not statistically significant in any treatment - in particular in treatments T, PT, and FTF where employers can interact verbally with workers. At least in our experiment, employers seem to be unable to ascertain actual ability during the verbal interview process. This is quite surprising given that employers do seem to attach a large weight to worker’s confidence.

Neither participation in team sports nor having internet at home affects the wage level in any treatment.

6.5 Gender Effects

Do male workers get higher wages? The evidence from table 11 provides weak evidence for this hypothesis: in treatments T and PT male workers do get 12 to 18 percent higher wages but not in the other treatments (even though all coefficients are positive).

We next check whether the confidence and stereotype effects are gender-specific. There are two type of gender effects we have to consider - the gender of the employer and the gender of the worker. To take all possible interactions into account we run regression 9 for male and female employers separately in tables 13 and 14. We also include interaction terms between BEAUTY and MALE to control for worker gender effects. We lose a lot of power due to reduced sample especially for the female employer regression in table 14.

The beauty and confidence effects seem to be slightly bigger for male employers. However, the gender of the worker has little effect for the wage setting of both male and female employers.

6.6 Does Employer Beauty Matter?

We also test whether the beauty of the employer matters. For this purpose we run regression 9 separately for employers of below average beauty (EMPBEAUTY<0) and those of above average beauty (EMPBEAUTY>0). The results are presented in tables 16 and 15.

The estimated coefficients on BEAUTY are slightly more significant for more beautiful employers even though they are of similar magnitude for all employers. There is little difference in the estimated coefficients on confidence.

6.7 Decomposition III - Pooled Regression

In order to compare the direct and indirect stereotype channels as well as confidence premium we estimate a unified model in table 18. For this purpose we introduce three new dummy variables which code the mode of interaction for each treatment.

AUDIO is set to 1 if the worker and employer can talk to each other (treatments T,PT and FTF). VISUAL is set to 1 if the employer can see the worker’s picture (treatments P, PT and FTF). Finally, FTF is set to 1 if there is face-to-face communication (treatment FTF).

We interact PREDICT, BEAUTY and LNESTIMATED with these dummies and include all CV controls in the regression. The direct stereotype channel is identified by the coefficient on BEAUTY*VISUAL which is 7.2 percent wage gain for each one standard deviation in beauty. The indirect stereotype channel is captured by BEAUTY*AUDIO which is 10.4 percent. The confidence channel raises the wage by 0.3 percent for each one percent increase in confidence. This translates into a 3.6 percent increase in wages for a one standard deviation increase in beauty.

Taken together, results from pooled regression imply that about 20 percent of the beauty premium is due to the increased confidence of beautiful subjects, 50 percent due to indirect stereotypes and 30 percent due to direct stereotypes.

It is of interest to note the difference between treatments PT and FTF. The total beauty premium in treatment PT (photograph and telephone) is slightly less than the sum of the direct and indirect stereotype channels while in treatment FTF (face-to-face communication) the beauty premium is slightly larger than the sum (although not significantly so). In contrast, the confidence premium has similar strength in all three treatments where there is verbal interaction between worker and employer.

7 Conclusion

In this paper, we constructed an experimental labor market in order to study the effects of physical attractiveness on wage setting. We find that about four fifths of the beauty premium is due to direct and indirect stereotypes and about one fifth due to the enhanced confidence of good-looking subjects. As with a vast body of experimental studies, standard criticisms of our student subject pool apply. It is conceivable that real-world human resource managers have a more extensive experience in screening applicants and might be less susceptive to physical features of the applicants. We view our results as complementary to the existing literature which uses real data starting with Hamermesh and Biddle (1994). While this empirical literature identified a beauty premium, our experimental approach allows us to conduct a detailed study of the possible transmission mechanisms. Even though we have to be cautious in drawing direct parallels to the real-world phenomena, we find it encouraging that our experiment does generate a sizable beauty premium of the right order of magnitude. This makes us confident that our decomposition applies more generally.

Another important caveat is that we only model the interview process. If employer and worker interact repeatedly over the long-term Becker-type discrimination might again become a more important contributor to the beauty premium and stereotype and confidence effects might become less relevant.

If one is willing to extrapolate from our experiment to the labor market more generally we can draw two main policy implications. First, ‘blind’ interview procedures such as telephone interviews can reduce the beauty premium by about 30 percent16. Interestingly, this reduction is not due to the elimination of taste-based discrimination against the less beautiful but due to the absence of direct stereotypes effects. Second, the biggest reduction of the beauty premium would result from preventing verbal interaction between employer and employee. Our results suggest that removing both verbal and visual interaction might eliminate the beauty premium all together. However, such a drastic policy would likely decrease the quality of job matches along other dimensions.

Footnotes

Mulford, Orbell, Shatto, and Stockard (1998) found such a strategic effect of beauty in their study when they observed that subjects in a Prisoner’s Dilemma expected beautiful opponents to cooperate more often and good-looking subjects were also more likely to cooperate themselves even after controlling for their perceptions of the opponent’s move. Note that sometimes physically attractive workers can become more productive at the expense of less attractive workers (if beauty is used to obtain favors from those workers). These zero sum games should not affect wages of beautiful workers.

In certain occupations, such as among lawyers beauty can help with customer relationships (see Biddle and Hamermesh (1998)).

Teachers expect better looking kids to do better in school and they devote more attention to the children who they think have better potential (see Hatfield and Sprecher (1986)). Attractive people are also more likely to receive more favors from others

Similarly, Jackson, Hunter, and Hodge (1995) found that attractiveness was related to intellectual competence for children but not for adults.

In one of the studies included in the meta-analysis Goldman and Lewis (1977) reported that subjects found more attractive people more persuasive in telephone conversations even if they had not seen the faces of their counterparts. However, the strength of the correlation between beauty and characteristics of subjects vary considerably between studies. Bull and Stevens (1981) could not replicate the results by Goldman and Lewis (1977). In another study, Chaiken (1979) found that attractive communicator-subjects were more successful in delivering a persuasive message.

http://games.yahoo.com/games/kidsmz.html

Specifically, subjects are told that at the median they are equally likely to be above their estimate as they are to fall below the estimate. We did not use a quadratic punishment scheme to reveal the expected mean of the perceived distribution because we wanted to limit the size of the maximum penalty and also keep it as transparent as possible.

Note that we distinguish between treatment PT (picture + verbal interaction) and true face-to-face communication. Numerous studies have shown that non-verbal cues are powerful predictors of interpersonal evaluations (see Straus, Miles, and Levesque (2001) for an overview). Non-verbal signals help to form initial evaluations and cues such as eye contact amplify these first impressions (Hemsley and Doob 1978).

It is important in our design that the employer does not know at the interview phase whether the worker will actually receive the wage she sets. Otherwise, the employer could inform the worker about this fact and the worker would have no incentive to convince the employer of his ability. It would be akin to a job interview where the worker knows in advance that he will not get the job.

The practice questions asked subjects to calculate winnings in various scenarios.

International Telecommunications Union estimates that there were 1,120 internet users in Argentina per 10,000 inhabitants in 2002, while in the US there were 5,375 users per 10,000 inhabitants. This statistic of course does not distinguish between the place of access (http://www.itu.int/ITU-D/ict/statistics/atglance/Internet02.pdf).

The mean value of PREDICT is larger than LNACTUAL suggesting that the extrapolated performance exceeds actual performance. However, this is just a consequence of Jensen’s inequality. PRACTICE is a much more noisy estimate of ability than ACTUAL because it involves just a single maze. Since PREDICT is a convex transformation of PRACTICE we would expect an upward bias when taking the expected value.

For example, beautiful subjects might sort into ambitious majors which improve their cognitive abilities.

At the same time, our gender gap is larger than the corresponding gap of 1.5 observed by Gneezy, Niederle, and Rustichini (2002) in their piece rate treatment (11.23 versus 9.73), but in their sample this difference was not significant at 5% level.

One practical experimental design for accomplishing this in treatments 0 and P would be to create artificial CV’s. However, the experimenter would then have to lie to employers who rate these CVs and pretend that the rated workers actually exist. It is unclear how any experimental design could vary past decision variables in treatments T, PT and FTF because employers could easily uncover inconsistencies during their verbal interaction with the worker.

Similarly, Goldin and Rouse (2000) find that ‘blind’ auditions increase the probability of female musicians being hired or promoted.

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16Similarly, Goldin and Rouse (2000) find that ‘blind’ auditions increase the probability of female musicians being hired or promoted.

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Mulford, M., J. Orbell, C. Shatto, and J. Stockard (1998): “Physical Attractiveness, Opportunity and Success in Everyday Exchange,” The American Journal of Sociology, 103, 1565–1593.

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Straus, S. G., J. A. Miles, and L. L. Levesque (2001): “The Effects of Videoconference, Telephone and Face-To-Face Media on Interviewer and Applicant judgements in Employment Interviews,” Journal of Management, 27, 363–381.

#beauty #aesthetics #appearances #personal appearance #beauty premium #privilege #confidence #economic experiments #labor markets #social skills #social capital #discrimination #reverse-discrimination #employment discrimination

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Sinbad, lost in the desert, discovers the five platonic solids. Drawing by Claude Bragdon, around 1915.

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Görkem Akgöz et al., Back to the factory: the continuing salience of industrial workplace history, 61 Labor Hist 1 (2020)

Abstract

Factories remain significant sites of employment, crucial to capitalism. In the twentieth century, scholars registered achievements in documenting their history, but since the late 1980s, and for a generation, the field lost impetus within labour history although insights continued to accumulate through work in adjacent disciplines. The factory has not featured on the agenda of ‘transnational’ and ‘global’ labour history, but we suggest that it can and should contribute to that broader global project, reinvigorating labour history, not least by contributing a dimension close to workers’ everyday experience.

‘Accompanied by Mr. Moneybags and by the possessor of labour-power, we therefore take leave for a time of this noisy sphere, where everything takes place on the surface and in view of all men, and follow them both into the hidden abode of production, on whose threshold there stares us in the face “No admittance except on business.” Here we shall see, not only how capital produces, but how capital is produced. We shall at last force the secret of profit making.’ -Karl Marx. Capital (1978, p.167).

Introduction

Historical writing frequently reflects the concerns of the era in which it is written. We argue for the factory’s continued relevance to capitalism during the recent wave of globalisation, and therefore of its history. We review previous historians’ achievements, show how they have been built on by those of the 21st century and argue for integrating the factory history tradition into the growing corpus of work adopting transnational and global perspectives. By factory history, we understand the historical study of sizeable fixed industrial sites either individually or collectively.

The factory and the industrial worker once loomed large in national historiographies, the former as the emblematic locus of industrialization, the latter as a collective historical agent engendering progressive change through industrial action. The industrial plant nurtured what Marx considered capitalism’s core: the relations of production on the shop floor. The large Fordist factory constituted a central political and cultural reference point for policymakers, employers and organized labour. Labour historians valued factory history. However, since the 1980s, de-industrialization and factory relocation has characterized western economies. Social scientists contend that manufacturing has little contemporary resonance and the once-emphasized industrial working class is now considered a marginal phenomenon. This thinking was linked to a questionable political-ideological narrative predicated on the shift to a ‘knowledge economy’. Factories are allegedly no longer central to policy decisions, electoral programmes or social protest. Better-grounded are assertions that industrial trade unions and industrial labour have waned in strength. But, in a world awash with manufactured goods, factories have not disappeared. Nor have they lost their relevance to capitalism.

Manufacturing persists in developed economies and is expanding in many ‘developing’ countries. Sporadically, as with the Rana Plaza disaster and the worker suicides in Chinese multi-nationals, factories and workers reached the western public’s awareness in the twenty-first century. The relocation of industrial production created more factory jobs in developing economies without entirely destroying them in the developed world. Enormous Fordist factories arose in China. The Taiwanese multinational company Foxconn established workshops in Central and Eastern Europe, a region which has become the electronics industry’s second-tier global location, just behind East Asia (Andrijasevic & Sacchetto, 2013 and 2014). The factory as a model of production organisation has been adopted within the service sector (call centres) and logistics and distribution (warehouses) where workers are highly regimented and their activities constantly measured against metric performance standards, provoking arguments that they constitute present-day ‘Satanic mills’ (Bain & Taylor, 2000). These workplaces adopt historic Taylorist practices, such as the use of technology to control the pace of work and the fragmentation and mechanization of tasks to raise productivity while deskilling workers. Manufacturing has increased as a proportion of GDP of many middle-income developing economies and is central to their ‘development’ despite their allegedly decreased ability to boost economic growth (Haraguchi, Fang Chin Cheng, & Smeets, 2017). More widely, the factory nexus in transnationally-networked value chains is vital to how global capitalism connects distant localities and people into integrated processes. Now that scholarship is revisiting themes of class, inequality and political economy in the context of global economic crisis and its aftermath, reviving factory history and connecting the micro with the macro appears imperative.

Initial historiography and its achievements

There is a rich patrimony of research on factories which is rooted in fields adjacent to labour history, of which many historians have long been aware. Elton Mayo conducted the renowned American Hawthorne study in the 1920s and 1930s within a social psychology framework (Mayo, 1933 and 1949). The ‘human relations school’ regarded the factory as a closed social system and analysed workshop behaviour in terms of workers` productive relations. By the 1940s, anthropologically-informed studies of individual factories appeared, initially due to the British state’s wartime concern with production. In the UK, Mass Observation (MO) conducted an ethnographic study of a war factory, depicting its social relations in detail, emphasising gender relations to reflect on issues of women’s morale that interested the wartime state (1943). British industrial anthropology and sociology expanded during the 1940s and 50s. Subsequent analyses covered several themes, from status hierarchies and relations among workers and managers to union-management interaction, from the integration of racial/ethnic groups to workers on the line and work flow (Holzberg & Giovannini, 1981). Eight Manchester shop floor studies attempted to conceptualize the workshop as an articulation point in wider society rather than as an isolated social system. The work had four points of departure: the multiplicity of social positions and identities on the shop floor; the workshop’s relationship to its external social context; major societal patterns; and the position of women in domestic settings. These studies emphasized the interrelationships between sex, race, class and the productive system (Cunnison, 1982).

The Manchester shop floor studies’ main methodological innovation lay in the way they handled the interactions between the factory’s internal life and its external context. Dissatisfied with conceptualizing role systems simply as overlapping and interactive, Emmett and Morgan employed Erving Goffman`s notion of a ‘semi-permeable membrane’ to explain the mechanisms through which the external world relates to the social world of the factory in the production of social difference. The strength of this conceptualization lies in its recognition of the factory as a social terrain where changes in the external social world undergo a transformation to ‘serve purposes peculiar to the workplace and interaction in it’ (Emmett & Morgan, 1982, p. 156). Reflecting on these methodological approaches from a labour process theory perspective, Paul Edwards later defined workplace mechanisms as ‘relatively autonomous forces’ with varying degrees of autonomy obtaining between workplaces and across time (Edwards, 1990).

From the late 1960s onwards, factory studies advanced into analysing the dynamics of small-group behaviour, ‘factory culture’ and its informal and formal organizations (Holzberg & Giovannini, 1981, pp.321–8). In the UK, industrial relations scholars built on this work to create highly differentiated and dynamic studies of relations between managers, shop stewards and workers (Batstone, Boraston, & Frenkel, 1979). Governments and the New Left paid increasing attention to the origins, dynamics, organisation and consequences of shop floor conflict. The conceptualization of industrial conflict beyond its overt, organised expressions, the diversity of its forms and the attention given to apparently trivial disputes and struggles entailed concretising and refining generalised and abstract conceptions of workplace conflict and class struggle. In contrast to what Robert Frankenberg (1982) called ‘a managerial approach’ (Emmett & Morgan, 1982, p.161), the centrality of low-level but persistent conflict such as that depicted by Batstone, Boraston and Frenkel in their classic study Shop Stewards in Action incorporated the daily experiences of workers and their representatives, to compose a far more complex picture. Simplistic accounts of workers’ collective organisation were rendered obsolete. Anthropologically-informed conceptualizations of power relations and their micro-level dynamics had entered the study of the workplace through experience-near analysis of the production process and its social setting.

Historical research was nurtured by such contemporary approaches to the factory. Some historical studies of factories took them as instances of broader trends. Others were informed by sophisticated frameworks synthesising such dimensions as material conditions in the workplace with dynamic gendered and sociological perspectives on management-worker relations. Three studies of war industry show what was achieved. Gerhard Meissl’s 1975 thesis on the evolution of social relations in the huge Austrian imperial munitions factory at Wöllersdorf during the First World War majored on women’s material and social experiences of work and especially of their health and safety in an exceptionally hazardous part of war industry (Meißl, 1975). Another important study by Gerd Wysocki focused on the Salzgitter factory Reichswerk Hermann Goering, part of the largest German Second World War production complex appeared in 1982 (Wysocki, 1982). It deals with the concern’s mid-war takeover of Soviet productive assets and its consequences. It also confronts issues of ‘free’ and unfree labour’s relationships. Relations between German employees, migrant workers, Soviet POW slave labourers, management and the on-site concentration camp are all dealt with in detail. In the same year, Richard Croucher’s Engineers at War 1939–45 (1982) analysed factory-level interactions between the state, managements, women, young workers and political activists, reinstating work groups and politics to the history of growing industrial conflict in wartime Britain’s arms industries. All three of these works’ largely national and wartime contexts drew on extensive archival bases, and they stand comparison with more recent works in terms of their highly differentiated visions of social relations.

Factory history outside of these West European contexts was a very different phenomenon, since its orientations and assessments were typically heavily influenced by Stalinist politics. Pre-1989, eastern bloc historians built a body of research on factory history limited to a predictably ‘party’ and teleological frame which nevertheless created a sizeable empirical base. Through its sheer volume, it impresses while simultaneously evoking Paul Thompson`s warnings against the simple accumulation of empiricist plant studies, as part of his defence of labour process theory’s relevance. Following Marx and Lenin, factories were objects of great veneration under ‘state socialist’ regimes, featuring ideologized ‘heroes of (industrial) work’ (Rutar, 2014, p. 46). In the GDR, the once thriving genre of the ‘factory monograph’ (‘Betriebsgeschichte’) was promoted by the prominent working-class historian Jürgen Kuczynski, whose work become well-known in the West. In 1977, the GDR had some 1800 ’company history commissions’ involving more than 20,000 members including professional scholars, party activists and workers (Lindenberger, 2018). Their products emphasized material conditions under capitalism, side-stepping the real problems faced by workers under ‘state socialism’. This tradition of studying factories under ‘state socialism’ was later revisited in more sociological, creative and imaginative ways which reflected different national cultural and political traditions (Heumos, 2010). This new generation of labour and social historians has returned to the site of the ‘socialist factory’ to address a multitude of previously neglected questions (Archer & Musić, 2017; Brunnbauer, Nonaj, & Raeva, 2013; Cucu, forthcoming; Mazurek, 2005; Miljković, 2017; Tóth, 2005). Impressive results have accumulated and a new picture begins to emerge (Grama & Zimmermann, 2018, pp.8–9).

In the west, historians continued to advocate, theorise and develop their own, very different variety of factory history. In 1978, Jeremy Brecher (1978), who might be characterised as a radical or New Left labour historian, wrote ‘Uncovering the Hidden History of the American Workplace’, a research manifesto indicative of a certain paradigm (of which Brecher was simply a disseminator) of factory-based historical research. Brecher posited that studying the factory as workplace meant studying the relations between managers and workers, and how technology, bureaucracy and ideologies were mobilised in that struggle. He thought of the factory as a space where ‘working people and capitalists confronted each other,’ and thus unwittingly directed historians’ gaze towards the relations of production on the shop floor and away from other aspects. In Brecher’s words, ‘The actual history of the workplace […] undermines the myth of worker acquiescence in the development of capitalist society. It shows a history of concerted worker resistance, at times open, at others covert, sometimes dramatic, sometimes almost invisible, but always there’ (Brecher, 1978, p.20). The workers’ resistance perspective stood in contrast with the patterns of accommodation that Michael Burawoy found in his ethnographic observation of the industrial workplace where effort was extracted both through coercion and consent (Gramscian hegemony). Perhaps, then, the hidden history of the workplace was one of consent after all, but during the 1980s the political offensive against labour in the US, UK and elsewhere tainted arguably hegemonic regimes with more than a hint of despotism. Factory politics could not be dissociated from state politics (Burawoy, 1979, 1985).

Critiques of the factory history tradition grew in number and force. By the end of the 1980s, in the British context, Jonathan Zeitlin scorned the focus on workers’ self-activity as ‘rank-and-filism.’ His critique of the departure from the earlier institutional focus in labour history reflected the increasing attention given to the study of workers in the workplace and community (1987, 1989). Richard Price simultaneously defended (industrial) workplace analysis. He defined the factory as the site ‘where the labour process is actualized and where the theory and practice of industrial relations strategies meet, founder, are successful or modified.’ Only at this level could the historian ‘capture at an intimate level one of the most important social relationships in society – that between worker and employer’ (Price, 1989, p.64). In hindsight, and despite Price’s rearguard action, this debate may be read as heralding the beginning of the industrial workplace’s decline in labour historiography. Although sporadic interventions asserted the workplace’s significance in the context of the disaggregation and decentering of workers’ struggles (Wells, 1997), the study of shop floor industrial relations and its history subsequently diminished. This mirrored the contemporary decline in the incidence of strikes, lockouts and shop floor militancy. It may also have reflected critiques of ‘essentialised’ and teleological accounts of working-class agency associated with ‘state socialist’ regimes. In the 1990s, trend-setters in US and UK history departments started to consider any focus on class and industrial workers to be ‘reductionist’ and to be acting to obscure questions of culture, race and gender (Pearson, 2010). Labour historians who studied the factory fell out of fashion. Factory workers’ waning public profile opened a period in which labour historians threw the baby out with the bathwater. The steady fragmentation of work and workplaces induced historians to study previously neglected categories of workers, from bricklayers to sailors, and it became common to see edited labour history volumes omitting factory workers altogether. Labour history came to incorporate the stories of Canadian strippers, Indian street vendors and Irish nuns.

The global labour history approach developed as a response to the perceived twin crises of labour and social history, following the critiques of Eurocentrism and methodological nationalism in broader social science debates. Its goals questioned an agenda that was seen as focusing on male workers in industry and other large-scale operations, engaged in labour protests in the form of strikes or other trade union activities. (Van der Linden, 2008; Van Voss, 2013). One very real gain of the critique has been in the profession itself: labour historians from non-European contexts have moved beyond their previous function of filling in the blanks to problematizing the field’s entire nature. As historians came to focus on working classes that were neither wholly industrial nor always waged, in locations outside of Western Europe and North America, they began to transcend traditional dichotomies between free and unfree labour, paid and unpaid work, formally and informally organised workers. Through connections with previous phases of globalisation, this had the effect of bringing geographical space and new historical periods more definitely into the history of capital-labour relations. Together, these two ‘nutritional supplements’ sustained labor history through hard times (Fink, 2011).

Thus, labour history in the past generation has generated an implicit and sometimes explicit critique of previous conceptual, linguistic and explanatory models (De Vito, 2012; Lucassen, 2006; Van der Linden, 2008; Van der Linden & Lucassen, 1999). Labour historians increasingly moved away from apparently reducing workers’ experiences to work. The widening of labour history’s perspectives renewed and centred previous contact with the history of everyday life, of communities, of urban space and gender. Theoretical interventions such as post-structuralism and feminist theory have received a good deal of attention from historians, and although they often leaned away from these, such theoretical trends meant that the classic categories of labour history could not be deployed uncritically. These developments permitted the centring of a broader approach to the history of labour, but simultaneously consigned factory history to obsolescence. As labour history transcended the confines of mature industrialised societies, it sought to become more ‘global’ and cross-fertilized with other sub-fields ranging from women’s history to cultural anthropology and the history of technology. It also became affected by a high degree of fragmentation (Van der Linden & Lucassen, 1999, p.5). The distance between the socio-political problems of the 1980s and the politics of historiography was a relatively short one. The polemics of the former spilled over to the latter. Some of social history’s more materialist standpoints rooted in the explanatory categories of Marxist history came under severe scrutiny (Gray, 1986, p. 363). Following the alleged shift to the post-industrial economy in the West and the emergence of epistemological paradigms which sought to displace grand narratives such as Marxism, the factory and industrial work ceased to impress historians with its potential to understand capitalism. Prior to this shift, however, twentieth century factory history had registered real achievements and laid some foundations for further developments. First, it theorised the workplace in historical studies. Second, it created an empirical base. In symbiosis with industrial sociology and industrial relations, the western tradition generated detailed micro-histories of shop floor accommodation and resistance. These achievements encouraged historians to look outside the factory, more fully to understand factory workers’ identities. The need is for extended work in transnational history. In the UK, most recent publications in the trade union field have been judged insular and published work has appeared to ‘incompletely reflect recent theorizing about transnational history’ (McIlroy & Croucher, 2013). We have made a case for more completely realising the project through a renewed emphasis on the factory.

When labour history turned away from the factory as the imagined epicentre of class struggle in advanced, western capitalist society, no coherent and politically ambitious research agenda filled this vacuum. However, even as labour history seemed to move to the margins of the historiographical mainstream, historians have continued to focus on the factory through new interpretative lenses. Increasing emphasis on the construction and reconstruction of social identities in relation to work experience has arguably been the most important theoretical development in labour history in the last four decades. In the 1980s, the discussion of gender and racial identity moved from the margins to the centre of working class history, a necessary correction to a field too often studied largely through the lens of class, which could allegedly translate on occasions into a focus on white male workers (Blewett, 1990; Cooper, 1987; Massey & McDowell, 1984; Ruiz, 1987). Although previous generations of labour historians made inroads in this area, labour history today focuses more intensively on the production of social difference both in relation to labour and to the social practices and discourses around it. From the origins of the factory system, and in diverse ways in different settings, factories have transformed identities and workers’ self-representation. It does so inter alia through workplace segregation, discursive practices, the production process, and by the built environment’s configuration. The factory is no secluded world, but a permeable environment where notions of labour are embodied, reproduced or challenged.

In the West, the politics of globalization and the changing geography of industrial production have prompted historians to examine the legacy of formerly thriving factories in a context of de-industrialization. The factory has therefore also become a ‘site of memory’, including both commemoration and public history, that could be studied through the increasingly epistemologically and methodologically sophisticated instrument of oral history (Clarke, 2011; Cowie & Heathcott, 2003; Klubock & Fontes, 2009; Mah, 2012). Despite the common use of death metaphors in relation to factory closures (Arman, 2014), historians have demonstrated that the history of the factory continues after the cessation of its productive aspect as its physical and symbolic existences give rise to contested visions of the industrial past, present and future (Bamberger & Davidson, 1998; High & Lewis, 2007; Modell, 1998).

In this issue

We present in this issue five articles that demonstrate the continuing relevance of the factory as a site of historical investigation. This selection, drawn from members of the Factory History working group established at the European Labour History Network, interweaves the history of the industrial workplace race, gender, national and transnational movements of labour and capital, memory, state policy and national ideology with class relations on the shop floor.

During Fordism, automobile plants received considerable attention from historians of the factory. Niccolò Serri’s article nests an analysis of the effect of Italian welfare policy in the reconstruction of industrial conflict on the shop floor of Alfa Romeo’s Arese plant, one the largest car factories in 1970s Italy. Overcoming the divide between the micro level of the production floor and the macro level of state policy, Serri demonstrates how car manufacturers shaped and employed the Italian system of short-time work subsidies, or Cassa Integrazione Guadagni (CIG) in order to quell conflict and recoup financial losses in a period of workers’ insurgency. As a pliable welfare instrument highly adaptable to specific circumstances, Alfa Romeo managers used CIG selectively to target militant or inefficient workers as well as workers made idle by the bottlenecks caused by strikers. As denounced by both radical and mainstream trade unionists, employers found in the CIG a method of shifting some of the costs of industrial conflict onto the taxpayer, while purging the workforce of its troublemakers. Widespread use of this instrument meant that employers were able to mitigate the effects of the progressive political scenario introduced by the Charter of Workers’ Rights at the height of workers mobilization. While the CIG provided a generous allowance, it still represented a loss of salary and isolated militants in a political ‘no man’s land’.

Factories are important sites for state intervention and regulation because of their economic and political roles. Industrial labour’s strategic importance meant that governments have often been concerned with the shop floor’s political climate. Drawing on Turkish sources, Görkem Akgöz connects the micro and macro levels of analysis by exploring the Turkish state factory Bakırköy as a site of ‘discursive struggle’ between different notions of working-class identity. In particular she discusses the interaction between one class-based conceptualisation and one attached to the nationalist discourse of republican Turkey. Akgöz shows in a specific setting how the project of state-led industrialisation was deeply intertwined with nation-building. Within the discourse that the latter provided, the factory became a metonymy of the homeland, which the workers had a duty to build by toiling in the workshop. This notion implied embracing the fiction of an integrated society, where faithfulness to the nation trumped class distinctions. So powerful was the hegemonic grip of the idea of the ‘working-class citizen’ that workers resorted to using its tropes to claim rights in the workplace – since as contributors to the nation’s welfare they were better positioned to win improved conditions in the factory, in particular in the context of the strong repression of Communism and militant organised labour. This was also a highly gendered discourse, which positioned the worker/citizen as male, attending to the needs of both the nation and his family. Eventually Akgöz’s work shows that the two languages, of class and of the nation, were permeable and fluid in workers’ lived experience.

