Tuesday, July 28, 2015
A Failure in the Market for Altruism
Earlier this month it came out that Whole Foods had been systematically overcharging for pre-packaged food, at least in New York. And that wasn’t the first time. Back in 2012, an investigation led by city attorneys in California also uncovered overcharging and Whole Foods ended up paying $800,000 in penalties in addition to starting a new internal compliance program to ensure it didn’t happen again. The company’s recent issues also rekindled criticism (originally raised back in 2014) that some of its fancy cheeses are the product of prison labor, though that fact is not disclosed to consumers.
At least in response to the pricing issue, the CEOs issued a video “apology,” stating that “straight up they made some mistakes” but those mistakes were unintentional, evinced by the fact that, “the mistakes are both in the customers’ favor and sometimes not in the customer’s favor.” And they were going to fix it first and foremost by giving workers more training and hiring a third-party auditor to make sure their practices are improving.
At first I found all this frustrating. The New York Department of Consumer Affairs did not find just pricing mistakes, where about half were under-charged and the other over. No, it found, as best as I can tell, systematic overcharging. So the CEOs reasoning for why customers should believe it wasn’t intentional is, at least without some actual evidence, misleading. And moreover, given that, the chances that the pricing issue was a result of employees lacking proper training strikes me as improbable. The stores seem to have had a policy of not weighing their pre-packaged products. That’s not a training issue at all. So in short, the whole thing smelled bad.
But there’s another question here. Whole Foods isn’t just any company. Its CEO, John Mackey, literally wrote the book “Conscious Capitalism.” (For those with shorter attention spans, he also wrote a HBR article on the same). The whole idea is that Whole Foods and others like it are “galvanized by higher purposes that serve, align and integrate the interests of all their major stakeholders … They endeavor to create financial, intellectual, social, cultural, emotional, spiritual, physical and ecological wealth for all their stakeholders” where the ultimate goal is to “create lasting value as the world evolves to even greater levels of prosperity, helping billions of people flourish and lead lives infused with passion, purpose, love and creativity – a world of freedom, harmony, prosperity, and compassion.”
Given all these moral platitudes (platitudes, to be clear, at least some customers buy into), shouldn’t Whole Foods be held to a higher standard? And if they are not – if between the prison labor and pricing issues not a single customer changed their purchasing habits, what are we to think about the possibility of consumer activism (seen through buying things that are fair trade or union made or sustainably sourced or green or from a “clean” supply chain, etc.) as a means to making the world better in any real sense?
In short: what are people who are trying to buy not just a product but a product made in conformity with other moral commitments doing? Are they paying more money simply so they feel the warm glow of being a do-gooder, irrespective of whether they actually are doing good? Or are they attempting to manifest in their purchasing decisions a commitment to substantive moral ends?
Consumer activism has unquestionably been a part of American history for quite some time. Quaker abolitionists promoted the buying of slavery-free cotton. I’m reading a great book right now about consumer organizing during the Seattle labor movement of 1919. This stuff can be real. But is it today? And if it’s not, how might we correct that market failure? Should we?
The Art of Lawyering and Beyond
Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.
What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.
Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.
Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words. There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.
Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.
And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?
Monday, July 27, 2015
Call for Papers: "Doing Justice Without Doing Harm"
Call for Proposals
“Doing Justice without Doing Harm”
Pepperdine University School of Law, Malibu, California
March 11-12, 2016
We hope you will join us for the conference discussed below. Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following:
Barbara E. Armacost, Professor of Law, University of Virginia School of Law.
Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University
Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.
Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School
Gary Haugen, founder and president of International Justice Mission.
Richard H. Sander, economist and Professor of Law, UCLA School of Law
Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia
Sunday, July 26, 2015
Did Cosby's Lawyer blow the Attorney-Client Privilege?
Monique Pressley, a Public Defender Service alum, among other distinguished credentials, is one of Bill Cosby's new lawyers. In an appearance on CNN, she explained that, on the one hand, "I'm not going to reveal client confidences. I'm counsel for Mr. Cosby and anything that he says to me is said in confidence." But in the next breath she explained: "when his attorneys speak we are speaking for him. So when we speak and say that he denies all of the allegations and accusations then that is the statement of Bill Cosby." I wonder if she might have blown the attorney-client privilege with that sort of statement.
