Sunday, October 26, 2008

What does ECOA say about rating agency scandal?

This week the rating agency scandal was in full bloom before the public's eyes in Congressional hearings. It showed a colossal and appalling failure of business ethics that materially contributed to the global financial system meltdown that is now threatening to turn into global recession and that is having profound adverse impact in untold ways in the lives of tens of millions of Americans, not to mention around the world.

Is the rating agency scandal the Katrina of the business ethics industry? Is there going to be soul searching by the industry concerning how all its work, efforts, systems, studies, and conferences did not prevent the rating agency scandal; and to ask what went so wrong, and what can the industry do in order to better accomplish its mission of inculcating ethical business conduct by corporations?

For more than a year I have been pushing on the ECOA that the law undermines the business ethics industry in the prosecution of its mission in a manner that I have explicated in my writing Does the Law Undermine Business Ethics?. I have urged the ECOA to explore this with its members in the ECOA's conferences and other educational programs with a view to deciding what the ECOA thinks and whether the ethics industry can do anything about it if there is a problem. Thus far I have been unsuccessful, as I reported to ECOA members in this letter.

I hope the rating agency scandal is a Katrina for the business ethics industry that will lead to more openness on the part of the ECOA in considering my proposition that the law undermines the industry and the industry ought to take a stance on the matter.

Thursday, October 16, 2008

Prof. Cohen

From: RDShatt
Sent: 10/16/2008 7:43:49 P.M. Central Daylight Time
Subj: Re: Please see my blog entry re: Prof. Marsha Cohen's WSJ letter. ...

Thank you for replying, Prof. Cohen. In my proposed project, there is no need whatsoever to agree, just state views on some significant public legal policy issues.

Robert Shattuck

In a message dated 10/5/2008 2:53:10 P.M. Central Daylight Time, writes:

Hmmmm, I imagine that we wouldn’t actually AGREE on this subject.
I guess there are a LOT of Bob Shattucks. As there are a lot of Marsha Cohens. So if you were the one from Paterson, NJ, you probably would’ve pointed that out ................... --
Professor Marsha N. Cohen

Prof. Alan Weisbard

From: RDShatt
Sent: 10/16/2008 7:33:24 P.M. Central Daylight Time
Subj: Re: Please see my blog entry re: Prof. Marsha Cohen's WSJ letter.

Thank you very much, Prof. Weisbard.

Both elitism and cowardice are understandable in academia. Please consult Prof. John Lachs of Vanderbilt University as to the phenomenon of cowardice ( "Intellectuals and Courage"), and, as to elitist arrogance, the ECOA would provide you with some excellent drinking buddies (see ECOA correspondence ).

Now, if you desire to engage in some intellectually respectable dialogue, I would be very pleased to engage with you.

Robert Shattuck

In a message dated 10/6/2008 10:57:21 A.M. Central Daylight Time, writes:

Dear Mr. Shattuck,
Please add me to the list of law professors summarily dismissive of your efforts.
Thank you, Alan J. Weisbard

Sunday, October 5, 2008

Email to the law professors today

From: RDShatt
To: ______
Sent: 10/5/2008 _____ P.M. Central Daylight Time
Subj: Please see my blog entry re: Prof. Marsha Cohen's WSJ letter

Please see my blog entry re: Prof. Marsha Cohen's WSJ letter.

Please contact me if you would like to participate in a letter or letters to The Wall Street Journal or possibly other newspapers or periodicals.

Thank you.

Robert Shattuck

Saturday, October 4, 2008

Prof. Marsha Cohen's WSJ letter

Professor Marsha Cohen of the Hastings College of Law wrote the below letter to The Wall Street Journal commenting on the Journal's op/ed piece "The Tort Bar's Comeback" from September 16, 2008 that appears below the letter.

I think Professor Cohen and other law professors ought to have a lot more to say on the subject than this brief letter. I have in the past advocated a letter to the Journal that "frames" the important issues (see this entry) and further have advocated the taking of positions on the issues (see this entry). As indicated in the first link, the idea of "dueling" letters took my fancy.