Historians of former socialist countries have recently provided some of the most insightful contributions to factory history (Archer & Musić, 2017; Kirin & Blagaić, 2013). Chiara Bonfiglioli joins this conversation about the transition of industrial labour between different socio-economic regimes with a study of the female workforce of the Arena knitwear company in Pula, Croatia. Through oral history, she explores the memory of a socialist factory as the country underwent deindustrialization. Borrowing from Raymond Williams, Bonfiglioli investigates the gendered ‘industrial structure of feeling’ developed in Yugoslav times and how it is remembered currently. This ‘structure’ comprised feelings of ‘belonging, pride, recognition, security and sociability’ that were overturned by the transformation of the factory in post-socialist times and, eventually, its closure. Her study is notable by contributing a gendered perspective to the growing literature on workers ‘nostalgia’ for both industrialised work and the socialist era. Women generally remember that factory as a space of socialisation, solidarity and empowerment and alternative ‘family’ and ‘home’. As the post-Yugoslav national discourse stigmatised memories of socialism as ‘nostalgic’ and the factory closed because of bankruptcy, feelings of loss, fear and abandonment intruded into their ‘structure of feeling’, challenging the ingrained idea that industrial work had a ‘meaning’.

Fredrik Lilja presents a longitudinal study of a textile manufacturing company that relocated from England to South Africa in 1946, from its African establishment to its decline in the late 1980s. Lilja joins here a lively historiographical conversation that has found in the South African industrial workplace a fruitful laboratory to investigate the intersection between class and racial factors in the relations of production, the role of race in the politics of organised labour, and the working of racialised capitalism, sometimes in comparison with other countries (Lichtenstein, 2004; Lewis, 1990; Alexander & Halpern, 2004). Lilja focuses in particular on the intricacies of the segmented labour market on which the factory drew–black, white and coloured, male and female (and child), local and migratory, skilled and unskilled – and the segmentation of the political composition that ensued. Factories such the Hextex factory that he investigates were a central node in the racialized political economy and the struggle against it. After having examined how global capital reshaped the area where Hextex was established, Lilja draws a contrast between the strike of 1956 that tested Apartheid’s new labour policies with displays of racial solidarity of political import, and one in 1989, which occurred in the context of downsizing and merger with another company. The latter focused on wages rather than on government policy. The 1989 strike, arguably a success, effectively decoupled the economic from the political struggle in the context of the industry’s decline as an employer.

Elena Dinubila also reconstructs a story an industrial plant’s location to a greenfield site. Similar to the phenomenon investigated by Jonathan Cowie, Dinubila traces how the Italian car manufacturer FIAT opened a state-of-the-art factory in the early 1990s, in a rural area of Basilicata, southern Italy. Thanks to a legal device, it could enjoy exclusion from the collective agreement that bound other unionised plants and exploit the advantage of being one of the few large employers (Cowie, 1999). Workers flocked to the Melfi factory, a ‘happy island’ in an economically-depressed region, but the relentless pace of work and managerial autocracy belied the post-Fordist hype that accompanied the plant’s establishment. Against all odds, workers went on strike in 2004, finally achieving, albeit temporarily, better working conditions. Dinubila captures the complex interplay of individual and collective memory of this event and the years that followed, through oral history. The factory becomes in a way a ‘site of memory’, but it is a memory without nostalgia for a brief episode of militancy that did not change the overall course of labour relations at Melfi. Collected in the 2010s, at the height of the economic crisis, Dinubila captures a collective memory that accommodates both resentment (‘modern slavery’ as some respondents dubbed it) for the pace of work under the ‘World Class Manufacturing’ (WCM) system imposed by CEO Marchionne and a positive pride in their status as efficient workers in a modern factory, with skills and an ethos surpassing those of others in the local labour market.

Conclusion

These contributions, and the wider working group from which they come, tend to confirm factory history’s continued vitality. Many of the most dramatic moments in recent industrial experience – including the Rana Plaza tragedy in Bangladesh and the suicides by Chinese factory workers – have occurred in and around the factories that outside of such episodes frequently remain peripheral to most westerners’ perceptions. This reveals that the factory’s ‘invisibility’ in both current and historical agendas is less an outright disappearance and more a matter of marginalisation and disqualification (Clarke, 2011). Factory history can help raise public awareness and advance current debates within political economy, industrial relations and other cognate fields of study. It can thus provide historical comparisons and perspectives to areas that have shown only marginal interest in their fields’ historical dimensions. We are not simply calling for a return to the factory as previously studied, although much earlier work should not too readily be dismissed. Rather, we call for a rethinking of the factory within labour history as a unit of analysis conceptualized in different ways at different moments, but always geographically specific, locally integrated, globally connected and located within an internationally comparative framework.

Factory history, as we showed, has long consisted of much more than the hagiographical studies commissioned by companies with which it has frequently and mistakenly been identified, and the teleological works typical of ‘state socialism’. Indeed, it has been one of the more fertile sub-fields of labour history, notably through its analyses of micro-level social interactions. It has benefitted from excellent inputs from adjacent fields, perhaps most notably the anthropologists of the 1950s and 1960s and their contemporary descendants. When located at these disciplinary perspectives’ crossroads, historical analysis at the factory level offers a history of capitalism that goes beyond the workers’ perspective to cover numerous angles using multiple methodologies across disciplinary barriers (Mihm, 2014). This history should contribute to balancing those abstracted histories that focus on the structural rather than the subjective dimensions of working-class history and which discuss labour only at the point of its objectification, a tendency Palmer observes. In attempting to bring the histories of labor and capital into their proper relationships, this history should encompass employers and workers, politics at different levels, racialized and gendered experiences and waged and non-waged forms of industrial work (Palmer, 2017).

Factory history has potential to be developed into one significant strand within ‘transnational’ labour history, which need not be not centred on or confined to the western worker, or limited by the associated assumptions. The great scope available for such work inevitably means that despite the inroads made, much remains to be done to realise the ‘transnational’ project. Factory history may assist. It need not and ought not to be parochial. It provides a way of linking localised centres of production with wider global relationships and forces. A micro-level analysis is where this type of integration works best. As Francesca Trivellato demonstrated, micro-history is in no way antithetic to global history (2011). This applies particularly to the industrial workplace, where plants often have numerous links to other locales, while global value chains are becoming ever more important. The factory here emerges as a geographically specific, locally integrated place, located at the intersections of local, national or global connections. They are sites through which labour history can contribute much understanding of capitalism in its multiple contexts.

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Peter Bain & Phil Taylor, Entrapped by the ‘electronic panopticon’? Worker resistance in the call centre, 15 New Technology Work & Employment 2 (2002)

This article presents a thoroughgoing critique of Fernie and Metcalf’s perspective, that the call centre is characterised by the operation of an ‘electronic panopticon’ in which supervisory power has been ‘rendered perfect’. Drawing on evidence from a telecommunications call centre the authors analyse the significance of emerging forms of employee resistance.

The very recent, and extremely rapid, growth of call centres in the UK is the principal reason for the paucity of academic writing on this major industrial development. Significant early contributions concentrated on the emergence of ‘branchless’ retail banking and the spatial and regional aspects of growth (Marshall and Richardson, 1996; Richardson and Marshall, 1996), developments in Australia and the growing importance of considerations of quality (Frenkel and Donoghue, 1996) and payment systems (Fernie and Metcalf, 1998). The last of these attracted widespread media attention, although not for the study of payment systems themselves, but rather for the authors’ headline-making declarations. They asserted that call centres were the ‘new sweatshops’ and that managerial powers of electronic surveillance were akin to those systems of dominance which existed in Jeremy Bentham’s prison Panopticon.

At the same time, with the call centre sector1 thirsting for self-knowledge, and university research lagging behind developments, consultants’ reports achieved considerable influence and authority (Datamonitor, 1996; Mitial, 1996; Austin Knight, 1997). Unsurprisingly, these surveys tended to present a glowing picture of call centres, predicting massive and sustained growth and stimulating favourable newspaper articles, emphasising the arrival of new sources of quality employment.

By early 1998, two sharply contrasting portrayals of the call centre had been established in popular consciousness. On the one hand were the optimistic descriptions, cultivated by the sector’s publicists, who presented exciting images of centres, staffed by co-operative teamworking employees ‘smiling down the phone’ and talking to customers in a relaxed and professional manner in comforting regional accents. On the other hand, there was the perspective of Fernie and Metcalf who utilised Foucault’s adaptation of Bentham’s Panopticon to claim that electronic surveillance had ‘rendered perfect’ the supervisor’s power, thus eliminating the possibility of worker resistance. When a leading consultant, Roncoroni, described call centres as ‘dark satanic mills’, the imagery of Blake complemented that of Orwell, to produce a bleak composite picture (IDS, 1997: 12).

Although more recent academic output has reflected a deepening of research activity, with studies focussing on the labour process (Taylor and Bain, 1999), emotional labour (Taylor, 1998) and international comparisons (Frenkel et al., 1998), Fernie and Metcalf’s influence, sustained by both articles and press releases, has persisted. This article builds on earlier work by seeking to present a thoroughgoing critique of the positions put forward by Fernie and Metcalf. We believe that there is powerful justification for adopting an explicitly polemical approach, principally because, in securing extensive publicity for their perspectives, these authors have gained a wide audience for a mistaken representation of essential characteristics of the call centre. Not only have they erected a simplistic and false model which ignores the complexities of the employment relationship and the labour process, they have committed an equally serious error in underestimating, even eliminating, the potential for, and actuality of worker resistance. A national organiser for the MSF trade union, with responsibility for call centres, has expressed his objection to their perspective on the grounds that, when interviewed by journalists, he is obliged to spend the first 20 minutes convincing them that call centres are not prisons, and that trade unions are capable of organising within them.

I have tangled with this (the Fernie and Metcalf thesis) on the radio and television on a number or occasions. It is a ludicrous proposition, borne of academics who have no experience of the real world. (D. Jacks, letter to authors, 15.7.98)

In discussing theoretical perspectives relating to the nature, efficacy and extent of workplace surveillance, this article will firstly consider the views of those who, influenced by highly selective passages from only one of Foucault’s works, [‘Discipline and Punish’, 1977], assert technology’s successful and irresistible application as a means of attaining managerial control objectives. Conversely, a brief assessment will be made of those who identify the potential of employee resistance in the face of such measures.

We then develop a critique of Fernie and Metcalf’s article under three headings; evidence and methodology, case study representativeness, and in relation to one of their wilder assertions. We conclude that they have erected an unsustainable theoretical superstructure upon the flimsiest foundation of data. In so doing, we will refer to our previous surveys and analysis of the call centre sector.

There follows this article’s main counterblast to Fernie and Metcalf, based on evidence from a UK telecommunications call centre, Telcorp. Here mechanisms of electronic surveillance are extensively employed but, rather than leading to the nullification of resistance and the creation of obedient, passive subjects, the operation of the ‘panopticon’, in practice, provides a powerful refutation of Fernie and Metcalf’s central assertions. The Telcorp case alone, with the detailed narrative of worker resistance, is sufficient to burst the bubble of inflated generalisation.

Foucault and the workplace ‘electronic panopticon’

Those who see workplace regimes as characterised by the existence of the ‘electronic panopticon’ typically employ a Foucauldian framework. In Jeremy Bentham’s late-eighteenth century design for a prison, later adapted by Foucault (1977) as a metaphor for societal surveillance, the central observation tower is constructed in such a way that isolated, individual inmates could never be sure when they were being watched. From the vantage point in the tower, the observer could see the inmates in their peripheral cells at any time without being seen. Thus, the prisoners come to act as though they are under the carceral gaze at all times and so ‘internalise’ the gaolers’ objective of exercising discipline and control. Foucault summarised the effects thus, ‘the surveillance is permanent in its effects, even if it is discontinuous in its action’ (1977: 201).

Although the ‘panoptic gaze’ was but one element in Foucault’s analysis of disciplinary power in modern society, it is this aspect of his work which has been the subject of renewed attention, particularly in relation to the monitoring and surveillance of workers’ activities. In the early 1990s, the panopticon increasingly was perceived to be electronic in its workplace application, and a control device habitually utilised by management as an essential component of just-in-time/total quality management (JIT/TQM) production systems.

Sewell and Wilkinson, for example, declared that in any discussion ‘centring on (em)power(ment) and discipline, it is inconceivable’ that they would not be drawn to Foucault’s work (1992: 111). In the context of the contemporaneous general shift in management organisational practice towards teamworking, they say, ‘the solitary confinement of Taylorism has been superseded by the electronic tagging of the Information Panopticon’. Work has been organised in such a way that employees consent ‘to be subject to a system of surveillance which they know will immediately identify their divergence from norms and automatically trigger sanction or approval’. In such circumstances, worker resistance, whether expressed individually or collectively, has all but disappeared, and

. . . even if collective action were to take place, it would have to face the possible challenge of being undermined by the quality monitoring system’s ability to identify even the smallest possible divergencies from the norm made by individuals, who could then be singled out by management for dismissal. (Sewell and Wilkinson, 1992: 110)

In the absence of worker resistance, what remains, not surprisingly, is ‘the institutionalised acceptance of management prerogatives’, and a situation in which any changes to work organisation are regarded by employees as ‘an inevitable extension of the managerially imposed control system to be accepted along with all other terms and conditions’ (our emphasis).

The study by Delbridge et al. focussed on the qualitative shift in the ‘frontier of control’ (1992: 97). With the objective of imposing ‘Total Management Control’, a combination of visual and electronic surveillance enables managers to check the location and status of individual products at any time, while the ‘increased surveillance and monitoring of workers’ activities’ has proven to be a key factor in the intensification of the labour process. The outcome is ‘that worker counter-control (in the sense described by Roy and many others) is effectively eliminated’ (Delbridge et al., 1992: 105). However, despite this seemingly unequivocal statement, the possibility of worker resistance developing at some point was not completely excluded, although this eventuality was considered only in the most general terms.

McKinlay and Taylor acknowledge the role of these writers who, by exposing the reality of work intensification, extensive monitoring and strict discipline, provided ‘a valuable corrective to earlier glowing accounts of HRM’ (1996b: 470). However, they argue, this research also served to create an image of factory regimes in which ‘workers lose even the awareness of their own self-exploitation.’ In relation to the panoptic gaze,

So seductive is Foucault’s metaphor . . . if simply transposed onto the labour process perspective it can seriously overestimate the scope and depth of management control . . . The image in these accounts is a form of self-subordination so complete, so seamless that it stifles any dissent. (1996b: 470)

A key point is that what management would like to achieve is often very different from what they are able to achieve. And, drawing upon research in the electronics industry, McKinlay and Taylor conclude that worker resistance ‘remains a daily reality (although) . . . it can operate at differing levels of consciousness, effectiveness and strength across a workplace and over time’.

Thompson and Ackroyd observe that ‘the panopticon is the favourite in this armoury’ when the Foucauldian perspective is adopted to new management practices (1995: 622). Whether electronic or informational in application, the panopticon is central to the Foucauldian emphasis on ‘the increased and successful use of monitoring and surveillance of workers’ activities’. They identify a distinct tendency amongst those claiming to utilise Foucault’s theories to give no account of resistance, and that this (mistaken) position can be located in the way in which power is perceived. The belief that management’s monopoly of knowledge marginalises other groups, leads self-declared Foucauldians to a series of assertions. For example, ‘the disciplined member of the corporation wants on his or her own what the corporation wants’ (Deetz, 1992). Worker resistance poses no threat to managerial power since ‘it means that discipline can grow stronger knowing where its next efforts must be directed’ (Burrell, 1988). As Thompson and Ackroyd (1995: 625) argue,

If we take all these factors into account, it is hardly surprising that, fragmented, insubstantial and counter-productive, resistance simply disappears from view.

While other followers of Foucault do admit to the possibilities of resistance, it is always conceived of as individualistic and fragmentary, never collective, where workers can only seek ‘spaces for escape’ (Knights and McCabe, 1998).

The point is also forcibly made that the Foucauldian framework is inherently flawed as a way of explaining workplace relations, since the factory or office are not simply ‘paler versions of carceral institutions’. The organisation of the labour process reflects the very nature of the employment relationship under capitalism and cannot simply be treated as ‘a site of disciplinary power’ as Sakolsy (1992) would have it. Similarly, control in the workplace is not ‘functionally oriented towards the creation of obedient bodies’ per se, but is geared towards the attainment of profit. The problem with looking at the workplace from a surveillance perspective lies in a narrowness which reduces the range and complexities of management control strategies to Foucauldian notions of discipline. Many of these critical themes have been elaborated to equal effect in later essays from the same labour process tradition (Smith and Thompson, 1998).

Critique of Fernie and Metcalf

Evidence

On the basis of a study of payment systems in four organisations, only three of which are call centres, Fernie and Metcalf claimed, inter alia, that, ‘the “tyranny of the assembly line” is but a Sunday school picnic compared with the control that management can exercise in computer telephony’ (1998: 2). Further, they promised,

We shall show that, for call centres, Bentham’s Panopticon was truly the vision of the future and these organisations were the very epitome of what Foucault had in mind . . . In call centres the agents are constantly visible and the supervisor’s power has indeed been ‘rendered perfect’—via the computer monitoring screen—and therefore its ‘actual use unnecessary’ (1998: 2,9)

Following one fleeting reference to individual ways of ‘avoiding work’, they re-emphasised, in conclusion, the dominant theme, that for call centre agents, the panopticon is ‘truly the vision of the future’ (1998: 21).

Quick to publicise their initial output, Fernie and Metcalf presented their findings as a validation of the applicability of the ‘electronic Panopticon’ perspective to the call centre. One must, therefore, include Fernie and Metcalf in the ranks of the Foucauldians, even though their reference to ‘Discipline and Punish’ appears opportunistic, and they seem blissfully unaware of the debate on the applicability of the panopticon to the contemporary workplace.

It is important, though, to emphasise that their key article is essentially a study of payment systems, specifically an examination of the accuracy of predictions made using the ‘new economics of personnel’ (NEP). It is based neither on a broad survey of call centres nor on an empirical investigation of work organisation and the employment relationship. Inflated generalisations concerning surveillance in call centres (dubbed the ‘New Sweatshops’) are grafted uncomfortably onto a detailed study of payment systems. In truth, much of the evidence presented fails to relate to, let alone support, the grander assertions.

In the first place, the locations do not serve as a test of the applicability of the electronic panopticon and one organisation, a bookmaker’s, can be immediately discounted as a locus. In one of the three remaining sites, all call centres, it is clear that the kind of surveillance Fernie and Metcalf associate with the panopticon simply does not exist. It is revealed that,

At AD it is output (revenue) which matters. Incoming calls are not force-fed and there is no time limit on calls—rather the emphasis is on servicing the customer in order to generate revenue to the newspaper. (1998: 16)

Instead of electronic monitoring, the agents themselves complete a daily ‘tally sheet’ which records sales and revenue generated. By no stretch of the imagination can AD be regarded as a site of rigorous ‘panopticism’.

Nor does the evidence from the remaining two call centres support the ‘electronic Panopticon’ thesis. In PK the target time is given as 170 seconds for each call the agent takes from customers who, amongst other things, are paying parking and traffic-related fines and arranging to have their vehicles declamped (1998: 16). This target cycle time of almost three minutes reflects a complex and unpredictable customer interface, requiring considerable tact on the part of agents. Bonuses, calculated using both customer service and call handling criteria, are team-based and paid across the board to all agents with ‘not one iota related to individual performance’ (1998: 13). Target times are rarely attained and bonus payments average 11–15 per cent of the basic wage. However, while PK agents are graded according to the local authority job evaluation scheme, it seems highly probable that the equitable bonus policy, a key factor in determining the pace of work, has been influenced through trade union (UNISON) involvement.

However, trade union influence at EA, the remaining call centre, is explicit. Indeed, Fernie and Metcalf briefly mention that management ‘met fierce hostility from the union side when it tried to make the Performance Related Pay rate structure more high powered in the 1997–98 pay negotiations’ (1998: 19). At EA, the average bonus is only 4 per cent of basic pay and, de facto, the union resisted management’s intention to re-order the criteria driving the pace of work. Management appear to have been motivated by the belief that a bigger bonus element would encourage workers to increase output. From the description of the basic task cycle or target times would seem to exceed the 170 seconds operating at PK. EA is a civil service IT helpdesk, in which agents, known as ‘incident analysts’, take calls mainly from Department of Social Security IT specialists when they experience hardware or software problems. Agents then contact the appropriate IT service provider, liaise between both parties, agree priorities and, finally, solve the problem and record completion. Given both the call complexity, and the consequent difficulties in making standardised assessments of agent behaviour which arise from the operation of 1,500 different IT systems in 2,000 DSS locations, it is difficult to envisage the intense monitoring claimed by Fernie and Metcalf.

A careful reading of Fernie and Metcalf’s research findings demonstrates profound flaws in the argument that the electronic panopticon has perfected supervisory power. In only two locations could the panopticon even theoretically be said to apply, and here the evidence is weighted conclusively against the presence of dominating regimes of surveillance. Moreover, one can deduce ample evidence of continuing employee resistance which raises one final, methodological problem. Fernie and Metcalf rely exclusively on ‘documentary evidence, detailed questionnaire, lengthy semi- structured interview and observation of working methods’ (1998: 10) from management sources.

Despite a claim that the researchers talked to employees, no evidence is presented and, as a consequence, the perspective is clearly uncritically managerial in character with the experience of agents in these ‘carceral regimes’ wholly undocumented. The silence of the agents seems to confirm, for Fernie and Metcalf, the assumption that they are passive subjects.

Case study representativeness

If the stated objective is to ‘study computer telephony’, the question of case study representativeness is important. In the three call centres studied, the total staff numbered 154 (80, 34 and 40 in EA, PK and AD respectively). To imply that organisations of this size are genuinely representative is mistaken, for the sector, as a whole, displays a size polarity. It is true that there are many small call centres; in Scotland, for example, 43 per cent of centres have less than 50 employees (Taylor and Bain, 1997: 1). However, the majority employee experience is of working in much larger establishments. The Scottish survey shows that 83 per cent were employed in establishments with a workforce of more than one hundred (1997: 11). Datamonitor (1998) gives an average figure for UK call centres of 46 agent positions (ie. ‘seats’ per shift), but given the incidence of shiftworking, and the addition of supervisors, the actual number of jobs is at least double. In the Datamonitor study, 57 per cent of ‘agent positions’ were in centres with one hundred or more employees.

In other respects, not least the absence of outbound operations, Fernie and Metcalf have neglected to acknowledge the diversity of call centre work. The problem is that they treat call centres as uniform, failing to recognise that, despite similarities in the integration of computer and telephone technologies, centres differ in relation to a number of important variables—size, industrial sector and market, complexity and length of call cycle time, nature of operations (inbound, outbound or combined), the nature and effectiveness of representative institutions including trade unions, and management style and priorities. (Taylor and Bain, 1997)

‘The tyranny of the assembly line’

The statement that “the tyranny of the assembly line’ is but a Sunday school picnic compared with the control that management can exercise in computer telephony” (1998: 2) is quite outlandish, abandoning any sense of historical accuracy. Beynon’s portrayal of conditions on the assembly line at Ford’s main Detroit plant in the 1930s, prior to unionisation, is illuminating.

Safety standards were appalling and fatal accidents commonplace . . . the pace was inexorable, the pressure for ever-better production insistent . . . the plant was dominated by Bennett’s Service men . . . the 3,500 private policemen employed by Ford policed the gates of his plants, infiltrated emergent groups of union activists, posed as workers to spy on the men on the line . . . chatting or fraternizing with workmates during the lunch hour was taboo during the old days which lasted twenty years or more . . . humming, whistling or even smiling on the job were, in the judgement of Ford Service, evidence of soldiering or insubordination . . . the spies and stool pigeons report every action, every remark, every expression . . . women members agreed to do the actual distributing of the (union) handbills . . . they and the men were given a severe beating by Bennett’s Service men. (Beynon, 1973: 33–47)

Even the slightest reference to this reality introduces a much-needed historical perspective which corrects Fernie and Metcalf’s ill-informed comparison. It is absurd to compare conditions in even the most oppressive and target-driven call centres in the 1990s with those on the early assembly lines. Furthermore, despite repression of massive scale and duration, it was eventually possible to unionise the Ford plants. Already, union organisation in UK call centres is widespread and, it hardly seems necessary to point out, those distributing leaflets both outside and inside non-unionised workplaces do not receive severe beatings.

The Telcorp case study

Methodology

As part of a wider investigation of the call centre industry, Telcorp has been the subject of study since March 1997. Focussed research, however, commenced in October 1998 and is ongoing. The methodologies adopted have been essentially qualitative, supplemented by analysis of company documentation. The researchers gained access over a three month period to meetings of Telcorp employees as they regularly came together, to respond to developments and discuss tactics. Between November 1998 and January 1999, the researchers attended 27 meetings of a group of Telcorp employees of fluctuating size (between four and ten) and composition although the leading core were present at virtually all meetings. The proceedings of what was an informal committee were observed and documented. These meetings, lasting from two to four hours, provided first-hand insights into the organising efforts of a group of call centre employees as they strove to combat an anti-union employer.

The meetings provided opportunities for interviews with Telcorp employees, both individually and in focus groups. In total, 15 agents, managers and ex-employees contributed to in-depth knowledge of both the labour process and the contested terrain of the employment relationship. Given sensitivities regarding the issues of conflict which emerged, it proved impossible both to conduct formal interviews with management or to gain access to the organisation for the purposes of observation. However, these limitations are more than compensated for by particular research strengths arising from intimate contact with Telcorp employees.

Of course, this research does not pretend to be empirically exhaustive and we fully recognise what might be regarded as a bias in the source data. It is also acknowledged that Telcorp is not typical of the call centre ‘sector’. Not all centres are outsourced, telecommunications operations with oppressive managerial regimes akin to that of Telcorp. However, whilst not typical, Telcorp is not completely atypical either. There can be no doubt that Telcorp shares many of the characteristics of centres at the target-driven, highly-routinised extreme of the ‘quantity-quality’ spectrum. Yet it is precisely the characteristics of claustrophobic surveillance and authoritarian management which make Telecorp such an instructive case study. For, if the grand assertions made by Fernie and Metcalf are correct then Telcorp is precisely the sort of location where one would expect to find managerial control ‘rendered perfect’ and workers powerless to resist.

Telcorp

Telcorp UK is one of eight companies operating under the umbrella of a US-based telecommunications multinational, providing ‘a wide variety of call handling solutions as well as call center management, training and consulting services’. Indicative of the pace of call centre development and Telcorp’s ability to exploit outsourcing possibilities in the global telecommunications industry (Pitt et al. 1997) is the spectacular growth since the company’s foundation in 1994. The Chief Executive defined Telcorp’s opportunities, ‘With increased competition in service industries world wide, companies are looking for ways to maximize the performance of call centre operations that are crucial to their success, but not part of their core business competencies’ (Telcorp Global Services, 1998: 1). As a consequence Telcorp claimed in January 1998 to be handling more than 40 million calls a month through its centres in the US, Canada, Mexico and Europe.

In the UK, Telcorp has concentrated largely on the telephone sector, operating call centres which deal with inquiries and emergency calls outsourced by twelve companies. Cost savings of 10–50 per cent which Telcorp claims to be able to deliver to customers, arise both from specialisation in the utilisation of integrated computer and telephone technologies and, as we shall see, no less importantly, from low labour and operating costs. At our case study location, established in April 1995, 350 agents are employed on seven separate 24-hour, 365 days a year services, including directory inquiries, 999 emergency services and international inquiries.

Surveillance, monitoring and control at Telcorp

Elsewhere we have analysed the distinctive characteristics of the call centre labour process, concluding that both the forms and extent of monitoring expose significant developments in the Taylorisation of white-collar work (Taylor and Bain, 1999). Telcorp exemplifies the extremes of monitoring and measurement generated by both hard technology and software. Every call is subject to a series of strict and exceptionally detailed measurements, which, when statistically collated, are compared with conformance criteria laid down in the telephone company contract. An example of the ‘Performance Results’ is given in Table 1 where call handling times (CHTs) are measured to 100th part of a second. Looking at CHTs for Directory Inquiries (DQ) the weekly average was 32.52 seconds compared to the 30 seconds target. The Accessibility Index (AI) represents the percentage of calls answered within 15 seconds of coming through to Telcorp.

The highly-competitive business environment in which Telcorp has succeeded in winning contracts on cost and performance criteria against rival outsourcers is the fundamental reason for this quantitative assessment of output. Neither surveillance nor control mechanisms are ends in themselves but are the consequence of the process of perpetual benchmarking by which call centres assess their performance, and their ability to compete and make profits.

Directory Inquiries is far and away the most important business, and such is the volume of calls that it is appropriate to characterise it as the ‘mass’ delivery of a service. Indeed it is the volume of calls which both enables and generates the standardisation of work procedures, based on what is essentially a more sophisticated application of Taylorist techniques. The authors of a recent re-evaluation of the labour process debate are correct to argue, ‘. . . the shadow of scientific management continues to fall over contemporary work organization’ (Smith and Thompson, 1998: 555). It is not difficult to see how the summary, centre-wide DQ figures are then translated downwards into both team and individual targets, leading to supervisory attempts to speed-up, or intensify, work where under-performance is identified. Table 2 illustrates the secondary level of measurement, where team performance is monitored.

Tables like this, comparing current with past performance and ranking the 14 teams in a league table of call times, are published weekly and distributed to all employees. As a key lever in the drive to improve productivity, the existence of statistics in this form are further evidence that teamworking has produced, not empowerment, but work intensification, leading in call centres and in other white-collar work to what might be described as ‘Team Taylorism’ (Baldry, Bain and Taylor, 1998). In December 1998, in Telcorp, underperforming teams, defined by their failure to meet the average target times of 30 seconds per call, were subject to intense supervisory pressure to improve their productivity, by threats to their bonus. As we can see (Table 2), this meant that all 14 teams were failing to meet required standards. This 30 second target is the statistical representation of speed-up; in August 1998 the DQ target had been 32 seconds.