Many courts hold that "[t]he attorney-client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed. It has been held that the disclosure of any meaningful part of a purportedly privileged communication waives the privilege as to the whole." United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990). If a statement "was intended for public relations purposes rather than legal purposes" it "is not privileged." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 677 (D. Kan. 2001). I have no doubt that an attorney legal review of client information to be sent to a public relations firm could well be privileged. But if, as apparently happened here, a client engages attorneys to directly perform public relations rather than legal functions--or in any event to be a media representative--the client's statements to them are not privileged. So, Ms. Pressley, do tell--what else did Mr. Cosby say?
Friday, July 24, 2015
Liability for Lifesaving Inventions?
I saw that Evenflo has produced a new car seat (which will be sold by Walmart), which is designed to "jingle" when a child is left in the car seat after the ignition turns off. In light of the seemingly increasing number of horrific deaths of children accidentally left in carseats, this new car seat could be an important, lifesaving device. And, yet, the lawyer in me found myself immediately wondering about the liability issues, and accompanying normative questions. Walmart's director of corporate communications has apparently advertised that "this car seat will eliminate the chance of a baby being forgotten in a car." Of course, that is only true if the car seat is used properly, in a compatible car, with compatible technology, and if the device doesn't malfunction (among other things). The actual car seat and instructions will no doubt contain such warnings in bold print all over the place. And yet, despite such warnings, will a product that is designed precisely to ameliorate inattention (which, thereby, may reasonably encourage more of it), and which is advertised publicly as "eliminating the possibility of a baby being forgotten in a car" really be able to escape liability if some slight inattention in the use of the product causes it to malfunction? In this regard, if this particular product does not work as a result of misuse, it seems that the legal issues may be different than a run-of-the-mill product that fails to function properly because of misuse. Since the very purpose of the product is to protect against inattention, does it somehow bear a heavier burden to work despite inattention in use? In assessing such a claim, would a court take into the positive externalities (for the poor, helpless children otherwise trapped in car seats) from the product (in the cases in which it works)? Although I have not thought about torts in a rigorous way in quite some time, I do not believe there is a formal, doctrinal way to consider such positive externalities in assessing a liability claim regarding the carseat. And yet, it seems that normatively it should matter that an overly sensitive liability regime may discourage the production of this lifesaving product, and the positive externalities for the otherwise trapped children. What do others think?
Thursday, July 23, 2015
Hiring Notices, University of Alabama School of Law
I'm happy to pass along these hiring notices for my law school. Feel free to email me if you have any questions, and of course first and foremost to contact Dean Brandon or Professor Hill, per the notices below.
D. Paul Jones & Charlene A. Jones Chair in Law
The University of Alabama School of Law seeks nominations and applications for a University level Chair-holder. The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff. We seek to build on our standing as one of the leading public law schools in the United States through recruitment of a Chairholder with a national or international reputation for scholarship and teaching of the highest caliber. We welcome nominations and applications in all fields of law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarship related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from and nominations of persons who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to the requirements of state and federal law. Interested candidates should apply online at https://facultyjobs.ua.edu/. Nominations should be e-mailed to Dean Mark E. Brandon at email@example.com. The position will remain open until filled. Please refer any questions about the hiring process to Dean Brandon at firstname.lastname@example.org.
Assistant Professor / Associate Professor / Professor
The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: email@example.com).
Clemency Project 2014
President Obama is interested in using his clemency powers to commute the excessive sentences of nonviolent drug offenders, but he can’t do it without your help. Clemency Project 2014, the organization devoted to helping sort through the more than 30,000 requests for legal assistance with filing clemency petitions, desperately needs more lawyer volunteers. Volunteers prepare petitions that outline why the individual meets the stated criteria of the Department of Justice. You don't need to have experience in federal criminal law. There's a two-hour training video that gives you all the info you need, not to mention resource counsel to answer any questions that come up. Please consider volunteering for this important pro bono work and encouraging all the lawyers you know to do the same. We all know mass incarceration is a problem, and this is an opportunity to take individual action to do something about it and target some of the most deserving cases for relief. The link to sign up and volunteer is here. And more info is here and here.
God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate
This is a reflection about disciplines and theory, in particular, law and economics. I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well. What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer. Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)
I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion. To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."
