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I have conceived of this project as the examination of a process of institutionalization, or institutional creation. The general topic is intellectual property rights but the specific case is software ownership rules in the academy. Systematic study of institutional creation and change is still emerging and this work seeks to be part of that conversation, among others. This paper reviews key literature defining institutions, but is a first attempt to use that literature to figure out how themes in my data will speak to the question of institutionalization. How do people (and organizations) come to know what the law means and how it applies to their actions within their setting? Institutions are purely social things. Over time, sociologists have extended, expanded, and detailed theories of "social structure" so that a great deal of what was commonly referred to as social structure is now referred to in institutional terms. Through Giddens (1979; 1984), Bourdieu (1977), Strauss (1978), and further developed by Sewell (esp. 1992), we have come to understand these structures as part of a continuing process through which humans continually and simultaneously create, experience and reorganize social structure. These theorists sought to merge structure and agency by focusing on social practice or on the duality of structure as both rule and resource. According to Giddens (1984) and institutional theorists (e.g., Powell and DiMaggio 1991, Meyer and Rowan 1991, for a review see Scott 2001), institutions stand out as the most durable of social structures; they are those "social structures that involve more strongly held rules supported by more entrenched resources" (Scott 2001). Institutional Theory. A brief and general review of institutionalism provides a framework for understanding recent work of law and organization scholars. Scotts (2001) extensive review of institutions and organizations includes a definition of institutions as multifaceted, durable social structures, made up of symbolic elements, social activities, and material resources (49). They are enduring features of social life (Giddens 1984) and resistant to change (Jepperson 1991). Institutions are of interest to sociologists because they are the site of social action and interaction that bridges the gap between agency and structure. Institutions are commonly thought of as social structure, but institutionalism incorporates agency by calling attention to the role of patterned social behavior and meaning making systems of social actors. Scott organizes the work on institutions around three pillars; regulative systems, normative systems and cultural-cognitive systems are crucial to a thorough understanding of institutions. Scott (2001) and Hoffman (1997) see these pillars as a continuum moving from the conscious to unconscious and from the legally enforced to the taken-for-granted (Hoffman 1997: 36) collective meaning systems and social practices. The regulatory component of organizations is the legally enforced and conscious aspect of institutions. It is probably the most clear and most commonly studied because it describes the

objectivated (Berger and Luckmann 1966) world of explicit regulatory guidelines, procedures, rules or laws. In this aspect (or pillar) of institutions, rules are enforced either by interacting parties or by outside enforcing parties, commonly the state or state agent. Rules might be carried out by force, but often they also, or alternatively, involve inducements or rewards for compliance. Social scientists focusing on the economy or on historical state formation frequently concentrate on the regulative aspect of institutions (see North and Thomas 1973; Campbell and Lindberg 1991; Williamson 1975; 1994). They frequently view institutions as backdrops to organizational behavior, or they examine the influence of one institution on another. The normative pillar emphasizes the role of values and norms in creating expectations and obligations. Social obligations are at the heart of normative schema; roles, role expectations, and professionalization are among the central mechanisms by which normative expectations comprise institutions. Law and organization scholars have discussed the normative pillar with special emphasis on professional organizations as the interpreters of the law. Selznick (1949) has described the effect of goals and interpersonal interaction as a limitation on behavior within organizations. DiMaggio and Powells (1983) category of normative isomorphism describes the process by which organizations become more similar to one another through professionalization (further described below). Edelman et al. (1991; 1992) finds that concerns of professionals and professional associations result in institutionalized conventions and patterns of behavior. The cultural-cognitive pillar draws on the idea that social actors act because they attach meanings to their actions. Meanings are socially created through communication and interaction. The cultural cognitive pillar emphasizes templates for particular types of actors and scripts for action over roles and obligations. Theorists emphasizing culture and cognition extend Webers emphasis on human meaning making by elaborating on the types of scripts and belief systems that are employed on a cultural level in legitimating institutionalized social practices. Shared experiences and shared understandings about the world or the relevant aspect of the world in which particular social action is taking place result in taken-for-granted ways of operating. A cultural cognitive conception of institutions stresses the central role played by the socially mediated construction of a common framework of meaning (Scott 2001: 58). Much of the neo-institutional work in sociology (as opposed to that in economics or political science) is focused on the cultural-cognitive area of institutionalization. Cognitive theory emphasizes cognitive frames for understanding the world. They may be macro worldviews or specific ways of classifying interpersonal aspects of life. The pillars do not work in isolation, however. As Weber rightly noted, coercive force (pure regulation) is inefficient, and authority is an effective coercive power because of its legitimacy, through which elements of regulatory, normative and cognitive-cultural aspects of institutions are combined. Scott (2001) explains that federal programs often secure local cooperation through the use of authority, in which coercive power is legitimated by a normative framework that both supports and constrains the exercise of power (53). Even those scholars whose main focus is the regulatory pillar (Edelman 1992; North 1990; Paternoster and Simpson 1996; Skocpol 1985; Sutton et al 1994) argue that actions of agents responsible for enforcing the rules of the game are shaped by the rules, but also by their own interests and by the meanings they attribute to their environment. Law and society scholars concentrate on the way that law in the abstract is negotiated and interpreted by social actors in the process of its implementation (Edelman 1992; Suchman and Edelman 1997). The effect of the law, then, is not the result of a clear regulatory mandate