Table 1: Telcorp Weekly Performance Results To 18th December 1998

Table 2: Telcorp team performance data, December 1998

In addition to an obsession with call handling times, Telcorp management scrutinise ‘Not Ready’ data, measuring, again in fragments of a second, the length of time an agent is unavailable to take a call. Quantitative criteria are used to measure the extent of agents’ conformance to pre-determined scripts. For example, on Monday, August 17th, 1998 management assessed precisely 4.9 per cent of calls as having ‘deviated from script’. Both Telcorp and its business partners, the telephone companies, utilise call taping to not merely assess formal adherence to scripts, but to make judgments on the quality of interaction with the customer.

In late August 1998, one business partner, Custcom, initiated a ‘Mystery Shopper Survey’ with the intention of improving ‘levels of customer care’. It is worth listing the eight elements of agent performance appraised, for it can be seen that they fall into three distinct categories.

Firstly, criteria numbered 1, 3, 8 are straightforward ‘hard’ measurements of the time taken to perform tasks or, more accurately, parts of tasks. Secondly, those numbered 2 and 4 are assessments of the accuracy of agents’ responses to prescribed forms of speech or delivery of information. The remaining criteria, numbers 5, 6, and 7, ‘agent helpfulness’, ‘agent tone’ and ‘enthusiasm’, are concerned less with conformity and more with the subjective evaluation of elements of performance which may be seen to lie within the boundaries of ‘emotional labour’ (Hochschild, 1983). Behaviour, attitude and manner are scrutinised as rigorously as adherence is assessed.

Table 3: ‘Custcom’ mystery shoppers customer care criteria

It is important to remember the pressurised context in which this battery of quantitative and qualitative measurements operates. Such is the intensity of monitoring that agents’ performances are being assessed, measured and judged on all these criteria within a very short time span, on calls lasting only half a minute. And just as one call is terminated, another one commences; like ‘an assembly line in the head’, each successive call is subject to psychological quality control.

Integral to Telcorp’s discipline and control system are ‘Remote Observations’ (known as ‘Obs’ by agents), where a series of calls are taped and/or listened to by managers from a ‘remote’ site without the operator’s knowledge. A DQ agent explained how ‘Obs’ operated,

You are not supposed to be able to actually tell when you are being monitored. The monitoring can happen from anywhere on the switch or it can happen from outside the centre. It can even happen from the other centre but only if they want verification. We have seen instances where a manager or supervisor based here, along with somebody from our other centre, monitors agents to get evidence of ‘bad’ practices. (Focus Group, 15.11.98)

Ostensibly a coaching tool, ‘Obs’ are largely employed for disciplinary purposes, according to the Telcorp employees interviewed; persistent failure of ‘Obs’ has led to the final sanction of dismissal.

If you depart from the salutation, or added things or changed the script, it is marked down in your observations. There are three different marks, R, A and G, standing for Red, Amber and Green, for the eight things you get marked on. For example, if you get four reds you have failed your ‘Obs’. (Interview with supervisor, 22.2.99)

In summary, Telcorp is a highly-monitored environment, where both computer and telephone technologies and managerial intervention generate a wide array of control and surveillance methods. Yet, despite Remote Observations and the Mystery Shopper, precisely those practices which appear to be constitutive of the ‘electronic Panopticon’, the Telcorp case study provides a striking rebuttal of Fernie and Metcalf’s core argument. Refutation consists of three dimensions. Firstly, the actual management of the employment relationship is far more problematic than the simplistic ‘total control’ perspective suggests. Secondly, the way in which the Panopticon operates is far from perfect. Thirdly, and most powerfully, is the fact that Telcorp has seen the emergence of patterns of collective resistance, particularly in the form of workplace trade union activity.

Refutation one: the problems facing management

The common problems facing management in many call centres include high labour turnover (‘churn’), sickness absence rates, problems with motivation and commitment caused by an intrinsically demanding labour process, lack of promotion opportunities in typically ‘flat’ structures, and loss of staff following an investment in train- ing (Taylor and Bain, 1999). All of these apply to a greater or lesser extent at Telcorp, so much so that managers would be astonished to learn that electronic surveillance had perfected their supervisory power. The practice of management is far more problematic than Fernie and Metcalf allow and, further, they ignore the impact of externally-generated labour market difficulties.

One should not underestimate the massive commitment of supervisory time and energy employed in the interpretation of statistics generated by the monitoring software and in implementing coaching or disciplinary measures. The very scale of these activities at Telcorp is hardly illustrative of a management confident in its authority. Rather it indicates a perpetual struggle for control over the workforce, where control is ultimately dependent on successful human supervisory intervention. At Telcorp, as elsewhere, control is what matters most to management, not surveillance.

Intensive monitoring and tightened controls, however, can be counter-productive, leading to under-performance by operators which might damage the company profile with the customer. Even Telcorp management, obsessively preoccupied with target attainment, would periodically bend the stick away from quantity towards the pro- vision of a quality service. They would relax call handling times and emphasise courtesy and flexibility in customer contact. However, the relaxation of quantitative measurements was always temporary. Ultimately, management at Telcorp (and throughout the sector) seem unable to resolve this recurring quantity/quality dilemma and, in the final analysis, the measurable, quantifiable criteria seem to triumph in these competing sets of priorities.

Refutation two: the imperfect panopticon

Even Remote Observations cannot ‘render perfect’ the carceral gaze. More experienced agents claim to be able to make an informed guess as to when they were to be ‘Obed’. Supervisors or managers would reveal their intention through a pattern of behaviour that had, over time, become predictable. For instance, a supervisor might phone to check that the agent was actually sitting at the station to be monitored, or it may be that,

You could see a supervisor plug in and look about, perhaps look at you, and then you had a rough idea that it was you who was being ‘obed’, especially if it was your team leader. (Interview 22.2.99)

These breaches in the Panopticon are more than incidental in the refutation of Fernie and Metcalf’s case. That the prisoner, or call centre agent, is completely unaware that s/he is being watched or ‘observed’ is key to the Foucauldian conception that the inmate internalises the gaolers’ exercise of discipline and control. The fact that some workers at Telcorp, either intuitively or through experience, are able to anticipate being ‘observed’ challenges the assertion that the ‘electronic Panopticon’ renders managerial power perfect.

An additional criticism of those writers mesmerised by ostensibly all-powerful electronic or peer surveillance systems is that they confuse the formal characteristics of such systems and managerial intention with actual practice and outcome (Smith and Thompson, 1998: 559). Despite exhaustive surveillance, Telcorp agents were able to exploit both gaps in the system’s functioning and supervisory inconsistency.

When you are on ManDQs (Manual Inquiries), and the caller has hung up, you do not relinquish the call, so you just sit there for 15 minutes and talk to whoever is around you and hopefully they’ve got a ManDQ as well . . . A good time to do it is when supervisors are in a meeting. Or you just log-off, make up a reason and find a softer supervisor to sign a form saying you were not logged on because you were speaking to a manager. (Interview with former supervisor, 22.2.99)

The closer one examines reality, the more the ‘Panopticon’ metaphor loses its validity. Whilst acknowledging that Remote Observations are both oppressive and punitive, they are not conducted with uniform stringency throughout Telcorp. Whatever senior management’s intentions,

It does vary from manager to manager, from supervisor to supervisor. The way ‘Observations’ are handled is obviously at a manager’s discretion, rather than a uniform, across-the-board policy . . . (Focus Group, 22.11.98)

The call centre supervisor clearly does not act at all times as the bearer of pure disciplinary power. There are occasions when the interests of the supervisor coincide with those of the supervised. Because part of the supervisors’ bonus is calculated on team members’ performance on their observations, it is clear that they have a vested interest in ensuring the minimum number of ‘reds’ and the maximum of ‘greens’. This does not lead to uninhibited generosity, as a second supervisor carrying out a second set of ‘obs’ acts as a corrective, but it does mean that supervisors are driven by contradictory objectives. On the one hand, they stand to gain financially by delivering positive assessments of their team members’ performance; on the other hand, they can lose in terms of their reputation as effective supervisors if they are perceived by their superiors as being too lax or generous. We can unearth such contradictions only through a detailed case study. In this light, the omnipotent ‘electronic panopticon’ appears as a simplistic, lazy and mistaken formulation.

Refutation three: collective resistance and trade unionism

In September 1998, there was no trade union presence at Telcorp. By February 1999, at least 100 of the 350 employees had joined the ‘Teleworkers Union’ (TU). The wider significance of this development should not be underestimated, for the anti-trade union stance adopted by Telcorp throughout their global operations led to vigorous opposition by UK management to union organisition. It is hoped that the rich detail and subtle dynamics involved in the unionisation process will not be lost entirely in the following analysis.

There is no single reason why the organising efforts of, initially, a small group of employees proved successful. Rather the strength of the unionisation campaign lay in its multi-faceted appeal, tapping differing sources of discontent amongst the work- force.

Widespread dissatisfaction over pay and conditions at Telcorp was a significant factor. The starting hourly pay of agents was as little as £3.91 rising to £4.15 after three months and, further, to the highest possible hourly rate of £4.47 after six months. More than this, Telcorp agents in the other centre doing exactly the same job were paid significantly more. Shift work was oppressive. The day-shift lasted eight hours and included two 15-minute paid breaks and a 45-minute unpaid lunch break. Breaks were strictly controlled, with time taken for toilet visits to be made up later. Night-shifts lasted 12 hours with two 15-minute, one 20-minute and one thirty minute unpaid break. The bonus system exemplified the punitive management style; entire payments would be jeopardised if workers were as little as five minutes late in a three month period and average earnings had declined to approximately £115 a month by October-November 1998 compared to £230 two years earlier.

Several workers reported that ‘bullying management’ had motivated them to join the union.

One good example is an agent who was supposedly having a random observation of his handling of mobile phone calls. He was singled out eight times within three minutes. This was in a context of 220 people answering calls, all of whom could conceivably been subject to random tapings. (Focus Group, 22.11.98)

In this culture of intimidation, where, in management’s words, ‘bad boys’ were singled out for special ‘attention’, the importance of collective organisation became evident to some.

No less significant in highlighting the potential benefits of trade union membership were concerns over health and safety, an area of growing interest in call centres generally (Baldry et al., 1998; BIFU, 1997; UNISON, 1998). At Telcorp employees documented a catalogue of problems, including an outbreak of scabies, insect infestation, polluted drinking water, filthy work stations, and excessive stress leading to instances where staff blacked-out.

Asthma and epilepsy sufferers reported a worsening of their conditions as the working environment, in general, seemed to bear all the hallmarks of ‘sick building syndrome’ (Baldry, Bain and Taylor, 1997; 1999). The actions of management exacerbated problems.

Like others I now suffer from asthma although I never actually had a respiratory condition before working in this place. I have been bullied by managers while trying to take a shot from my inhaler. I was told by one, ‘I cannot tolerate you hanging calls for any reason.’ This resulted in disciplinary action. (Interview, 8.12.98)

The potentiality for collective organisation lay in these multiple grievances and dis- contents, generated both by the experience of the call centre labour process itself and by the particular practices of Telcorp management. However, these preconditions do not, in themselves, explain the growth of trade unionism. At Telcorp the potential was actualised through ‘subjectivity’. The commitment, tactical awareness and confidence of a small group of employees, acting as a collective leadership, proved indispensable to the success of the unionisation campaign.

The very process by which this group coalesced contributes to the case against Fernie and Metcalf. Firstly, a number of agents exploiting the gaps created by slacker supervision and less than complete surveillance on a particular shift, following months of discussion, arrived at a common outlook and a general desire to improve conditions. Secondly, possible sympathisers on other shifts were identified by word of mouth, and firmer contact was established socially, often in pubs. Of course, this process, whereby like-minded individuals identify each other and forge a common purpose, is unexceptional in unionisation campaigns. It does, however, challenge the ‘total control made easy’ perspective. Not only were workers able to identify each other and make common cause whilst inside the call centre, in defiance of the Panopticon, but they were also able to strengthen their collective attachment outside the work- place, beyond the reach of electronic monitoring. There are many senses in which a metaphor, formulated for a prison or institution, does not at all apply to a capitalist workplace, not least that the inmates can leave their cells at the end of the shift.

Although widespread dissatisfaction existed over pay, conditions, health and safety, intimidatory management and the intensity of work, the catalyst for broadening union recruitment was managerial malpractice in relation to the quality of service delivery. For several months workers had complained to management over errors in customer databases, maintained by Telcorp on behalf of telephone service providers. The problem was most acute and, potentially life-threatening, in relation to 999 calls. In order to understand the significance of the issue it is necessary to describe briefly the operation of the service.

When a caller dials 999 their name and address appear on the VDU screen, together with the contact numbers of the nearest relevant emergency service; at this point the Telcorp operator contacts the emergency service and connects the caller.

If the customer is unable to pass on their address details, for example, because they are hurt or in distress from shock, the Emergency Authorities (EAs) reconnect to us so we can try to verify the customer’s details. (Focus Group, 29.11.99)

In other words, the EAs depend completely on the information on the screen in front of the operator.

But because so many customers were displaying the wrong details, we were sending fire engines, police and ambulances to the wrong addresses. (Focus Group, 29.11.99)

The group of workers who were to lead the unionisation drive systematically monitored the extent of the system’s malfunctioning, caused principally by the company’s failure to prioritise the updating of records. They discovered that as many as 200 calls a day to the 999 service involved errors, with some customer details 30 months out of date. Appalled by the potential threat to human life, spurred by complaints from the Emergency Authorities, and faced with the continued inaction of Telcorp management, the employees took a series of initiatives aimed at compelling Telcorp to remedy the situation. Over many months, evidence was presented to Oftel (the telecommunications ‘watchdog’), the consumer magazine ‘Which’ and extensive media coverage achieved, leading to the presentation of an Early Day Motion in Parliament signed by 30 M.P.s. Ultimately, following the intervention of one tele- phone company, some of the worst database problems were rectified. This sketch hardly does justice either to the tactical complexities involved, or to the tenacity of the rank and file leadership.

The campaign over the emergency services established the prestige, legitimacy and authority of both trade unionism and, in personal terms, those leading the activities. Many working on emergency calls expressed a profound sense of moral outrage at the inadequate, if not life-threatening service, they were delivering. One 999 operator articulated the sense of frustration,

‘People are acting in strange ways because they are constantly under stress. Remember, staff are dealing with these pressures for twelve hours at a time, taking calls constantly for ten hours and forty minutes every shift. If you can imagine the effect of listening to a woman being beaten up in her home and dragged from the phone, then consider how you would feel if you were exposed to this kind of thing every night. The emergency authorities need those address details urgently and we can’t supply them. How do you think we feel? We’ve complained ‘til we are sick to the back teeth; now we want something done.’ (Interview, 1.12.98)

The emotional impact on operators of hearing, or imagining, human tragedy at the end of a phone was incalculable. The representatives of workplace unionism were able to give expression to the operators’ deep concerns and, in forcing Telecorp to respond, demonstrated that collective action could make a genuine difference. Recognising, firstly, that union members were in a small minority on the emergency services shifts but, secondly, that concerns over 999 calls were widespread, activists initiated a petition calling on management to rectify the problems. Two things happened. Almost all 999 agents signed the petition and some joined the union, as the gap between members and non-members was bridged. The appearance of television news cameras at Telcorp’s front entrance served to confirm the growing profile and influence of the union.

However, there was no Chinese wall dividing concerns over service safety from workers’ complaints regarding the labour process and what might be regarded as more traditional trade union issues. Union arguments that ‘lean’ staffing, operator stress, the provision of an inadequate service and Telcorp’s drive to maximise profits, were inextricably connected, gained wider acceptance. The following view met with general assent,

We are of the opinion that the contracts which have been negotiated between Telcorp and their clients are organised in such a way that undermanning of the service is a shrewd way to cut costs and ensure bigger profits. The outcome is that Telcorp provides an inferior level of service, which they hope to conceal . . . while this makes sense financially, obviously it has a negative impact on the quality of service. For most of the year all the services have been undermanned, leading to constant queues, with agents having no time at all between calls, and having irate customers on the other end who have been waiting to get through. (Focus Group, 22.11.99)

In the latest phase of resistance the union members have used their enhanced legitimacy to broaden the union’s appeal, sustaining the campaign over the emergency service, while, simultaneously, raising demands over pay, conditions and health and safety in company fora. In accordance with the longer-term objective of union recognition, recruitment has continued, with positive responses to leafleting initiatives.

In many ways, then, the Telcorp case study contributes powerfully to the rejection of the ‘electronic panopticon’ perspective. While Fernie and Metcalf exclude the possibility of resistance, other Foucauldians conceive of resistance only as a reflex, or limited to individualised escape routes. Yet, call centre agents at Telcorp, in acting collectively and creating oppositional structures, revealed the conscious and purposeful dimensions to resistance. Each employee was graded (one to five) by the leadership group indicating their recruitment potential, and those in the highest categories were approached to join.

One tactic adopted by union members symbolises the creative quality of resistance at Telcorp. A number of disciplinary hearings led to differing interpretations of the decisions made; inevitably management insisted on a more punitive outcome than the agent. Following a series of sharp disagreements, union members who had represented fellow workers suggested that meetings should be taped and the proceedings transcribed to remove ambiguity. Management agreed, but taping failed to satisfy employees who continued to feel aggrieved by what they perceived to be inaccurate transcriptions. In response, union members began the practice of taping all disciplinary meetings with management and producing their own version of events. Contested transcripts from a dismissal hearing produced a lengthy argument which included semantic disputation. The successful use of this tactic further augmented the union’s prestige and, in fact, provided the forum for union activists to ‘come out’. In this critique of the omnipotence of electronic monitoring this practice of counter-taping adds a neat, ironic twist.

Conclusion

The blithe acceptance of the panopticon metaphor, and its uncritical application to the contemporary workplace, requires explanation. Why is it that such a perspective, which so palpably fails any serious theoretical and empirical examination, has been adopted so readily? For some it would seem to explain reality. Here are workplaces and workforces which appear to be so dominated by overpowering technology, that there is no room for escape. If Winston Smith cannot evade Big Brother, then the call centre agent in her electronic penitentiary is similarly entrapped.

Those ensnared by the panopticon perspective, following a superficial reading of Foucault, are expressing other influences. It can be suggested that they have fallen for an old-fashioned dose of technological determinism. They make the mistake of believing that because the software claims to be able to perform miracles of monitoring, then complete managerial control will inevitably result. It is a superficial view which ignores the complexities of managerial practice and the contested nature of the employment relationship. It also eliminates subjectivity. In treating call centre agents as passive, active only in so far as they internalise the supervisor’s exercise of discipline and control, these latter-day Foucauldians are reflecting a much wider disillusionment about the potentiality for worker self-activity. To these influences we should add the baleful current of postmodernism.

For Foucauldians, subjectivity is synonymous with identity, and identity with individualism. To the extent that resistance is acknowledged, as possible or actual, it is understood to be highly circumscribed and individualised. Such is the pervasive influence of the panopticon and the internalisation of surveillance that the only possibility is for individuals to seek ‘the spaces for escape’. Subjectivity as collective activity does not feature as a possibility in this world view, although this is the form of resistance capable of breaching what is taken to be the panopticon. The Telcorp case study is a powerful repudiation of the crude transfer of the panopticon metaphor to the capitalist workplace. To put the argument bluntly—if worker resistance, union recruitment and a serious challenge to managerial power can occur at Telcorp, then they can happen anywhere.

Whilst observation of the labour process would have complemented the testimony of our key informants, managerial sensitivities precluded the possibility of on-site visits. However, one should not underestimate the strengths that emerge from the documentation of the near-continuous discussions of a group of workers who, at the heart of a rapidly-developing situation, described and analysed events with both candour and precision. Many of those interviewed were, in all but name, representatives of particular work groups or shifts so that they were reporting and reflecting upon the nature of work organisation and developments, on behalf of many others.

The validity of these accounts could be tested, to some extent, both by the course of events and by access to comprehensive company documentation.

This is more than an isolated micro-study. Telcorp has wider significance in the sense that the managerial problems, the imperfect Panopticon and the worker resistance identified at Telcorp, are all, in various ways and to differing degrees, common throughout the call centre ‘sector’. In particular, Telcorp can be located in a wider context of the emergence of collective resistance and developing trade union organisation (Bain and Taylor, 1999).

If anything, the recent observation that the call centre’s likeness to Bentham’s panopticon has been ‘grossly overdrawn’, understates what is an utterly mistaken analogy or metaphor (Frenkel et al., 1998: 967). However, to critique the panopticon perspective is not to deny that the call centre labour process is repetitive, intensive, often acutely stressful, and essentially Tayloristic in character, and that workers’ output and performance can potentially be measured and monitored to an unprecedented degree. Additionally, workers may have the expression and intonation of their speech, assessed according to a range of subjective criteria. This performance of emotional labour contributes further to the intensity of work. If this is the experience of many thousands in the burgeoning call centres, then the last thing that they need to be told is that there is nothing they can do about it. This article has been polemical, precisely because its authors wish to challenge a perspective which denies the possibility of resistance.

Footnotes

The term sector, rather than industry, is used in this article. We argue that call centres are defined by the integration of telephone and computer technologies (see article in Industrial Relations Journal, 30: 2 for a fuller definition) and are to be found in a diverse range of industries. Even the use of sector is somewhat confusing as call centres, by the same criteria, do not form a distinct sector. However, call centre employers and management have regular conferences, forums and have a collective identity. Thus the term sector as a more accurate, if partial, representation of reality, is preferred to industry.

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#labor #employment #call centers #The Way We Live Now #telecommunications #michel foucault #panopticon #technology #supervision #electronic panopticon #employee resistance #emerging industry #carceral state #jeremy bentham #2000s

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Lou Reed - Sweet Jane (from Rock n Roll Animal)

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The possibilities of the art of combination are not infinite, but they tend to be frightful. The Greeks engendered the chimera, a monster with heads of the lion, the dragon and the goat; the theologians of the second century, the Trinity, in which the Father, the Son and the Holy Ghost are inextricably tied; the Chinese zoologists, the ti-yiang, a vermilion supernatural bird, endowed with six feet and four wings, but without a face or eyes; the geometers of the nineteenth century, the hypercube, a figure with four dimensions, which encloses an infinite number of cubes and has as its faces eight cubes and twenty-four squares. Hollywood has just enriched this vain museum of horrors: by means of an artistic malignity called dubbing, it proposes monsters that combine the illustrious features of Greta Garbo with the voice of Aldonza Lorenzo.

Jorge Luis Borges, "On Dubbing" ["Sobre el doblaje"]

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Gijsbert Oonk, Sport and nationality: towards thick and thin forms of citizenship, National Identities 1 (Epub ahead of print, 2020)

Abstract

This study explores the relationship between national belonging, acquiring citizenship, and migration. Taking high profile examples from international sports events, it seeks to unveil the complexities behind the question: who may represent the nation? The historical models of jus sanguine (blood ties) and jus soli (territorial birthright) are well-known markers and symbols of citizenship and nationality. The study proposes an ideal-type model of thick, thin, and in-between forms of citizenship. This model clarifies and provides direction to the empirical understanding of ‘citizenship as claims-making’, as recently suggested by Bloemraad [(2018). Theorising the power of citizenship as claims-making.

Introduction

In the international sports arena, the legal guidelines and the moral justifications for citizenship and national belonging are stretched. This stretching can be perceived as a global continuum where, on the one hand, there is an ideal type – thick – citizenship, whereby an athlete and their parents, and/or grandparents are born and raised in the country that they represent. In these cases, the athlete holds the citizenship of the country they represent, and their legal status, as well as the moral justifications for representing a country, are not under scrutiny. This seems to be self-evident. On the other hand, the thin description of citizenship defines conditions in which an athlete has no prior relationship with the country they represent. For example, this was the case when Russia offered Korean born-and-raised Viktor Ahn citizenship and a sum of money in return for his willingness to represent Russia in the Olympics (Business Insider, 2014). Between thick and thin descriptions of citizenship, this study outlines an in between perspective where dual or multiple forms of citizenship emerge. This in between perspective provides options for athletes to represent more than one country. The proposed model of thick, thin, and in-between citizenship aims to clarify and provide meaning to the empirical understanding of ‘citizenship as claims-making’, as recently suggested by Bloemraad (2018).

This model helps us to understand three recent developments of acquiring citizenship in the history of global sports: (1) Acknowledge that the current global regimes for acquiring citizenship at birth inevitably create dual, or multiple forms of citizenship. Therefore, countries and national sports federations need to accept that dual citizens are legitimately legal members of more than one country, and they may wish to switch alliances. (2) People of former colonies may acquire citizenship by claiming colonial ties as part of their national identity and may, therefore, switch alliances. (3) Countries such as the U.S. and Canada historically attract migrants, and thus, it is not surprising that they use special scholarships and sports schemes to attract athletes who may eventually represent them though they had no prior attachments. In extreme cases, such as Qatar and Bahrain, most inhabitants are migrants. Here, the use of migrant-athletes in representing these countries is in line with the overall migration strategy of empowering these respective countries. These countries increasingly accept the thin description of citizenship to have their countries represented in international sports arenas. 1

In general, the historical process of acquiring modern citizenship has taken two different paths: territorial birthright and descent. This is best illustrated in the remarkable and ground-breaking study by Brubaker (1998), who points out that the two primary concepts determining French and German national self-understanding are the civic and ethnic approaches to membership of a nation formed in the 18th and 19th centuries. The French understanding of citizenship and nationhood was based on birthright and was inclusive. Everyone born on French territory was French or – in the case of parents with different nationalities – could become French. The French tended to define their country as a political unit. The major question was – who would enjoy political rights? It was not – what makes us French? However, the German understanding of citizenship and nationhood was based on descent, was ethnocultural, and therefore exclusive. Blood, ancestry and Volksgeist created the nation. Similar to the French example, the development of American citizenship was based on territorial birthright. Kettner (1978) shows that the debates in the early nineteenth century established the terms under which immigrants could become American citizens:

Theoretical coherence and logical consistency were not the primary goals here, especially for legislatures and executive officers. Rather, in dealing with problems involving citizenship – problems of naturalisation, expatriation and court jurisdiction – the chief aim was to maintain an acceptable pattern of federal relations. (p. 248).

However, this pragmatic approach also included the right to exclude Native Americans and (former) enslaved people. In short, bloodline and territorial birthright were powerful tools to both include and exclude citizenship, and therefore, citizenship rights.

What German, French and American histories share is that they describe the magnitude of the Westphalian transformation in1848, from non-territorial membership (when people were the subjects of kings) to territorial membership, where people became members of sovereign states. This membership is based on duties and political rights, which have evolved into universal rights for all members of most states, such as freedom of speech, equality, and well-being. Simultaneously, it is assumed that the state fulfils its functions best if its members are not only individuals with their social contracts but also share general values, language, and history. This is perceived as the result of unifying processes such as the shift from primarily agricultural to industrialised societies (Gellner, 1992). Similarly, the emergence of an ‘imagined community’ (Anderson, 1991) was the result of the successful promotion of national identity, the education of children in national history, promotion of a common language, and the emergence of a ‘national press’ (Anderson, 1991; Hobsbawm, 1992). Associated with these processes are the distinction between ‘civic’ and ‘ethnic’ types of nations and nationalism, and the idea that all nations have dominant ‘ethnic cores’ (Smith, 1991). On the one hand, there is the successful transformation of peasants to Frenchmen as described by Weber (1976), whereas on the other hand, Gans (2017) describes how Britain assimilated the Welsh people, while excluding Jews and Catholics from full citizenship.

New forms of citizenship regimes

New forms of citizenship regimes and belonging emerged in the post-colonial world, especially in the Middle East and Asia. Countries like Singapore, Qatar and the United Arab Emirates realised that bringing in multinationals and foreign direct investment were not sufficient to prosper. Attracting people with skills and knowledge therefore became a key strategy for national development. This included promoting attractive citizenship processes and tax regimes for wealthy and talented foreign individuals, with more sober regimes for labourers. Singapore, for example, introduced a points system where education and professional qualifications are rated so that skilled migrants can easily obtain permanent residency depending on their rating, skills and income (Ong, 1999, p. 186). Attracting skilled and wealthy foreigners is not unique to the East. It also occurs in many Western countries, including the U.S. and Canada. What is different, however, is the scale of migration. In Singapore, around one-fifth of the total population belongs to the highly educated migrant community. In Dubai and Qatar, more than 80% of inhabitants are migrants (Vora, 2013). Some are poor and worked as labourers building the stadiums for the Qatar 2022 World Cup, while others had the sought-after skills to represent Qatar in international sports events.

In short, currently, there are three interrelated ways of obtaining citizenship: (1) citizenship acquired through descent (jus sanguinis). This form is the kind of citizenship prevalent in, for example Germany until 1999. If one, or both of your parents were German, you were eligible for German citizenship. In this way, many Eastern European Germans maintained access to German citizenship status during the Cold War. (2) Citizenship by birth in the territory (jus soli). This form of citizenship was made famous by the U.S. American citizenship is granted automatically to any person born within and subject to the jurisdiction of the U.S. (3) The stakeholder principle (jus nexi) is proposed as an alternative (or a supplement) to birthright citizenship. Individuals who have a ‘real and effective link’ (Shachar, 2009, p. 165) to the political community, or a ‘permanent interest in membership’ (Bauböck, 2006) are entitled to claim citizenship. This relatively new criterion aims at securing citizenship for those who are members of the political community, in the sense that their life prospects depend on the country’s laws and policy choices. This often applies to migrants who work and live in a country for a specific number of years (often five to seven). They are regarded as new members of society who have acquired skills (they work and pay taxes), and can become politically active and thus contribute to the state (see Figure 1).

Figure 1. Thick and thin forms of citizenship.

