Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Do patients respect the line? Transgression of boundaries reported by Swiss general practitioners

OBJECTIVE: Transgression of boundaries in the relationship between physician and patient is commonly studied with patient as victim and physician as transgressor. A recent survey in the U.S. reported that almost 90% of physicians face transgression by patients over one year. Incidents happened mainly through verbal abuse, disregarding privacy, and overly affectionate behavior. Since this incidence seems to be alarmingly high, we were interested to analyze how often general practitioners in Switzerland experience transgression by patients. METHODS: 24% of the members of the Swiss Society of Internal Medicine (SGIM) and of the Swiss Society of General Medicine (SGAM) (n=675/2781) responded to an internet-based survey which asked for experiences of transgression by patients and for physicians' responses to transgression in the last 12 months. RESULTS: 81% of responding physicians experienced transgression over the period of one year. Analyzing the frequency of incidents per physician per year, the most common forms of transgression were 'use of physician's first name' (7.7/y), 'asking personal questions' (1.8/y), 'being verbally abusive' (1.5/y), and 'being overly affectionate' (1.4/y). Calculated incidence of transgression was 3 per 1000 patient contacts. 39% of physicians decided to ignore the incident, 37% discussed the event openly. Transgression led to dismissal of patients in 13% of events. CONCLUSION: Transgression even in mild and modest form is a rare phenomenon in Swiss practices. PRACTICE IMPLICATION: The Swiss data do not suggest that there is a specific risk for Swiss practitioners to be exposed to major transgression for which they should specifically be prepared for example in communication skills trainings.

When social accounts work: evidence from ultimatum games

This paper examines the mitigating effect of social accounts on retaliatory behavior in a miniultimatum game setting. Results from games with 108 German high school students support the hypothesis that an ex ante informational and sensitive message can decrease an individuals’ negative perception of an unfair offer and increase the acceptance of the outcome. Furthermore, the moderating effect of gender on retaliatory behavior is investigated. We show that an informational and sensitive message makes more of a difference for women in accepting unfair distributions than it does for men.

Gender as a moderator of the fair process effect

This paper examines gender as a moderator of the fair-process effect in an ultimatum game setting. Results from games with 112 German high-school students support the hypothesis that fair procedures can decrease rejection behavior in unfair human allocation decisions. Furthermore, procedural fairness results in a statistically significant difference for women in accepting an unfair distribution. In contrast, procedural fairness appears to have no significant impact on men’s rejection behavior. However, we found no significant gender differences in the perception of procedural fairness. We conclude that, although men perceive procedural fairness similarly to women, this aspect is less important for determining their subsequent behavior. (PsycINFO Database Record (c) 2013 APA, all rights reserved)

An overview of positive and negative effects of gender-fair language use

The basic principle of gender-fair language is symmetric linguistic treatment of women and men. Depending on the structure of the respective language, two principle strategies can be deployed to make a language gender-fair. In languages with few gender-differentiating forms, such as English, there is a tendency towards neutralization. Here, gender-unmarked forms such as police officer or chairperson are used to substitute the male-biased policeman or chairman. The second strategy, feminization, implies that feminine forms of human nouns are used more frequently and systematically to make female referents visible.Since the 1970s, gender-fair language has been suggested, if not prescribed, for both scientific and official texts and its positive effects are widely documented. The use of gender-fair language increases the cognitive availability of feminine exemplars. Also in an applied context women responding to job advertisements formulated in gender-fair language feel more motivated to apply for the position. However, "side effects" of gender-fair language have also been observed: For instance, women referred to with a gender-fair title (e.g. chairperson) were evaluated as lower in status than women referred to with a masculine generic (e.g. chairman). Similarily, social initiatives framed with the use of gender-fair language were evaluated less-favourably than initiatives using traditional language. This presentation presents the gender-fair language use in the framework of a social dilemma. In order to protect themselves (or initiatives they stand for) from being ascribed incompetence or a lower status, women may avoid feminine forms and thus contribute to the perpetuation of gender-unfair language, which may be detrimental for women in general. Raising awareness for this social concern, and framing it both in terms of group and individual interest can direct the discussion about gender-fair language into a broader perspective of gender equality.

