Thursday, March 8, 2007

Top Ten - Legal Ethics & Professional Responsibility, Mar. 8

Like Michael C. Jensen (Harvard Business School, right) needs my endorsement, but I was going toJensen wait a couple days before posting a new top ten.  I was reading through the abstracts, however, downloaded the slides he has posted on a theory of integrity (see paper #2), and got excited enough about it to go ahead with the post today.  (Plus Alan Childress is a little under the weather and not posting - everybody say "feel better, Alan" - so I want to take up the substantive slack that occurs when he is not around.)

The thesis appears to be that integrity as it appears in the corporate world is a fact capable of description and measurement, as opposed to other less testable norms or values.  While I am not sure that he has succeeded in demonstrating that integrity is measurable and testable as an empirical-analytic (as opposed to a normative-analytic) matter (those are Habermas' terms, by the way, not mine), I think this is tremendously interesting and exciting.  My sense is that he is trying to do the impossible, which is to find a scientific basis for the justification of integrity, and that ultimately it is a normative proposition.  But he is clearly onto something - which is that other proxies for good governance don't work, and that is the failure of things like Sarbanes-Oxley.  My initial stab at trying to say something like that (in a fumbling, puerile sort of way) was infamously titled Sarbanes-Oxley, Jurisprudence, Insurance, Game Theory, and Kant:  Toward a Moral Theory of Good Governance (much downloaded not for any particular insight, I'm pretty sure, but because it has a good technical explanation tucked in the middle of how D&O insurance works).

The abstract to the Jensen piece is below the fold.

And here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.

1   Young Associates in Trouble, David T. Zaring, William D. Henderson, Washington & Lee University - School of Law, Indiana University School of Law - Indianapolis.

Integrity:  A Positive Model with Applications to Corporate Governance and Finance (PDF file of Keynote Slides), Michael C. Jensen, Werner Erhard, Steve Zaffron, Harvard Business School, Independent, Landmark Education Business Development.

The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation Bruce H. Kobayashi, Larry E. Ribstein, George Mason University School of Law, University of Illinois College of Law

Tax Opinions, David T. Moldenhauer, Clifford Chance LLP.

The View from the Trenches:  A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.

Critical Legal Ethics Paul R. Tremblay, Boston College - Law School

Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings Jon Garon, Hamline University School of Law

8 Effects of Reputation on the Legal Profession, Fred C. Zaharias, University of San Diego School of Law.

Differentiating Gatekeepers Arthur B. Laby, Rutgers University School of Law - Camden

10 Investment Banking:  Immediate Challenges and Future Directions , Andrew Tuch, University of Sydney - Faculty of Law.

[Jeff Lipshaw]

Abstract for "Integrity" by Jensen, et al:

Our primary purpose here is to present a positive model of integrity that provides powerful access to increased performance for individuals, groups, organizations, and even societies. Our model reveals the causal link between integrity as we clarify and define it, and increased performance and value-creation for individuals, groups, organizations and even societies. And our model provides access to that causal link for private individuals, executives, economists, philosophers, policy makers, leaders, and legal and governmental authorities.

The philosophical discourse, and common usage as reflected in dictionary definitions, leave an overlap, in fact outright confusion among the four phenomena of integrity, morality, ethics, and legality. In practice this confounds the terms so that the efficacy and potential power of each of them is seriously diminished. In our new model, the three phenomena of morality, ethics, and legality are normative virtue phenomena, and integrity is not. 

In this new model, we distinguish all four phenomena - integrity, morality, ethics, and legality - as belonging to distinct and separate domains. This new model: 1) encompasses all four terms in one consistent theory, 2) makes the moral compass potentially available in each of the three virtue phenomena clear and unambiguous, and 3) does this in a way that makes the now clear moral compass more likely to shape human behavior. 

This all falls out from the unique treatment of integrity in our new model. Integrity as we define it is a purely positive phenomenon, independent of normative value judgments. Integrity is thus not about good or bad, or right or wrong, or even about what should be or what should not be. 

We distinguish integrity as a phenomenon of the objective state or condition of an object, system, person, group, or organizational entity, and define integrity as: a state or condition of being whole, complete, unbroken, unimpaired, sound, perfect condition. 

We assert that integrity (the condition of being whole and complete) is a necessary condition for workability, and that the resultant level of workability determines the available opportunity for performance. Hence, the way we treat integrity in our model provides an unambiguous and actionable access to superior performance (however one wishes to define performance). 

In this new model, we distinguish integrity (being whole and complete) for an object or a system as a matter of the elements that make up the object or system and the relationship between those elements being whole and complete, including their design, the implementation of the design, and the use to which they are put. 

We distinguish integrity (being whole and complete) for an individual as a matter of that person's word being whole and complete, and for a group or organizational entity as what is said by or on behalf of the group or organization (the group or organization's word) being whole and complete. In that context, we define integrity (being whole and complete) for an individual, group, or organization as: Honoring one's word. 

Oversimplifying somewhat, honoring your word as we define it means you either keep your word (do what you said you would do and by the time you said you would do it), or as soon as you know that you will not, you say that you will not to those who were counting on your word and clean up any mess caused by not keeping your word. 

Honoring your word (integrity for individuals, groups and organizations) is also the route to creating whole and complete social and working relationships. In addition, it provides an actionable pathway to earning the trust of others – an important element of workability and therefore a contribution to performance. 

We demonstrate that the application of cost-benefit analysis to one's integrity guarantees you will not be a trustworthy person and with the exception of some minor qualifications ensures also that you will not be a person of integrity. The virtually automatic use of cost-benefit analysis, an inherent tendency in most of us, lies at the heart of much out-of-integrity behavior in modern life. 

In conclusion, we show that defining integrity as honoring one's word provides an unambiguous and actionable access to superior performance and competitive advantage at both the individual and organizational level.

Abstracts Highlights - Academic Articles on the Legal Profession, Ethics, Lipshaw, Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink

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