However, there are some counter-intuitive results of the distinction between jus sanguinis and jus soli: while a regime of pure jus sanguinis systematically excludes immigrants and their children, though the latter may have been born and raised in their parents’ new homeland, it includes the descendants of expatriates who might never have set foot in the homeland of their forebears. On the other hand, a regime of jus soli might attribute citizenship to children whose birth in the territory is accidental, while denying it to children who arrived in the country at a young age. It is important to understand that the current rules for acquiring citizenship at birth inevitably create multiple citizenships. Dual nationality merges at birth in two cases: first, in the gender-neutral system of jus sanguinis, where children of mixed parentage inherit both parents’ nationalities, and second, from a combination of jus soli and jus sanguinis. Multiple citizenships could only be avoided if all states adopted either pure jus soli or jus sanguinis from one parent’s side. However, gender discrimination in citizenship has been outlawed by norms of international and domestic law, and countries that apply jus soli within their territory mostly attribute citizenship jus sanguinis to children born to their citizens abroad. Given these facts, there is no possible rule that could be adopted by all states to avoid multiple forms of citizenship. In other words, through existing membership regimes, there is always scope for athletes and states to represent two or more states. Dutch national footballer Jonathan de Guzman, for example, could have played for Jamaica (maternal ancestry), the Philippines (paternal ancestry), Canada (where he was born), or the Netherlands (where he started his career and was eligible to play after naturalisation). His brother Julian represents Canada. In other words, as an extremely talented midfielder, he was able to negotiate between the Dutch and Canadian national football federations. His citizenship capital (a form of cultural capital) was such that he could claim to play for four different countries at the international level. By the same token, there were four national football federations that could compete for his talents. In this case, de Guzman chose to play for the Netherlands – most likely because his chances of winning a World Cup medal were highest there as the Dutch national football team was ranked higher than the other three options. In this respect, the agency of citizens and non-citizens takes centre stage rather than state policies (Bloemraad, 2018; Jansen et al., 2018). Thus, this study seeks to discuss ‘citizenship as membership through claims-making’ from an empirical perspective (Bloemraad, 2018). Bloemraad (2018) attempts to understand citizenship from a relational approach within the context of structured agency. She takes a bottom-up approach, emphasising the perspective of migrants in the context of ‘citizenship’s power as practice and status’ to elucidate, ‘how status, rights, participation and identity can at times be interwoven and reinforcing’ (Bloemraad, p. 4).

The matter of civic and ethnic citizenship rights merges here forming the question: who may represent the country in international sports events? International athletes represent a country. They wear the colours of that country. They sing the national anthem, and they watch the national flag being raised if they win a medal. In other words, how do athletes acquire citizenship? The answer might not surprise us. In general, they acquire citizenship the same way most of us do, by birth (territorial or descent). However, as this article shows, for some athletes, the stakes in negotiating the scope for acquiring citizenship for one country or another are high.

Table 1. Levels of rules in nationality applications within the International Olympics Committee.

Thick and thin forms of citizenship

In this model, I define thick citizenship where territorial birthright, descent, and contribution merge. Most athletes and their parents are born in the countries they represent. These athletes have acquired their skills in that country and are more than willing to wear national colours and win medals for national teams. Unsurprisingly, the Sport and Nation group at the Erasmus University in the Netherlands found that more than 90% of all athletes who represented their country in the summer Olympic Games from 1948–2016 fell within this category (Campenhout et al., 2018; Jansen et al., 2018; Jansen & Engbersen, 2017).

Thin citizenship, however, occurs in cases when migrants or athletes do not have any relationship with the country they represented before the citizenship transfer in exchange for money. This is illustrated by the current debates on national belonging and citizenship changes in the Olympics (Shachar, 2011; Spiro, 2011). Some countries (including the U.S., Canada, and most Western European countries) have advanced an entrepreneurial attitude towards elite labour; they have developed specific citizenship tracks for foreigners. However, extreme examples relating to participation in the Olympics have emerged from countries such as Azerbaijan, Qatar, Singapore, Bahrain, and Turkey. These countries have actively attracted foreign athletes to represent them internationally. In the cases of Qatar, Bahrain, and Singapore, this can be perceived as part of a wider strategy to attract foreign talent. For Turkey and Azerbaijan, it is a form of self-promotion. 2Between thick and thin citizenship, this study locates mixed, or in-between forms of citizenship where athletes only share a connection through two of three citizenship qualifications: jus soli, jus sanguins, or jus nexi. Additionally, in some cases, the prior relationship through jus sanguinis and jus soli is distorted by external territorial (colonial) expansion, as well as mixed ancestral backgrounds. Further, this category includes cases where the connection is made through contribution, earned citizenship, and jus nexi, without prior relation through territorial birthright or descent. Overall, the major contribution of this study is to highlight some of the complexities of the ‘in between’ category, an area that has yet to receive sufficient attention.

This ideal model of thick and thin perspective stresses the formal relation – ‘the social contract’, between the individual and the state. Therefore, this model hides some of the complexities of nationality and national belonging. In Britain, for example, citizens may carry a British passport, whether their national identity is Scots, Welsh, Irish, or Cornish. In Spain, people may have a Spanish passport, but they may identify more with Catalonian or Basque nationalities. In these cases, the terms of the social contract of a Welsh and Scottish person are analogous, but the two persons may identify with different nationalities. Thus, the answer to the question: who may represent the country, becomes multifaceted. Scottish football players are unlikely to represent the Welsh national football team in an official match and vice versa. Nevertheless, as the international governing body of association football, the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee handle different sets of rules regarding their recognition of citizenship, it may well happen that the same Scottish and Welsh football players represent Team Britain during the Olympic Games against another country (Ewen, 2012).

Sport, migration and identity

Research on sports labour migration began almost three decades ago with the pioneering work of Bale and Maguire (Bale, 1991; Bale & Maguire, 1994). In the development of a political economy of sport, labour migration and nationhood international sports migrants should be considered in the context of the realities of leaving native lands and adapting to foreign environments. Most cases examined came from countries in the Global North and South America. However, these were soon supplemented with cases of football players from Africa who went to Europe, and East African athletes who went to the Middle East (Bale, 2004; Carter, 2011; Darby, 2000, 2002, 2007; Lanfranchi & Taylor, 2001; Poli, 2006, 2010). Most of this research is primarily focused on male athletes. Agergaard and Engh have recently complemented existent literature with female migrant players, focusing on routes between African (Nigerian) and Scandinavian football clubs (Engh et al., 2017) as well as global perspectives (Agergaard & Tiesler, 2014). Recently, Besnier, Brownell, and Carter have taken up the challenge to write an anthropological perspective of sport, including issues of class, race, gender, and migration (2018). While these studies include questions of migration, cultural adaptation, legal process of visa, citizenship, and the political economy of globally skilled (athlete) labour, they scarcely focus on the extraordinary cases of migrant athletes who represent a country at the FIFA World Cup, or at the Olympics (Guschwan, 2014). The study argues that representing a country where you were not born often involves a different set of legal requirements (e.g. the acquisition of citizenship), adaptions (sometimes minimal), and national identification, whether imagined or not. For an excellent overview of the complexities of the nationality requirements of Olympic sports see the recent work of Wollmann (2016). She clearly shows that states, as well as international and national sport federations, may set different rules and regulations of eligibility. This study shows how athletes navigate within those institutions (Table 1).

Overall, most cases and examples studied here come from the Olympics and the Men’s World Cup, which are arguably the most watched global sporting events. The 2016 Olympic Games were broadcast in over 200 participating countries with a worldwide audience of five billion people. Despite the fact that the number of participating countries in the World Cup was limited to 32 in 2018, the final match was watched by 3.5 billion people. The increased mediatisation of those events over the past decades makes nationality switches in these global sport events major national, and sometimes international high-profile matters (Giulianotti, 2015). In these contexts, sport can serve as a ‘prism […] uniquely well suited to an examination of national identity’ (Holmes & Storey, 2011, p. 253). In addition, the historian Eric Hobsbawn is often quoted as saying, ‘The Imagined Community of Millions seems more real as a team of eleven named people. The individual, even the one who only cheers, becomes a symbol of his nation himself’ (Hobsbawm, 1992, p. 143).

In the following sections I describe the three citizenship categories in more detail. This includes the presentation of empirical case studies to determine the scope for negotiating between states and athletes in each of these categories. Not surprisingly, the first category of thick citizenship does not leave much room for negotiating. Athletes, as well as states and sport-institutions, do not find much room for switching alliances because of legal and institutional constraints. The second, ‘in-between’ category is where shifting alliances and making instrumental choices to compete for country A or B has come to the forefront of the debate. Regulations on dual citizenship, colonial heritage, and jus nexi all contribute to the flexibility of athletes, sports institutions, and states. It is here that I propose to merge Bloemraad’s plea (2018) to study citizenship as a form of claims-making with Bourdieu’s theory of social fields, i.e. where a relatively autonomous network of agents is able to use its social citizenship capital (a combination of jus soli, jus sanguinis and jus nexi included in colonial and post-colonial senses of belonging) to navigate belonging and the right to participate in international sports. In the third category of thin citizenship, the room for negotiating is extended to the maximum. No prior-relationship is needed. It is simply citizenship in return for cash.

The thick, or ideal type of citizenship

National pride takes centre stage in international competitions, such as the Olympics and the FIFA World Cup. The number of medals won per country is regarded as an indication of the country’s (economic or military) prowess and reputation. Olympic athletes and the players on national football teams often become symbols of national pride and prestige. They sing the national anthem before matches, or after they have won an Olympic medal. These athletes display their medals and trophies with pride upon return from international competitions. More often than not, the success of these athletes is perceived as the success of the nation. The head of state typically invites successful athletes and teams to their official residence and honours them with awards or other decorations. It is not uncommon to see images of athletes or national audiences during the celebrations of great success with tears in their eyes.

Most athletes who represent their country are born and raised in the country they represent. More often than not, their parents and/or grandparents were also born there. Here, the ideal types of jus soli, jus sanguinis, and jus nexi merge. Each state can have its national hero, and this study considers Dirk Kuyt as one typical example. Both he and his parents were born in the Netherlands. He played for the Dutch football team (Feyenoord) before moving to Liverpool and Fenerbache. He played the semi-final match of the World Cup in 2010 and the final match in 2014. Others may opt for Michael Phelps, an American swimmer and the most decorated Olympian of all time. He was born in the U.S., as were both his parents. His American citizenship is not in dispute, nor is his American identity. What these cases have in common is that the citizenship status of the athletes is not disputed, from a legal, cultural, or normative perspective. Their citizenship status is – supposedly – self-evident.

Between thick and thin forms of citizenship

A little below the surface, some counterintuitive examples emerge where the relationship to jus sanguinis and jus soli is distorted. In fact – as already mentioned – the present rules for acquiring citizenship at birth inevitably create the possibility for multiple citizenships. A child born in country Z of a father born in country X and a mother born in country Y may be eligible to represent three countries. This increases the scope for negotiating national identity. This section presents three areas with scope for negotiating citizenship, identity, and belonging. First, there are examples of dual and multiple citizenships. Second, some countries use (and have used) their colonial ties to stretch the idea of territorial citizenship, while various forms of multiple citizenships and the stretching of colonial belonging might also merge. Third, cases where migrants – or their ancestors – claim jus nexi, or citizenship based on permanent interest in membership are discussed.

Dual and multiple citizenships

Julian Green was born in the U.S. His father was American, and his mother was German. As a toddler, he moved with his mother to Germany where she raised him. His American father served in the U.S. military and travelled back and forth. Julian had one brother, Jerry, who was born in Germany. Julian became a talented football player and played for Bayern Munich. At the age of 18, he acquired German citizenship (mother’s descent) and American citizenship (through father’s descent and territorial birthright). He was selected for the American national team and was also eligible to play for the German team. He spoke no English prior to his selection and had rarely visited the U.S. He was just one of the five German-Americans in the 2014 U.S. team. There were also foreign-born players, such as an Icelandic-American and a Norwegian-American, in addition to players of Colombian, Mexican and Haitian descent. All in all, 10 of 23 players, or 48% of the team were foreign-born. Manager Jürgen Klinsmann was said to have made the team his own by aggressively recruiting ‘dual nationals’ (players with dual citizenship). According to Klinsmann, however, this ‘reflects the culture of a country’. Nevertheless, America-born goalkeeper Tim Howard stated in USA Today that, ‘Jürgen Klinsmann had a project to unearth talent around the world that had American roots. But having American roots doesn’t mean you are passionate about playing for that country’. 3Some Americans have questioned the logic behind allowing dual citizens to represent Team USA in Brazil, while domestic players, such as former team captain Landon Donovan, were left off the roster. What is important in this context is that Klinsmann, Howard, and Donovan negotiated stretching dual citizenship and national belonging to a larger national and global audience, from their own instrumental perspectives.

In 2013, the talented football player Adnan Januzaj hit the headlines when journalists revealed that he was eligible to play for six different countries. He was born and raised in Belgium. He qualifies to play for Albania through his Kosovan-Albanian parents. His parents are of Kosovan-Albanian descent, but Kosovo’s national teams are not members of the Union of European Football Associations (UEFA) or FIFA. As Kosovo’s independence is also not recognised by the United Nations, he could play for Serbia. He also qualifies to play for Turkey through his grandparents. Finally, as he played for Manchester United at an early stage of his career, he could have acquired the right to play for England after five years. 4He ultimately chose to play for Belgium. 5Earlier, the former president of UEFA, Lennart Johansson, emphasised in similar cases that UEFA needed to preserve ‘traditional values such as pride in the jersey, national and regional identity (…) that are not financially related’ (Poli, 2007, p. 650).

Foreign-born: colonial pasts and post-colonial realities

Colonial ties and ideals of citizenship and belonging were negotiated during the colonial era. An interesting figure who complicates the exclusivity of the jus soli and jus sanguis forms of belonging in the colonial context is Norman Pritchard (1875–1929). He was born in Calcutta, the son of English parents and was baptised through the Senior Marriage Registrar in Calcutta in 1883. Historian and journalist Gulu Ezekiel claims that Pritchard was Indian based on the fact that he was born and raised in India and lived there for many years. 6Pritchard became the first Asian-born athlete to win an Olympic medal. Nevertheless, the late British Olympic historian Ian Buchanan argues that as Pritchard was a member of an old colonial family and though born in India, through descent he was indisputably British. In competitions in England his name was entered as a member of both the Bengal Presidency Athletic Club of India, and the London Athletic Club. It should also be noted that of the countries participating in the Paris Olympics, only a handful of countries registered their National Olympic Committees. These did not include either India or Great Britain, and it was not until the 1908 Olympics that athletes were officially registered by their countries. Until then they were free to register as individuals. In the archives and on its website, the International Olympic Committee continues to credit his two medals to India. However, disputes and debates persist, as authentic records were not maintained at the time. 7For the importance of national medal counts and the modern role of citizenship swaps see Horowitz and McDaniel (2015).

One unexpected side effect of the Scramble for Africa was that prospective players who were born and raised in Africa were eventually allowed to compete for their mother countries. An excellent example is the Portuguese football hero Eusébio da Silva Ferreira, born in Portuguese Mozambique in 1942. His parents were an Angolan railroad worker from Malanje, and a black Mozambican woman (Cleveland, 2017).

Mozambique was a colony until 1975. Eusébio was signed by the Portuguese club Benfica in 1961, was naturalised soon afterwards and went on to become a key player on Portugal’s national team. Eusébio was one of the five naturalised players who represented Portugal in the 1966 World Cup. This extraordinarily gifted generation could have made Mozambique a major force in world football, but there was no Mozambican state, or national team in 1966. These forms of colonial inclusion reflected Portuguese dictator Salazar’s attempt to justify continuing colonialism despite decolonisation elsewhere, by proclaiming that its African subjects were also Portuguese. While his fellow Mozambicans remained subject to harsh colonial rule that greatly limited their social and political rights, Eusébio was named by Salazar as a ‘national treasure’ (Darby, 2007; 2005). Nevertheless, even though colonialism played a role in these cases, one might argue that those concerned also earned their citizenship based on birthright and descent. In other words, they might still claim thick citizenship. Nevertheless, it articulates the distinction between legal and cultural and indeed racial associations in the case of colonised peoples in metropolitan centres. In these cases, some would argue that that the claim for citizenship is ‘thinner’, but ‘stretched’ in the direction of colonial territory (Campenhout et al., 2018)

There are many contemporarycases where forms of dual citizenship and colonial pasts are negotiated. The 1998 world champion men’s football, France, was celebrated for its multicultural team. However, most players were born and raised in France, albeit as children of (colonial) migrants (Maquire et al.). An interesting case is that of the Algerian team in the 2014 World Cup. Algeria arrived with 16 out of 23 (almost 70%) of its team who were born and raised in France. They were eligible to play for both Algeria and France (dual citizenship). Overall, there were 25 players born in France who did not represent France in the World Cup. However, those who were eligible and opted for the French team were not always received with patriotic feeling. In the words of the French international Karim Benzema, ‘Basically, if I score, I’m French. And if I don’t score or there are problems, I’m Arab’. 8Again, players themselves and national audiences openly debate the terms of belonging (Skey, 2015).

Jus nexi: socio-economic citizenship

In the third category, socio-economic citizenship, the focus is on cases where migrants or their ancestors claim jus nexi, or citizenship based on permanent interest in membership. Europe has recently experienced a marked increase in migration coming mainly from Morocco and Turkey (Lucassen, 2005; Mol & de Valk, 2016). These migrants, or their ancestors, claim jus nexi citizenship. Their offspring often claim dual citizenship, and the Olympic Committee and FIFA have developed special rules for these situations. For instance, the Germany-born player Mesut Ozil, is the son of Turkish migrant workers. Owing to his background (parents’ descent as well as birthright), he was allowed to play for both the Turkish and German national teams. Under the current FIFA regulations, players who have played for one national team cannot switch teams and play for another. Nevertheless, players are allowed to change their football nationality if they have played for the national youth team of another country. During the 2018 World Cup, it was estimated that more than 60% of the players representing Morocco were born in the Netherlands, France, Germany, or Spain. 9

Thin citizenship

There are three occasionally overlapping categories of thin citizenship. First, some athletes get caught up in the tricky web of wars and international politics. In recent history, the collapse of the Soviet Union, Yugoslavia, Czechoslovakia, and several others, lead to the replacement by new entities like Ukraine, Azerbaijan, Estonia, Latvia, Lithuania, and so on. Athletes in these countries, who lose their original citizenship, subsequently need to renegotiate where they belong based on their birthright and other forms of belonging. Simultaneously, both the International Olympic Committee and FIFA had to construct distinct rulings to deal with these exceptional cases. Second, in some cases, both athletes and states have stretched the rules of belonging, as with Viktor Ahn. Even though these are exceptional cases, it shows that if the time and place are right, regulations and principles can be overextended and become very thin indeed. Third, some athletes have represented three or more countries. Sometimes, this is a consequence of circumstances, which also occurs in the mixed forms of citizenship. Nevertheless, the cases presented here include a combination of ‘citizenship for sale’, lost citizenship, and mixed forms of citizenship. The fact that these athletes can shift citizenship more than once shows the scope for negotiation in exceptional cases where the institutional settings and historical context are favourable.

Lost, emerging and overlapping states and nations

In 1989, the promising Yugoslavian football team became world youth champions in Chile, playing together until 1990 when war broke out and Yugoslavia fell apart. First, the Croatian players left, then the trainer resigned because the Serbians bombed his home town of Sarajevo, and finally the team was banned from the European championships in Sweden under pressure from the international community. This ended the promising Yugoslavian squad. Some of the players in this team later played for Switzerland (Mills, 2009).

In the 2014 World Cup, Switzerland fielded seven migrant players permitted to play for Switzerland for several reasons. The midfielder Tranquillo Barnetta is of Italian descent and holds dual citizenship. Gokhan Inler’s parents were born in Turkey, though he was born in Switzerland. However, the most striking feature of Switzerland’s 2014 team was the number of players from former Yugoslavia. Among them, four had roots in Kosovo, two were from Bosnia, and two from Macedonia. Further, Granit Xhaka had previously played for Albania. Ironically, he faced his elder brother in the match against Albania in the 2016 European championship. Only 38% of the players in the 2014 selection for Switzerland were actually born there. 10

Citizenship for sale?

The most extreme examples of thin citizenship are cases where there is no parental ancestry, nor any birthright claim. Becky Hammon and Victor Ahn are good examples of thin citizenship. The female basketball player Becky Hammon was one of the most talented basketball players in the U.S. She signed a contract for CSKA Moskou in 2007. In 2008 she could sign up for the Russian team in return for a US$2 million-dollar contract. Even though Hammon is not of Russian descent, speaks no Russian and is not a full-time resident, she was fast-tracked for Russian citizenship in February by the highest levels of the Russian government (Schwarz, 2008). Dual citizenship made Hammon a precious commodity in the Russian league because two Russians must be on the floor at all times, and each club is allowed only two American players. As Hammon had never competed in a sanctioned international competition for American Basketball, The International Basketball Federation, more commonly known by the French acronym FIBA, rules allowed her to represent another country in the Olympics. Capitalising on the fact that FIBA rules allow one naturalised citizen to compete for each country, the Russians offered Hammon not only a passport but also an opportunity to play at the Olympics (Schwarz, 2008). In 2006, South Korea’s short-track skater Ahn Hyun-soo won three gold medals for his homeland. Due to injuries, Korea did not need him after 2010. So Ahn went searching for a new Olympic allegiance having fallen out with the South Korean Skating Federation. He and his father investigated naturalisation for top athletes in several countries – with the U.S. and Russia on the final shortlist. In 2011, Ahn Hyun-soo became a Russian citizen, changed his name to Viktor Ahn, and pledged to compete for his adopted homeland at the Sochi Games in 2014 (Business Insider, 2014).

The case of Hammon and Ahn acquiring Russian citizenship in exchange for money, status and the ability to compete at the highest level might be regarded as extreme examples of highly talented athletes’ ‘citizenship swaps’, or ‘talent for citizenship exchange’ (Kostakopoulou & Schrauwen, 2014; Shachar, 2011; Shachar et al., 2017). There were no prior ties between Hammon and Ahn to Russia. They had no Russian ancestors, nor did they speak Russian. 11In short, this example challenges the ritual affirmation of citizenship. This raises the question as to whether the world is heading towards the end of Olympic Nationality (Spiro, 2011). However, in this case, Russia and not the IOC decided the citizenship issue (Schwarz, 2008; Shachar, 2011, pp. 2090–2091; Jansen, 2019).

In the Rio Summer Olympics in 2016, Azerbaijan and Qatar – among others – portrayed themselves as entrepreneurial states willing to buy success. Azerbaijan sent 56 athletes to these Olympic Games. However, foreign athletes who changed their citizenship to compete under the Azerbaijani flag made up more than 60% of the delegation. Transfer of allegiance, ‘leg drain’, or ‘muscle drain’, is a fairly common phenomenon in the international sporting world, but for Azerbaijan, it would appear that it has become a matter of state policy. 12Twenty-three of Qatar’s 39 athletes were not born in Qatar. Its handball team of 14 players includes 11 foreign-born athletes. 13This in itself is not a new phenomenon, but the scale is striking. Media and some academic literature (Shachar, 2011, p. 2017) often suggest that states increasingly trade their most valuable and prestigious asset – citizenship – for medals and national prestige. Nevertheless, empirical evidence suggests a more nuanced perspective (Jansen et al., 2018; Jansen & Engbersen, 2017). These examples portray a very thin citizenship. There is no prior relationship through descent or birthright. More often than not, these athletes do not speak the language of the country they represent, nor is there any other cultural or religious identification. Countries allow these athletes to represent them in return for their ability to earn medals. Individual athletes are willing to swap their national identities (passports) in return for money and the ability to compete at the highest possible level.

Travelling loyalties

Some top athletes have become experts at using existing rules and negotiating an exchange of their skills for citizenships, passports, and money. Lascelles Brown, born in Jamaica in 1974, was a member of the Jamaican national bobsled team from 1999 to 2004, competing at the 2002 Winter Olympics in Salt Lake City. He continued training in Calgary, where he met and married his Canadian wife Kara. He applied for Canadian citizenship in 2005; it was awarded to him by special exemption just prior to the 2006 Winter Olympics, letting him compete for Canada at the games in Turin. Brown competed at the 2010 Winter Olympics, winning bronze in the four-man event. Brown then became a competitor for Monaco at the start of the 2010 season and was apparently paid well for his services. 14Brown combined both thick citizenship (born and raised in Jamaica), thin citizenship (representing Monaco for money), and an in-between version of the citizenship rules (representing Canada, as he lived and married there).

Similar cases have occurred in football. The famous footballer Laszlo Kubala (1927–2002) and the striker Alfredo Di Stéfano (1926–2014) played for three different national teams. Kubala played for Czechoslovakia, Hungary and Spain, while Di Stéfano played for Spain, Argentina and Columbia. Nevertheless, their migration history was less opportunistic and money-driven, and more politically motivated. Kubala was born in Budapest, as were his parents who came from mixed backgrounds. His mother had Polish, Slovak and Hungarian roots, while his father, belonged to the Hungary’s Slovak minority. In 1946, he moved to Czechoslovakia, allegedly to avoid military service, and joined ŠK Slovan Bratislava. In 1947, Kubala married the sister of the Czechoslovakian national coach, Ferdinand Daučík. He played for Czechoslovakia six times. In 1948, he returned to Hungary, again allegedly to avoid military service, and joined Vasas SC. In January 1949, as Hungary became a socialist state, Kubala fled the country in the back of a truck. He initially arrived in the U.S. zone of Allied-occupied Austria and then moved on to Italy, where he briefly played for Pro Patria. He was eventually signed to Barcelona in 1950. After adopting Spanish nationality, he played for Spain 19 times between 1953 and 1961.

Alfredo Di Stéfano was born in Buenos Aires, as the son of a first-generation Italian-Argentinian and an Argentinian woman of French and Irish descent. He played with the Argentinian national team six times. In 1949, a footballers’ strike in Argentina prompted him and many other Argentinean players to defect to a breakaway Colombian league outside the remit of FIFA, not obliged to pay transfer fees and able to pay generous wages to some of the world’s best players. In the 1950s, he began playing for Real Madrid in Spain and acquired Spanish citizenship in 1956. He played four World Cup-qualifying matches for Spain in 1957 and helped Spain qualify for the 1962 World Cup, though he was unable to participate himself due to injuries and his age.

In this last category, athletes who represented three or more countries were highlighted. At times, there were some ‘contributing relations’, as in the case of Lascelles Brown, who represented Canada after marrying a Canadian woman. However, his move to represent Monaco was motivated by money, as well as his desire to compete at the highest possible level, to participate in the Olympics one more time.

Afterthought and conclusion

Our proposed three categories – thick, in-between, and thin citizenship – are not mutually exclusive and do occasionally overlap. An exceptional example is Zola Budd, the middle- and long-distance runner born in 1966 in South Africa. Her parents were also born in South Africa. Her case would be defined as thick citizenship if she represented South Africa. Nevertheless, her story brought her to Britain. At the age of 17, Budd broke the women’s 5000 m world record. Since her performance took place in South Africa, then excluded from international athletics competition because of its apartheid policy, the International Amateur Athletics Federation (IAAF) refused to ratify her time as an official world record.

The British tabloid, the Daily Mail persuaded Budd’s father to encourage her to apply for British citizenship, on the grounds that her grandfather was British, to circumvent the international cultural (therefore also sporting) boycott of South Africa. The Daily Mail would have exclusive rights to Budd’s story and would put U.K.£40,000 into a fund for her, as well as providing rent-free housing for the family and finding a job for her father. The Daily Mail started an active campaign and began to put pressure on a series of ministers to give Budd a passport. They wished to see her competing for Team Britain during the 1984 Summer Olympics. Thus a fast track citizenship procedure was started. However, the Home Office was reluctant to grant such status stating:

To give exceptional treatment to a South African national to enable her to avoid the sporting restrictions inflicted on her country and compete for Britain in the Olympics will be seen as a cynical move which will undermine that good faith. 15

Groups supporting the abolition of apartheid campaigned to highlight the special treatment she received; other applicants had to wait sometimes years to be granted citizenship, if at all. In short, just ten days after she formally applied for British citizenship, the 17-year-old got her passport. It remains unclear whether the justification was based on her talent, her ancestry, or a combination of both. However, what this example shows, is how cases can shift from thick citizenship to the in-between category of citizenship. This exceptional case is different from the citizenship for sale example in the thin citizenship category. It was not the state, but a newspaper that paid for the citizenship swap for medal chances. Undoubtedly, however, the fact is that money and the citizenship switch were directly related.

What is important here is that there is room to negotiate citizenship and the transfer of citizenship. Depending on territorial birthright, ancestry, political circumstances and financial incentives, the rules for access to citizenship are stretched. Interestingly, Budd competed for South Africa at the 1992 Olympics after the country was re-admitted to international competition following a referendum vote to end the apartheid system.

Historical research has shown that acquiring modern citizenship has taken different paths: territorial birthright and descent. More often than not they were not mutually exclusive, but reinforced each other. Nevertheless, through these paths and the emergence of the jus sanguinis system, access to multiple citizenships became part of the inheritance – or citizenship capital of individuals. In the past decades, some states, particularly in the Middle East and Asia, have attracted foreign labour in return for citizenship rights. A growing number of migrants have also acquired citizenship through a jus-nexi connection. These developments have created space for states, sport-institutions and individual athletes to negotiate their citizenship status.

The study proposed three categories of relationships between migrant athletes and country. These cases resemble Bauböck’s concept of thin and thick conceptions of citizenship (1999). Further, the cases discussed within this model give room for Bloemraad’s suggestion to discuss ‘citizenship from below’, and ‘citizenship as claims-making’ (2018). These models also apply to non-sporting contexts. However, the context of international sports is distinctive for two major reasons. First, athletes represent the country on a widely publicised international stage. Second, because of associated prestige, athletes’ connections with the homeland, motherland, or ‘genuine links’ with the country they represent are often part of public debate. (Campenhout et al., 2018; Jansen et al., 2018) Thin citizenship describes examples of citizenship changes where the athlete has no prior relationship with the country that they represent, as in the cases of Viktor Ahn and Becky Hammon. Moreover, this category includes migrants from states that dissolved, like Yugoslavia and the USSR. The national players of these countries became part of new countries or migrated. At the other extreme, I defined the thick citizenship, which refers to the merger of territorial birthright (jus soli), descent (jus sanguis), and ‘contribution’ (jus nexi). The in-between categories are the most interesting, but they are also difficult to define. Here, the concept of colonial citizenship is included, where migrant athletes are, or were part of the larger jus soli of the country, or colonial enterprise. Nevertheless, this category also includes recent migrant, where athletes are part of the jus nexi of their new homes. The three categories are not mutually exclusive, as has become clear in the case of Zola Budd.

