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 Developments in both law and business, however, suggest that these models are being superceded.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 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

Courthouse Iconography and Chayesian Judicial Practice

Judith Resnik and Dennis Curtis emphasize in Representing Justice that the traditional iconography of courthouses is incongruent with the current practices of the institutions that inhabit them. The key elements of traditional iconography - the blindfolded, scale-balancing Justitia and the courtroom configured for the trial-connote adjudication. Yet, the fraction of judicial work that involves deciding cases on the merits or conducting trials has decreased dramatically. Most judicial work today is basically managerial. We could reduce this incongruity, on the one hand, by reviving the practical adjudicatory focus of the past or, on the other, by revising the iconography to take account of the new practices. Resnik and Curtis encourage both efforts, but they have more enthusiasm for the former. I want to suggest some ways in which imagery and design might be revised to express the importance and value of managerial judging. In particular, I suggest the relevance of what many will consider an unlikely source of inspiration for a new judicial iconography - modem manufacturing and factory design. The technological innovations associated with the Toyota Production System have produced an aesthetic that might contribute both functionally and expressively to the democratic accountability that Resnik and Curtis see as threatened by managerial judging

The Legal Structure of the Chinese Socialist Market Enterprise

China\u27s phenomenal economic growth since 1978 has been accompanied by a cascade of institutional innovation and experimentation. In at least this one sense a hundred flowers are blooming in the People\u27s Republic. The range of institutional forms and their defiance of the conventions of economic organization in both capitalist and socialist societies are impressive. The Chinese leadership calls the new order by the unfamiliar (and to some, oxymoronic) term socialist market economy. Its market dimensions include deregulation of most prices, decentralization of decision-making to the household in agriculture and to the enterprise in industry, incentive schemes for peasants, managers, and workers, and encouragement or tolerance of domestic private ownership in small business and various kinds of foreign investment. At the same time, the leadership considers the economy a socialist one in which public ownership constitutes the mainstay. Despite the important growth of private enterprise and foreign investment, the great bulk of industrial production occurs under public ownership. Public industrial production takes place in two distinct sectors. First, the State-Owned Enterprises (SOEs) are typically urban, large-scale, mostly capital-intensive industries controlled at the national, provincial, and county levels. Second, the collective sector consists of relatively labor intensive industries subject to local governments, and is in tum conventionally divided into urban and rural subsectors. Each of these sectors has been transformed during the reform period, with varying degrees of success. From one-third to one-half of the SOEs have become self-sustaining in a competitive market environment, and the most successful have achieved formidable productivity and growth. On the other hand, at least one-third of these enterprises survive only through exorbitant government subsidies. In the rural part of the collective sector, the Township and Village Enterprises (TVEs), which get little subsidy, have, in the aggregate, achieved astounding success and have proved the most dynamic sector of the economy. From the early 1980s, while the annual growth rate for the economy as a whole has averaged a breath-taking nine percent, TVE production has grown at the rate of twenty-five percent. These developments, especially in the TVE sector, have prompted many (including some for whom the wish is not father to the thought) to question the neo-liberal dogma that privatization is necessary for successful reform of state socialist economies

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