Saturday, November 24, 2007

Responses I got

Although I felt frustrated and stymied in the end, my interchanges with professionals working in the business ethics field were more respectable than what I encountered with the law professors. Below is a sampling of the former:

A corporate ethics officer to me:
Dear Mr. Shattuck - _______referred your email to me as I am _____'s North America Compliance Officer. We appreciate your contact. _____ has adopted a comprehensive Code of Conduct, the link to which I have attached. One of the central principles in our Code is that employees have a responsibility to ask questions and raise concerns ("Speak Up") if they become aware of conduct that does not seem right to them. Once and issue is raised, the Company investigates it to takes appropriate action, depending on the outcome of the investigation. While your article raises a number of interesting questions, the subject of the role of plaintiffs lawyers in our society is beyond the role of our Compliance & Integrity program at _______. Thank you.

Me back to him
Thank you for your reply, Mr. ______. I will look at the link you have provided. I know I am probably tilting at windmills, but I think there is a significant impediment out there to your achieving your business ethics goals. The impediment is very possibly something you can absolutely do nothing about. Ethics officers such as yourself are in the best position to know. I am striving mightily to get them to speak up. I have revised my article to do this in a more pointed fashion. I can only wish you will pass it on to fellow ethics officers and others, or give me names and I will send it to them.

Best wishes,

From an ethics magazine to me
We should definitely talk. We at ______ ran a feature story on "has compliance killed ethics." The law vs ethics debate is endless in its forms & length of the debate. I'd be happy to discuss this. But I think a more important question is why compliance & ethics officers are generally in such weak positions, & so unable to prevent serious executive crime. Regards, ___

From an ethics center to me
Hi Robert,
Thanks for the inquiry. Are you in a doctoral program that you're undertaking this research? I am not an ethics person (nor, actually, a staff member at the Center, though I do have an affiliation with them) and the Center doesn't really deal with ethics officers per se. If you have some university standing, you may want to contact teh Ethics and Compliance Officers Association, which is the professional organization for ethics officers, or the Ethics Resource Center in Washington, which deals with ethics officers. Their functions are pretty specific and they are typically not the same people as the corporate responsibility officers (or community relations, or corporate social responsibility, or corporate citzienship, by whatever name they go by).

But if you're sending them the document below, you are setting up a bias for their responses (a survey should be neutral so you get at least ostensibly objective answers, or at least not pre-biased)--and also not establishing the basis of your inquiry. Who is sponsoring this work? Why should they respond? Where is the survey instrument?

There may have been some work done on that question, but I don't follow the ethics literature all that closely. Two good sources would be Business Ethics Quarterly and the Journal of Business Ethics. If there's work like your question, those are likely outlets, as might be Business & Society (and Business and Society Review).

Best of luck, with your work,

From an academic to me

You’ve raised an interesting question. I think the reason this is tough is that the answer “depends.” And there are too many depends. Here is one: what do we mean by ethics? I like to define it as doing good. This is very different from the way most people implicitly define it: not doing bad. The more laws you have the more you need to focus on compliance (not doing bad) leaving less time for doing good. It also depends on the law. You will see in the current issue of Ethix (on the web at where I interviewed _______, she says SOX is a good thing, forcing corporate officers to take the responsibility they should have taken all along. Others have said SOX is overly restrictive—and you can find lots of examples of this. In the next issue of Ethix, Rob Pace from Goldman Sachs implies that many companies today are not going public because of the constraints of SOX. So taking one law, it would appear that it has both effects. So it is not clear to me that the question is clean. I am on my way back to the Central African Republic. There the lack of the rule of law is a major deterrent to doing business—you can’t enforce a contract. So some law is necessary to do business. Too much law complicates business and causes people to just try to meet the letter of the law. Every law has a loophole, and those looking to exploit it (e.g., Enron) will be able to do so. Susan Collins (US Senator from Maine) talks about this in an Ethix interview in the archives.

At least this is the way I see it. I hope it was helpful.