In short, the primary question: who may represent the country? cannot be easily answered. Categories of belonging are blurred, and athletes, sports federations, institutions, states, and audiences constantly negotiate them. The question is, therefore, not whether athletes and/or states strategically use citizenship regulations for their own purpose, they probably are. The ear when scholars could convincingly argue that national sporting stars are unifying representatives (Duke & Liz, 1996) are now under scrutiny. This study argued that citizenship rules and justifications for national belonging are stretched. This stretching can be seen as a global continuum between thick and thin citizenship. The answer to the moral question: who may represent the country? might be found in the history of the Olympics. Until 1908 it was possible to compete with mixed teams and to enter as an individual, not necessarily representing a country. This, then, might come close to the suggestion of Iowerth et al. (2014) that sporting bodies should be more pragmatic in their criteria of national belonging.

Notes

Please note that the model loosely refers to Bauböck’s (1999) notions of thick and thin citizenship. For Bauböck, the thin concept of citizenship refers to legal membership status with negative liberties and passive citizenship. This may be referred to as a libertarian perspective of citizenship, where citizenship is a minimal contract between the state and its members. However, here, the study refers to thin citizenship if there are no prior relations between the state/nation before representing that country. At the other extreme, Bauböck describes the thick concept of citizenship, which includes cultural identity, moral duties and heroic virtues. This may be regarded as a communitarian perspective of citizenship. See also Kostakopoulou (2006 ).

Note that in doing so, this refers to a different model of citizenship studies than that put forward by Bryan Turner (1997) in the first issue of Citizenship Studies. He argued that in the era of global capitalism a revised model of citizenship should include human rights. However, from the perspective of states, national identity rather than universal citizenship rights has become a dominant factor. The paradox is that, ‘campaigns for unity and integrations have to be conducted in a universalistic idiom’ (Joppke, 2007, p. 46; Blatter, 2011).

See http://www.goal.com/en-us/news/howard-criticizes-klinsmann-over-foreign-born-players/mb24pzqzewqt1aez6nonmgz6j.

There was widespread press coverage and debate. According to others, Januzaj would not meet the requirements to play for England under the unique rules set out in the Home Nations agreement, requiring a five-year period of education prior to the age of 18.

https://www.theguardian.com/football/2013/oct/09/adnan-januzaj-international-england-belgium.

http://www.telegraphindia.com/1080807/jsp/opinion/story_9654464.jsp.

During early Olympics, Irish-born athletes won numerous medals for the U.S. and U.K. See, http://library.la84.org/SportsLibrary/JOH/JOHv6n2/JOHv6n2f.pdf.

https://www.pri.org/stories/2014-06-30/frances-cosmopolitan-society-shines-world-cup-other-countries-too.

https://www.statista.com/chart/12033/the-most-international-teams-at-the-world-cup/.

http://www.swissinfo.ch/eng/euro-2016_switzerland--12-nations--one-team/42215610.

He stated, ‘First of all, the name Viktor is associated with the word ‘victory’. It is symbolic, as I want this name to bring me luck. Secondly, I know of another Korean named Viktor, who is very popular in Russia and is well known in Korea–Viktor Tsoy. I want to be as famous in Russia as he was. And third, I was told that Viktor is a name which is easy to remember for Russian-speakers’. http://www.businessinsider.com/viktor-ahn-russia-2014-2?IR=T.

https://www.meydan.tv/en/site/culture/16889.

https://www.thestar.com/sports/olympics/2016/08/16/at-the-rio-olympics-some-athletes-find-success-in-swapping-passports.html.

http://www.wikiwand.com/en/Lascelles_Brown.

http://www.dailymail.co.uk/news/article-3755199/Secret-papers-reveal-rift-Mail-s-campaign-Zola-Budd.html.

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#citizenship #migration #sport #nationality #identity #belonging #jus sanguine #jus soli #jus nexi #colonialism #post-colonialism #society #models of citizenship #olympic games #birthright citizenship #national identity #diaspora

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Aharon Levy & Yossi Maaravi, The boomerang effect of psychological interventions, 13 Social Influence 39 (2017)

Abstract

Research has found that teaching people about psychological biases can help counteract biased behavior. On the other hand, due to the innate need for preservation of a positive self-image, it is likely that teaching people about biases they hold, may cause a boomerang effect in cases where being associated with a specific bias implies negative social connotations. In the three studies below we examine situations in which psychological bias implies negatively associated behavior, and show that teaching people about bias in those contexts can be counterproductive.

Introduction

Past research in behavioral decision-making has long shown that people’s judgments and decisions are often biased or irrational (Kahneman, 2011). This is the case even when these decisions are made by experts (Loschelder, Friese, Schaerer, & Galinsky, 2016; Northcraft & Neale, 1987), or in cardinal situations such as legal verdicts (Danziger, Levav, & Avnaim-Pesso, 2011; Englich, Mussweiler, & Strack, 2006) or presidential elections (Antonakis & Dalgas, 2009; Ballew & Todorov, 2007; Todorov, Mandisodza, Goren, & Hall, 2005). Interestingly, one method that can be used to counteract such biases is simply raising the awareness of people to the bias and teaching them its effects. For example, research has found that simply teaching participants about Naïve realism – i.e. the psychological bias that causes people to perceive information that does not correspond with their existing perspective as inherently wrong – caused those participants to become more open to new and different ideas (Nasie, Bar-Tal, Pliskin, Nahhas, & Halperin, 2014).

On the other hand, research on the psychology of self-affirmation suggests that using the above debiasing technique may cause a boomerang effect in cases where being associated with the specific bias that a person allegedly holds also implies negative social connotations (Schumann & Dweck, 2014; Sherman & Cohen, 2006; Steele, 1988). Moreover, the work done in the field of commitment and post hoc justification has found that negative consequences of an action can increase the likelihood that a person will justify it and resist change (Axsom & Cooper, 1985; Frenkel & Doob, 1976; Kiesler,1971). Both of these fields of research can be seen as derived from the cognitive dissonance theory in that when an individual is faced with information that does not coincide with his world view (i.e. positive self-image), he is likely to find a way to discredit the new information in the attempt resolve the dissonance that is created by the said information (Festinger, 1962).

Accordingly, it is possible that an attempt to change peoples’ biased behavior in a manner that threatens their self-image, or challenges their world view will result in a negative boomerang effect. This boomerang effect may also result in entrenchment, that is, not only that they will not change their judgments or behavior, but they will even fortify their existing opinions. Think, for example, of a moderate conservatives during the 2016 presidential elections campaign who are considering to vote for Trump. Once they are exposed to information regarding racist and misogynistic biases that may be affecting Trump supporters, are they likely to accept the fact that they too might be affected by those biases, and reconsider their political behavior, or are they more likely to backlash after being implicitly (or explicitly) accused of being misogynistic racists? If the latter option takes place, it is also likely to assume that this backlash will cause them to be more inclined to justify their actions using other explanations, and in turn reinforce their original judgment and behavior. Thus, building on existing research, we suggest that before moving on with the development of psychological interventions that are based on exposure to psychological bias, it is important to examine this possible boomerang effect. Additionally, the examination of peoples’ reaction to information regarding psychologically biased behavior can add an unexplored domain to the commitment and post hoc justification fields of research.

When considering the conditions under which exposure to psychological bias might backlash there are two main factors that need to be considered. First, the bias itself can have inherent negative association. For example a bias against powerful women can be considered a socially problematic trait by society due to its inherent chauvinistic nature. On the other hand, a bias related to inaccuracy in judging character based on specific traits does not necessarily have a negative social connotation. The second factor to take into consideration in terms of the boomerang effect is the social context in which the bias is described. For example, a bias that makes you prefer one White male over another White male might lead to inaccuracy, but does not have any negative social connotations. On the other hand, the same bias that will make you prefer a male over a female might be perceived as deplorable, as a result of the misogynistic outcome. What we are suggesting here can be seen as a 2×2 matrix in which if the bias does not have inherent socially sensitive nature, and the context is not socially sensitive then exposure to the existence of the bias is likely to have the positive effect described in the literature (Nasie et al., 2014). However, if the bias is inherently socially sensitive, or presented in a socially sensitive context (or both) it is likely to expect a negative boomerang reaction to the accusation of being biased (see Table 1).

Table 1. Possible combinations of bias nature and bias context. We hypothesize that only combination #1 will enable reducing the bias by raising the awareness to it.

Based on this 2×2 matrix we designed a pilot and three experimental studies that examine the different possible combinations. In the pilot study we tested several different biases and contexts to make sure that they are indeed perceived as socially sensitive by participants. In study 1 we replicated the results of Nasie et al. (2014), and demonstrated how teaching people about a neutral bias that might be relevant to their behavior in a neutral context changed their behavior and reduced the bias (combination #1). In Study 2 we taught decision makers about an inherently sensitive bias that may imply they were holding chauvinistic views in a sensitive social context, of female representation in politics (combination #4). Finally, to test if a sensitive social context is enough to evoke the boomerang effect even toward a neutral bias, in Study 3 we taught decision makers about a neutral bias in a sensitive social context of a gender in the work place (combination #3). In Studies 2 & 3, we hypothesized that the boomerang effect predicted by self-affirmation literature (Schumann & Dweck, 2014; Sherman & Cohen, 2006; Steele, 1988) would be a result of participants being motivated to justify their actions and stay set in their ways in order to avoid being labeled as chauvinistic or misogynistic. Since inherently sensitive biases are always linked to sensitive social contexts combination #2 was covered by Study 2 as well, and did not call for another Study.

Pilot study

In order to verify the social sensitivity of the biases and context we were going to examine in the experimental studies we ran a pilot study in which we asked participants to assess the perceived social sensitivity of different biases and different contexts on a scale from 1 to 10. We recruited 153 participants via Mturk (92 male; Mage = 35.04 years, SD = 9.9). The biases we examined were: 1. The ‘powerful women bias’ in which powerful women are perceived in a negative light and judged more harshly than men performing in the same manner. We expected this bias to be perceived as inherently socially sensitive due to its chauvinistic nature. 2. The ‘Halo effect bias’ in which a specific evaluation of an individual influences evaluations of other attributes of that person. We expected this bias to be perceived as inherently socially neutral. 3. The ‘track 1 track 2 bias’ in which people make decisions in a quick and instinctive manner even when a more analytical approach is preferable. We expected this bias to be perceived as inherently socially neutral as well. The two contexts we examined were: A context in which two men from the same race and social class are competing over a given position as the neutral context, and a context in which a man and a woman are competing over a given position as the sensitive context.

As expected the powerful women bias was perceived as significantly more socially sensitive (M = 6.08) than both the Halo effect bias (M = 3.93, t = 8.86, p < .001), and the track 1 bias (M = 4.43, t = 6.45, p < .001). Additionally, the context in which a man was competing with a women was perceived as significantly more sensitive (M = 6.36) than the context in which a man was competing with a man (2.96, t = 14.96, p < .001). Moreover, in order to verify that we are indeed dealing with biases that are socially sensitive and biases that are not, as opposed to biases that are all sensitive just to different degrees we performed a one sample t test, and compared the ratings of the different biases and contexts to the mid point of the scale (5.5). Once again corroborating our hypothesis, the sensitive bias and context were significantly higher than the scale mid point (powerful women bias t = 31.09, p < .001; man vs. woman context: t = 29.29, p < .001). On the other hand, the neutral biases and context were significantly lower than the scale mid point (halo effect: t = 17.94, p < .001; track 1: t = 20.94, p < .001; man vs. man: t = 11.65, p < .001). These findings verified our hypothesis regarding the perceived social sensitivity of the different biases and contexts we chose to examine in the following experimental studies.

Study 1

In study 1 we attempted to replicate the results of Nasie et al. (2014) in a scenario in which the bias and context at hand are not socially sensitive, and thus raising awareness to the bias can reduce its effect. Specifically in Study 1 we focused on political voting behavior, and examined if teaching actual voters about a bias, that might be relevant to their voting but does not reflect poorly on their self-image, changed their behavior and reduced the bias. We ran Study 1 in the context of the 2015 elections in Israel. As we describe below, the campaigns during these elections put a significant emphasis on the candidates’ physical attributes. This discourse, regarding the physical attributes of both candidates, and their relevance to political decision-making, can be explained by the aforementioned research on the Halo effect. The Halo effect describes a phenomenon in which a specific evaluation of an individual influences evaluations of other attributes of that person (Nisbett & Wilson, 1977; Thorndike, 1920). This effect has been found to be especially prominent in the case of physical attributes and political competence, where rapid judgments about the personality traits of political candidates are made based solely on the physical appearance of the said candidates (Todorov et al., 2005; Verhulst, Lodge, & Lavine, 2010; and see Olivola & Todorov, 2010 for a review)

In view of that, the following study was an attempt to inform voters about this Halo effect bias, in order to raise their awareness, and have them focus on crucial political subjects or more relevant leadership characteristics instead of physical appearance. Additionally, since the implications of being affected by this specific bias would only cause someone to choose one White male candidate over another, being affected by this bias would not entail a racist or chauvinistic implication and would therefore not cause a boomerang effect. Accordingly, our hypothesis was that similar to the findings of Nasie et al. (2014) mentioned in the introduction, it would be enough to simply teach voters about the existence of the Halo effect bias in order to counteract it. In order to test this hypothesis we designed and ran the following experiment.

Method

Participants and design

Eighty-one participants (50 male; Mage = 38.20 years, SD = 13.55) were recruited via an internet survey company, that also ran the election polls for one of the two main news channels in Israel (Chanel 10) . The participants, who were randomly selected from a nationwide panel, participated in the study and filled out a questionnaire, all on the Qualtrics platform. They were randomly assigned to either the control condition or the experimental condition. We determined the sample size based on the findings in the Nasie et al. paper (2014) that found a medium size effect (d = .46). Accordingly, we ran a power analysis (through G*Power, Faul, Erdfelder, Lang, & Buchner, 2007) that assumed we wanted to be able to achieve a statistical power of .80 to detect a medium-sized effect (d = .5). This analysis suggested a required sample size of 37 participants per condition. The experiment was conducted on March 9th 2015 only one week before the elections and in the peak of the electoral process.

Procedure

In the 2015 elections in Israel the incumbent prime minister had a clear advantage over the opposition leader. While the prime minister Bejamin Netanyahu was considered to have exceptional charisma and an outstanding presence, the opposition leader Isaac Herzog was referred to as lacking any charisma due to his high pitched voice, and a feminine facial structure (Black, 2015). Indeed, even Herzog’s campaign managers were dragged into this debate of their candidate’s problematic physical characteristics and launched a campaign in which he appeared with a deep manly voice-over and presented his credentials. At the end of the commercial he then posed a question: ‘After all you’ve heard you’re still not going to elect me because of my voice?’ (Jerusalem post, 2015).The participants were all given a short article to read. The article was supposedly from the science section of a newspaper and described research which found that people have psychological biases that cause them to link external attributes, such as facial structure, or height, to leadership abilities of congress candidates. The article also stated that this is despite the fact that there is no real correlation between these elements. In order to avoid demand characteristics the article described a study conducted in the US, and charisma and pitch of voice which were the main issues in the Israeli campaign, were not mentioned in the article. In the control condition the article was about astronomy. After reading the article and answering a few basic comprehension questions, the participants filled out a survey asking them how much both leading candidates for prime minister, Netanyahu and Herzog, were fit to be prime minister on a scale of 0–100.

Results

As expected, in the control condition Netanyahu, the more charismatic, deep voiced, manly candidate, was found to be significantly more fit to be prime minister (M = 65.78, SD = 34.26 vs. M = 39.87, SD = 34.41), t = 2.74, p = .009, d = .75. On the other hand, in the experimental condition where participants were exposed to the information regarding the psychological bias of attributing leadership skills to external attributes, the differences between the two leaders was almost completely eliminated leaving Netanyahu with a negligible advantage (M = 52.19, SD = 32.04) over Herzog (M = 47.39, SD = 32.05), t = .51, p = .61, d = .15, see Figure 1.

Figure 1. Difference between candidates in control condition vs. learning about bias condition.

These results verified our hypothesis by both diminishing the charismatic leader’s status as well as enhancing the less charismatic opponent’s status. Interestingly, a deeper analysis of the results found that most of the change in the perception of the candidates probably stemmed from the participants who displayed the more extreme positions to begin with. We used chi-square tests to analyze the proportions of participants who rated either Netanyahu or Herzog less than 5 or more than 95 in each of the two experimental conditions. Our results indicated that while in the control condition 29% of the participants extremely favored Netanyahu, after being exposed to the existence of the psychological bias in the experimental condition, only 8% of participants showed such extreme favoritism: X2 (2, N = 81) = 5.33, p < .05. We did not find similar effects in the three other categories.

Discussion

As expected, the results of Study 1 replicated the findings of Nasie et al. (2014), and raising the awareness of the participants to the psychological bias that was affecting their political judgment led to a de-biasing process that diminished the support for the physically superior candidate, and enhanced the support for the physically inferior candidate. Additionally, the replication of this effect in a real world political context increased the external validity of these findings. However, based on the hypothesis presented in the introduction, we assumed that the successful de-biasing occurred due to the fact that there were no negative social implications for being influenced by the Halo effect. On the other hand, when dealing with a socially sensitive bias or context, a boomerang effect may take place in which not only does the awareness to an alleged bias not reduce that bias but it even enforces it, as a result of people trying to maintain a positive self-image in light of prejudice accusations. In Study 2 we tested this possible boomerang effect in the context of male chauvinism with a socially sensitive bias in a socially sensitive context.

Study 2

In order to test the effects of bias awareness raising efforts with a socially sensitive bias in a socially sensitive context, we replicated the design of Study 1 only this time we chose a bias that may entail a socially negative connotation, namely: chauvinism in the socially sensitive context of female representation in politics. In Study 2 instead of asking about the how fit the party leaders were for the prime minister position, we asked about the fitness of the political parties themselves to lead the government taking onto consideration that there was a significant gender difference between the two parties. The two leading parties in the said elections were the Likud party, and the Labor party. While the Likud party only had 1 woman in the top 10 party candidates, the Labor party had 4 women in the party’s top 10, and also ran on a feminist and gender equality platform. Accordingly, the bias we chose to raise awareness to was the powerful women bias in which women who behave confidently and assertively are not as well received as men who engage in the same behaviors (Rudman, 1998). We hypothesized that raised bias awareness would cause a boomerang effect with male voters. That is, men, who are at risk of being perceived as chauvinists if they harbor such a bias, would not react positively to the bias awareness and perhaps even backlash. On the other hand, women are less at risk of being perceived as misogynist thanks to being women (indeed, research has found that people are less affected by derogatory labels used by their group to describe their group, Carnaghi & Maass, 2007). Accordingly, we also hypothesize that raised bias awareness should have a positive effect on women and promote more egalitarian behavior among them similar to the findings in Study 1.

Method

Participants and design

One hundred and eleven participants (62 male; Mage = 40.77 years, SD = 14.91) were recruited via the same internet survey company as in Study 1. The participants, who were randomly selected from a nationwide panel, participated in the study and filled out a questionnaire, all on the Qualtrics platform. They were randomly assigned to either the control condition or the experimental condition. We based our decision to determine the sample size on a power analysis (through G*Power, Faul et al., 2007) that assumed we wanted to be able to achieve a statistical power of .80 to detect a medium-sized effect (d = .5) but this time with four groups due to the expected gender moderation. This analysis suggested a required sample size of 54 participants per condition. This experiment was conducted on March 15th 2015 only two days before the elections and in the peak of the electoral process.

Procedure

The participants were all given a short newspaper article to read. The article was supposedly from the science section of a newspaper and described research which found that people have psychological biases that cause them perceive powerful women in a negative light and judge them more harshly than men in the same position performing in the same manner. In order to avoid demand characteristics, the article did not directly address the elections or the political parties at hand. In the control condition the article was about astronomy. After reading the article and answering a few basic comprehension questions, the participants filled out a survey asking them how much both leading political parties, Likud and Labor, were fit to be in the government on a scale of 0–100.

Results

As expected, men reacted negatively to the allegations of harboring chauvinistic biases and in the experimental condition men rated the dominantly male Likud party even higher than they did in the control condition (M = 61.72, SD = 33.39 vs. M = 44.84, SD = 34.28), t = 1.96, p = .05, d = .50. Additionally, men rated the gender equal Labor party marginally lower in the experimental bias awareness condition than they did in the control condition (M = 52.41, SD = 38.23 vs. M = 68.79, SD = 29.13), t = −1.91, p = .06, d = −.48. Moreover, when comparing the difference between the two parties in each condition the same pattern appears where in the control condition the labor party is rated as more fit to govern than the Likud party and in the experimental condition it is revered, and the Likud party is deemed more fit to govern (M = 23.93, SD = 54.71 vs. M = −9.31, SD = 63.63), t = −2.21, p = .03, d = .56. We did not find any significant differences in term of the female participants in the Likud rating (p = .71) the Labor rating (p = .53), or the difference between parties (p = .89) see Figure 2.

Figure 2. Difference between rating of parties among male participants in the control condition vs. learning about bias condition.

Discussion

As expected, not only were we not able to replicate the positive effects of raising bias awareness as in Study 1, but male participants in Study 2 that were exposed to information regarding a bias than could portray them in a negative social light, reacted ‘negatively’ to the bias awareness manipulation. Accordingly, the intervention that was intended to promote gender equality ended up harming the political party that ran on gender equality, and assisted the party that lacked in this aspect. Nonetheless, study 2 has a few limitations. First, despite the fact that the alleged newspaper article did not address political elections directly, it did explicitly describe the bias against dominant/successful women. Thus, it is possible that this influenced the answers of the participants in the experimental condition. Second, it is possible that political affiliation of participants may have played a significant role in participants’ response in Studies 1 and 2. Despite the random assignment of participants addresses this issue, it is still a variable we cannot completely account for. This issue could account for the gender based difference between the control condition and for the lack of difference between conditions among female participants. Finally, while running the study adjacent to the elections gave the findings of studies 1 and 2 a boost of relevance, participants were probably bombarded with political campaigns during the same period without our ability to properly control for other political stimuli. Study 3 addressed these three main limitations.

Study 3

Study 3 was designed in a workplace context where political affiliation would not act as a confound, and where there is seemingly no explanation for discrimination against women other than gender-based bias. As in the previous studies, Study 3 attempted to raise awareness to a bias affecting decision-making and to test whether such raised awareness would have a productive or a counterproductive effect in the attempt to reduce biased behavior. However, in Study 3 we examined a scenario in which only the context is socially sensitive while the bias itself is neutral in order to examine whether this was enough to induce the boomerang effect. Once again, we hypothesized that men – who are at risk of being perceived as chauvinists if they harbor a bias that effects their behavior towards women – would backlash and react negatively to the bias awareness intervention. One the other hand, women that are in less risk of being perceived as misogynists should have a positive reaction to the bias awareness intervention, and display more egalitarian behavior in the gender context as in Study 2.

Method

Participants and design

One hundred and twenty-one participants (66 male; Mage = 32.54 years, SD = 14.91) were recruited via Mturk. The participants, who were randomly selected, participated in the study and filled out a questionnaire, all on the Qualtrics platform. They were randomly assigned to either the control condition or the experimental condition. The sample size was rationale was similar to the one in Study 2.

Procedure

The participants were all given a short newspaper article to read. For the experimental group, the article was supposedly from the science section of a newspaper and described research regarding decision-making. In order to avoid demand characteristics, the article did not directly address gender but instead described research which found that people have two possible decision-making processes: track 1 and track 2. While track 1 is more fast and intuitive, track 2 is more analytical and information based. Although track 1 is more instinctive, it is prone to mistakes and exposed to biases and therefore it is advised to try and be more analytical and patient when in decision-making processes in order to avoid biased decisions. Thus, participants who may negatively biased against women were not explicitly accused of that. Rather, the text implied that they use track 1 in their judgements and consequently may judge women more harshly. In the control condition participants read an article about Zebras.

After reading the article and answering a few basic comprehension questions, the participants were told that Mturk is considering the employment of an Mturk worker to act as workers’ representative and manage worker rights issues etc. It said that there were two possible candidates for the job, and Mturk would like to get the workers opinion on them based on their bio. The structure of the two bios was identical and consisted of personal information, education and grades, and past experience, as well as some neutral filler information. The main difference between the bios was that one was a bio of a man – Kevin, and the other was the bio of a woman – Natalie.

To control for physical attractiveness (Mobius & Rosenblat, 2006) and other facial characteristics that may influence participants’ judgements (Todorov, Said, Engell, & Oosterhof, 2008), we used the faces by Gladstone and O’Connor (2014), used a computer program to create similar faces of a man and a woman (see Figure 3).

Figure 3. The similar faces of Kevin and Natalie. Source: Gladstone and O’Connor (2014).

Importantly, and to counter the possible alternative explanation that Kevin was a better candidate for the job, Natalie was a better fit for the job on almost every front. After reading the bios participants were asked to rate the extent to which they felt each candidate was fit for the job (job-fit) and the extent to which they felt the participants had the necessary skills for the job (job-skills) on a scale of 0–100.

Results

The two above variables (job-fit and job-skills) were integrated to a single grade (Kevin: r = .81, p < .001; Natalie: r = .69, p < .001). To examine our hypothesis that gender would moderate the reaction to the bias awareness manipulation, we ran a moderation analysis (using Preacher and Hayes’ PROCESS macro, model 1; Hayes, 2013) on the rating of the candidates, considering participants condition (with/without bias awareness), and participants’ gender as independent variables. As expected, the analysis yielded a significant two-way interaction between the bias awareness manipulation and gender, b = 11.29, SE = 5.94, t = 1.90, p = .06. Although not surprisingly all participant rated the far superior Natalie more positively than Kevin (based on the given information), among female participants the difference between Natalie and Kevin’s rating in the control condition was only 6.65 (SD = 14.47), however, in the bias awareness condition it grew to 11.55 (SD = 12.21) in Natalie’s favor (p = .18, d = .37). On the other hand, the male participants showed the exact opposite trend and although they favored Natalie by 12.50 points (SD = 17.65) in the control condition, after being exposed to their possible bias the difference between Natalie and Kevin Shrunk to 6.10 points (SD = 17.14) (p = .16, d = .37) See Figure 4.

Figure 4. Difference in favor of the more suitable female candidate in the control condition vs. learning about bias condition.

Discussion

Study 3 replicated the results of Study 2 even without explicitly arising awareness to the sensitive social topic, and this time in a more controlled environment without any political ideology confound. As in Study 2, the results of Study 3 show that participants exposed to a psychological bias they may hold, which suggested negative social connotations such as chauvinism reacted in a reverse way: increasing rather than decreasing their biased judgments.

Conclusion

While previous work done by Nasie et al. (2014), which has also been replicated in Study 1 above, has shown that teaching people about psychological bias can help counteract this bias, in the current article we offer a more complex process. Based on the finding in Studies 2 and 3, it seems that in situations where being affected by psychological bias can entail negative social branding such as racism or chauvinism, people taught about that psychological bias might actually react in the opposite manner than expected and become more entrenched in their biased behavior. Additionally, based on the findings from Study 3 it is apparent that if the context is socially sensitive then raising awareness to psychological bias can backfire even when the bias at hand is neutral in nature.

Returning to the 2016 US elections example, we suggest that the above mechanism might have been at work there too. If the democrats thought that many American voters were over- focusing on the private email-server issue, thus suffering from the prominence effect (Tversky, Sattath, & Slovic, 1988), raising their awareness to this bias might have worked as a de-biasing tool (Nasie et al., 2014). But not only that the democrats did not use this technique, but they kept stressing the alleged chauvinistic or racist agenda of their adversary, thus implicitly accusing potential Trump voters of holding such socially negative opinions, and possibly making them even more set in their ways.

While studies 2 and 3 supported our hypothesis, the underlying mechanism at hand still needs to be brought to light. Based on the self-affirmation literature (Schumann & Dweck, 2014; Sherman & Cohen, 2006; Steele, 1988), we assume that in order to maintain a positive self-image, people exposed to information regarding their own biased behavior might be motivated to justify their actions in alternate ways and as a result also fortify their existing biased behavior. Future studies should try and examine this issue, and flesh out the underlying mechanism.

In sum, although teaching people about their psychological bias can be beneficial in counteracting biased behavior, it seems that it can also backfire under certain circumstance. To this end, we tried to provide an initial framework for a more complex approach to psychological bias information as a social intervention in the attempts to devise a positive and useful socio-psychological intervention.

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#bias #bias awareness #psychological bias #intervention #behavior #awareness #chauvinism #voting #bias reduction #self-image #attractiveness #impression

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FRANZ KAFKA

Letters to Milena (1952);

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#images #literature #correspondence #franz kafka #abyss #love #interpersonal relationships #intense #greats #quotations #Milena Jesenská

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David A. Banks, The attention economy of authentic cities: how cities behave like influencers, Euro Planning Stud (2021)

Abstract

Cities, like the people that live in them, are subject to the attention economy. Familiar social media platforms aggregate users’ tastes and reconstitute them as advertising and curated content. In this paper, I show that American cities are induced by state governments to adopt the attention-grabbing tactics of social media influencers. This is particularly evident in cultural planning as it relates to economic development. While this is a global phenomenon, I have chosen to focus on the Capital Region of New York State, a region approximately 240 kilometres north of New York City. I have chosen the Capital Region because New York's nine-year-old system of Regional Economic Development Councils highlights the competitive and often capricious environment that urbanists increasingly find themselves in. Through an analysis of planning documents, reported events and secondary sources I demonstrate how small to medium cities in Upstate New York are competing to be the purveyors of authentic urban living. I then discuss how authenticity and social media interact to create desires for consumption of identity performance. Finally, I compare the city authentic branding regime with the ‘Bilbao effect’ and show how the former can summon the effects of the latter without a ‘star’ architect.

