(photo, left, Duke University Constitutional Law Professor Erwin Chemerinsky)
(courtesy of the Wall Street Journal Law Blog, we Interrupt this Post to Bring You the Breaking News that Chemerinsky has Accepted Irvine's New Offer).
If you've been following the news about the U.C. Irvine Law School Brouhaha this week, you'll know what it feels like to hear a story out-of-sequence, over time and from different sources the same way arbitrators, mediators and juries do.
I heard the astonishing news that U.C.I. had hired, then fired, one of the most highly respected Constitutional Law professors in the country -- for the expression of his political opinions in the Los Angeles Times -- over coffee and orange juice. I didn't read the story; my husband just casually mentioned it from behind his newspaper.
His summary was pretty much like that of the Orange County Register's:
U.C. Law Dean Hired, Fired:
UC Irvine officials hired and then promptly fired the founding dean for their fledgling law school, because he was "too controversial," according to Erwin Chemerinsky, the Duke University law professor who had already signed a contract to take the job.
Next thing I heard was that U. C. Irvine Chancellor Michael V. Drake -- the guy who fired Chemerinsky -- denied that politics had anything to do with his decision, stating that he had:
made the very difficult decision that Professor Chemerinsky was not the right fit for the dean’s position at UC Irvine. I informed him on Sept. 11 that we were rescinding our offer and continuing the recruitment process. /**
The Story Plays Out
Chemerinsky says Drake found him "too controversial" and Drake says "I made a management decision -- not an ideological or political one -- to rescind the job offer."
Though I still hadn't read the full story anywhere, I concluded that Drake must be . . . well . . . dissembling. The temporal connection between the appearance of a Chemerinsky Op-Ed piece on the death penalty -- and his nearly simultaneous termination made the connection between ideology and firing appear incontrovertible.
When I finally had the time to read an L.A. Times article on the controversy, I was surprised to hear that Dean Edley of U.C. Berkeley's Boalt Hall School of Law, said Drake consulted him before withdrawing the offer. I was even more surprised to hear that he didn't think Drake's decision was based on the content of Chemerinsky's public opinion, but rather upon the fact that Chemerinsky opined at all. Most surprising was Edley's opinion that asking Law School Deans to stop writing politically polarizing op-ed pieces was normal and reasonable.
Such is the power of expert opinion. This made me re-think my position.
"Judged too soon," I said, reading my husband the news article that evening.
But there was more to come.
By the time I'd heard that Chemerinsky here and Drake here had each published his own editorial in the Times, the Times was reporting that UCI [Was] Working on a Deal to Re-hire Chemerinsky.
That was no suprise. But this was. Despite Drake's denial that he'd been "pressured" to terminate Chemerinsky by un-identified "conservatives," the Times learned that U.C.I. had received:
criticism of Chemerinsky . . . [shortly before] Drake rescinded the job offer from . . . California Chief Justice Ronald M. George, who criticized Chemerinsky's grasp of death penalty appeals [as well as] a group of prominent Orange County Republicans and Los Angeles County Supervisor Mike Antonovich [who] wanted to derail the appointment.
Drake's colleagues are scratching their heads ("it's not like him") and UCI is doing some serious damage-control while Chemerinsky punts ("I'm not really thinking about it.").
I should've checked the Wall Street Journal Law Blog first (the model of concise legal reporting) which I just now see reports Anthonvoich saying that "making Chemerinsky the head of UC Irvine’s new law school 'would be like appointing al-Qaida in charge of homeland security.'" This is just embarassing for Antonovich and one wonders who would want to teach at a new law school in such an environment.
Still, with feelings running into thermoneuclear hyperbole, you can imagine the pressures Drake must have been feeling.
We're Deep Into the Social Psychology of Conflict Here
Early yesterday, I was pretty much believing Drake's explanation. Chemerinsky acknowledged the pre-employment discussion they'd had about a Dean needing to focus on less controversial issues. I assumed Drake knew Chemerinsky's appointment might be unpopular in Orange County. That's why Drake tried to ensure that Chemerinsky understood he'd have to tone down his public advocacy of liberal causes.
Drake thought Chemerinsky got it, but he didn't.
The same day the offer went out, Chemerinsky's op-ed piece appeared in the Los Angeles Times, raising just the type of problem that Drake had imagined might arise.
Oh %$^#@!!!
If Drake's not now in a state of fear (which interferes with cognitive function) I'll eat my old Con Law textbook. He must have felt the need to make a decision fast (which also interferes with reasoned and ethical decision-making -- time pressure). If he rescinded the contract before the Regents approved it, he wouldn't have to "fire" Chemerinsky. He could just withdraw the offer.
I'm assuming that Drake wasn't feeling very good about having to "fire" Chemerinsky in response to pressure. I'm also assuming he was irritated to be dealing with this problem after his little chat with Chemerinsky about op-ed pieces. It may well have been against his own principles to be rescinding the offer.
