Wednesday, April 9, 2008
Orly Lobel (San Diego) has posted on SSRN her forthcoming piece in the California Law Review: Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations.
Here's the abstract:
Ranging from strict disclosure prohibitions to generous monetary incentives for informants, the legal approaches to conflicts between organizational loyalty and legal compliance reveal a deep ambivalence about the role of individual dissent in group settings. In fact, recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct.
This article argues that, particularly in light of broad shifts from command-and-control regulation to new governance processes, the corollary to skepticism about government's ability to remedy organizational illegalities is the ability of individuals to internally confront violations. The article develops a way to reconcile the pervasive tensions of conflicting obligations by connecting organizational citizenship to both institutional learning and broader civic obligation and by developing a systemic linkage between the substance of dissent and its form. It calls for the adoption of sequenced protections creating a reporting pyramid that prioritizes internal problem-solving when feasible. The analysis of mediating the conflicting demands of citizenship and organizational citizenship extends more broadly to legal debates on family immunities in criminal procedure, civic disobedience and military hierarchies, and professional roles in legal ethics, bringing analytical clarity to dilemmas about following rules while maintaining independent judgment.
It is hard to keep track of Orly's prodigious works, but I am pretty sure I heard her present this thought-provoking piece as part of the Seton Hall Employment and Labor Law Scholars' Forum last year. As she points out, it is a continuation of her larger project to build the new governance movement in the labor and employment law field.