I will probably resume the efforts I made in 2004/5. This seems particularly appropriate in light of the significant economic problems the country is facing and the need for reducing waste and increasing efficiencies in the economy.

SEPTEMBER 27, 2008
China Could Use Tort Lawyers, More Accountability

It is ironic that you picked Sept. 16 for one of your periodic editorial attacks on the civil justice system ("The Tort Bar's Comeback," Review & Outlook) in light of the news breaking on the same day about the tragic harm to a large number of Chinese babies from infant formula contaminated by the industrial chemical melamine. The same chemical was responsible for the deaths of many Americans' pets some months ago, also because of contamination originating in China. Why are Chinese products causing so much consumer harm (both there and, because of our globalized marketplace, here as well)? China has neither well-enforced regulatory mechanisms nor a torts/insurance system to protect consumers, although my understanding is that it is moving to adopt both. Without a civil justice system that enables those harmed to seek recompense from those who caused them harm, why would any product seller bother to invest in quality control or any other product safety measure?

Are there unethical plaintiffs attorneys? Sure. And there are unethical defense attorneys as well. Are there bad judgments made in personal injury decisions? Absolutely. But there are probably as many denying compensation as granting too much of it. While there are undoubtedly more efficient and equally fair ways to assure appropriate compensation to those injured by economic actors, demonizing the entire civil justice system is an entirely ineffective way to galvanize support for systemic change.

Republicans and Democrats are equally likely to be the unfortunate victims of accidental harm.

Prof. Marsha N. Cohen
University of California
Hastings College of the Law
San Francisco

SEPTEMBER 16, 2008
The Tort Bar's Comeback

As voters mull the stakes in this year's election, here's an issue that ought to ring alarms in the ears of serious people: tort reform. After 20 years of state and federal efforts to reform a runaway legal system, the trial bar is reviving the monster.

At the federal level, lawyers and law firms invested in 2006 more than $85 million to get pro-lawsuit Democrats elected. Congress's new leadership has begun a political repayment plan -- packing legislation with provisions to increase the number and size of lawsuits. So far, this effort has been largely stymied by President Bush's veto threat. The tort bar sees 2008 as the real prize; it has already thrown $107 million toward increasing Democratic majorities.

The trial barons are making more progress at the state level, as described in a report by the American Tort Reform Association. States had been making progress: New laws cleaned up venue requirements, reformed punitive and noneconomic damages, and enacted medical malpractice reform. So-called "judicial hellholes" like Texas and Mississippi have seen insurers return and premiums fall.

The trial bar is fighting back, with success. In last year's legislative session, Michigan lawmakers proposed repealing safeguards for prescription drug providers; Maryland legislators wanted to revoke medical liability reforms; and Florida's legislature entertained the nullification of its joint and several liability reforms. The trial bar's big coup was in Colorado, where Democratic Governor Bill Ritter signed a law increasing previous limits on noneconomic damages.

Lawyers have also been laboring to create opportunities for more lawsuits, more money and more time to sue. Last year, Alabama saw legislation that would allow a tort claim to continue even after a plaintiff had died, while California proposed authorizing lawsuits for any violation of privacy. New Mexico and New Jersey passed laws authorizing citizens to file "false claims" suits on behalf of the state -- in effect turning private individuals into state bounty hunters.
Four states -- Colorado, Washington, Illinois and Texas -- considered proposals to increase the size of awards plaintiffs could claim, and with it attorneys' contingency fees. The tort bar pushed bills across the country to expand "consumer protection" damages and in at least three states to allow plaintiffs to claim damages for "emotional harm" when their pets are injured. In Maryland and Oregon, lawyers successfully shepherded new laws to extend the time in which plaintiffs could file lawsuits.

Plenty of legislatures remain wary of walking back down the highway of ruinous lawsuits, while many Governors say they'll veto this legislation. Still, the lawsuit industry is counting on discontent this fall to help flip a few more legislatures and governorships to pro-tort majorities, laying the groundwork for their proposals to become law. Tort reformers will have to push back.