Wednesday, March 21, 2012
We crossed virtual swords in the past with The New York Times' original ethicist Randy Cohen. We reported on harassing him with angry letters denouncing his conflation of law and ethics. Mr. Cohen saw the error of his ways and apologized sub silentio in a later column on which we reported here.
Now the Times' "The Ethicist" column is authored by Ariel Kaminer who is much better attuned to the distinction between ethics and law, as evidence in this week's column. Two weeks ago, a correspondent asked Ms. Kaminer if it was permissible to renege on a pledge to a university after learning that the university engages in dubious labor practices. Ms. Kaminer responded in her column that revoking a pledge is permissible because, "A pledge is a good-faith statement of intent, not a contract written in blood." This week, Kaminer acknowledges a comment from a Palo Alto attorney, Geoff Rapoport, informing her that charitable pledges are enforceable because the law assumes that they have been relied.on, so her advice could expose her correspondent to a lawsuit. Mr. Rapoport acknowledged that Ms. Kaminer is in the business of giving ethical advice, and that the ethcial and the legal "only sometimes overlap." She agreed but regretted not having noted the possibility of legal liability.
Ms. Kaminer is extremeely conscientious to do so. As she observes, while a suit is possible, it is not likely. We note that, as the picture on the left indicates, the doctrine in question derives from Judge Cardozo's opinion in Allegheny College, about which we have posted in the past, the holding of which can be found summarized in Section 90(2) of the Restatement (2d) of Contracts. It appears from Mr. Rarpoport's letter that California follows the Restatment (and Cardozo) on this issue.