efficiently carried out or by normative understandings alone, but of a process of interpretation, reinterpretation and potential conflict fueled by actors use of cultural interpretations of action. The pillars of institutions are interwoven, and they cut across all levels of sociological analysis, from interpersonal interactions to macro-societal cultural frames. My research focuses on institutional creation at the organizational level. Organizations are an appropriate level in which to examine the development of institutions if one wants to look at the way that individuals and groups collectively make sense of new situations. Organizations bridge the gap between individual and small group interaction and the larger society. In organizations, we should be able to see the way that large entrenched institutions intersect as they shape the creation of new institutions. Framework for organizing the data based on institional theory. The following table from Scott (2001) identifies and describes the carriers of institutions, organizing them according to the pillars they represent. The carriers can span levels from the world system all the way down to small microcosms. The table provides a useful framework with which to categorize the types of archival and interview data I have collected. Simple categorization, however, will only provide a static description of existing institutions. I am interested in the process by which a pattern of behavior becomes institutionalized. Table 4.1 Institutional Pillars & Carriers (from Scott 2001, p. 77) [I dont yet know whether this exact table will make it into the dissertation, but it is helpful in categorizing (and naming!) the type of interpretive frames that my data reveals.] Carriers Symbolic systems Relational systems Routines Artifacts Regulative Rules, Laws Governance systems, Power systems Protocols, Standard operating procedures Objects complying with mandated specifications Pillars of Institutions Normative Values, Expectations Regimes, Authority systems Jobs, Roles, Obedience to duty Objects meeting conventions, standards Cultural-Cognitive Categories, Typifications, Schema Structural isomorphism, Identities Scripts Objects possessing symbolic value

These social things called institutions are not static; they are socially constructed (Berger and Luckmann 1966). Social actors and social action are remarkably absent from the table above (a type of criticism often waged at institionalism). My case involves the process by which social actors draw upon all of the above when they encounter new situations. Social actors are the carriers and they carry institutions through the above mechanisms. They carry institutions when they invoke rules or laws, when they express values or act in accordance with them, when they have set