Introduction

In 2017 the City of Glens Falls (population 14,262) won $10 million. It had applied for a bundle of grants and subsidies under New York State's Downtown Revitalization Initiative and had won, beating out several larger cities. Half of the prize money was set to go to the ‘Market on South Street’

a new downtown anchor building that will provide space for the local Farmers’ Market, retail space, and an incubator/test kitchen. A key part of the revitalization of South Street, this project will create new opportunities for local retailers, artisans, restauranteurs and farmers by expanding upon one of the City's greatest assets: its connection to regional agricultural resources. (Regional Economic Development Councils 2017)

The other half went to parks, a culinary school, an art district, a public arts trail, a revolving loan fund for small retail businesses setting up shop in the quaint downtown and enticements for a private internet service provider to install additional broadband capacity.

This list of urban improvements is quintessential twenty-first century economic development. Glens Falls leaned heavily into the culinary arts, but cities around the world are looking to arts and culture as a means of revitalizing sleepy downtowns or reaffirming their role as influential tastemakers. As Elizabeth Strom has put it, the arts have the

power to force a reframing of the urban economic development policy field at the city, regional and even national and supranational levels. Arts are now, consistently and across borders, employed as a tool and proposed as a goal of economic development, which was certainly not the case a few decades ago. (2020, 5)

Much has been said about what is lost or ignored when cities plumb their residents’ culture for lucrative business ventures (One can find multiple examples in Moskowitz 2018; Rowan and Baram 2004; Zukin 2011). I will focus less on this aspect of the cultural commodification phenomenon and instead look at what Jamie Peck, in a 2005 rebuttal to the rising influence of Richard Florida's ‘The Rise of the Creative Class’ called, ‘The rapid diffusion and ultimate exhaustion of entrepreneurial-city strategies’ that found its apotheosis with Florida's creative class thesis. Internationally, scholars have noted that cultural planning policies are ‘highly derivative’ (Stevenson 2017, 56) of the U.K. and the U.S. models. Beginning in the 80s and coming to maturity in the new millennium, a global network of experts created a lucrative market for their wares. Rather than focus on the commodification of urban and regional cultures as such, I will investigate the political and cultural incentives of this network and how they position arts and culture as a desirable form of economic development.

In this paper, I will show that American cities, through government competitive grant programmes, are induced to adopt the attention-grabbing tactics of social media influencers. This is particularly evident in cultural planning as it relates to economic development. While this is a global phenomenon, I have chosen to focus on the capital region of New York State, a region north of the New York City metroplex which includes the state's capital of Albany and smaller cities like Troy, Schenectady, Glens Falls and Saratoga Springs. I have chosen the Capital Region of New York because New York's nine-year-old system of Regional Economic Development Councils highlights the competitive and often capricious environment that urbanists increasingly find themselves in. Through an analysis of planning documents, reported events and secondary sources I demonstrate how small to medium cities in Upstate New York are competing to be the purveyors of authentic urban living.

Essential to this work are topics familiar to urban studies and planning scholars including cultural planning, creative class industries, tourism and economic development strategies. I also draw on Internet studies themes including influencer culture and the attention economy. Both urban and internet studies examine what it means to experience something or someone as ‘authentic’, but the two fields rarely cross-pollinate. Of crucial importance to this paper then, is how authenticity and social media interact to create desires for consumption of identity performance. Internet Studies and communications scholars have developed intricate theories of online identity formation that are well-informed by the affordances (Davis and Chouinard 2016; Hurley 2019) of consumer technology. This is a lacuna for geographers and urban studies scholars. Therefore, this paper also offers a metanalysis of these two domains, sketching out a direction for further research.

Multiple authors, including Florida himself, have singled out the North American ‘Rust Belt’ as a site of tension, scepticism, but also opportunity around Floridian-inspired cultural planning and economic development (Peck 2005; MacGillis 2009, 2013; Boone 2017; Harrison 2017; Bukszpan 2018; Nevarez and Simons 2020). What constitutes the Rust Belt is contested, but for the purposes of this investigation I use Catherine Tumber's definition as a more or less contiguous range of: ‘small-to-midsize cities (in the Midwest and Northeastern United States) that at their peak … had populations of roughly 50,000–500,000 souls, and whose numbers today have dropped … by at least 20 percent’ (2013, xvi). Within this region, there is a growing interest among the middle class in returning downtown. Young people in particular are recognizing Rust Belt downtowns because they are budget-friendly urban villages that provide walkable environments (Harrison 2017; Bukszpan 2018). Additionally, there are indications that the Covid-19 pandemic is accelerating a phenomenon that was already years in the making: workers fleeing the high rents of large metropolitan regions to smaller cities where they can work from home (Eisen 2019; Feintzeig and Eisen 2020).

Rust Belt cities do not have the global brand recognition of New York City, Paris or Beijing. Instead, they must reach back into a romanticized past to produce a new identity suited to a digital marketplace. They compete for new residents as their tax bases shrink, grants as their coffers run dry and attention to gain access to the previous two. And from Beijing (Wu 2015) to New York City (Zukin 2011) and beyond (Zukin, Kasinitz, and Chen 2016) the ability to attract the attention of a powerful few and the masses alike is as important a skill to the modern urbanist as budgeting and zoning.

Urbanism, since the dawn of capitalism, has appealed to the ‘authentic’ in one way or another (Banks 2016, 2020; Berman 2009; Zukin 2009, 2011). The word is used not only to describe the character of a place (e.g. ‘The downtown provides authentic urban living’.) but also the sort of identity one could possess by living there (i.e. ‘Becoming an authentic New Yorker’.). Small business owners and municipal economic development officials have found that this centuries-old yearning for an ephemeral feeling can be made into a tradeable commodity through advertising, primarily on social media. If enough people are convinced that there is an appeal in local culture, then a small postindustrial town suddenly has a monopoly on a valuable commodity that cannot be readily outsourced like manufacturing jobs were.

This change in the urbanist's toolkit, from technical organizer to marketing maven, is occurring within a larger shift towards attention metrics. The ability to say how many people are looking at any given website and to serve them ads relevant to their tastes and purchasing power is projected to be a 515 billion U.S. dollar industry by 2023 (Statista 2019). The industry is tightly controlled by a few companies including Facebook and Alphabet (neé Google) but has spurred a fiercely competitive so-called ‘influencer industry’ wherein individuals use social media platforms run by these companies to build their own lucrative brand identities in entertainment, self-help, fashion, fitness and more (Abidin 2016). Without much effort, city governments have been induced to take on the tactics of the online influencer.

The city authentic, as I call it, is a very similar but alternative mode of economic development similar to the Bilbao effect. The city authentic is the label I give to a loosely organized municipal economic development regime that makes use of the latest technology – particularly social media – to attract capital investments, grow the tax base, and generally boost a region's reputation. However, whereas the Bilbao effect relies on the star power of famous architects, the city authentic bends existing attention-grabbing trends to their will through a distributed campaign to link existing building stock to cultural signifiers.

Literature review: from cultural planning to influencers

The pre-history of modern cultural planning is well documented in Deborah Stevenson’s 2017 book Cities of ‘Culture: A Global Perspective’ which describes an innovative, activist wing of the U.K. Labour Party that went into the working class ghettos of London to lift up not just people but their cultural practices. The goal of the programme was two-fold: help people find dignity in their lives through shared experience, and to reimagine ‘culture’ itself such that it expanded past the nineteenth century definition that focused on classical music, and museum-hung portraiture. Instead, culture was defined as the common-place habits of all people and the creative works that were important to them.

These ideas were put to paper in the 1986 book ‘Saturday Night or Sunday Morning? From Arts to Industry – New Forms of Cultural Policy’ written by Geoff Mulgan and Ken Worpole, two members of the Greater London Council who had spearheaded Labour's cultural programmes. Here the authors put forward a manifesto of sorts that argued that government should foster ‘people's own forms of expression and experience’ which, also meant it doubled as a propaganda tool for spreading pro-LGBTQ, feminist and anti-racist ideas (Mirza 2012, 59).

The cross-Atlantic conservative wave of the 80s led by Margaret Thatcher and Ronald Reagan halted Mulgan and Worpole's work and governments’ role in culture became depoliticized: rendered into little more than liberal gestures toward cosmopolitanism. Enter Richard Florida, who in 1999, held a series of focus groups with his management students where he asked ‘How do you choose a place to live?’ (Peck 2005 citing; Dreher 2002). Their answers guided Florida and his colleagues to develop a series of indices that captured racial and LGBTQ+ diversity, rate of patent filings and the percentage of people working in ‘creative’ fields in the arts and sciences. These indices were then applied to the metroplexes of the U.S. so as to rank them and demonstrate the explanatory power of his model.

Both the creative class idea and the people it is meant to describe are difficult to pin down. ‘Florida is less interested in cultural activities per se’ writes Strom, ‘than in creative ‘vibes’ found in arts or nightlife districts’ (2020). Moreover, these vibes are transportable and can be invoked by any city that follows his formula. As Florida said himself, ‘Creative class people are fickle, finicky. We can move where we want to move. Therefore, understanding the factors associated with why these creative types of people root in a certain place is critical’ (Dreher 2002). While the creative class's consumption habits take centre stage in economic development talk, the jobs where they earn their disposable income is never too far behind. Even if the definition sprawls out to include most white-collar jobs, it is anchored by those fields that require a designer's eye: advertising, tech, arts, media and, of course, architecture.

The creative class thesis has gained so much momentum over the past two decades that even its creator cannot slow it down. Despite a book-length recognition that he, ‘had been overly optimistic to believe that cities and the creative class could, by themselves, bring forth a better and more inclusive kind of urbanism’ (2017, xvi) there are still governments seeking out the ‘vibe’ that will bring prosperity. Through aggressive marketing campaigns, cheap credit and numerous private-public partnerships, cities are now in competition with one-another at multiple scales in an effort to gain the attention of potential new residents and employers.

It is worth re-iterating at this point that the markets for cultural planning expertise described above, and the influencer industry I will describe below do not have a causal relationship with one another. That is, I have no reason to believe that the success of the global cultural planning consultant industry had something to do with the rise of social media influencers in the mid-2000s. Rather, both cities and individuals are seeking the kind of attention that brings material rewards and are therefore engaging in fairly similar activities, sometimes even on the same social media platforms. They have built for themselves isometric industries to share tips, survival strategies and secondary markets for all sorts of attendant goods and services.

This may be understood as a survival strategy within the global neoliberal order that David Harvey defines as, ‘a theory of political economic practices that propose that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade’ (2005, 2). A concomitant phenomenon to neoliberal hegemony is the postmodern condition (Lyotard and Jameson 1984; Harvey 1991; 2005; Jameson 2009), wherein reality is transformed into a series of images and the idea of a long, linear human history is disposed of in favour of an endless series of ‘perpetual presents’ (Jameson 2009, 20). It is this pairing of managed markets and perpetual presents that makes authenticity crucial for both cultural planning and social media influencers. Authenticity features prominently in both the academic and practitioner literatures in both fields. I will take each in order, thereby bridging these two disparate fields.

The tourism scholar Ning Wang (1999) argues that authenticity comes in three flavours objective, constructive and postmodern (sometimes also referred to by her as existential). Objective is the purview of art historians who declare that a painting is ‘authentic’ by investigating the chain of custody and relevant documentation. Constructive authenticity is projected onto objects, often through the concerted efforts of advertisers and tourism boards. For example, visitors of Colonial Williamsburg are shown a (re)constructed version of an authentic colonial village (See Gable and Handler 2004). Postmodern or existential authenticity,

refers to a potential existential state of Being that is to be activated by tourist activities. Correspondingly, authentic experiences in tourism are to achieve this activated existential state of Being within the liminal process of tourism. Existential authenticity can have nothing to do with the authenticity of toured objects. (Wang 1999, 352)

We perceive authenticity when we experience something that does not immediately comport with the present state of things. Perhaps because it seems like it is from a romanticized past or because a kind of messiness, silliness or grittiness negates the usual contrivances of either tourist destinations or celebrity (Greenwald 2013; Banks 2016; Abidin 2016). Crucially, postmodern authenticity is contained neither within the subject (e.g. the tourist or audience) nor the object (e.g. historic downtown, YouTube celebrity) but in the ‘experience’ of the subject viewing the object and by doing so, breaking some kind of assumption, norm or everyday experience.

These kinds of authenticity are not mutually exclusive and often intersect in fascinating ways, especially in architecture. Seaside, Florida – the first full-scale New Urbanist development founded in 1981 – is a good example of authenticity working at multiple levels. The town's form-based code was written based on the study of much older, existing fishing villages and southern towns (Katz 1994; Norris 2020). Planners Andres Duany and Elizabeth Plater-Zyberk reverse-engineered these towns’ most appealing aspects and made them part of their plan, thus simultaneously distilling and reifying the image of a seaside town. Objectively Seaside is another Gulf Coast town but its immaculately planned buildings and blocks leverage the constructed authenticity of what living on the beach is ‘supposed’ to look like. The pitched sheet metal roof lines, the pastel colour treatments and walkable blocks are part of Duany and Plater-Zyberk's larger project of, ‘fostering a strong sense of community. This emphasis seeks to reverse a trend toward alienation that the designers have observed in many aspects of contemporary suburban life’ (Katz 1994, 3–4). By leapfrogging over contemporary, alienating planning into a new ‘traditional’ form-based code is the essence of existential authenticity. It is a rupture from the routine, not into something brand new, but into something that feels old.

It is no coincidence that both early urban sociologists and social psychologists latched onto dramaturgical metaphors early on (Goffman 1990; Wirth 1938; Hall 2014). The idea of an ‘authentic self’ that is, achieving an identity that is both welcomed and trusted by peers but also not considered contrived or derivative, goes as far back as Haussman's Paris and the Enlightenment milieu that shaped it (Berman 2009). Parisian cafés along the wide boulevards gave the burgeoning middle class a stage to perform an identity of their own choosing. Today, this project has extended to the world of symbols, hashtags and follower counts of social media and digital networks. Still, the problem of authenticity remains remarkably unchanged. In her research into female Gulf-Arab social media influencers, Zoe Hurley makes a connection between seventeenth-century philosophers and present-day existentialists who agree that authenticity ‘is an idealization rather than something tangible or concrete’ (2019, 4).

Just as the GLC's Mulgan and Worpole sought to uplift working class Londoners through the transformation of crafts into self-sustaining businesses, the entrepreneurial social media influencer takes a passion – video games, consumer electronics, makeup, pop culture and politics are major categories but it can also be as niche as ant farms or restoring old industrial equipment – and turns it into a business through the creation of engaging media that is monetized through advertising (Napoli, Dickinson-Delaporte, and Beverland 2016; Abidin 2017a, 2017b, 2019; Lewis 2020). A thorough description of this industry is beyond the scope of this paper but can be found in the works cited in the preceding sentence. What I demonstrate below is a non-causal, homologous rhetorical formation in the economic development and influencer industries wherein anything from older housing stock to mountain ranges are considered to be competitive advantages in standing out in the attention economy.

New York State's Capital Region

In 2011, the recently-elected governor Andrew Cuomo set to the task of setting up ten Regional Economic Development Councils (REDCs) charged with administering state funds within their respective geographic jurisdictions. The Capital Region's REDC, which this section will focus on, includes Albany, Rensselaer, Warren, Greene, Washington Saratoga, Schenectady and Columbia counties. REDCs are composed of corporate and public sector leaders appointed by the governor to serve two-year terms with no limits on how many terms they can serve (‘REDC FAQs’ n.d.). These funds are administered through dozens of competitive grants that support everything from Eerie Canal heritage zones and dairy farm modernization to developing nanotechnology into ready-for-market products and chip fabrication.

Another responsibility of REDCs is the publication and implementation of strategic plans and annual progress reports that tell a story about the region's character and future. For example, the Capital Region's REDC 2011 strategic report claims that they will recreate the winning strategy of the nineteenth-century industrial revolution where ‘our Region effectively combined the benefits of innovation, education, and geography to succeed’ (Capital Region Economic Development Council 2011, 7).

Alongside numerous promises to create a business-friendly economic environment using tax incentives and building extensive digital and transportation infrastructure, the plan makes ample room for cultural planning. The council promises to

[c]apitalize on our urban centers within the Capital Region that have a history rich in vibrancy and return them to centers of influence that are alive with business, residential, and cultural programs that will revitalize them as active neighborhoods.(Capital Region Economic Development Council 2011, 8)

Not limited to downtown centres, the sparsely populated hill towns and villages are expected to, ‘[a]ttract visitors, new residents, and businesses by sustaining and optimizing our rural assets and working landscapes that provide a backdrop for the Region’ (Capital Region Economic Development Council 2011, 8).

Since 2011, when the original strategic plans were written, each REDC has published an annual progress report that draws connections between the original strategic plan, successfully funded projects, key indicators such as unemployment and new projects that the state has deemed a priority. The Capital Region's 2019 progress report, for example, boasts its rankings in various industry reports on livability (Capital Region Economic Development Council 2019, 6).

REDC reports are also expected to show how each region responds to annual state priorities which in 2019 included ‘Support Downtown Revitalization and Community Investment in Place Making’, and ‘Develop an Economic and Environmental Justice Strategy’ (Empire State Development 2019). Those seeking funds from the REDC must rearticulate these plans back to them in the form of answers to questions on grant applications like, ‘How does your project align with the Regional Economic Development Council's Strategic Plan/Upstate Revitalization Initiative Plan?’

While the above makes it clear that arts and culture does not cover everything REDCs talk about, it is a central component. And, since everything is interpolated through the lens of economic development, it is easy for something like ‘environmental justice’ to encompass the remediation of a brownfield site and the expansion of a vineyard. This perspective of culture and environment as something to ‘capitalize’ on and a hinterland reduced to mere ‘backdrop’ after sufficient ‘optimizing’ sets up the ‘everything is for sale’ norm that can later be subverted through appeals to authentic nature and culture. Unlike influencers who may have a dedicated team of schedulers, promoters and managers but are usually one-person operations, a city, county or metropolitan region may have hundreds if not thousands of people dedicated to developing the region's character. Therefore, the subversion may not be done by the REDC itself but is instead left up to individual beneficiaries of the councils’ work to do the authenticity peddling.

All of this plays out in the local media and so that is where we will now turn to see clear examples of the REDC using the language of influencers and enticing other actors within their jurisdiction to do the same. The lead image in a May, 2019 ‘Albany Business Review’ article titled ‘What is Albany's Brand?’ (Young 2019c) is an illustration of a supermarket shelf with cities represented as similar boxes of indistinct goods. Albany is front and centre, but not much different from the others. The reader gets a sense that this is an implicit description of a status quo that must change. ‘We’re competing against the Austins and North and South Carolina and Nashville’, Ellen Sax, senior leader of community engagement at MVP Health Care, tells ‘Albany Business Review’ reporter Liz Young ‘We’re competing against all these different communities that have been developing their identities and that's what we need to do so that we can attract top talent’ (Young 2019c). Sax says this at a meeting at the Troy Music Hall meant to give 250 business owners a chance to talk about what the region means to them. This meeting was not put on by the REDC but it will interface with them soon enough.

Other attendees were more specific about what must be done to compete against southern states. Maureen Sager, Upstate Alliance for the Creative Economy's (ACE) executive director, told Young, ‘We need to create something that's bigger than a tagline or a logo. We need to create an identity that feels real to us’ (Young 2019c). This ‘real’ identity has yet to be revealed to the general public but it is being worked on by two local ad agencies Fingerpaint and Overit in consultation with ACE, the Center for Economic Growth (CEG), MVP Health Care and Redburn Development Partners who have each agreed to contribute at least $100,000 each to the branding campaign (Young 2019c).

CEG would, in June, 2020 be merged with the Capital Region Chamber, itself led by the CEO of the region's other major health insurance company CDPHP (Diana 2020). The significant involvement of health insurance companies in branding of the Capital Region speaks to the ends of this branding scheme: creating an identity for the region that can make it suitable for investment by large companies. Not just the insurers themselves but the companies with which they would like to sell employer-provided health insurance.

Perhaps the most telling figure at the meeting was Caroline Corrigan a jack-of-all-trades whose first contribution to Albany's vibe was the Fort Orange General Store that she ran with friend and nurse Katy Smith up until 2016 when they closed the store and eventually sold it to Shuyler Bull, the former assistant director of the Downtown Albany Business Improvement District. Corrigan would go on to make a successful design, illustration and branding company (All Over Albany 2017). She told Young that, ‘The aesthetics of a place play a big role in how much people want to live there and visit, particularly in the age of Instagram’, and likened one's choice of city to choosing a restaurant based on its décor: ‘Even if the food is identical, you’re going to want to stay at the place that looks nicer’ (Young 2019c). Corrigan's Fort Orange General Store is a good example of her own advice: a minimalist boutique designed almost scientifically to attract write ups like what they got in the ‘Escape Brooklyn’ blog that describes the store as ‘Inspired by shops in Brooklyn and L.A’. and yet ‘They included Fort Orange in the name as a tribute to their location’ (Flynn 2015).

Four months later the ongoing project was brought to Eric Gertler, the new CEO of Empire State Development the umbrella corporation that oversees the REDCs. There developers and bankers gave impassioned speeches in front of Gertler about the branding efforts that, at the time were set to be rolled out in the Spring of 2020 (Young 2019d; Center for Economic Growth 2020a). By April, however, it was clear that the economic fallout from the Covid-19 pandemic would make any major regional branding campaign inconsequential and the job now was to use the REDC, CEG and other economic development organizations to shore up existing companies instead of attracting new ones (Center for Economic Growth 2020b).

Discussion

I have so far given an overview of cultural planning and the influencer industry, followed by a close look at how economic development with a heavy emphasis in cultural planning is carried out in the context of New York's Capital Region. Now all that is left is a synthetic discussion of why postmodern authenticity figures so prominently in the New York context and what this means for not only urbanists but city dwellers all across the world.

Recall Sax's concern about Albany's ability to compete with other cities, primarily in the American South. All at once she demonstrates the Floridian creative class thesis: that economic development is a competition of brand identity, that brand identity begets a talented workforce, and – through her reference to multiple ‘Austins’ – such collective identity work is meant to create a ‘predictably unique’ cultural product. Predictable in the sense that the culture to be crafted is a ‘vibe’ legible to affluent creative class types. Unique in that it must not appear to be something someone can get anywhere. Corrigan and Smith execute it so perfectly that ‘Escape Brooklyn’ immediately understands that it is important to foreground the fact that the Fort Orange General Store is ‘Inspired by shops in Brooklyn and L.A’ but assures readers that the store's name and the goods available are steeped in local history.

Ironically, attention from small lifestyle and travel blogs like ‘Escape Brooklyn’ were essential for the rise of Brooklyn itself. Williamsburg, a fairly cheap place to live in the 80s and 90s, hosted an up-and-coming art scene not unlike the ones that had established themselves in the East Village and Soho decades prior. The rise of these New York City neighbourhoods was both enabled by and viewable through the media that reports on new venues, restaurants and art. Since at least the 70s with the rise of Soho lofts it was the job of alternative weeklies that noticed the vibe accreting around the warehouses and brownstones of the working-class neighbourhood which would then eventually be noticed by a wider range of nationally-syndicating media (Zukin 1989). By the turn of century getting noticed by style and food verticals of mainstream, national publications requires coverage in blogs (Zukin 2011) online customer reviews (Zukin, Lindeman, and Hurson 2017) and social media (Zhou and Wang 2014; Banks 2016; 2020).

The job of the REDC then, is to identify and fund the sorts of amenities that can be picked up by the nascent national coverage of the region. The CEG's branding campaign was meant to provide an easy narrative and pre-packaged set of press tools that make attention more likely. They are learning directly from cities like Austin (Young 2019b, 2019a) who made it a primary goal to ‘engage new audiences for Austin arts & culture’ accomplished in part through, ‘Utiliz[ing] public relations/publicity to inform audiences of existing assets’ (Public City 2015). The skill sets needed to be an influencer on any number of social media platforms is eminently transportable to this sort of work. Indeed, in the last few years there has been even more focus within cultural planning to draw on concepts like reputation management (Bell 2016) into the administration of neighbourhood and city brands.

Crucial to authenticity, however is the subversion of well-orchestrated brand management through moments of grit and peeks behind the metaphorical curtain (Banks 2016; Abidin 2017b). Unlike a single influencer who may have, at most, several people dedicated to crafting their brand identity, hundreds if not thousands of people are actively employed in the maintenance of a city's brand. Therefore, this subversion can be accomplished even more effectively through rhetorically distancing between two actors. In other words, while the REDC and CEG may orchestrate marketing campaigns that overtly ask people to visit or relocate to the capital region, smaller actors like The Fort Orange General Store can perform the work of the humble store that you happened to find through a well-curated Instagram feed or simply being ‘in the know’ thanks to blogs like ‘Escape Brooklyn’.

There has been a lot of writing about the ‘Bilbao effect’ wherein a single destination designed by a well-known architect can anchor an entire city's economic renaissance. What the REDC and CEG show, is that there are concerted efforts to achieve something similar, but in reverse. Instead of relying on a starchitect to draw attention and renown to a city by building something new and enticing, a city can package what it already has and attach it to an existing media narrative. In this way, the role of the starchitect is distributed to hundreds of actors in economic development agencies, business improvement districts and municipal government offices. This Bilbao effect without a Bilbao is what I call the city authentic.

In his study of Dubai, Ahmed Kanna shows how starchitects’ work acts as a credential for cities’ global status and destination for jet setting elites. Landmark buildings are increasingly meant to tell a story about the place it now defines. These stories, just like the appeals to authenticity in the New York Capital region, flatten culture even as it claims to uplift and centre it. Kanna argues that the intersection of ‘global architecture and local power produces depoliticized stereotypes both of architectural history and of local history’ (2011, 85).

As Plaza, Esteban and Aranburu (this volume) show the Bilbao effect's similarity to the city authentic extends into its digital nature as well. The economic impact of the Bilbao effect (if there is one, see Patterson, this volume) is reliant on its ability to position itself within a media economy and gain sufficient attention and prestige. For the starchitect this prestige is built-in and urbanists need only ride the wave of press that arrives when Zaha Hadid, Frank Gehry or Rem Koolhas comes to town. The job of the city authentic is to not only generate the same media buzz with what they already have, but to cast the Bilbao's of the world as a cubic zirconia to their diamond in the rust. Whereas a global city like Dubai (or London, Paris, New York City and so on) has a world-renowned reputation, a smaller city by virtue of being largely unknown, can retroactively establish a position within the minds of potential new residents and the media writ-large that their local history is just as important if not more so given its boutique status.

‘Media’, as Ponzini et al. write, “is one of the grounds of interaction where star architecture is socially constructed” (2020, 4). Which is to say architecture, at its most prestigious levels, is a work of rhetorical force as well as building design. Thierstein et al. (2020) goes further, positing that the economic, socio-cultural, and morphological effects of star architecture are the result of a heterogenous actor network that includes media, experiences, and competition alongside implantation of building design. If this is the case, then the city authentic is star architecture without a star.

Conclusion

Since at least the seventies cities in rich nations have had to be savvy entrepreneurs and establish economic development strategies that leverage their access to cheap credit and monopoly over the right-of-way to lure new business ventures and tax-paying residents (Logan and Molotch 1988; Stein 2019). And since at least the 90s, this entrepreneurial city strategy has gone global (Rolnik, Harvey, and Hirschhorn 2019; Strom 2020; Wu 2015). In this paper, I have shown that authenticity is the ingredient that affords smaller cities the ability to enact many of the effects of star architecture and the Bilbao effect without a star or a Bilbao. Instead, the pre-existing natural and built forms are reimagined as unique and worthy of attention and therefore investment. By implicitly using all three versions of authenticity described by Wang, urbanists find a language to succeed in competitive grant programmes and larger world-wide competitions for people, money and prestige.

At its core, the move to authenticity is an attempt by a small metropolitan region to find a competitive advantage that sets them apart from other locales. The city authentic regime interpolates the landscape as a product on a media-made shelf that, like social media influencers, must create a brand that sets them apart from the competition. In a fast-paced world where it is increasingly difficult and necessary for individuals to stand out themselves, the backdrop of an authentic urban neighbourhood is enticing.

The relative benefits and dangers of relying on the city authentic must be further explored and analysed. While growth machine politics and the political economy of place have been thoroughly investigated (Logan and Molotch 1988) the case of New York State's Capital Region indicates that newer phenomena are worthy of study. Specifically, a political economy of attention, authenticity and digital networks remains under-theorized. How these three subjects interact to create value and rent-seeking behavior is of crucial importance. Particularly now that the Covid-19 pandemic has ravaged economies at multiple scales it is likely that we will see changes in work and settlement patterns. It is within this context that cities will attempt to grab the attention of both the masses and elites. What we must always remember is that who wins or loses within these games is less important than who benefits from the game's very existence.