From a business professor to me
Dear Dr. Shattuck,

I would recommend three sources to read before going further:

1) Prof. Gary Weaver at the University of Delaware has published some work on this topic. Libraries that use the search engine Proquest or database ABI/Inform would enable you to find this quickly. His work, like the others below, includes citations to other existing studies.

2) They might also have the book "The Legalistic Organization" by Robert Bies and others.

3) There is research in law journals about the effects of various laws and whether these effects matched lawmakers' intentions. To find these, you would probably need to go to a university law school's library and ask the librarian for assistance.

I hope this is helpful to you!

From an assistant professor of management to me

I think this sounds very worthwhile. A lot of discussion has been happening about how S-OX encourages a compliance mentality rather than an ethics mentality. But, despite your kind words, I'm merely friends with a lot of business ethicists, I'm don't really do research in BE, so I'm not really up to speed on what topics have been researched in the area. Given publishing lag times and the recency of S-OX I wouldn't be a bit surprised if you can't find much on this. It would certainly be worth investigating post-S-OX no matter what previous work has been done. However, I'm not an expert in BE, my main work in the fields of CSR and Corporate Social Performance. So, I can't give a "for certain" answer on the state of extant work. You might ask Robert Phillips at the University of Richmond for some further advice. Also, I'm leaving SCU this summer so I can't help you with any of your access problems.

Have you tried contacted the Ethics Officers Association (or whatever the name of their professional group is)? They might be able to help facilitate the distribution of your survey. That said, I have no idea if they help with stuff like this.

Best of luck,

From a corporate lawyer to me
There are several issues raised by your questionnaire;
1. I get several questionnaire's a week and avoid most of them. The recipients of your questionnaire, probably just don't have the time. A half hour here, a half hour there. It really adds up for buy people who don't have enough time to do their work.
2. Anyone faced with these things are worried about confidentiality. You don't even suggest the answers will be confidential let alone assure them of that. No one reading your questionnaire has the slightest idea who you are, what you are going to do with their answers, etc.
3. It takes too long to get into your questionnaire and it is too open ended. People are more like to answer short definite questions.
4. My only suggestion is you get some know, trusted entity to run a questionnaire for you, but they probably wouldn't take to your long philosophical wind up. Good luck.

From a professor
Dear Robert:
You have an interesting question and a worthwhile one.

Another person that is working on a similar theme is John Hasnas from Georgetown University who recently wrote the book: "Trapped: When Acting Ethically Is Against the Law By John Hasnas".

If the e-mail you sent me is more or less like the e-mails that you have been sending to corporate ethics officers, I am not surprised that you have gotten a poor response. There is just too much text that takes too long to read. If I were you I would cut the text back to nothing longer than a quarter of a page. Better yet, I would not send out any text, but would instead send out a series of quick, short questions that I would like the ethics officers to respond to. It should take no more than one or two minutes to fill out your questionaire. Anything more than that and no one is going to want to respond. After all, each officer has to consider whether to spend the time responding to your question, or instead spend the time doing what his employer is paying him to do, or, perhaps, interacting with family, friends, etc. Would you, if you had the choice, spend perhaps half an hour reading a stranger's e-mail, or would you rather spend the time reading and responding to a friend's e-mail?

From a lawyer
Mr. Shatt:
Your research project may be an appropriate subject of inquiry, though it appears you have prejudged the issue before beginning. I am afraid that I cannot give you an introduction to a publication or or organization that might be interested in your work. Regards

From a professor of business ethics
Mr. Shattuck:

I have reviewed your email message and can only say that I am not surprised at your results thus far. I think the nature and complexity of your inquiry (and your request that those being surveyed read your accompanying essay) makes the task too onerous for busy people. You seem to be asking those to whom you send this email to respond to your point of view – not to the simple question with which you start off the communication.

You might be better advised to separate your survey aspirations from your essay aspirations. The latter can take the form of an article in an appropriate periodical. The former may require a more economical questionnaire with clarity about how the information will be used in pursuit of what ends (academic, other). It is still not an easy thing to obtain statistically reliable responses from the audience you seem to have in mind. These people are being polled a lot, I would think, and are understandably selective in their choices about answering such questions.