expectations, when they fulfill job duties, when they attribute meanings to symbols. They are especially carriers when they are acting to reinforce social structures (usually by definition, they do this unconsciously). I have identified a setting and phenomenon in which I expect social actors to be institutional creators (consciously or unconsciously) rather than simply carriers. The table provided by Scott makes a good starting point for organizing my data. It also provides a way to see how developed social institutions inform the creation of new ones or how existing institution are altered as they confront challenging new activities. Simply identifying the content themes that the social carriers carry will go a long way to also identify places in which institutions intersect, but I also need something more to help me discuss the process by which institutional change or creation takes place. As I mentioned above, this requires more recognition of the social actors and of social interaction. Berger and Luckmann's (1966) theory of institutionalization, also known as the social construction of reality, provided the foundation for institutional theory, and described a social process rather than a social thing. Social actors both create their social world through interaction and experience the social world as a guiding force in their lives. In order to understand and explain social phenomena, social scientists must develop ways to connect the meanings that social actors attach to their activities with the social action and social structure they study. Theory of Institionalization.Berger and Luckmann (1967) elaborate the process by which meaning making systems develop and become institutionalized. They bring the phenomenology of Schutz to bear on the sociology of knowledge. Berger and Luckmann (1966) provide a processual account of institutional creation, maintenance, and change rooted in everyday activity of social actors and their everyday understandings of the institutions in which they operate. They present process of the social construction of reality, or what they also refer to as institutionalization, which involves externalization, objectivation, and internalization. This process is a continuous cycle by which social actors create institutions and by which institutions (these products of social action) become objective realities to the social actors. As it applies to common knowledge about the law, Berger and Luckmanns work reminds us that the reality of law is created by social actors in a variety of contexts, experienced as something real outside ourselves, and becomes part of a common takenfor-granted understanding about how the world operates. Externalization is the process of socially ordering the world. Berger and Luckmann (1987) describe it as the ongoing outpouring of the human being into the world. It is the production of symbolic structures, in social interaction, whose meaning comes to be shared by the participants. As social actors interact with one another, they develop routines and then come to rely on the stability of those routines. In the case of law, externalization might reinforce existing law each time humans obey it, or externalization may occur through the repetition and habituation of activity that develops into expectations that become the future basis on which to construct rules or laws. However, as Berger and Luckmann explain, not all habituated activity becomes the basis for law, and laws are not always formalized to enforce habituated activity. Analysis of the law may look for routines, scripts and prescribed systems as evidence of habituated activity that coincides with formalized (written) rules or laws. Yet, in some cases, rules or laws may be formalized when other social controls are unsuccessful at protecting the habituated activity. In this case, it would be worthwhile to look also for evidence of social control mechanisms that have failed. The

identification of problems that are either ongoing or that have been solved by recently created systems, practices, or technologies may be good places to find evidence of institutional creation. Objectivation manifests itself in products of human activity that are available both to their producers and to other men [sic] as elements of a common world (p. 34). Externalized actions become habituated. As humans observe and become familiar with these habits, the externalized activity confronts the original producers and other social actors as external reality. It results in the prototypical object of sociological inquiry about the law, that is, both formal and informal rules and laws. Written forms of rules and law, if supported by resources) may be the most objectivated of institutions, but Berger and Luckmanns analysis of objectivation stresses the process by which laws come into being. Objectivation, then, would be the point at which the patterned expectations become things in themselves (or law), divorced from the social experiences of those who institutionalized or originated the activity that is now regulated. As Berger and Luckmann explain, these objectivations, in the form of law, may serve as indicators of the subjective processes of their producers. A second generation (or later) social actor encounters objectivated forms as something outside themselves that exerts pressure on them. Durkheim (1982) argued for the treatment of formal laws in this way (social things as facts). Objectivation might appear as formal law, but it might also appear in the form of institutionalized patterns of actions. Internalization occurs through socialization and is the process by which the social world becomes part of the individuals consciousness. The objectivated actions undergo sedimentation in society. They are not just experienced as objective processes or structures, rather they are meaning systems that become part of a larger cultural framework and become taken-for-granted. The reality of one objectivated aspect of life is worked into a system of the total life experience. This process may even assign meaning systems to social activity that differs from the meanings associated with the initial institutional development. In other words, the rationale for institutionalized practices can, and often do, depart from the original, expected or functional logic of institutional creation. These rationale are assigned by social actors through a process of interaction and negotiation that Berger and Luckmann call legitimation. These actions bring us back to the beginning of the cycle because they are part of externalization, or human outpouring into the world. Reality is socially constructed. In law, internalization occurs when the social actor appropriates the law into their total reality or consciousness. This does not mean that actors are conscious of their position on the law or use of the law, only that they associate, or do not associate, some activities within a legalized framework (Ewick and Silbey 1998). The law is incorporated into the experience of social actors and they assess the way the law fits with the other realities they know. Analysis of the internalization aspect of law might include studies about legal knowledge or legal consciousness as well as studies of tangible effects that changes in the law can be expected to exert or do exert on individuals or groups. How does this process-based account of institutionalization bear on my case? My primary focus is on the section of the cycle that involves externalization and at the early part of the objectification portion of the cycle. However, settled institutions (from the internalization process) that already exist are drawn upon by social actors and are used to make sense of the less settled aspects of the world. The process of dealing with new situations draws attention to the details of settled institutions in many ways: it may pose them one against another; it may call into question just how settled they are; and it may even unsettle them enough to change them.