Listening to your heart and feeling yourself: effects of exposure to interoceptive signals during the ultimatum game

The ultimatum game (UG) is commonly used to study the tension between financial self-interest and social equity motives. Here, we investigated whether experimental exposure to interoceptive signals influences participants' behavior in the UG. Participants were presented with various bodily sounds--i.e., their own heart, another person's heart, or the sound of footsteps--while acting both in the role of responder and proposer. We found that listening to one's own heart sound, compared to the other bodily sounds: (1) increased subjective feelings of unfairness, but not rejection behavior, in response to unfair offers and (2) increased the unfair offers while playing in the proposer role. These findings suggest that heightened feedback of one's own visceral processes may increase a self-centered perspective and drive socioeconomic exchanges accordingly. In addition, this study introduces a valuable procedure to manipulate online the access to interoceptive signals and for exploring the interplay between viscero-sensory information and cognition.

I shouldn't have to do this: Illegitimate tasks as a stressor in relation to organizational control and resource deficits

The performance of tasks that are perceived as unnecessary or unreasonable, illegitimate tasks, represents a new stressor concept that refers to assignments that violate the norms associated with the role requirements of professional work. Research has shown that illegitimate tasks are associated with stress and counterproductive work behaviour. The purpose of this study was to provide insight into the contribution of characteristics of the organization on the prevalence of illegitimate tasks in the work of frontline and middle managers. Using the Bern Illegitimate Task Scale (BITS) in a sample of 440 local government operations managers in 28 different organizations in Sweden, this study supports the theoretical assumptions that illegitimate tasks are positively related to stress and negatively related to satisfaction with work performance. Results further show that 10% of the variance in illegitimate tasks can be attributed to the organization where the managers work. Multilevel referential analysis showed that the more the organization was characterized by competition for resources between units, unfair and arbitrary resource allocation and obscure decisional structure, the more illegitimate tasks managers reported. These results should be valuable for strategic-level management since they indicate that illegitimate tasks can be counteracted by means of the organization of work.

Illegitimate Tasks: Accumulating Evidence for a New Stressor Concept

INTRODUCTION: Task stressors typically refer to characteristics such as not having enough time or resources, ambiguous demands, or the like. We suggest the perceived lack of legitimacy as an additional feature of tasks as a source of stress. Tasks are “illegitimate” to the extent that it is perceived as improper to expect employees to execute them – not because of difficulties in executing them, but because of their content for a given person, time, and situation; they are illegitimate because a) they are not conforming to a specific occupational role, as in “non-nursing activities” (called unreasonable) or b) there is no legitimate need for them to exist (called unnecessary; Semmer et al., 2007). These features make illegitimate tasks a unique task-related stressor. The concept of illegitimate tasks grew from the “Stress-as-Offense-to-Self” theory (SOS; Semmer et al, 2007); it is conceptually related to role stress (Kahn et al., 1964; Beehr & Glazer, 2005) and the organizational justice tradition (Cropanzano et al., 2001; Greenberg, 2010). SOS argues that a threat to one’s self-image is at the core of many stressful experiences. Violating role expectations, illegitimate tasks can be regarded as a special case of role conflict. As roles shape identities, this violation is postulated to constitute a threat to one’s professional identity. Being assigned a task considered illegitimate is likely to be considered unfair. Lack of fairness, in turn, contains a message about one’s social standing, and thus, the self. However, the aspects discussed have not received much attention in the role stress or the justice/fairness tradition. OBJECTIVE: Illegitimate tasks are a rather recent concept that has to be established as a construct in its own right by showing that it is associated with well-being/strain while controlling for other stressors, most notably role conflict and lack of justice. The aim of the presentation is to present the evidence accumulated so far. METHODS AND RESULTS: We present several studies employing different designs, using different control variables, and testing associations with different criteria. Study 1 demonstrates associations of illegitimate tasks with self-esteem, feelings of resentment against one’s organization, and burnout, controlling for distributive justice, role conflict, and social stressors (i.e. tensions). Study 2 yielded comparable results, using the same outcome variables but controlling for distributive as well as procedural / interactional justice. Study 3 demonstrated associations between illegitimate tasks and feelings of stress, sleeping problems, and emotional exhaustion, controlling for demands, control, and social support among medical doctors. Study 4 showed that feeling appreciated by one’s superior acted as a mediator between illegitimate tasks and job satisfaction and resentments towards the military in Swiss military officers. Study 5 demonstrated an association of illegitimate tasks with counterproductive work behavior (Semmer et al. 2010). Studies 1 to 5 were cross-sectional. In Study 6, illegitimate demands predicted irritability and resentments towards one’s organization longitudinally. Study 7 also was longitudinal, focusing on intra-individual variation in multilevel modeling; occasion-specific illegitimate tasks predicted cortisol among those who judged their health as comparatively poor. Studies 1-3 and 6 used SEM, and measurement models that used unreasonable and unnecessary tasks as indicators (isolated parceling) yielded a good fit. IMPLICATIONS & CONCLUSIONS: These studies demonstrate that illegitimate tasks are a stressor in its own right that is worth studying. It illuminates the social meaning of job design, emphasizing the implications of tasks for the (professional) self, and thus combining aspects that are traditionally treated as separate, that is, social aspects and task characteristics. Practical implications are that supervisors and managers should be alerted to the social messages that may be contained in task assignments (cf. Semmer & Beehr, in press).