Best wishes,

From a professor
What you are doing isn't entirely clear, which may be why you are meeting with resistance. What you call a survey is really a request to comment on an argument that you are making that is highly critical of the corporations for which they work. It would take many hours to respond in writing, and you have given no explanation of what you are proposing to do with their responses. Is it for your own edification? Are you writing a book? Are you an investigative journalist who will write the great expose of corporate hypocrisy? Are you a blogger who will put their responses on the web with snide commentary on the side? Therefore, you have given no good reason why someone should put serious time into responding to you. So you are asking some association for assistance in, to put it unkindly, spamming its membership with a very time-consuming request that might be used to embarrass their employers. Posed that way, are you surprised that you are not getting a lot of help?

You have something to say. You should say it in an op-ed piece. If you are genuinely unsure about your convictions, think harder about your argument, and check your ideas with some insiders. Read the academic literature on the subject. Figure out how to have a few conversations with some ethics officers. But don't expect the S&P 500's 500 ethics officers to respond to an email.

All the best, and good luck.

From an editor of a business ethics journal
Dear Mr. Shattuck,

Thanks for your query. I’ve two general comments about the project:

My own experience shows that it often is very hard to get corporate officers to respond to ethics surveys, especially if they’ve little sense of the source of the survey (e.g. your survey vs. one authorized by, say, ECOA). There are a variety of reasons for this, but in part it involves the potential legal exposure for the company with regard to anything they might say. My book with Linda Trevino (Managing ethics in business organizations, Stanford University Press), has a few pages (or maybe paragraphs—I don’t remember exactly without looking) of discussion on this kind of data collection issue. If you’ve not done survey-based research before, I strongly encourage you to consider teaming up with another scholar who has a track record with it, as survey research on ethics in organizations raises a variety of extra issues.
The topic is a good one, I think, and of potential wide interest, though it’s not one I’ve specifically addressed with any care myself. John Hasnas at Georgetown U. recently published a book on this kind of issue, though, looking at how federal sentencing policy, RICO, etc. force managers into actions of questionable ethical quality. See his “Trapped: When acting ethically is against the law.” Hasnas approaches the issue from a legal and philosophical perspective, rather than with survey data, but his overall framework and analysis might give you some good insights. Also, by using a citation tracking source, you can see who else has citied his work, and thus get leads for other research on the topic. Hasnas probably has published some articles on the topic as well; there is one forthcoming in Business Ethics Quarterly.

I hope this is helpful to you. It’s a potentially important topic, so I wish you well with it.

I replied
Thank you very much for replying to me, Professor ________.

At this juncture, I appreciate that I am proceeding in a very amateurish fashion concerning my research project. I would like to give you a little background explanation for this.

I am a retired lawyer who is very much anti-plaintiffs lawyers. During the 2004 presidential campaign and at other times, I have done a lot of emailing in a more direct fashion on that issue, but with very little effect or response.

More recently, I gained awareness of the substantial domain of business ethics and of corporate ethics officers and academics who worked in that domain, and I perceived a wedge there for the propagation of my anti-plaintiffs' lawyers views. I thought that those ethics officers and academics would be open to consideration, discussion and debate as to whether the travesty in our legal system that has been wrought by the plaintiffs' lawyers and their aiders and abetters undermines achieving the goals that those ethics officers and academics are trying to achieve.

I spent a fair amount of time and effort trying to present my ideas in article form to ethics organizations, centers and academics, but to no avail. Having made no headway there, I decided I would try to contact ethics officers directly and converted my article to a survey email. Then, in the course of trying to disseminate my survey email to ethics officers (which, on my own, I am very handicapped in trying to do), I proceeded to go back to ethics organizations and academics, reporting the "research" I was undertaking, and to see whether that could get their interest when I could not get it before.

I believe that publication in article form in an ethics publication and/or the making of a presentation at an ethics conference should precede any serious research project. I am hoping that will still come about.

I am pleased that you think my topic is a good one and of potential wide interest.

You are the second person to mention Professor Hasnas. I need to check my records to see whether I have already tried to contact him, and, if I have not, I will be sure to do so.

Again, thank you for taking the time to offer your comments.


