Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to Enron. Actors, especially lawyers, seek to limit responsibility by avoiding knowledge and clear articulation. This essay considers this phenomenon from the point of view of both business organization and legal doctrine. Evasive ignorance and ambiguity seem endemic to a particular organizational model and to a traditional model of legal responsibility. Developments in both law and business, however, suggest that these models are being superceded. Many of the most dynamic businesses now emphasize practices of transparency designed to inhibit evasive ignorance and calculated ambiguity. A major trend in recent legal doctrine, strikingly exemplified by the Sarbanes-Oxley Act, is to strengthen duties of inquiry and clear articulation. The legal profession, however, has strongly resisted these trends with respect to its own regulation. The essay argues that the bar\u27s opposition to many of the lawyer regulation initiatives under Sarbanes-Oxley reflects a misguided attachment to the privileges of non-accountability associated with deliberate ignorance and calculated ambiguity

The Community Economic Development Movement

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following: A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC. A 44,000-foot Stop & Shop supermarket. The market opened in 1991 after years in which the community had been without a major grocery store. It lies next to a recently renovated Community Health Center and a large high-rise public housing project. The land on which the market and health center sit was developed and is owned by a limited partnership that includes, in addition to a commercial investor, JPNDC and the Tenant Management Corporation of the housing project. Some of the income from the market and health center leases goes into a Community Benefits Trust Fund that supports job training and business development activities. A cluster of small, attractive multi-unit residential buildings containing a total of forty-one homes. These units were built with support from the Federal Low Income Housing Tax Credit, and they are occupied by low and moderate income families at rents limited to thirty percent of family income. The buildings are owned by a limited partnership in which the general partners are a subsidiary of JPNDC and a resident cooperative; the limited partners include five conventional business corporations and a nonprofit corporation with a board composed of prominent government and business figures that promotes housing development throughout the state. Two recently renovated apartment buildings – one with eleven units and one with forty-five units – designed with common areas and facilities for medical support for elderly residents. The project benefits from large federal grants. It is owned by JPNDC; the units are rented to the tenants at rents that cannot exceed thirty percent of their income. A wood-frame building containing three apartments recently renovated by JPNDC with support from various public programs. JPNDC then sold it at a price well below market value to an individual, who, as a condition of ownership set out in the deed, must live in one of the units and rent the others only to people who meet specified income eligibility conditions at specified rents. These institutions are products of the Community Economic Development (CED) Movement. Although it is unusual to find so many concentrated in such a small area-there are still others there that I have not mentioned-such projects can be found in most cities; their numbers have increased substantially in recent years, and there will be many more of them if current programs succeed. Such projects figure prominently in the most optimistic and innovative approaches to urban poverty on both the left and the right. They exemplify a kind of social entrepreneurialism that is flourishing across the country.\u27 As support for traditional welfare and public housing programs has waned, there has been a corresponding (though far from proportionate) increase in support for CED. The Movement has been fueled by trends toward decentralizing public administration on the one hand and channeling the development of local markets along socially desirable paths on the other. It has also been encouraged by changes in the contours of urban politics, especially new strategies by neighborhood activists

The Republic of Choosing: A Behaviorist Goes to Washington

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy

Attorney-Client Confidentiality: A Critical Analysis

Attorney-client confidentiality doctrine is distinguished by its expansiveness and its rigid or categorical form. This brief essay argues that the rationales for these features are unpersuasive. It compares the “strong confidentiality” of current doctrine to a hypothetical narrower and more flexible “moderate confidentiality” and concludes that moderate confidentiality is more plausible. It is unlikely that current doctrine yields benefits that justify its costs

What Difference Does It Make Whether Corporate Managers Have Public Responsibilities?

Alan Wolfe\u27s thoughtful paper resonates with what I think we should call the Washington and Lee School of corporate jurisprudence.\u27 It elaborates on that School\u27s brilliant intellectual history of legal theorizing about the corporation and on its powerful critique of conservative arguments against managerial responsiveness to nonshareholder interests. It also shares, I fear, a tendency to overestimate the practical stakes of abstract concepts of the corporation and fiduciary duties. This tendency takes three forms: first, a historical picture that portrays recent developments as a promising departure rather than business-as-usual; second, an assumption that certain abstract conceptions of the corporation (for example, public or private) differ dramatically in their relative hospitality or hostility to nonshareholder interests; and third, optimism that fiduciary norms are an important avenue through which to undertake corporate reform. I want to express reservations about each of these points

The Institutional Configuration of Deweyan Democracy

After more than two decades of effort to recover and adapt John Dewey’s thought for a reformed liberal politics, the institutional implications of his ideas remain elusive. This essay argues that a distinctive set of modern business practices and an incipient public policy architecture embody key precepts of Dewey’s political theory. The practices and architecture have developed independently of Dewey’s ideas, but they elaborate the ideas implicitly, and they are illuminated by them