Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant

• Autore: Jeffrey L. Harrison - Amy R. Mashburn
• Carica: Professors of Law, Levin College of Law, University of Florida
• Pagine: 1-22

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/6918

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.2:1 2017]

This article is released under the terms of Creative Commons Attribution 4.0 International License

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Moonlighting Sonata: Conflicts, Disclosure, and the

Scholar/Consultant

JEFFREY L. HARRISON & AMY R. MASHBURN†

TABLE OF CONTENTS: 1. Introduction; 2. Sources of Conflict; 2.1. Inherent; 2.2. Ambition

Based; 2.3. Avoidable; 2.4. Personal Development; 3. Disclosure in Other Contexts; 3.1.

Products Liability; 3.2. Legal Representation; 3.3. Comparing a.a.l.s. “Best Practices”; 4.

The Problem with Disclosure; 4.1. Risk Shifting; 4.2. Disclosure as Permission; 4.3.

Optimism and Self-Evaluation Biases; 5. Conclusion.

ABSTRACT: Although the impact of conflicting interests is of constant concern to those in

legal education and other fields, a recent scholarly article and an extensive analysis in

the New York Times suggest the problem is more pressing than ever. In the context of

legal scholarship th e problem arises when a professor is, in effect, employed by two

entities. Disclosure of possible conflicts is the most commonly proposed response. The

article argues that disclosure is merely a risk shifting devise that does not fully address

the issue of bias. It draws on comparisons with products liability and legal ethics to

suggest that many conflicts should simply be avoided.

KEYWORDS:

Conflicts of Interest; Disclosure; Ethics; Legal Practice; Risk Shifting

University of Bologna Law Review

[Vol.2:1 2017]

https://doi.org/10.6092/issn.2531-6133/6918

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1. INTRODUCTION

Although the impact of conflicting interests is a constant concern for those in

legal education and other annexed fields, a recent scholarly article1 and an

extensive analysis in the New York Times2 suggest the problem is more

pressing than ever. In the context of legal scholarship the problem arises when

a professor is, in effect, employed by two entities. One of these employers, the

academy, and the broader profession in which it is positioned, academia, have

legitimate expectations of true scholarly work that reflects open-mindedness

and objectivity with respect to topic selection, analysis, and positions taken, if

any.3 In this context, the goal for the professor/scholar is to discover truths,

inconvenient and otherwise.4 In effect, the professor is comparable to the

employee of a think tank.

The other employer, the retaining firm in which expertise is sold to

those with relatively deep pockets, certainly places great importance on clear

thinking but, ultimately and most often, has a desired end result in mind that

may shape the efforts and expressions of the professor. The goals of the

academy and the desires of retaining firms are in conflict at least some of the

time. Professors facing such conflicts are advised that resolution can occur by

† Professors of Law, Levin College of Law, University of Florida.

1 Robin Feldman, Mark A. Lemley, Jonathan S. Masur & Arti K. Rai,

Open Letter on Ethical Norms in

Intellectual Property Scholarship

, 29 HARV. J.L. & TECH. 339 (2016).

2

See

Eric Lipton, Nicholas Confessore & Brooke Williams,

Think Tank Scholar or Corporate

Consultant? It Depends on the Day

, N. Y. TIMES (Aug. 8, 2016),

http://www.nytimes.com/2016/08/09/us/politics/think-tank-scholars-

corporateconsultants.html.

3 An example is found in the University of Florida regulations:(d) Statement on Professional Ethics.

l. The professor, guided by a deep conviction of the worth and dignity of the advancement of

knowledge, recognizes the special responsibilities devolving upon members of the profession. The

professor's primary responsibility to his or her field is to seek and to state the truth as he or she

sees it. To this end, the professor devotes himself or herself to developing and improving his or her

scholarly competence. The professor accepts the obligation to exercise critical self-discipline and

judgment in using, extend ing and transmitting knowledge. The professor must never seriously

hamper or compromise anyone's freedom of inquiry.

4 This is in accord with every dictionary definition of “scholar.”