From an academic
The part of your argument that strikes me as the most interesting is your assertion that innocent employees are harmed by lawsuits against corporations embroiled in scandal and that civil suits tend to be directed against companies rather than individual perpetrators simply because that’s where the money is. If you focus on this aspect, you might be able to get a newspaper to publish this as an Op-ed. The piece would need to be shortened to around 650-750 words and it would be helpful to frame it around the anniversary of an actual case where employees were harmed in this way (perhaps your Merck example) in order to provide a news hook for the editorial staff. Targeting the local paper where the particular case occurred is probably your best bet.

If you prefer to keep the entire piece intact you might research online publications, particularly blogs, to see if any are a good fit. If not, you can always publish this yourself by creating a Web site or a blog of your own.

I hope this is helpful.

From a corporate ethics officer
Mr. Shattuck, thank you very much for sending us this very painstakingly
and diligently written article.

I think perhaps what might be keeping people from asking you to make a
presentation is that you haven't shared with us what might be called
your credentials. When organizations get these seminars together, which
can be quite expensive, they like to advertise speakers who are making
their living in business conduct, as ethics officers, professors,
consultants, attorneys, etc.

If I am reading your article correctly, I believe you are saying that
the law should not punish innocent people along with the guilty in a
corporation. It seems that the unspoken reference here would be to Enron
and its accounting firm. But it wasn't really the law that punished all
those people. The fraudsters at Enron made it go broke, and that's what
punished the innocent people there. Companies did not want to do
business with the tainted accounting firm, and that, more than anything,
is what put it out of business. You mention Vioxx and Merck in this
regard, pointing out that it was not fair to the innocent shareholders
that their stock fell thirty percent. But the law did not make the stock
fall. Some innocent Investors were disgusted or worried and sold their
shares; that's what drove them down for the other innocent investors who
held onto them. And, although the article doesn't explicitly mention it,
"the law" has put scores of executives behind bars in the last few years
for various forms of skullduggery.

You should probably also consider seeing if tort reform publications are
interested in this article. I am no expert on tort reform, but I think
your points about it would probably reach a wider audience if you first
acknowledged that the American justice system is predicated on having a
lawyer to argue each opposing position in a case, and both lawyers
should be compensated for their services.

Mr. Shattuck, I will take the liberty of answering your questions as to
whether I see things as you do. I do see the points you're making. But
things look a little different to me, standing in my own shoes. Perhaps
I am sheltered, working for a company that really does make integrity,
and earning the trust of our stakeholders, top priority. We have spent a
lot of time on various types of communication, training, and having
quite a number of people involved in justly looking into concerns that
employees raise regarding whether a particular thing is the right thing
to do. We are making integrity a conscious part of our way of life at
work and we are not alone. The papers are filled with bad news; we won't
make headlines for this. However, I'm not trying to say that everything
is rosy, or that you shouldn't be raising these issues and expounding
your views. Exchanging views is salutary. Perhaps you will figure out
how to make the legal system work the way it should.

I wish you the best of luck in your communications efforts. I wonder if
it would help if you told more of your own personal story along with
your "common sense" perspective. What sparked your interest in business
conduct and tort reform? That human interest touch might help you in
your search for publication.

From another corporate ethics officer
I apologize for the delay in responding to this message. I've been out of town. I've now read your article and congratulate you for a very thoughtful and well-written piece. The tension between legal compliance and ethics is an interesting one and you eloquently express many of the key issues. Unfortunately, I am at a loss as to where you can go to get this piece published. I do not know any publishers and am not closely aligned with any publications. I'm sorry I can't be more help to you.

From a third ethics officer

First let me apologize for taking so long to acknowledge receipt of your note . In my position as Manager of Business Integrity for ________ Corporation, I receive several requests, some similar to yours.

Although I have read your email in its entirety, I respectfully prefer to abstain from commenting on the efficacy of your article, as we do not feel _______ is necessarily qualified to judge the merits of its content. Also, _______'s Ethics and Business Integrity policies are clearly outlined on our Web site if you would like to review them in the context of your article.

With that said, I wish you well in your endeavors.

