The Law of Identity Harm

Identity harm refers to the anguish experienced by consumers who learn that their efforts to consume in line with their personal values have been undermined by a company’s false or exaggerated promises about its wares. When broken, other-regarding “virtuous promises” about products (e.g., eco-friendly, responsible, fair-trade, cruelty free, conflict free) give rise to identity harm by making consumers unwittingly complicit in hurting others. A leading example is the Volkswagen emissions scandal: when environmentally-conscious purchasers of Volkswagen’s “clean diesel” cars learned that the vehicles were in fact hyper-polluting, they experienced identity harm because of their complicity in a scheme that hurt the planet and the health of their communities. As more people become sensitized to environmental and social (labor and human rights) sustainability challenges, they are also becoming increasingly concerned about their role in aggravating these challenges through their individual consumption. Identity harm surfaces against the backdrop of an under-regulated market for virtuous goods that is expanding to meet the demands of conscious consumers. Troublingly, those who experience identity harm currently have little recourse in private law, which reveals a serious deficit in our legal regime. This Article, one in a series, recommends correcting this protective deficit by operationalizing identity harm under tort, contract, and state consumer law, with a particular focus on the latter

Identity Harm

In September 2015, the world learned that Volkswagen had rigged millions of its clean diesel vehicles with illegal software designed to cheat emissions tests. Contrary to what had been advertised, the vehicles are anything but clean. When affected owners learned that their cars were toxic, what were they most upset about? Was it that their cars were now worth fewer dollars? Or that they had been deceived into being hyperpolluting drivers, when they thought they were being green? Coverage of the emissions scandal strongly suggests that affected car owners experienced both kinds of disappointment, economic and noneconomic, and in heavy doses at that. But while the first kind of harm is relatively easy to recognize and address, this Article shows that our protective regime is ill-equipped to shield consumers from the second, a kind of identity harm. Identity harm refers to the anguish experienced by a consumer who learns that her efforts to consume in line with her personal values have been undermined by a business\u27s exaggerated or false promises about its wares. While a range of (broken) promises can elicit identity harm, this Article focuses on a particularly important and fast-growing category of promises pertaining to environmental and social sustainability. As the first in a series on the subject, this Article introduces identity harm and argues for its deeper legal recognition

Balancing buyer and supplier responsibilities : model contract clauses to protect workers in international supply chains, version 2.0

These Model Contract Clauses (MCCs) are designed to help protect the human rights of workers in international supply chains. This second version (MCCs 2.0) marks a major shift in contract design, reflecting both recent research and thinking about what organizational strategies are most effective and recent and ongoing legislative developments, including not only US legislation but also the likely mandatory human rights due diligence law in the European Union. While the most prominent shift in MCCs 2.0 is that buyers share contractual responsibility for human rights with their suppliers and sub-suppliers, other contract design changes are equally fundamental. Instead of a typical regime of representations and warranties, with concomitant strict contractual liability, these clauses provide for a regime of human rights due diligence, requiring the parties to take appropriate steps to identify and address adverse human rights impacts. This regime aligns better with current and contemplated legislation as well as initiatives such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Responsible Business Conduct. It is also considerably more pragmatic. Many representations and warranties are questionable in these contexts, encouraging the parties to turn a blind eye to reality while taking on theoretical strict liability (the problematic “tickbox” or “checkbox” approach). Human rights due diligence is a more realistic process that assumes parties will need to set priorities, addressing the most pressing issues first, without a fictional representation that everything is perfect. In addition to the shift to human rights due diligence, MCCs 2.0 stress remediation of human rights harms over contractual remedies, and they introduce relational dispute resolution mechanisms. Finally, in an innovative provision engendered by the COVID-19 pandemic, buyers take on an obligation of “responsible exit” both generally and particularly with respect to force majeure or similar events. As in MCCs 1.0, MCCs 2.0 continue to impose obligations through the supply chain (not merely to first tier suppliers); address the unique problems of mitigation and contract remedies when human rights are involved; and manage the risk and exposure of the buyers through disclaimers, although the disclaimers now reflect the shared responsibilities of both parties. As before, MCCs 2.0 are fully modular so counsel can choose which provisions and what level of commitment are appropriate for a particular client. With some adaptation, the MCCs can also be used to advance additional environmental, social, and governance (ESG) goals

Identity Harm

In September 2015, the world learned that Volkswagen had rigged millions of its clean diesel vehicles with illegal software designed to cheat emissions tests. Contrary to what had been advertised, the vehicles are anything but clean. When affected owners learned that their cars were toxic, what were they most upset about? Was it that their cars were now worth fewer dollars? Or that they had been deceived into being hyperpolluting drivers, when they thought they were being green? Coverage of the emissions scandal strongly suggests that affected car owners experienced both kinds of disappointment, economic and noneconomic, and in heavy doses at that. But while the first kind of harm is relatively easy to recognize and address, this Article shows that our protective regime is ill-equipped to shield consumers from the second, a kind of identity harm. Identity harm refers to the anguish experienced by a consumer who learns that her efforts to consume in line with her personal values have been undermined by a business\u27s exaggerated or false promises about its wares. While a range of (broken) promises can elicit identity harm, this Article focuses on a particularly important and fast-growing category of promises pertaining to environmental and social sustainability. As the first in a series on the subject, this Article introduces identity harm and argues for its deeper legal recognition

Balancing Buyers and Supplier Responsibilities: Model Contract Clauses to Protect Workers in International Supply Chains

These Model Contract Clauses (MCCs) are designed to help protect the human rights of workers in international supply chains. This second version (MCCs 2.0) marks a major shift in contract design, reflecting both recent research and thinking about what organizational strategies are most effective and recent and ongoing legislative developments, including not only US legislation but also the likely mandatory human rights due diligence law in the European Union. While the most prominent shift in MCCs 2.0 is that buyers share contractual responsibility for human rights with their suppliers and sub-suppliers, other contract design changes are equally fundamental. Instead of a typical regime of representations and warranties, with concomitant strict contractual liability, these clauses provide for a regime of human rights due diligence, requiring the parties to take appropriate steps to identify and address adverse human rights impacts. This regime aligns better with current and contemplated legislation as well as initiatives such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Responsible Business Conduct. It is also considerably more pragmatic. Many representations and warranties are questionable in these contexts, encouraging the parties to turn a blind eye to reality while taking on theoretical strict liability (the problematic “tickbox” or “checkbox” approach). Human rights due diligence is a more realistic process that assumes parties will need to set priorities, addressing the most pressing issues first, without a fictional representation that everything is perfect. In addition to the shift to human rights due diligence, MCCs 2.0 stress remediation of human rights harms over contractual remedies, and they introduce relational dispute resolution mechanisms. Finally, in an innovative provision engendered by the COVID-19 pandemic, buyers take on an obligation of “responsible exit” both generally and particularly with respect to force majeure or similar events. As in MCCs 1.0, MCCs 2.0 continue to impose obligations through the supply chain (not merely to first tier suppliers); address the unique problems of mitigation and contract remedies when human rights are involved; and manage the risk and exposure of the buyers through disclaimers, although the disclaimers now reflect the shared responsibilities of both parties. As before, MCCs 2.0 are fully modular so counsel can choose which provisions and what level of commitment are appropriate for a particular client. With some adaptation, the MCCs can also be used to advance additional environmental, social, and governance (ESG) goals