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Mattias Nilsson Sjöberg, Reconstructing truth, deconstructing ADHD: Badiou, onto-epistemological violence and the diagnosis of ADHD, Crit Stud Edu 1 (2019)

Abstract

Psychiatric/neurodevelopmental diagnoses have expanded in number and scale with increased influence over matters of education and upbringing. One of the most common psychiatric diagnoses among children and adolescents is attention deficit hyperactivity disorder (ADHD). The dominant perspective of ADHD is biomedical, where ADHD is defined as a neurogenetic dysfunction and disorder of the brain. Due to the absence of biological markers, the diagnosis is legitimized on the basis of a humanitarian principle: as an ideology. Through the diagnosis, which is construed in the article as a form of onto-epistemological violence, the unique subject is forced into an object and a second-class citizen who undergoes instrumental techniques of behaviour modification. The overall leitmotif of the article is to shift the focus from ‘chemical imbalances’ to ‘power imbalances’ to counteract reductionism, disempowerment and medical behaviourism. Theoretically, the article draws upon the French philosopher Alain Badiou’s ontological examination of being qua being, wherein the aim is to critically examine the onto-epistemological violence following the diagnosis of ADHD and to seek out a less violent pedagogy.

Introduction, or the violent diagnosis of ADHD

This article argues that the diagnosis of ADHD is violent. The term violent does not refer to the pharmaceutical violence well documented and problematized by others (e.g. Mills, 2014). What is referred to here as onto-epistemological violence emerges from a reading of the diagnosis of ADHD through Badiou’s ontological examination of being qua being and his (mathematically deductive) method for deconstructing every one-effect of being (as explained below).

Epistemological violence refers to a scientific position rendering a fragmentary and reductionist knowledge production. It is derived from the belief that by using technology, and thus from a neutral and objective position, it is possible to find answers and represent nature consistent with the human idea about it (Shiva, 1988). Thus, onto-epistemology is a theoretical construct of Karen Barad (2007), who argues that different kinds of epistemological mattering cannot be separated from the ontological ‘articulation’ of the world. Therefore, Barad asserts that onto-epistemological practices always include ethical concerns (see further Nilsson Sjöberg, 2017). Onto-epistemological violence, in turn, is something that has emerged through my reading of Badiou and his ontological examination of being. Badiou suggests that mathematical set theory is the only presently available language whereby it is possible to speak about being without ‘violently’ (in a constructible manner) reducing the universal principle of all ontological categories. Epistemological violence is not considered separate from the ontological violence, as it is somewhat presented in the analysis below. This distinction is made for analytical clarification.

The critique of ADHD is extensive, and the presentation below is far from exhaustive. Much educational inquiry has focused on a technological rationality and various forms of powerful dividing practices, where the diagnosed individual emerges as a technological object and a fragmentary subject through specific knowledge apparatuses. What Badiou is able to bring to this critique is his metaphysical ‘turn’ toward the ontological. Dahlbeck (2018) argues that educational researchers should not stop asking metaphysical – eternal – questions ‘because our different ways of answering them will continue to shape how we live’ (p. 1462). Slee (2006) pinpoints that much work still needs to be done because dominant ideas of inclusion have been cemented in segregating and excluding practices. Because a diagnosis like ADHD follows specific ontological assumptions about the world, Slee adds that the time is here to ‘let’s get metaphysical’ (p. 117).

In this article, I argue that thinking about being in new ways is crucial, as is the need to seek out a less violent educational model other than the one facing an (ever-increasing) group of diagnosed individuals. Badiou’s ontological examination of being and its effects are presented in more detail below. Before that, we examine how the diagnosis of ADHD constitutes an ethical dilemma in educational processes starting with notions concerning knowledge and truth.

The one, the other and the truth

Since ancient times, the relation between the individual and the state has been of utmost philosophical and educational concern. In particular, those members of society who challenged and reluctantly conformed to the (desirable) order of the state have caused educational concerns and effort. Moral assumptions and educational models always reflect the cultural contexts within which they come to exist; indeed, they reflect the ontological presuppositions they are derived from. It has been widely suggested that a technological rationality has come to play a crucial role in rendering production in society more efficient, thereby leading to an enormous apparatus of classification and an increased belief in the instrumentalization of educational processes (e.g. Biesta, 2010). Inseparable from this is the ‘eternal’ philosophical and educational question of how to live and work toward a true and good life.

Badiou repeatedly answers the above by stating that we have to take responsibility for the actual which is constantly generated by (four) various truth procedures – science, politics, art, love – making up the world we live in. Badiou, who sides with Plato against sophistry seeks to reinstate a universal concept of truth in the sense that a truth is the result of a local and generic procedure. As such, a truth is always particular and comes into existence depending on the local structures within a situation. This ‘immanence of truths’ thus implies a universal value (Badiou, 2016, p. 71). However, the dominant view today is a universal morality directed at the general and not the particular. According to Badiou (2002), this implies an ethics based on the humanitarian principle of human rights where certain interests take it upon themselves to pity and intervene against what, from the perspective of a dominant ‘One’, is presented as an a priori existing ‘Other’.

What Badiou highlights is not only a matter of tolerating ‘the Other’ but also biopolitical control: an intervention in minority bodies/brains to re/produce a social order in accordance with the privileged position of a dominant ‘One’ (see Badiou, 2009, preface). This bioethics, he claims, is based on a logic of identity in order to make society more efficient. Here, Badiou finds the basis for a hierarchical social system. Crucial then is to identify and disrupt those dominant truths, and organizing truth procedures, which generate the world we live in. The reason for this is that a truth generated by certain dominant interests has a tendency to maintain an unequal social order if it passes by unnoticed.

Below is a brief overview of the critique of the dominant ‘truth’ about ADHD. Thereafter follows an analysis of the so-called onto-epistemological violence, which refers to how certain truths about ADHD are forced into the world by specific dominant interests. At the same time, when attempts to totalize being are made, the world by a dominant ‘One’ is forced into a kind of ‘unequal distortion’. Badiou (2018) emphasizes that such a distortion or scandal in the world (in what we tend to think of as a given ’real’), reveals that there is another ‘Real’ possible to strive for; an event that gives the opportunity to collectively create new truths and to let the world appear in other less ‘distorted’ ways. Thus, it is in the impossibility to totalize being that the possibility of change is to be found. This is why we should never cease questioning those who try to totalize being from the perspective of ‘One’ and, at the same time, never give up on the idea of change. The reverse would be to act as a reactive subject and to continue to live at the level of a human animal and not as an active ‘truth-making’ subject in the world.1

The ‘critical’ case of ADHD

Psychiatric diagnoses such as ADHD have increased globally and expanded since the 1980s to reach an almost explosive rate during the first decades of the twenty-first century (e.g. Bergey, Filipe, Conrad, & Singh, 2018). In the dominant biomedical paradigm, ADHD is defined as a genetic and/or neurochemical dysfunction manifested as a mental/cognitive disorder (e.g. Gillberg, 2014, 2018). However, neurobiological markers for validating ADHD have yet to be discovered and distinguished (e.g. Timimi, 2018). Psychiatric/neurodevelopmental diagnoses and interventions are anything but neutral (e.g. Rose, 2019). Regarding ADHD, this is obvious when the (normative) diagnostic criteria grounded in diagnostic manuals such as DSM-5 (APA, 2013) are scrutinized (Freedman & Honkasilta, 2017). Various researchers have raised concerns that a psychiatric (or so-called neurodevelopmental) diagnosis serves a number of different interests at the same time as the diagnosed individual is transformed into a technological object, which in turn enables social control over, and instrumental modification of, behaviours not following a conformist order.

Hjörne (2016) argues that diagnostic categories entail segregating educational systems and excluding educational practices, even in Sweden: a country otherwise used as a leading example of democracy and social welfare. While Graham (2008) refers to the performativity of psychomedically influenced pedagogical discourses in the production of students as ‘disorderly objects’, Harwood and Allan (2014) use the term ‘psychopathologization’ to demonstrate a ‘complex web of power relations’ where a number of discursive and material practices partake in an epistemologically violent production of the ‘ADHD-child’.

The construction of ‘truths’ regarding ADHD extends far beyond the situations where the so-called symptoms appear (which is particularly at school). Laurence and McGallum (1998) argue that when electroencephalography (EEG) was introduced as a diagnostic technique it became a powerful tool ‘which carved out new space – the space “inside the child’s head” – for the operation of power’ (p. 198). Baker (2002) states that the entire diagnostic project is nothing but repressive eugenics, where some children and youths are separated into different groups through the diagnostic process. Children (students) only become dysfunctional when they are not sufficiently productive (at school), after which they are to be seen and treated as a risk and a burden to society. The ‘dysfunctional’ group of children and youths is then subjected to various instrumental ‘perfecting technologies’ so as to conform to the dominant order.

Others emphasize that the dominant role of the biomedical model of ADHD leads to causal explanations being one-sided and that the uniqueness of the one diagnosed is downplayed (Erlandsson & Punzi, 2017). This entails educational concerns as the diagnosis is heterogeneous in nature and thus mystifies pedagogical relations rather than explains the unique situation of every living person/student (Graham, 2010). As a result, Erlandsson, Lundin, and Punzi (2016) suggest that the acronym ADHD should be placed inside quotation marks (= ‘ADHD’). (This principle is applied from this point on and until otherwise indicated.) An additional remark is that the diagnosis of ‘ADHD’ is based on a variety of logical errors – a significant example being the circular logic where the observed behaviour is explained by means of the neuropsychiatric diagnosis as a theoretical construct, and vice versa (Lindstrøm, 2012; Pérez-Álvarez, 2017; Tait, 2009).

This ‘repressive illogic’ described above brings us to an example I would argue is largely representative of the pro-diagnostic paradigm in relation to ‘ADHD’. In other words, due to a lack of empirical evidence, the diagnosis is instead based on ideology. In the section below, it is shown that the diagnosis is legitimized on the basis of a utility-based humanitarian principle. Also presented below are the educational and ethical problems arising when inadequate representations of being are presented as absolute and adequate truths (see Nilsson Sjöberg & Dahlbeck, 2018).

The quasi-humanitarian and utility-based diagnosis of ADHD

A strong advocate of the neurogenetic perspective on ‘ADHD’ is Christopher Gillberg, who, in a Nordic context, has played an important role in the expansion of the diagnosis (Smith, 2017). Based on the US diagnostic manual for mental disorders (DSM-5), Gillberg (2014, 2018) claims that ‘ADHD’ is an innate neurological dysfunction manifesting itself in a mental and behavioural disorder. Gillberg includes ‘ADHD’ under the diagnosis of ESSENCE.2 This term/diagnosis is used for describing and explaining a set of behaviours that must be exhibited by children and youths in order for certain measures to be taken. These measures mainly apply to children and youths not performing sufficiently well in school, and who are thus assumed to be at risk of developing future social problems. This implied future threat to public order, seen by Gillberg (2014) as ‘one of the major public health issues of our time’ (p. 75), legitimizes the diagnosis as an instrument for selection through which targeted measures, not infrequently pharmaceutical, are enabled and may be applied at an early age. In the absence of biological markers for making a diagnosis, diagnostics are not only based on medical/physiological and psychological/cognitive examinations, but also on interviews and various types of diagnostic questionnaires based on how parents and teachers assess the child’s behaviour. Additionally, specific technological examinations in clinical laboratory settings may also be used for measuring attention and impulsivity (Gillberg, 2014, pp. 174–186).

Notwithstanding the lack of specific biological markers, Gillberg states that people with ‘ADHD’ must be approached on the basis of systematic psycho-medical knowledge providing an adequate understanding of ‘ADHD’ as a neurological dysfunction. However, there is no consensus on the causes behind the diagnosis (aetiology), which may explain why ‘ADHD’ manifests itself heterogeneously. While pointing out that everyone with ‘ADHD’ is unique, Gillberg adds that people said to have ‘ADHD’ frequently see themselves as normal, while the so-called disorder is to be found in the opinions of others (2014, p. vi).

To legitimize the diagnosis, Gillberg invokes a humanist ideal. The neuropsychiatric diagnosis is used in the belief that it will prevent stigmatization and that the individual may experience a sense of belonging to the community. Gillberg believes that the diagnosis serves to integrate rather than to segregate. Although the knowledge concerning ‘ADHD’ is inadequate, it is said that the diagnosis plays an adequate role in the sense that it assigns a name to something otherwise uncertain. A crucial argument presented is that if we cannot know for certain what causes ‘ADHD’, then a diagnosis cannot be all that bad after all:

[M]ost people forget that a diagnosis is a form of treatment in itself. Having a name for the difficulties one is experiencing can never be worse than fumbling in the dark. The name also comes with information about causes, risks, and reasonable approaches. Even if – at worst – nothing else can be offered, that is still not a bad treatment effort! (Gillberg, 2014, p. 185)

Lacking scientific and empirical evidence, Gillberg takes support from the philosopher Ludwig Wittgenstein by stating, ‘What we cannot speak about we must pass over in silence’ (Gillberg, 2018, p. 158).3 He uses this quote to support why a diagnosis should be deemed necessary and important: without diagnosis, we/he cannot talk about the ‘thing’ (or ‘essence’) that ADHD is considered to correspond with, and certain ‘interventions’ cannot be legitimized.

It is clear that the diagnosis of ‘ADHD’ does not primarily exist as a result of medical-psychiatric and techno-scientific progression. Instead, a reverse type of logic applies: the diagnosis as a theoretical construct seeks medical-psychiatric and techno-scientific validation at the same time as the diagnosis serves certain functions in relation to individual and society as formulated by dominant interests. The diagnosis is pure ideology, and as such it supports an educational model emphasizing identity over diversity. The current principle, as well as a crucial argument, is that the diagnosis represents a humanitarian utility aspect. Utility outweighs risk, according to the prognosis determined via the diagnosis.

The following is an analysis of the onto-epistemological violence (re)produced by Gillberg – here used as an example of something obviously much larger than Gillberg himself – when he argues in favour of the existence of the neuropsychiatric diagnosis on the basis of a utility-based humanitarian principle. The following examples are taken from the neurobiological laboratory, as this is where a large part of the knowledge concerning ‘ADHD’ is produced as truths (Laurence & McGallum, 1998; also see Harwood & Allan, 2014; Rose & Abi-Rached, 2013). Following Badiou and his ontological examination of being, I will now scrutinize how certain truth procedures force the fragmented ‘ADHD-subject’ into the world, thereby simultaneously reducing ‘ADHD’ (the unique subject) to the level of a manipulated laboratory rat.

Treated as a rat: onto-epistemological violence and the fragmentary ADHD-subject

In a philosophical sense, being is that which is, whereas an ontological examination of being qua being entails searching for what is universal for everything that exists. There is a long tradition in philosophy arguing that the way in which we understand being is fundamental for the actions that follow. For the purposes of this article, Badiou highlights an increasing contemporary belief in an ideologically driven techno-scientific positivism seeking to make us uncritically seduced in its attempt to totalize being (Badiou, 2011). However, Badiou is not anti-technological (see Badiou with Tarby, 2013, pp. 92–104); neither is he anti-scientific, as his ontological position in itself is mathematical, thus scientific (Brassier, 2010). Badiou himself states that ‘mathematics = ontology’ (2005, p. 6); ‘It [mathematics] makes it possible to take on an ontology of the pure multiple without renouncing the truth … ’ (Badiou, 1999, p. 104).

Based on the language of mathematics, and more specifically set theory, Badiou argues that being is an infinite multiple. Infinite multiplicity is pure alterity, and as such it is ‘the regime of being’ (Badiou with Tarby, 2013, p. 57). Or as Badiou puts it in his Ethics 'infinite alterity is quite simply what there is' (2002, p. 25, italics in original). In other words, the substance of being is void: void is an indiscernible no-thing, an unnameable that is completely neutral beyond technological and literary definitions, but which through various forms of situational operations - generic truth procedures - are forced into the world as hierarchical differences. As explained in more detail below, the void is also named the empty set. Void, or the empty set, relates to the infinite multiplicity that Badiou (2005) thinks of as universal for all ontological categories. Infinite multiplicity as pure alterity is not difference; it is nothingness, the unnameable, and this is what I relate to the uniqueness (the ‘Real Being’) of each and every one. Thus, being is neither one nor multiple. It is a multiple of multiplicities and as such, in the end, it is nothing. What Badiou argues is that each attempt to capture an elusive being generates new truths. Generic truth procedures work as organizing practices with a ‘one-effect’. This means that being qua being as infinite multiplicity, a ‘no-thing’, is forced into the world as ‘one’, presented as a different and distinct ‘some-thing’. And this, according to Badiou, is an absolute and universal statement that is derived from his ‘absolute ontology’ (Badiou, 2016, pp. 74–77). Put otherwise, and with the Platonic cave allegory in mind: from the Real a distorted real is forced into the world by certain dominant interests, where these dominant interests also do what it takes to re/produce a specific (capitalist) state of order presented as the best possible of all alternatives (Badiou, 2018).

Above I have highlighted a contemporary biomaterialism where the process of becoming is reduced to a biological level. The labelled person is transformed – commodified – into a dysfunctional object through the use of biotechnological apparatuses. Badiou speaks of different degrees of identification making a specific object appear in the world in a certain way. Thus, some objects become existent while others remain non-existent; in any given situation some things can be said to exist more than others. Using the movie theatre as a modern example of the Platonic cave allegory, Badiou (2012) describes how what we might think of as the real truth is projected on the movie screen towards which everybody turns their heads. But what is projected on the screen and presented is only a kind of sensible (visible and audible) reduction of the True, of the ‘Real’, but which is most often presented and taken for an undisputable fact: 'This … audience has no way of deducing that the substance of True is anything other than the shadow of a simulacrum’ (p. 213). This ‘shadow of simulacrum’ are by some ‘dominant’ groups with specific interests made to appear on the movie screen and is presented as an absolute truth to the one labelled as ‘ADHD’ and to a wider audience. Neurobiological research, different types of MRI-scans, and psychiatric/neurodevelopmental diagnoses easily fits into this model.

To examine how certain truths about ‘ADHD’ are generated in neurobiological research, I use the example of a study by Hoogman et al. (2017), where the truth about ‘ADHD’ through biotechnological innovations is presented as absolute.4 Hence, the study tries to capture and totalize being. On the basis of their so-called ‘mega-analysis’, the research team consisting of a total of 84(!) professionals claim that they have found evidence that ‘ADHD’ is a ‘disorder of the brain’. On the basis of a limited number of people having undergone certain brain scans in many different sites, Hoogman et al. interpret and present their results in a way that (almost) leads us to believe that the truth regarding ‘ADHD’ has now been established. Notwithstanding the dubious representation, or misinterpretation (e.g. Batstra, Meerman, Conners, & Frances, 2017), a result of this presentation is that a fragmented truth is forced into the world – one that make a specific state of being come into existence. However, this truth is not a final answer as to what causes ‘ADHD’. Rather, it sets being in motion and thus makes the one labelled as ‘ADHD’ and the world appear in a certain way.

According to Badiou, the sets that constitute being are infinite and always constructible. Hence, the truth presented by Hoogman et al. (2017) is just one of many truths that are generated – today at a rapid pace. And it turns out to be a truth that divides humanity in two: a generic truth procedure that forces the otherwise indifferent multiplicities at the level of being into differences possible to organize into a hierarchically stratified order of society. It is a truth, according to Hoogman et al., well worth presenting to the world: ‘This message [that ADHD is a disorder of the brain] is clear for clinicians to convey to parents and patients, which can help to reduce the stigma of ADHD and improve understanding of the disorder’ (2017, p. 2).

The study of Hoogman et al. is just one of a large number of empirical studies using modern technology in clinical laboratory environments to generate certain kinds of truths. The truth procedure used by Hoogman et al. is also a prime example of the (onto-)epistemological violence discussed in this article. This is the case as laboratory experiments take place far away from the situations in which the so-called symptoms of ‘ADHD’ appear and turn into a problem. This (onto-)epistemological violence is equivalent with a decontextualization and fragmentation that reduces ‘ADHD’ into a neurogenetic dysfunction (re)presented on a computer screen as a ’hard fact’ and unquestionable truth. Hoogman et al. use biotechnology not only to represent ‘ADHD’ but also to present and thus force a certain kind of truth into the world. While it is presented as absolute, such a techno-positivistic presentation is only representing a ‘shadow of simulacrum’ (Badiou, 2012, p. 213); thus, it is a fragmentation of ‘ADHD’ made by the research team. Only certain truths, or beings/existences, are forced into and made appearing in the world; however, whereas other still remain non-existent. In relation to educational processes of becoming, this is of utmost importance as this form of inadequate knowledge is used and presented as an adequate truth (e.g. in the ‘pedagogic’ act of so-called psychoeducation). Simultaneously, the empirical facts are generated by certain interests to legitimize and support ‘ADHD’ as a theoretical construct.

Despite the limited space provided in an article, it seems relevant to include yet another example, once again from the neurobiological laboratory. Here, researchers are looking to distinguish and differentiate genetic and neuromolecular entities from each other in order to find a causal answer as to what causes ‘ADHD’ (Gallo & Posner, 2016). Gallo and Posner argue that human life – particularly ‘unwanted life’, such as ‘ADHD’, they note – should be reduced to the minimum possible genetic-molecular functions to better enable the identification of a linear causality. Thus, various animal models are used, not infrequently rats (Sagvolden & Johansen, 2011). The rats are first manipulated so that they exhibit symptoms comparable to human ‘ADHD’. They are then injected with so-called designer drugs, once again altering the behaviour of the rats in accordance with what those working in the laboratory consider a normal/functional behaviour for a rat. If the rats’ response to the chemical substance corresponds with the response of people diagnosed with ‘ADHD’ when ‘medicated’, not only are the different animal models seen as valid for using in experiments of this kind, but the diagnosis is also confirmed (Gallo & Posner, 2016; Sagvolden & Johansen, 2011).

The life of those who are labelled as ‘ADHD’ is here equated with the life of manipulated laboratory rats. As such it constitutes a (onto-)epistemological violent act with not least significant socio-political consequences. Apparently, the laboratory is also where a pedagogy for managing these ‘ADHD rats’ is created by means of clinical experimentation, since we know that a large portion of children and youths (and adults) diagnosed with ‘ADHD’ face the same ‘treatment/intervention’ as the rats: a medical behaviourism. On the basis of the above examples, it is no longer possible to stop thinking about neophrenology and repressive eugenics.

But what about those that appear on the other side of the (onto-)epistemological violence? Honkasilta (2016) emphasizes that children/youths diagnosed with ‘ADHD’ seek out and find explanations beyond a psychomedical discourse, while parents and other adults stand behind the assumption that an individual diagnosis defined as a neurological dysfunction is to be seen as adequate support that offers the best way forward for educational success and a reduction in stigma. Singh (2013) highlights that children/youths with a diagnosis do not see themselves as neurologically dysfunctional; instead, they see themselves as agents (not) responsible for their actions. The examples could be multiplied.

On an overarching level, the UN (2017) not only notices the dominance of the biomedical paradigm but also sees it as important to shift the focus from ‘chemical imbalances’ to ‘power imbalances’. This assertion is partly derived from how the biomedical model has been highly disputed by psychiatrized subjects, sometimes referred to as ‘survivors’ or ‘users’. The counter-response created by this (onto-)epistemological (‘psychiatrized’) violence is highlighted thus:

If epistemic violence is to deny being, then the response to the violence is to construct ways that bring psychiatrized people back into existence. […] If epistemic violence is understood as the non-recognition of being, then the resistance to epistemic violence would mean bringing into being that which is denied existence. (Liegghio, 2013, p. 127)

First, Liegghio separates the epistemological from the ontological at the same time it is stated that the two are not separable. Second, if the (onto-)epistemological violence denies being and leads to an act of violence against all of those whose full existence is not recognized as a result of psychiatrization, then the counter-response would be to restore being. I now discuss what Badiou’s ontological examination of being, on the basis of my reading, has to say about the onto(-epistemological) violence exercised by the diagnostic culture in which we live. I also draw up the outlines of a less violent pedagogy beyond the diagnosis.

Counting for inclusion: onto-epistemological violence and the diagnosis of ADHD

Badiou claims that being qua being is pure and infinite multiplicity, a conclusion reached by means of mathematical deduction and, more precisely, of mathematical set theory. Mathematics then is the kind of formalization we may use to reach an absolute understanding of being as such: ‘mathematics is ontology, i.e. the independent study of the possible forms of the multiple as such, of any multiple, and therefore of everything that is – because everything, that is, is in any case a multiplicity’ (2016, p. 68). Moreover, mathematical set theory is used by Badiou to deconstruct every possibility to organize life on the basis of being as One: ‘It thereby deconstructs any one-effect; it is faithful to the non-being of the one … ’ (2005, p. 33). A premise for Badiou (2005) is if something may appear in a multiple form, then it must imply that ‘the One’ is not a characteristic of being. What Badiou’s absolute ontology helps to understand is that if ‘the One’ does not exist, neither can ‘the Other’ (Badiou, 2002).

As a materialistic philosopher arguing on the basis of mathematical set theory, Badiou presents the thesis that being consists of infinite and indifferent multiplicities that are forced into the world as difference(s), or distinct sets, through certain types of generic truth procedures. The basic principle in mathematical set theory is that a set is a collection, nota bene, of arbitrary elements that may be counted as one. If a set may be constructed by any types of elements that may be counted as one, then all sets are always constructible. Furthermore, two sets may be equal and identical if, for instance, set A is composed of exactly the same elements as set β. In all cases of sets that are not identical to one another, they constitute subsets of each other, whereby one set becomes superior to other sets. In set theory, different subsets always include other subsets, which follow in infinity. This is possible since the construction of a set is always followed by a new subset, which in turn is made up of another constructible subset, and so on. This is where Badiou finds what he refers to as the empty set, or the null set (denoted by the symbol Ø). One might never capture this empty set; it is indiscernible. The empty set is what Badiou denotes as void, and void is nothingness – the unnameable.

But if being is pure multiplicity, how is it possible for something to appear as ‘one’, as an existing object? Badiou finds the answer in the structure of the present order. It is through specific situational truth procedures that the pure multiple – multiplicities that on the level of being are indifferent to each other – are forced into the world and emerge as difference. As clarified above, ‘ADHD’ is a diagnosis constructed to bring structure to life in accordance with a dominant order (the diagnosed child is to be included in a greater whole, not the other way around), and there are some who take it upon themselves to do so by means of a diagnostic process. Here, the empty set (Ø) becomes very important. Badiou sees Ø as the utmost nothingness of being. When the diagnosis becomes the answer for managing the nothingness of being, the uncertainty of life, the empty set is not taken into account. And why the empty set is not taken into account is because it is indiscernible. Instead, the neuropsychiatric diagnosis of ‘ADHD’ constitutes a totalization of being; or it is at least presented that way when the knowledge concerning ‘ADHD’ is in fact inadequate. But when the diagnosis from ‘the One’ to ‘the Other’ is presented as an adequate truth, it becomes a totalitarian principle as a result of the perspective of the world (of ‘ADHD’) made by a ‘dominant One’. In this process, the otherwise unique subject is reduced to a neurological-disordered object and forced into the world as ‘the Other’. And it is the position of a ‘dysfunctional Other’.

This process turns the empty set (Ø: the unique and unnameable subject) into a closed set. So, with regard to whether or not the diagnosis is stigmatizing, it is sufficient to go to the origin of the word to see how the classified subject – which at the level of being is a pure multiple and therefore indifferent to other multiplicities – through the diagnosis emerges as a ‘negative difference’, identified and labelled as a disordered/dysfunctional object. Through the diagnostic classification, the unnameable subject is made into a closed set and nameable object. What we see is onto(-epistemological) violence and this is the case as the closed set, according to Badiou (2002), is the enemy of true subjectivities.

Let us now investigate the onto(-epistemological) violence following the classifying principle of the diagnosis, as well as the problem of when unique individuals, through psychiatric classification, are forced together into the same category. Hjörne (2016), for instance, highlights how diagnostic categories affect educational practices. Stereotypical prejudices, segregation and exclusionary practices most often follow the process of categorization.

In mathematical set theory, as used by Badiou (1999, 2005), elements with a certain arbitrarily selected characteristic are brought together. Let us here focus on the element U as in a U(nique being), but whose characteristics are the behaviours inattention and hyperactivity-impulsivity; and when brought together, they constitute the subset B as in B(ehaviour). The subset B(ehaviour) thus consists of x number of U(nique beings), which we may here denote as {U}. In relation to the subset B(ehaviour), an additional set has been constructed, which is A as in A(DHD). The element {U} then becomes subordinate to the subset B(ehaviour), which is subordinate to the subset A(DHD). The subset A(DHD), in turn, is subordinate to the subset NPD,5 which is subordinate to H(umanity) – the principle should be very clear by now. What happens as a result of this classification and categorization is that all individuals exhibiting certain behaviours – so-called symptoms – resembling each other, when brought together in a new set, are moved toward a general character and an abstraction away from the individual element toward what the new set has in common.

On the basis of the examples provided above, we now understand that classifying a heterogeneous group of unique individuals, and placing them into a category so that schools can offer an individual and inclusive pedagogy, is based on highly questionable reasoning. When made into the subset A(DHD), the unique individual is included in a greater quantity, but at the same time s/he no longer belongs to her- or himself. It becomes clear that simply placing ‘ADHD’ inside quotation marks is not sufficient (see Erlandsson et al., 2016). If we follow Badiou’s ontological examination of being and its subsequent effects, ‘ADHD’ must be addressed on the basis of the following principle ADHD. In this way, it is possible to move beyond the onto(-epistemo)logical violence of the neuropsychiatric diagnosis so a less violent educational model can come into existence.

Conclusion, or what we cannot speak about we must pass over in silence

Almost half a century ago, Conrad and Schneider (1980) wrote that ‘[…] “counterpower” to medical social control needs to be created’ (p. 260), with regards to the diagnosis of hyperkinesis/MBD, a predecessor to ‘ADHD’. In hindsight, we see that the impact of this counterpower has been rather limited as the biomedical paradigm and neuropsychiatric discourse and diagnoses have steadily grown and become normalized. For precisely this reason, further critique is made relevant.

