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Barak Y. Orbach
James E. Rogers College of Law
The UA's Barak Orbach and Frances Sjoberg are investigating the social costs of splintering conflicts over national issues such as health-care reform, federal regulation and gay rights. The two argue in a new paper that "weak civility" carries tremendous societal costs.
In an attempt to investigate and understand the social costs of weak civility, University of Arizona researchers Barak Orbach and Frances Sjoberg settled upon an unlikely source of neighborly contention: backyard chickens.
Orbach and Sjoberg have spent the last two years investigating local controversies and debates across the U.S. over the right to own and house backyard chickens, focusing specifically on how communities choose to debate. The two have since applied their model to broader national debates over change or legal transitions, such as those related to gun control, health-care reform and gay rights.
The two found that regardless of the issue, whenever controversy is involved, individual players tend to quibble in similarly irrational and unproductive ways, which can result in societal strains and costs.
“The classic free-speech axiom is that the cure for bad speech is more speech,” said Orbach, an associate professor in the UA’s James E. Rogers College of Law.
“This article considers the possible social costs of speech, focusing on speech strategies that impede and degrade change, even if the speech itself is socially acceptable.”
Orbach and Sjoberg, a UA graduate student of law and the Arizona Law Review's editor-in-chief, have authored a paper, “The Clucking Theorem: Legal Transitions, Civility Norms, and Socal Costs,” on their research and findings.
The two recently submitted the paper for publication, and its draft is available at the Social Science Research Network.
The paper’s findings are directly related to U.S. President Barack Obama's affirmations during a memorial event in Tucson last month and also during his State of the Union address, Orbach and Sjoberg attest.
In his Jan. 25 State of the Union address, Obama said: “Democracy in a nation of 300 million people can be noisy and messy and complicated. And when you try to do big things and make big changes, it stirs passions and controversy. That’s just how it is."
Orbach and Sjoberg affirm this to be true, but emphasized caution.
“Simply because we have the right to free speech doesn’t mean we should just use it indiscriminately,” Sjoberg said.
For their research, Orbach and Sjoberg tracked debates on backyard chicken laws in more than 100 cities and towns across the U.S. between 2007 and 2010, a time when the fowl became increasingly popular across then nation. In doing so, they found that such debates were lengthy and passionate, indicating that controversial dealings are characterized by “clucking,” which is in direct opposition to civility.
The use of the term “clucking” is intentional. It refers to unnecessary and “avoidable” controversy, debate and dispute, filibusters and other processes that attempt to derail change, Orbach and Sjoberg noted.
“This particular context of backyard-chicken lawmaking is extremely useful to study as a model because it is so simple,” said Orbach, who is working on a nationwide project studying difficulties tied to efforts to usher in social and economic reform. He is particularly interested in regulation and regulatory failures.
Orbach and Sjoberg found that people who engaged in “clucking” tend to exhibit one or more recurring traits: Enforcing the status-quo, political opportunists, winners or losers invested in their own personal agendas or “human roosters,” uncompromising individuals who on principle don’t back down.
Thus, the two researchers noted that as failures occur in reform, for instance, people attempt to pressure legal systems and structures to either force or impede change, politicians may overuse filibusters or individuals may add undue pressure to the legal system. This pressure, or back and forth push, results in controversy and debate that, in excess, has the potential to derail any true progress.
“They are avoidable because economizing them would not sacrifice communication of substantive issues,” the co-authors noted in their article, adding that clucking “inflates the social costs of processes that shape changes. It also alters transitions, degrades the quality of reforms, impedes certain changes, and facilitates undesirable transitions.”
The “costs” to which Orbach and Sjoberg refer come in the form of fractured communities, unnecessarily extended time spent on debate and foregone progressive ideas, all of which can have tangible, monetary costs.
The researchers noted that the nation’s history of market failures provides even more evidence that “bottleneck of debate over change some parties – with more speech – strategically or even unconsciously undermine change or degrade change,” Orbach said.
So, ultimately, it does not matter what opinions people have about a particular subject, but how they choose to discuss it. Whether people are playing fair, or not, “clucking” and its associated behaviors can be harmful in the process of change, said Sjoberg.
And, as Sjoberg emphasized, she and Orbach are not suggesting that the government diminish free speech rights, but they do advocate strengthening procedural rules and emphasizing social norms and civility.
“Speech is powerful,” Sjoberg said, “so it should be used responsibly.”
Barak Y. Orbach
James E. Rogers College of Law