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Building Institutions

Some time back, I noticed that Rick Garnett at Prawfs was one of the few people to notice a recent David Brooks column in the New York Times on the value of institutionsHere’s a quick hit of Brooks:

In this way of living, to borrow an old phrase, we are not defined by what we ask of life. We are defined by what life asks of us. As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.

Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. Journalism imposes habits that help reporters keep a mental distance from those they cover. Scientists have obligations to the community of researchers. In the process of absorbing the rules of the institutions we inhabit, we become who we are.

New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. “In taking delivery,” Heclo writes, “institutionalists see themselves as debtors who owe something, not creditors to whom something is owed.”

Brooks linked this descriptive item with a moralizing conclusion that I thought was overbroad and unnecessary.  The interesting thing about institutions and organizations is that their virtues and meanings are so heterogeneous and often, poorly understood.

I’m writing about this now partly because I’ve been keeping an eye out for other things to connect it to, but I haven’t found anything really right.  Among the very hardest questions having to do with institutions, for example, is how to get them going in the first place (is that a question that can really be answered?) and how to keep an existing institution on a productive course.  The risks and dangers are everywhere; many institutions crash and burn.  Why do the good ones persist?

In that sense, this take on Alex Rodriguez, before the steroids affair broke, seemed relevant:

I was speaking recently with a CEO who’s not too happy with his board of directors — he wanted advice on finding replacements. We talked a lot about what makes a valuable board member and threw around some names. I nixed a number of candidates because they are flashlights. This is a term I learned from a banker I worked for 20 years ago, people who shine brightly in one direction, but don’t let off too much light otherwise.

Flashlights are kind of useless as board members, despite big reputations and good resumes — they’re just not lateral thinkers and don’t really want to dig in. Every company is allowed one flashlight, but it better be the CEO. It’s hard to know where to go when the light is shining in two (or more) different directions.

The MoneyLaw team has been writing on similar themes for a while, in connection with law school administration, and of course everyone should read Michael Lewis’s newest there-has-t0-be-more-to-this-story piece on the Houston Rockets’ Shane Battier, who seems to be a lighthouse, not a flashlight.  Collaboration and a collaborative spirit are parts of the puzzle (the institution is bigger than me — that’s a Brooks theme, to be sure), but in certain doses.  Leadership and direction are important, too.

But I’m not interested in this theme only as it applies to law faculties or academia or sports teams; it is also at the core of what I’m thinking and usually writing about these days in my work on intellectual property and related things.

As a copyright lawyer, I feel obliged to have an opinion on the current high profile fair use dispute between Shepard Fairey and the Associated Press (my opinion is:  it is far from being a slam dunk for either side, but kudos to Fairey for pushing for an adjudication).  The real question that I want to ask, though, and not in some snarky way, is who does Shepard Fairey think he is?  And who do other people (colleagues, critics, the public) think he is?

There are some opinions out there already, and I’m not trying to collect anecdotes.  What I mean is the institutional question:  Whatever the fair use judgment might ultimately be, it’s important for lawyers and scholars to understand more about where Fairey and his work come from — historically, artistically, critically, economically.  The legal system has no obligation to buy those answers; it has no obligation to ignore them.  But it’s information that I think that the legal system should want to have.