BRIGHT IDEAS: Grant McCracken, author of The Chief Culture Officer, on “Hard law, soft law and culture in the court room”

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

You may also like...

4 Responses

  1. A.J. Sutter says:

    (1) As for GMcC’s comments on law: I understand your context of interest, about law still being out of touch with how people interact with brands, but I’m sorry to say that in a more general context his remarks seem rather facile. First of all, hard law is not only made by courts, it’s made by legislators, who are at times a little too susceptible to the influence of “soft law.” Second, trial lawyers are all the time coming up with new causes of action (emotional distress, “palimony”, privacy, etc.) that are very much the products of “soft law”. To say that “They do not acknowledge and sometimes appear not even to see the larger social and cultural context in which the law is applied” is at best a broad overstatement. Third, the comment “The outcomes are not completely clear,” in the context of an implied contrast between “soft” and “hard” law, reflect a typical non-lawyer’s overestimation of the clarity of law. As for his comments about greetings, gestures and eye movements in the courtroom, this sounds like a lead-up to a pitch for consulting services, turning anthropology into an instrument for winning lawsuits.

    (2) As for the reference to the CCO book: Thanks; I, for one, will look into it. But judging by GMcC’s blog entries, I have a feeling that it will be more as a case study of where America has gone wrong than as a source of inspiration. Take this from his recent HBR blog entry, about a certain “Susan Householder”:

    “Susan has her eye on a purse by the designer Kate Spade. It’s called the Cornelia Street Noel Blair and it costs $425. Susan has many purses, around 20 of them. So she doesn’t need this bag…at all. This must be all about vanity, status and greed. [¶] Not really. Susan loves this bag because it captures a concept of the person she thinks she might be becoming. Kate Spade has a positive genius for plucking new signals out of the noise of culture and turning them into something a woman can own, wear, and become. This is a luxury purchase in so far as it costs vastly more than a container needs to. But what makes it valuable for Susan is that it contains the idea of who she wants to be.”

    Why doesn’t anyone question whether it’s healthy that Susan’s idea of who she wants to be should be expressed through the acquisition of material goods? Is that the only way of becoming? What opportunities of self-realization are available to people who can’t afford $425 handbags, much less 20 of them? Whatever happened to the distinction between having and being? I also wonder to what extent the conflation of being and having is facilitated by the loss of the distinction between use value and exchange value in neoclassical economics-based capitalism.

    (There is also the question of who does Susan want to be — why should we assume that whatever she wants is necessarily benign? Is a libertarian attitude our only option here? Suppose her image of herself is as da biggest coke dealer in La Jolla? But this is to digress.)

    GMcC’s point of view seems to go beyond description — sc. of how American culture is — to prescription, in the form of urging corporations to exploit and deepen Susan’s tendencies. Not at all to single him out, because I think many share those aims, but I find that deeply troubling.

  2. Mark Edwards says:

    I’m very reluctant to plug my own work, but the relationship between what McCracken calls hard and soft law is darn near exactly what I write about. (Of course, it doesn’t say much for me that neither McCracken, nor pretty much anyone else besides me and my dog, knows it, but that’s another issue). The article that I’m finishing at the moment applies that analysis to property rights, but I’ve written about it in other contexts too. You could even read about it.

  3. Confused 2(now 3)L says:

    I acknowledge that there is a definite distinction between what the author terms soft law and hard law, (which strikes me as largely a reiteration of the concepts of custom and positive law) but I also think he is missing some of the obvious interplays between them that already exist.

    His first example is the soft law of personal space, which he argues justice is blind to, but one could suggest that the concepts of assault, and plausibly simple battery, are designed specifically to protect the concepts of personal space. They may do so poorly or incompletely, but one of the features of unstated consensus is that it is rarely precise, and in light of that the law only enforces it in cases of significant breach.

    The other description he offers is the relationship and duties that exist within a family, and here I’d argue that the intestacy system is designed exactly in response to what he is discussing. As well courts tendency to strike wills which would result in an “unnatural” dispositions of the dead’s property.

    Finally as the author alludes to soft law is given life in the very interaction of the individuals that make up the legal system. No where is this clearer than in the jury systems explicitly required in American jurisprudence which was enacted specifically to avoid the purely mechanical operation of law. Actions taken by the court in equity produce a similar result.

    None of this is to say that McCraken’s general arguments are incorrect, but simply that this is a extremely complicated set of interactions.