Turning to Badiou’s metaphysics and ontological examination of being qua being, this article has engaged in the counterpower to the biomedical paradigm with a particular interest in the diagnosis of ‘ADHD’. On a related note, Badiou (2002) argues that we live in a social order sustained by differentiated objects of various kinds: an identity politics of sorts. It is in the constant invention of new objects – identities – where such a system finds support and creates investments in the market. Besides this identity politics, a normalization politics aiming to achieve uniformity among citizens seems to be dominant (Richardson, 2005). Normalizing identity politics are completely dominant when it comes to neuropsychiatric diagnoses such as ‘ADHD’. Within formal education, there has been a worldwide push for performance and efficiency: a technological rationality enforced by the use of standardized curriculums and measurements squeezing students into conformity rather than focusing on unique subjectification (e.g. Biesta, 2010). In combination with the neuropsychiatric dogma and its expansive influence in education and upbringing, we have to deal with a (enormous) classification apparatus striving for uniformity among students. Paradoxically, in the pursuit of uniformity, a constant flow of new psychiatric identities are created, resulting in a hierarchical and stigmatized situation of us-and-them (see Runswick-Cole, 2014). What also needs to be emphasized is that the diagnosis is many other things but individual, as it is closely intertwined with professional, political, economic, and ideological interests. Hence, from what has been demonstrated above, ‘ADHD’ should be understood as an anthropomorphic and biosociotechnological construct rather than a ‘disorder of the brain’.

In this article, it is argued that a dominant ‘One’ has excluded the empty set in the quest to capture and totalize being (or ‘ADHD’). However, according to Badiou being is elusive and cannot be totalized. This indeterminate aspect of being is determined by the absoluteness of mathematical set theory, as suggested by Badiou. Following this, the equation ‘diagnosis = inclusion’ is based on a questionable reasoning. The diagnosis of ‘ADHD’ also appears as a violent humanitarian act because the diagnosis equates the one labelled as ‘ADHD’ with a manipulated laboratory rat. The diagnosed individual is made into a kind of animal-like state of being and is thereby not considered sufficiently human and thus in need of instrumental perfecting technologies to become a functional member of society.

Indeed, it is a violent pedagogy, which, it turns out, is also evil. This is so because evil, for Badiou, is the ‘desire to name [the unnameable] at any price’, and when one truth attempts to totalize the others, it is nothing but a disaster (Badiou, 2008, p. 127, italics in original). The diagnosis turns the unique subject, the empty set, into a closed set, thereby totalizing void. And as pinpointed by Badiou, the enemy of true subjectivities is none other than the closed set. Hence, in the quest for a less violent and evil pedagogy, the diagnosis of ‘ADHD’ should no longer be used, nor should it be placed inside quotation marks. If we want a less violent and evil world, the diagnosis should no longer be used (= ADHD).

When suggested that educators (and others) should drop the language of disorder and the diagnosis as such, it seems much easier to say than to do. It is so because the diagnosis is a significant ‘cog’ – the diagnosis is of a high-value use for many involved parties – in a complex professional, political, economic, and ideological apparatus more than it is a diagnosis that corresponds with a transcendental essence ever possible to find ‘out there’. Even if the diagnosis (of ADHD) is irreducible to the emergence of compulsory school, the educational domain certainly works as a catalyst for the growth of disability categories. For example, the ‘hunt for disability’ described by Baker (2002), Graham (2008, 2010), and Harwood and Allan (2014) is inexorably linked to school finance. This seems to be the case also in the Nordic countries, though not a legal requirement (Hjörne, 2016; Honkasilta, 2016). The diagnosis is considered an ‘inclusive’ necessity to continue production towards a world which by a dominant ‘One’ is deemed the best possible and all other alternatives impossible. At the same time, the process of psychopathologization is supposed to destigmatize underperformance in school and society by forcing some individuals into the world as ‘dysfunctional/disordered Others’ suitable for different kinds of instrumental perfecting technologies such as psychotropic neuroenhancement.

However, it is here that Badiou’s ethics and political subject become highly significant, when he pushes to never give up the Idea: the idea of change towards equality. When certain behaviours – in school, for example – present themselves in a way that is defined and perceived by a dominant order as a ‘dysfunction/disorder’, it is precisely this rupture within the given order that reveals a non-equal reality or structure. Such a scandalous rupture (Badiou, 2018), or disastrous trace within a situation (Badiou, 2005), is the very place to start if we want to remake the world. Such a ‘disaster’, or ‘dysfunction’, of the world reveals a given ‘real’ in it, but at the same time, such a rupture reveals that there is another ‘Real’ possible to, in a constructible manner, (ever) search for. Such a truth-making procedure should, however, be a collective work, Badiou argues, and indeed follow the Idea of an egalitarian experimentation towards equality within the world.

Let me summarize by returning to Gillberg, who uses a quote from Wittgenstein – ‘What we cannot speak about we must pass over in silence’ – to legitimize the diagnosis when the empirical evidence runs short. It leads to the conclusion that what we have inadequate knowledge about, we must be careful of how we pass over (see Nilsson Sjöberg & Dahlbeck, 2018). What then requires, if we follow Badiou, is courage and hard work, because it requires courage and hard work to learn how to ‘fumble in the dark’ together and thus change the world from the perspective of ‘Two’ rather from ‘the One’ (see Nilsson Sjöberg, 2018).

Notes

Badiou’s philosophy is a theory of change and in the end a philosophy that seeks a new humanity. Because Badiou states that mathematics is ontology, it is also, according to Pluth (2010), a formalized in-humanism. In Badiou’s philosophy, the human animal does not differ from any other living animals. Ontologically, all is infinite multiplicity and in the end nothing, a no-thing. Animal life consists of bodies and language, but to become a human subject it requires fidelity to (the universal idea of) truth. According to Badiou, this is what ‘negates’ the human subject from the human animal and other living animals (Pluth, 2010, pp. 8–12, 182–185).

Early Symptomatic Syndromes Eliciting Neurodevelopmental Clinical Examinations. ESSENCE means that ADHD should be associated with a wide range of other neuropsychiatric diagnoses, in medical terms referred to as comorbidity.

Gillberg’s reference to Wittgenstein is incomplete. The following is written in Swedish by Gillberg: ‘Det som man inte kan tala om måste man tiga om’ (Gillberg, 2018, p. 158). The original quote is provided by me and found in Wittgenstein (1922, §7).

There are (all too) many possible examples to use. The study of Hoogman et al. has been chosen due to its significant international media impact.

The diagnosis of ADHD belongs to the Swedish acronym NPF. NPF, in this article translated to NPD, refers to the Swedish term ‘neuropsykiatrisk funktionsnedsättning,’ which is best translated as ‘neuropsychiatric disorder’ or ‘neuropsychiatric dysfunction’, in turn closely related to the definition ‘neurodevelopmental disorder’ as used in DSM-5 (APA, 2013), or, as we see below, ‘a disorder of the brain’.

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#adhd #psychiatry #critical pedagogy #philosophy of education #ethics #onto-epistemology #powerful #psychiatrization #violence #critique #alain badiou #The Other #paradigms #diagnosis #sociology of psychiatry #chemical imbalance theory

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People understand me so poorly that they don't even understand my complaint about them not understanding me.

Søren Kierkegaard, The Journals of Kierkegaard

#soren kierkegaard #philosophy #existentialism #alienation #greats #loneliness #paradox #quotations

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Taryn Bell & Penny Spikins, The object of my affection: attachment security and material culture, 11 Time & Mind 23 (2018)

Abstract

Archaeological research into how objects affect us emotionally is still in its infancy, with our affiliative responses to objects – those related to socially close and harmonious relationships – being particularly understudied. Psychological research has however revealed that objects can have powerful effects on emotional wellbeing, acting as attachment figures which provide a sense of comfort and security in the absence of loved ones, and promoting the confidence to explore and develop positive relationships. Here we discuss the phenomenon of these attachment objects, drawing on recent survey research, and applying this concept to new interpretations of two particularly meaningful prehistoric artefacts – the Stonehenge pig ‘toy’ and the Hohle Fels ‘Venus’. We conclude that a better understanding of attachment objects will provide considerable insight into the emotional significance of particular cherished artefacts throughout time.

Introduction

We all feel vulnerable, insecure or anxious at some point in our lives. At these times certain unique cherished objects can often hold a remarkable power to reassure us, to connect us to loved ones and to provide us with a sense of comfort and security.

Perhaps one of the most famous modern examples of one such object is a tattered teddy bear which was chosen as the most significant of nearly 3000 First World War artefacts submitted to the Memory Project of The Globe and Mail and the Dominion Institute (Figure 1).1 This small teddy bear was the treasured possession of a girl called Aileen Rogers who, at the age of 10, sent her bear in a care package to her father Lawrence who was working as a medic during the First World War. Lawrence treasured the bear, writing in a letter:

Tell Aileen I still have the Teddy Bear and I will try to hang on to it for her. It is dirty and his hind legs are kind of loose but he is still with me.

Figure 1. The Rogers teddy bear, CWM 20040015-001, Canadian War Museum (Length 12.2 cm, Width 9.0 cm, Depth 3.0 cm) produced 1910–1915. Insert: Rear view.

When Lawrence was killed at Passchendaele in 1917, the bear, by then having lost both legs and eyes, was found with him and was returned home, later becoming one of the most significant artefacts in the Canadian War Museum.

Unpicking why the story of the Rogers bear is so profoundly moving casts insight into the powerful role of attachment objects in our lives. The emotional significance of this worn teddy bear is driven in large part by our human responses not only to each other but to attachment objects. The initial emotional power of the bear for Aileen herself comes from its role as what is termed a ‘transitional object’ (Winnicott 1953), prompting a sense of comfort and security like that of a care-giver but in its own right, and providing a ‘safe haven’ and a ‘secure base’ to return to when a parent or carer is absent. The same transitional objects (such as teddy bears and blankets) can hold significance long into adulthood, though other objects, sometimes gifted from others, perform a similar role as sources of the same feelings of comfort and security. As a gift from his daughter, the bear also became an attachment object to Lawrence, a source of comfort that he kept close to him until his death.

A better understanding of the basis of our attachment to objects can bring significant insights into interpretations of certain significant artefacts. Attachment objects may be personal, but structured patterns of attachment and common characteristics of such objects influence how they provide comfort and security, and in what personal, social and environmental contexts they might be found. Understanding attachment objects brings a new theoretical approach to our understanding of particularly emotionally significant artefacts in the archaeological record.

Feeling our way: archaeological approaches to affiliative emotions

Archaeological approaches to any structured emotional engagement with objects are still relatively new. We acknowledge that our lives are inextricably entangled with things (Hodder 2012; Malafouris 2015); however, our understanding of the emotional nature of this entanglement is still in its infancy. Emotions can be seen as woolly, indefinable and difficult to interpret (Harris 2006; Harris and Sørensen 2010) so research tends to focus on the social, technological and political meanings of material culture (Foxhall 2012; Tarlow 2012). Moreover to date most archaeological research which explicitly deals with emotions has tended to focus on attempts to identify the presence of individual emotions, in particular those which are aversive, such as grief (see, for example, Fleisher and Norman 2015; Grguric 2008; McCartney 2006).

While objects have been acknowledged to have agency (Barrett 2001) there has been only limited acknowledgement among archaeologists of their capacity to stimulate emotions (Harris and Sørensen 2010), in particular affiliative emotions. Some novel work has been undertaken linking emotions and materiality; for example, Creese (2016) has skilfully explored the formation and continuation of political power structures through the concept of ‘emotion work’ and affective technologies among the Iroquois. Hamilakis (2010, 2017), on the other hand, has been a prominent proponent of phenomenological approaches to material culture, stressing the importance of the ‘affective import’ of assemblages. However discussions of affiliative and affective emotions in relation to objects are often limited only to specific examples such as art objects (Robb 2017).

Archaeology struggles to engage proactively with the concept of emotion, though without it our understanding of past societies is arguably much lessened (Creese 2016; Harris 2006; Harris and Sørensen 2010; Tarlow 2012). Without an understanding of affiliative emotions concepts such as ‘gift-giving’ can all too easily become an apparent exercise in the exchange of obligations (Mauss 1967). Research into the dynamics between affiliative emotions and the material world provides a new avenue to our understanding of personally significant artefacts. Here we consider objects as sources of positive affiliative emotions, focusing specifically on their role as attachment objects. We argue that affiliative emotions in general, and attachment in particular, are an essential element of the interpretation of past material culture.

Objects and affiliative emotions

Objects can stimulate feelings related to positive, supportive and harmonious social relationships or affiliative emotions and feelings in several ways. Things can stimulate a sense of belonging through shared meaning and identity, as hypothesised for European Upper Palaeolithic beads, which show regional styles (White 2007). In this case the similarity of such objects to all the others in one’s ethnic group is key to their meaning and influences how we feel. The sensory nature of certain objects (‘huggable objects’) can make us feel calmer and more trusting of others (Sumioka et al. 2013; Takahashi et al. 2017). Objects can also stimulate a nurturing response (Spikins 2015, 2017; Spikins et al. 2014), and we can feel motivated to care for objects which are seen to be vulnerable or have been abandoned (Gorman and Wallis 2017). Objects can also provoke specific affiliative memories (Depue and Morrone-Strupinsky 2005).

Attachment objects are a particular class of objects which provoke positive social feelings. Such objects provoke specific emotions related to the intense closeness we feel with our care-givers as a child and with close loved ones as adults in relationships in which we feel supported and cared for.

Objects and attachment

Our attachment to objects is driven by a deeply rooted behavioural and hormonal response which is an extension of our innate mammalian attachment system (Bowlby 1969). This attachment system leads us to seek out attachment figures who provide us with feelings of comfort and security (Bowlby 1969; Gillath, Karantzas, and Fraley 2016). The secure attachment figure provides two benefits: a safe haven, and a secure base (Bowlby 1988; Coan 2008; Keefer, Landau, and Sullivan 2014). The former of these encompasses the feeling and knowledge that we are cared for, and that we have someone to go to for comfort, while the latter gives us the confidence to explore our environment in the knowledge that support is available, should it be needed (Feeney and Van Vleet 2010; Keefer, Landau, and Sullivan 2014; Nedelisky and Steele 2009). Interactions with attachment figures affect one’s ‘internal working model’ or ‘script’: the way we view the world, the way we view ourselves and the way we expect to be treated by others (Groh et al. 2017; Waters and Waters 2006). Thus, attachment security fundamentally structures how we perceive and relate to the world around us.

Secure attachment is central to our emotional wellbeing and the ability to overcome difficulties, affecting how we view all our social relationships (Mikulincer and Shaver 2010). As children, loving responses to our needs and consistent support from attachment figures (such as parents or grandparents) help us to develop a secure attachment style, which then influences mental and physical wellbeing in later life (Feeney and Van Vleet 2010; Fraley et al. 2015; Groh et al. 2017; Keefer et al. 2012; Mikulincer and Shaver 2007; Mikulincer, Shaver, and Rom 2011; Shaver, Mikulincer, and Shemesh-Iron 2010; Wu and Yang 2012). One of the most significant benefits of secure attachment is enhanced emotion regulation, or the ability to feel emotions and integrate them with ‘rational’ thought, fostering a sense of resilience and enabling individuals to maintain a positive mood (Keefer et al. 2012; Mikulincer and Shaver 2007; Mikulincer et al. 2005; Mikulincer, Shaver, and Rom 2011; Mikulincer and Shaver 2012; Shaver, Mikulincer, and Shemesh-Iron 2010).

Secure attachment is therefore vital for our sense of comfort and security, but it also has wide-reaching effects on behaviour. A sense of attachment security enhances prosociality (Gillath, Shaver, and Mikulincer 2005; Mikulincer et al. 2005), increasing our empathy and tendency to behave altruistically, towards both those we know and complete strangers (Carnelley and Rowe 2010; Mikulincer et al. 2001; Mikulincer and Shaver 2007). Secure attachment is also key to the exploration of new situations, providing us with a secure base from which to explore our environments with confidence (Gillath, Shaver, and Mikulincer 2005; Mikulincer, Shaver, and Rom 2011) as well as facilitating increased resilience, problem-solving abilities and willingness to explore, even acting as a buffer against pain (Jakubiak and Feeney 2016; Mikulincer, Shaver, and Rom 2011). Fostering a sense of attachment security is central to child-rearing practices amongst small-scale societies such as the Baka of Cameroon (Spikins, Forthcoming; Hewlett, Lamb, and Leyendecker 2000).

When we feel vulnerable, anxious or insecure an attachment figure can restore our sense of attachment security. Whereas in other animals attachment is limited to care-givers who are present, our capacity for attachment relationships has extended to cover nonhumans, such as pets, inanimate objects, places or even abstract concepts (such as love or justice) (Allen et al. 1991; Barker et al. 2010; Beck and Madresh 2008; Friedmann 1995; Zilcha-Mano, Mikulincer, and Shaver 2012). We can gain similar feelings of comfort and security from these ‘proxy’ nonhuman attachment figures as from their human counterparts, a major advantage in insecure environments or for insecure individuals (Keefer et al. 2012; Keefer, Landau, and Sullivan 2014).

While the importance of attachment objects has long been recognised by child psychologists (Winnicott 1953), it has taken longer to recognise their significance to adults (Arnould, Price, and Curasi 1999; Gjersoe, Hall, and Hood 2015), perhaps because adult attachment objects typically differ in character from those we select as children. We perceive objects as having agency (Barrett 2001); however, they are of course physically unresponsive. Objects make us feel secure because of their inertness, however, rather than in spite of it, providing both a permanence and portability that can be lacking in other people. Adult attachment objects often function at first as mnemonic devices, providing reminders of significant places, people, or events – often reminding individuals of other attachment figures – and their initial meaning comes from these memories (Diesendruck and Perez 2015). Objects are however not just proxies; this term denies them their full agency and infers material passivity, as if they are just stand-ins for others (Olsen 2010). Instead, over time, attachment objects become important subjects in themselves (Foxhall 2012). We imbue these objects with memory and meaning and become attached to them, and they become important in their own right. They invoke feelings of comfort and security, with the initial memories no longer necessary to evoke these feelings.

The modern material culture of attachment

Our research into modern attachment objects has provided useful insights.2 Not all objects which are seen as being highly emotionally significant are attachment objects; for example, family heirlooms can be valued for their ancestry and a trophy might remind us of a sporting success. However, unique cherished objects which are acknowledged to provide a sense of comfort and security are remarkably common. Such objects tend to be much cared for, typically often handled and portable in nature. In many ways such objects are similar to childhood transitional or attachment objects, with sometimes the same cuddly toy carefully looked after from childhood. However, whereas children crave and need proximity to their attachment object, proximity is not as essential to adults. Adults also develop a subtly different and more dynamic relationship to cherished objects, much as adult attachment to their partners develops childhood attachment patterns into a more mutually dynamic context (Mikulincer and Shaver 2010). Adult attachment objects are not just providers of comfort but tend also to be cared for. Some treasured objects recorded in our study were treated in an almost reverential manner in order to care for and preserve the object. One participant chose to talk about a mug that she had bought for her late father when she was a child, which had come into her possession after his death. He had never used the mug, keeping it instead as an ornament, and she continued not to use it, and never allowed anyone else to, because she did not want it to break. She keeps the mug in a cupboard with all of her other cups, but states that ‘If I hold it or even look at it … I am filled with all the love I felt from him’.

A common theme throughout all of the objects mentioned in the survey was that they were originally gifts, or reminders of a loved one. Many of the respondents noted that they derived comfort from the object’s associations with people who cared deeply about them. Objects seem to act like a safe supportive friend. As gifts, however, such attachment objects can be very varied in form and whilst sensory qualities such as warmth and softness are important in children’s attachment objects, they are less essential to adults.

Some attachment objects are soft and ‘huggable’, for example a toy guinea pig, described as ‘multi-coloured yellow, brown, white and very soft,’ which was described in these terms: ‘I suppose it comforts me a lot because he’s been with me through everything, so it’s a very stable presence. It reminds me of being at home with friends and family.’ Others are hard but highly portable and wearable, for example two silver bracelets (one charm bracelet and one bangle) which were described thus: ‘I get some of the same comfort from wearing these two bracelets as I would from speaking to my parents or grandad…’ The creation of something as a gift can be particularly important, as in the case of a 3D-printed elephant (Figure 2(a)): ‘My brother made it for me when I left home for undergraduate, I’ve kept it the whole time … It just reminds me of home when I feel homesick.’ However, objects can remind us not of one person but of a whole family in the case of a treasured eternity ring heirloom (Figure 2(b)) with this description:

It reminds me of [my grandmother], and also of my family because we’d all spend time together when we saw her. I think there is a particular comfort in feeling close to family even when they are far away or no longer here.

Figure 2. (a) A 3D-printed elephant, and (b) An eternity ring, described by respondents in our survey. (Authors.)

Some people were very aware of the feelings of strength and resilience associated with their object. A dark brown teddy bear (grizzly bear), with patches of fur missing and a slightly damaged nose has this description for example:

He has a patch of fur missing on his neck from where I lay on him to sleep during difficult times and that reminds me when I feel scared that I’ve survived difficult things before and of my family so I know that I’m not alone.

Object attachment results from a deep-seated psychological need for emotional support, a need which is not always fulfilled by other people and which is not merely a representation of a modern, capitalist obsession with material things. Rather, attachment objects function for the benefit of our wellbeing, prosociality and ability to adapt to adverse circumstances (Keefer et al. 2012; Keefer, Landau, and Sullivan 2014; Mikulincer and Shaver 2007; Mikulincer, Shaver, and Rom 2011).

Cherished prehistoric artefacts: insights from attachment

An understanding of attachment objects allows us to reconsider how some apparently significant artefacts are interpreted. Archaeologists often struggle to interpret items which do not neatly fit into existing palaeoeconomic interpretations. In many cases such objects are forgotten or attributed to vague ritual or symbolic reasons (Langley 2017). An attachment perspective of the archaeological record recognises how some objects can in fact be vital emotional tools.

Stonehenge pig ‘toy’

One such item is a small figurine, thought to represent a pig (or less probably a hedgehog), discovered in a pit dug into the top of the Stonehenge Palisade (Figure 3). It was one of a number of deposits found in a very young infant’s grave dating to the Middle Bronze Age (J. Pollard: personal communication, November 28, 2017). The item is very small, only 55mm in length, with small stubs for legs and large, floppy ears, and has been interpreted as either a crudely carved ‘plaything’ or a piece of representational art (ibid.)

The Stonehenge pig attracted the attention of the media at the time of its discovery, being lauded as ‘Britain’s oldest toy’ (Owen 2008; “Is This Britain’s Oldest Toy?” 2008). However, neither the concept of a toy or plaything nor that of an art object allows us to appreciate the potential emotional significance of transitional objects to both infants and their care-givers. This small object may have been far more significant than simply something with which to engage in pretend play and, more than art, may instead have been intended as a transitional object which would provide the infant with feelings of comfort and security. This newborn would have been too young to reach the developmental stage of learning to rely on transitional objects; however, its inclusion seems to reflect an acknowledgement of the significant role these objects play. In the same way that the Rogers bear brought comfort to both Aileen and her father in different ways and at different times, this figurine would have been expected to provide comfort and security to a number of people, in slightly different ways; to a child in life, acting as both a plaything and a transitional object, and to their kin after death, in the knowledge perhaps that the child was protected by the figurine.

Worn or crudely made figurines and other objects are sometimes found in children’s burials throughout prehistory, with one such example being the crude horse figurine found with the child burials (a boy [Sunghir 2] and a girl [Sunghir 3], about 12–13 and 9–10 years old) at Sunghir, dated to 29–31,000 years ago (Formicola and Buzhilova 2004; Otte 2017). These objects are often seen as enigmatic, but however become explicable when we understand the significance of transitional objects to child emotional wellbeing. In a modern ethnographic context Langley (2017) notes the presence of crude dolls and figurines, often made of perishable materials, in many hunter-gatherer societies, such as the Inuit. It isn’t difficult to understand why highly emotionally significant transitional objects would be included in infant and children’s graves at death no matter how crudely made or worn.

An attachment perspective therefore gives us an appreciation of how certain artefacts in the archaeological record become emotionally significant to children and adults. Material culture relating to children receives very little academic attention and as a result is often ignored (Shea 2006; Langley 2017), but children are the members of society most likely to have attachment objects, so an attachment perspective of material culture may be of great benefit to those wishing to study the relationship between children and material culture. Capacities for adult attachment to objects are formed during childhood, and our childhood attachment allows us to understand and empathise with children’s dependence on such objects (as potentially seen here with the Stonehenge pig ‘toy’). Our childhood attachment to objects also influences the ways in which we attach powerful meanings to objects throughout life.

Hohle Fels ‘Venus’

What of adult attachment objects? A potential adult attachment object considered here is the Hohle Fels ‘Venus’ (Figure 4), discovered in 2008 in the Swabian Jura area of southwestern Germany. This figurine, carved from mammoth ivory, is both the oldest uncontested example of a so called ‘Venus’ figurine known to date and one of the most recently discovered.

Figure 4. The Hohle Fels ‘Venus’ (Height 6 cm). Source: https://commons.wikimedia.org/wiki/File:Venus_vom_Hohlen_Fels_Original.jpg

Small enough to fit in the palm of the hand, the Hohle Fels figurine was found to be at least 35,000 years old, making it one of the oldest known examples of figurative art (Conard 2009; Cook 2013). The left arm and shoulder are missing, but it is strikingly well preserved (Conard 2009). While its short, squat form makes it seem similar to many other Venus figurines, the Hohle Fels figurine has a number of unique features. Most interestingly, instead of a head, on top of the figurine there sits a suspension loop which shows signs of polish, suggesting it was worn as part of a pendant (Conard 2009).

Nicholas Conard, leader of the team who discovered the figurine, has emphasised the figurine’s deliberate exaggeration of sexual features, and has argued that it may have been an expression of fertility (Conard 2009). The discovery of the figurine made headlines around the world, depicted by the press as ‘prehistoric pornography’ (Cook 2013; Curry 2012).

There are, however, other perspectives. In reference to similar ivory sculptures of female figures, found at Nebra in Germany, Jill Cook (2013, 238) of the British Museum notes that ‘given the skill and time required to produce the figure it seems an unlikely example of adolescent sexual awakenings and the deposition in the pit suggests some wider social, ritual or ceremonial significance’. The same can be said of the ‘Venus’ of Hohle Fels. The intricacy and time spent creating and curating these objects gives weight to the idea that they may have had emotional significance, and encouraged emotional attachments. Moreover ‘Venus’ figurines tend to depict mature women, rather than young adults or adolescents, consistent with being caring figures, rather than erotica (Dixson and Dixson 2012).

Might the Hohle Fels ‘Venus’ have been an attachment object? Certainly its size, degree of handling and uniqueness suggest that it had a personal, rather than a shared, significance. Whatever its original ‘meaning’ in spiritual, cultural or symbolic terms it might also have become an attachment object. Rather than representing prehistoric erotica or a fertility symbol, this object may even have been a visual reminder of someone else, providing comfort and security for the wearer. Indeed, the polish on the suspension loop suggests that this object was worn often and whatever the acknowledged reason for keeping this object close, such close proximity may also relate to the emotional support it provided. Other figurines found in Upper Palaeolithic contexts, where ecological conditions impose high levels of mobility and logistical organisation on hunter-gatherer groups, such as portable art featuring animal figurines (Spikins et al., Forthcoming), may also equally have functioned as attachment objects.

Discussion

The Rogers bear, the Stonehenge pig ‘toy’ and the Hohle Fels ‘Venus’ display many of the characteristics common to attachment objects. Their supportive emotional effect is often drawn out through touch and proximity, and such objects have typically been much curated, as well as tending to be handheld and easily portable. As a result of such handling their original form may be lost, with any features such as eyes or facial expression no longer important, and the human or animal form they represent hardly recognisable. They are also highly individual, with an effect which tends to be specific to one person. They are quite literally ‘one of a kind’.

Objects which become significant as attachment figures are of course different in different cultures, reflecting as they do both cultural patterns and the plasticity of object attachment. There are cultural regularities to what is deemed appropriate as a transitional object for children for example (such as teddy bears in modern industrialised contexts). However, our attachment system is sufficiently versatile that we can become attached to almost any object. In prehistoric contexts we might expect to see cultural trends as well as individual variability.

Whenever we encounter unique, small, cherished and highly worn objects, we should consider their potential significance as attachment objects, and their powerful potential to provide emotional comfort and security. These objects may have been given as gifts, and are often reflections of significant social relationships, which become imbued in the objects themselves. In some cases they may be objects that archaeologists have struggled to interpret as they do not fit known interpretations related to status, economics, ethnicity or symbolism. They may be broken, tattered and unimpressive to our eyes, but to someone they will have been a major source of comfort and security.

Conclusions

Our archaeological understanding of how material culture has a positive effect on emotional wellbeing is as yet in its infancy. An attachment perspective on cherished objects has the potential to provide a significant insight for interpretations of certain personal objects which may appear unimpressive to our eyes but yet held fundamental emotional significance to their users. Much like care-givers and loved ones, such attachment objects literally calm our fears, comfort our anxieties and give us the confidence to fully engage in a complex social world. Appreciating the emotional attachments which people make with these cherished objects allows us to appreciate the complexity of past feelings, and gives us a fuller sense of how our shared emotional experiences play out within different cultural contexts.

We argue that from the Rogers bear, to the Stonehenge pig ‘toy’, to the Hohle Fels ‘Venus’, an understanding of attachment objects brings a new perspective to our archaeological understanding of the relationship between material things and some of our most human and intimate feelings.

Notes

Artefact number 20040015-001 in the Canadian War Museum. For online catalogue with further details see http://www.warmuseum.ca/collections/artifact/1368588/.

The survey of 223 adults was carried out as part of an interdisciplinary study at the University of York, funded by the Archaeology Research Priming Fund. The research was carried out between May and November 2017 (Penny Spikins, Barry Wright and Dorothea Debus, with Taryn Bell as research assistant). Applicants were asked to describe and discuss an object which was important to them, and to fill out a survey measuring their attachment score.

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