He doesn't want to tell Chemerinsky that he's changed his mind because of the op-ed piece. It just feels wrong. So he does what anyone in a bind under time and outside pressure might do. He blames somebody else, some unidentified "conservatives." Chemerinsky won't think badly of Drake for that. He'll understand.
But That's Not What Happened
In the absence of information, people make stuff up. And that's precisely what I had done.
Drake had been pressured by conservatives and he'd folded like a lawn chair. He'd told Chemerinsky the truth, not simply provided an excuse or shifted the blame. But when the news cameras were rolling and the reporters were biting pencils hovering over news pads, Drake blinked. The reporters would want to know who had pressured him and that would be messy. So Drake said he hadn't been pressured. It was a management decision.
Here's the Social Psychology of Conflict -- FINALLY!!
I was just talking about Bazerman et al.'s new working paper Why We Aren’t as Ethical as We Think We Are: A Temporal Explanation earlier this week. Bazerman and his colleagues report that we believe we'll be more ethical in the future than we really will be and that we rearrange our recollection of past events to recall that we acted more ethically than we actually did.
No one is immune from "errors" in prediction -- "forecasting errors" -- and we are most likely to make them in the heat and stress of conflict. As Bazerman, et al. report, in controlled negotiation experiments,
individuals who imagined facing a very competitive opponent predicted they would be much more competitive and more likely to stand firm than those who imagined facing a less competitive opponent . . . [When confronted with a competitive negotiator, however] participants gave in and agreed to worse outcomes than they predicted they would.
The findings are not much different for "mis-remembering" the past. As Bazerman, et al. explain:
There is substantial evidence that people selectively remember past events in a manner that supports their preferred self-image. It is widely assumed that memory for affectively potent information about oneself is highly selective (i.e., distorted) . . .
While convenient for our self-esteem (and even our happiness), the selective memory mechanism represents a barrier to an accurate understanding of our ethical selves and thus impedes our ability to strive for higher levels of ethics in our everyday lives.
But what does this have to do with the U.C. Irvine mess or negotiation for that matter?
A lot. After all, the U.C. Irvine "mess" is really just a negotiation gone extremely bad, as too many negotiations do, resulting in the disruption of plans, strained or severed business relationships and, too often, litigation. At U.C. Irvine, it means plans to open the school in 2008 have been stalled.
Bazerman again:
Effective decision-making requires accurate planning and reflection on one’s decision . . . The contextual inconsistencies that exist in the prediction, action, and evaluation phases, however, circumvent these critical feedback loops.
Here are a few suggested solutions to making as reasonable and ethical a decision when under pressure as we hope to make when in a state of rest, any one of which might have helped Drake do the right thing -- or at least the most prudent one -- in this instance.
[T]o make more ethical decisions, people first need to recognize their own susceptibility to unconscious biases. This entails recognizing that our behavioral forecasts are incorrect, that our recollections of our past behavior are subject to cognitive distortions, and that the roles of the want and should selves are misaligned.
No matter what we do during the prediction phase, the "should" self needs to be able to flourish during the action phase if we are to improve our ethical behavior. This entails increasing the power of the should self during this phase while controlling that of the want self.
[A]n effective way to overcome an immediate temptation (i.e., eating a tasty pretzel) is to refocus one’s attention from the concrete qualities of the temptation (how yummy and tasty the pretzel is) to its abstract qualities (thinking of the pretzel as if it were a picture of a pretzel).
- Increase the prominence of the should choice by changing the temporal distance between the decision and its consequences
[I]mplementing long-term ethical action might require acceptance that we cannot get agreement if we try to implement decisions now (e.g., in Congress), but that our chances will go up if we accept a delay in implementation. . . . . [I]t is far easier [for example] to get employees to start saving for retirement if you ask them to agree now to implement the decision later than if you seek an immediate take-home-pay reduction now. .
- Ensur[e] that the ethical infrastructure promotes ethical versus unethical decisions, reducing uncertainty surrounding the decision, and addressing the euphemisms that disguise the ethical implications of the decision should also allow the should self to be a more dominant force during the action phase.
- During action, decrease the influence of the want self
In an ethical dilemma, when people understand that their want selves will drive their decisions, they may be able to use self-control strategies directed at that self . . . Part of this strategy may involve pre-commitment devices. Rather than focusing on the should
self, these devices seek to suppress the rearing of the want self.
We'll apply these principles to IP Disputes in our next post on the Social Psychology of Conflict.
_____________________
**/ Any first year law students reading this post will find the reason why this is not a breach of contract in Drake's short statement. The offer, though accepted, was "contingent" upon approval by the Board of Regents. The offer was withdrawn before that contingency occurred.
I've always said that the biggest lie in any business is "I don't take it personally."
Here's the thing about bullying. When you do it in public, champions will arrive on the scene to do battle. According to the recent ABA article 
“Every relationship has bumps.” 
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