Based on existing literature, I assume that the creation process is likely to occur when social actors encounter new circumstances and have selected my case on this basis. Scott (2001), Suchman (1995) and Weick (1995) all have posited that the impetus for institutional creation is a new and recurrent problem for which existing institutions cannot provide a sufficient solution. When social actors do not have readily available or taken for granted scripts, roles, protocols, etc. for dealing with the new challenge, they have to synthesize and create new ones. New laws, new technology, or changes in either, can be catalysts to institutional creation. In the case of university software regulation, I am analyzing a change in technology and the process by which people engage in "collective sensemaking" (Weick 1995) about how the law applies to these changed circumstances. Personal computers revolutionized the way that work gets done everywhere, including the University. Individuals and organizations of all kinds underwent a relatively quick change in the organization of computing technology at home and in the workplace during the late 1980s and early 1990s. As computers downsized throughout the 1980s, it became possible for people to bring unheard of computing power into their homes and onto their office desks. During those early years, early faculty and research adopters found ways to finance personal computers (either out of their own pockets, pools of faculty spending allowances, or through research grants), but it was not until the 1990s that the University began a system of providing widespread access to computers to both faculty and to students through computer labs.

Here is how I think the above theory helps guide my method for analyzing my data: I have the catalyst (new problem/new technology), or I will try to make the convincing case for it. I need to identify: What are the "recurring problems" that actors and the organization as a whole have encountered? How do the actors frame the problem? What are the resources/institutions they use to make sense of them? What are the obstacles to solving the problems? Emerging/Externalization (this is the focal process): Problems that are, as yet, unsettled, but repeatedly encountered. Or problems that have recently been "solved" by a new system, procedure, department, etc. Questions to ask of my data: What are the repeatedly encountered problems? (They might show up more in the form of "aahh, now I have a potential solution to that problem" or "here is a solution we have created for that problem you are always encountering"). Settling/Settled/Objectivation: Laws, rules, policies, procedures, but also clear boundaries about who is responsible for interpreting them or creating them

within a given jurisdiction and/or clear processes for evaluating or creating them. Settled meaning systems/Internalization: I expect that, in my setting, the settled meaning systems will be those existing institutions that are highly relevant to the actors (may be different for different groups) in making sense of the new situation. I also expect that these meaning systems will sometimes reinforce one another and sometimes conflict when applied to the new situation. Finally social actors from different positions within the organization will potentially draw on different sets of settled meaning systems to approach the challenges they encounter. Organizational policy-making in the university is typically the job of the administrators and the university legal staff. Drawing on institutional arrangements they have formal mechanisms for creating and disseminating these official lines on activity at the university. The University policies, and policy histories, as well as printed material from the Office of Information Technology provide the formal organizational history of how software is handled by the organization