I noted a Wall Street Journal article about the above corporation and I wrote back:

I noticed the below Wall Street Journal article reporting on ______'s settlement with the CFTC concerning alleged price manipulation. The article does not report any sanctions against ______ employees.

As you may remember, my article argues that the law undermines business ethics insofar as it does not penalize individuals who perpetrate corporate wrongdoing and instead penalizes innocent individuals, such as stockholders, other company employees and customers of a corporation who are penalized when the corporation is penalized. Insofar as employees see that happening, the efforts of corporate ethics officers such as yourself to inculcate the institutionalized practice of ethical behavior by employees is undermined, as my article argues.

As my article states, you are in a better position than I to evaluate the validity of my article's contentions, and I regret that you feel you must abstain from commenting.

Again, however, I thank you for taking the time to read my article.

From a consultant
I think you have something interesting to say. Why don’t you try Ethisphere magazine? They are “out there” with original stuff, not just regurgitating the stuff every organizational ethics professional has read a thousand times before. You’re nothing if not original. I think your blurb about your position would help editors want to take a closer look. If you can’t find the name/contact info for the Ethisphere magazine editor, let me know and I’ll try to dig it out.

From an academic
Dear Mr. Shattuck,

I’m afraid I’m unable to offer any special access to the ECOA or other organisations in this area. I’ve read your article and while suggestive, if I may offer a couple of comments, I believe it would benefit from rigorous editing as it is very dense; clearer distinctions need to be made about what you are suggesting re the connection between plantiff lawyer compensation and the bottom line impact on business ethics programs: this is not at all clear. Companies regard lawsuits as a cost of doing business and I cannot from the article alone draw conclusions about how business is impeded thereby. The Vioxx case is an interesting one, but what’s the connection? To be blunt, arguments from a commonsense perspective have no weight as there should be a way to document behaviours and outcomes, so a review some of the relevant literature on this subject might serve to strengthen the article. Finally, and my suggestions are by no means exhaustive, you might want to consider establishing your qualifications and experience at the outset of the article—are you a business executive or lawyer, for example—which would lend weight to your observations. I’m afraid these are simply observations based on my very limited knowledge of the subject matter, and you should take them accordingly. I wish you all the best in moving your article to print, but can offer no further assistance.

Kind regards,

Part of my response to above academic
My article has gone through much editing and revision, and I am sorry if there remains a lack of clarity.

If the law undermines business ethics in the manner my article describes, the link with plaintiffs' lawyers' compensation is that such compensation is, in my opinion, the main driving force in causing the law to have the undesirable aspects that contribute to the adverse consequence for business ethics. When there is an adverse effect on something, it is usually helpful to understand the root cause, as will better inform an overall evaluation of the situation.

When you say lawsuits are a cost of doing business, that only begins the inquiry of whether they are reasonable costs from a societal point of view. If the costs are reasonable, then any adverse ramifications for business ethics may simply be required to be tolerated. Whether the costs and other aspects of our civil liability system are reasonable and justifiable is not something normally within the purview of ethics officers and academics, but it certainly becomes a consideration in evaluating the thrust of my article.

The Vioxx case is an excellent example for asking the question of what would best serve societal interests in a balanced way with respect to such situations (including the desirability of defining and promoting ethical business behavior by employees and punishing them for unethical behavior). My article is highly suggestive of some of my views. Further, I think any intelligent and reasonably informed layperson is capable of having worthwhile opinion on this question. Do you have a view on the Vioxx case?

I agree that more is required than argumentation based on common knowledge and experience about human nature and a common sense analysis of what is needed for society to obtain ethical behavior. My article says that and it expressly solicits input from ethics officers and academics in the field. ("You have front line involvement with employees, the environment in which they work, elaborate corporate codes of business ethics, and employees' thinking, psychology, decision making process and resultant actions. Accordingly, I want to ask you, is my answer that is based on common knowledge and common sense analysis borne out by what you see up close that happens?") I am more than willing to spend time documenting behaviors and outcomes, but to do so I first need information at the source. I will continue plugging away trying to get it.

Again, thank you for your thoughtful response.

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