Dopaminergic stimulation increases selfish behavior in the absence of punishment threat.

RATIONALE People often face decisions that pit self-interested behavior aimed at maximizing personal reward against normative behavior such as acting cooperatively, which benefits others. The threat of social sanctions for defying the fairness norm prevents people from behaving overly selfish. Thus, normative behavior is influenced by both seeking rewards and avoiding punishment. However, the neurochemical processes mediating the impact of these influences remain unknown. Several lines of evidence link the dopaminergic system to reward and punishment processing, respectively, but this evidence stems from studies in non-social contexts. OBJECTIVES The present study investigates dopaminergic drug effects on individuals' reward seeking and punishment avoidance in social interaction. METHODS Two-hundred one healthy male participants were randomly assigned to receive 300 mg of L-3,4-dihydroxyphenylalanine (L-DOPA) or a placebo before playing an economic bargaining game. This game involved two conditions, one in which unfair behavior could be punished and one in which unfair behavior could not be punished. RESULTS In the absence of punishment threats, L-DOPA administration led to more selfish behavior, likely mediated through an increase in reward seeking. In contrast, L-DOPA administration had no significant effect on behavior when faced with punishment threats. CONCLUSIONS The results of this study broaden the role of the dopaminergic system in reward seeking to human social interactions. We could show that even a single dose of a dopaminergic drug may bring selfish behavior to the fore, which in turn may shed new light on potential causal relationships between the dopaminergic system and norm abiding behaviors in certain clinical subpopulations.

Studying the neurobiology of social interaction with transcranial direct current stimulation--the example of punishing unfairness.

Studying social behavior often requires the simultaneous interaction of many subjects. As yet, however, no painless, noninvasive brain stimulation tool existed that allowed the simultaneous affection of brain processes in many interacting subjects. Here we show that transcranial direct current stimulation (tDCS) can overcome these limits. We apply right prefrontal cathodal tDCS and show that subjects' propensity to punish unfair behavior is reduced significantly.

Diminishing reciprocal fairness by disrupting the right prefrontal cortex.

Humans restrain self-interest with moral and social values. They are the only species known to exhibit reciprocal fairness, which implies the punishment of other individuals' unfair behaviors, even if it hurts the punisher's economic self-interest. Reciprocal fairness has been demonstrated in the Ultimatum Game, where players often reject their bargaining partner's unfair offers. Despite progress in recent years, however, little is known about how the human brain limits the impact of selfish motives and implements fair behavior. Here we show that disruption of the right, but not the left, dorsolateral prefrontal cortex (DLPFC) by low-frequency repetitive transcranial magnetic stimulation substantially reduces subjects' willingness to reject their partners' intentionally unfair offers, which suggests that subjects are less able to resist the economic temptation to accept these offers. Importantly, however, subjects still judge such offers as very unfair, which indicates that the right DLPFC plays a key role in the implementation of fairness-related behaviors.