Legal Commentary

Following Ethan and Dan, I thought I would also share an article not yet on ssrn, which has just found a home. I will upload it soon, but here is the abstract of my article entitled, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations forthcoming in the California Law Review:

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

The article continues some of the thinking I have been doing on new governance and responsive/reflexive regulation, including The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought and Setting the Agenda for New Governance Research. It proposes a sequenced "reporting pyramid" that correlates with the Ayres/Braithwaite "regulatory pyramid" and "enforcement pyramid." It is also a critique of a few recent Supreme Court constitutional law cases, in particular Garcetti v. Ceballos, and an analysis of recent developments in whistleblower and retaliation protections. And for those of you who think about privacy and/or comparative law, it also hopes to offer some insight into the continental clash over the adoption of corporate financial reporting systems.  Finally, it ties all of this in with Ethan and Dan's contemplations about family ties and with the ethics of roles.

I welcome your reactions and thoughts.