It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change. The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").
I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I respect beyond question are going to get me to believe in the divinity of Jesus Christ.
I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point. That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)
How this ties back to something as mundane as contract law after the break.
Wednesday, July 22, 2015
How Marriage Bans Harmed Children of Same-Sex Parents
In Obergefell v. Hodges, state defendants argued that marriage bans and non-recognition laws (hereinafter "marriage bans") were justified because they were good for children. Put another way, excluding same-sex couples from marriage was beneficial to children of opposite-sex couples. As explained in a previous post, marriage ban proponents' critical error was their failure to recognize that gays and lesbians have children too.
Tuesday, July 21, 2015
Abercrombie Settles: Interesting Consumer Discrimination Issue Avoided
Abercrombie settled the EEOC claims on behalf of the Muslim woman denied a job because her hijab conflicted with the store’s look policy. As you’ll recall, just last month the Supreme Court ruled 8-1 that the EEOC could go forward on its Title VII disparate treatment claim by showing that the need for an accommodation was a motivating factor in the employer’s decision. Actual knowledge that the applicant would need such an accommodation is not required.
The settlement means we won't see whether on remand Abercrombie would again raise its undue hardship defense. And, with it, evidence that Abercrombie shoppers are less likely to buy stuff if the sales-floor employees (or in Abercrombie’s jargon, “models”) are wearing hijabs. Imagining for a second Abercrombie customer shopping patterns are negatively influenced by the presence of hijab-wearing workers, would potential consumer religious discrimination be enough to constitute an undue hardship? What would a reasonable accommodation involve in such a case? An attempt to educate consumers about their own biases?
The law’s treatment of consumer discrimination (that is, discrimination by consumers) is uneven. It is virtually never directly regulated. There’s no law prohibiting an Uber customer from seeing that the driver coming is a woman, canceling the ride, and trying again until she get a man. Instead, the law at best regulates consumers indirectly, through the regulation of company actions. How we decide which sorts of discrimination are left on the table is curious.
As raised again in a NYT op-ed the other week, Las Vegas hotels hire only model-looking women as pool-side waitresses and then require them to meet exacting (and gender stereotype reinforcing) grooming standards, all while walking around in tiny bikinis. (Male waiters are in polo shirts and knee-length shorts.) And why? Because we think it acceptable to sell a mostly male clientele the sort of sexual fantasy they want to buy. But then think of consumer racist or sexual orientation preferences. A restaurant cannot deny service to a black woman, even if it were the case that serving her meant losing potential revenue from racists. Not so for refusing service to a lesbian couple on that same basis. If your customers don't like fat people, no problem excluding them either.
With the settlement we won’t know how an undue hardship defense would go, but comparing Abercrombie’s policy to other areas where consumer preferences for what may be invidious discrimination is interesting food for thought.
Monday, July 20, 2015
Teaching Open Source Civ Pro: My (current) Hybrid Approach
This month I am blogging about my journey to try and teach civil procedure from completely open source materials. This post is a bit of a confession -- I have not yet made it all the way to completely open source materials. After the jump, I'll outline why I'm still reliant on a book (although not a casebook), and my plans to eliminate this reliance within the next year or so.
I distinctly remember beginning my work day a year ago and coming across the news of Dan's death. I was in complete shock. As so many people have attested to since Dan's death, he was larger than life. Every time I saw Dan, he always had a million pieces of advice, and was overflowing with life. This was even more unique for me because I actually hadn't spent much time with Dan. Only a brief encounter with him was enough to make him a part of your life somehow. After he was gone, I realized that everyone had this experience with him. He was just so full of life that I can't believe it has been a year since he has been gone. It seemed only fitting to remember him on this blog, and hope that his two boys grow up thriving as he would have wanted.
Sunday, July 19, 2015
Complicating the "Trolly Problem"
I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast. This piece in Wired and this one in Popular Science (HT: Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question. Maybe a film, "Droids on the Mignonette"? If only Brian Simpson were still among us . . .
Saturday, July 18, 2015
Faculty Lounge Symposium on Go Set a Watchman
Steve Lubet and the Faculty Lounge are hosting an on-line symposium on Go Set a Watchman and they are looking for guest posts offering "takes on Watchman, as well as reassessments of Mockingbird." If you interested, check out the announcement.