The Faculty Lounge

Paying Bone Marrow Donors Is Not Unethical

So says me and nearly two dozen others who work on questions of medical ethics, in a recent letter to The Department of Health and Human Services in response to an NPRM designed to reverse the decision in Flynn v. Holder.

Fellow Lounger Michelle Meyer and I have both written here a couple of times about current debates surrounding compensating bone marrow donors, as well as Flynn v. Holder (the 9^th Cir. case holding that bone marrow donors could be legally compensated for peripheral blood stem cells obtained through apheresis, and the HHS proposed rule that would overturn that ruling.

Now, a group of researchers (including myself and Michelle) have signed onto a letter in opposition to the proposed HHS rule. From the letter:

This Rule would effectively reverse the decision in Flynn v. Holder before the U.S. District Court of Appeals for the Ninth Circuit.1 That decision holds that compensating donors of hematopoietic stem/progenitor cells (hereafter: “hematopoietic cells”) through a procedure called apheresis was not contrary to the National Organ Transplant Act.

We oppose the Rule. We maintain that the ethical arguments against a compensatory model for hematopoietic cell donation through apheresis (hereafter: “the compensatory model”) fail. We further maintain that significant ethical considerations speak in favor of the compensatory model, and therefore against the Rule.

Below, we respond to the ethical arguments offered in favor of the Rule: that the compensatory model would result in wrongful exploitation (§2); that the compensatory model would promote the view that human beings, their bodies, or subparts thereof, are mere commodities (§3); and that the compensatory model would incentivize donation for personal gain over donation from altruistic motives (§4). Given the ethical importance of avoiding preventable death and the strong likelihood that the compensatory model would help avoid preventable death, as well as the ethical importance of free choice, we conclude that the Rule is unethical (§1).

Read the whole thing here.

Related Posts:

On To Bone Marrow

Flynn v. Holder – The Fight Continues

Flynn V. Holder Rehearing Denied

Cohen on Flynn v. Holder

HHS Proposes Rule to Amend NOTA, Nullify Flynn v. Holder

Call for Abstracts: Transparency in Health & Health Care: Legal & Ethical Possibilities & Limits?

My former colleagues at Harvard Law's Petrie-Flom Center have asked me to post the following.

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2017 annual conference, entitled: “Transparency in Health and Health Care: Legal and Ethical Possibilities and Limits.”

Conference Description

Transparency is a relatively new concept to the world of health and health care, considering that just a few short decades ago we were still in the throes of a “doctor-knows-best” model.  Today, however, transparency is found on almost every short list of solutions to a variety of health policy problems, ranging from conflicts of interest to rising drug costs to promoting efficient use of health care resources, and more.  Doctors are now expected to be transparent about patient diagnoses and treatment options, hospitals are expected to be transparent about error rates, insurers about policy limitations, companies about prices, researchers about data, and policymakers about priorities and rationales for health policy intervention. But a number of important legal and ethical questions remain.  For example, what exactly does transparency mean in the context of health, who has a responsibility to be transparent and to whom, what legal mechanisms are there to promote transparency, and what legal protections are needed for things like privacy, intellectual property, and the like?  More specifically, when can transparency improve health and health care, and when is it likely to be nothing more than platitude?

This conference, and anticipated edited volume, will aim to: (1) identify the various thematic roles transparency has been called on to play in American health policy, and why it has emerged in these spaces; (2) understand when, where, how, and why transparency may be a useful policy tool in relation to health and health care, what it can realistically be expected to achieve, and when it is unlikely to be successful, including limits on how patients and consumers utilize information even when we have transparency; (3) assess the legal and ethical issues raised by transparency in health and health care, including obstacles and opportunities; (4) learn from comparative examples of transparency, both in other sectors and outside the United States.  In sum, we hope to reach better understandings of this health policy buzzword so that transparency can be utilized as a solution to pressing health policy issues where appropriate, while recognizing its true limitations.

Information about the call for abstracts after the jump...

 

The Future of Health Law and Policy: Petrie-Flom Center 10th Anniversary Conference

On March 29, current affiliates and alums (including myself) of Harvard Law's Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics will converge on Cambridge for a day-long conference to discuss current and future directions in these areas. The conference features panels on Health Care Coverage, Costs, and Fragmentation; Law and Bioethics; Health Innovation Policy and Regulating Novel Technology; and Empirical Health Law, as well as a keynote address by Health Affairs Editor-in-Chief Alan Weil. The event is free and open to the public, but seating is limited and registration is required. Hope to see some TFL readers there.

How Should We Think About Whether To Donate Our Leftover, Non-Identified Tissue to Research?

Proposed changes to the federal Common Rule that governs most human subjects research would ask patients for the first time to decide whether to allow their non-identified, leftover tissue to be used for research or thrown away. For that choice to be meaningful, the public needs to be aware of the nature, risks, and benefits of biospecimens research, and of what the proposed changes will—and will not—do. In my latest Forbes essay, "No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone," I consider the power of analogies and other reflections on a recent New York Times op-ed on these proposed changes by Rebecca Skloot, author of The Immortal Life of Henrietta Lacks.

The New Trolley Problem

Bored with grading? Looking for a topic to jump-start holiday dinners? Turn to the newly revised trolley problem. Most of us know the traditional problem: A trolley is hurtling down the tracks, certain to hit five helpless people tied to the tracks. You are standing by a lever that will shift the trolley onto a side track. The only problem is that another person (albeit just one) is tied to that side track. Do you act, sacrificing one person to save five others? Or do you let the trolley kill the five people in its direct path?

Most of us discussed this problem in first-year Torts or Criminal Law. The problem was intriguing despite its anachronisms (Trolleys? Is that what they have in Disneyland?) and B-movie overtones (Six different people tied to two different tracks?). But now the problem is back--and it's timely.

Driverless Cars

Driverless cars are gaining ground every month. Several manufacturers will feature their latest models at the 2016 Consumer Electronics Show. The cars won't be in holiday gift piles this year or next, but we may not have to wait much longer than that.

Driverless cars sense obstacles in the road and make decisions about how to react. Is the obstacle a piece of paper that the car can drive over? Is it a chunk of wood? Can the car stop in time or does it need to swerve? Can it safely swerve, or will it hit something else? The cars gather and process immense amounts of data to make these decisions--probably more than we capture with our human senses.

We, however, are the ones who will program these cars. Should we program the cars to swerve to avoid a group of people in the road--even if the swerve will kill a pedestrian on the sidewalk? What if the only way to avoid the group in the road is to swerve into a wall, which is likely to kill the car's own passengers? Should individual purchasers have the right to program their own cars on these matters? Or will manufacturers (or government) make the decisions for us?

I find these questions fascinating, not only because of what they tell us about our relationship with technology, but because of what they reveal about our own brains. We can think about the trolley problem all we want, but how would any of us react in an emergency? Would we even see the single person on the side track? Would we mistake a large branch for a person? Will an autonomous car's detectors make more or fewer mistakes like that?

Enjoy the discussion and, if you do, check out this conference on the issue in April. Happy holidays!

 

Lola Wage-and-Hour Document Review Case Settles; Vexing Questions About What Constitutes “The Practice of Law” Persist

Lola v. Skadden Arps has settled (reports here and here).  Lola is a wage-and-hour case with wide implications for the legal profession.  To recap (see my previous post on the Second Circuit’s recent decision here), David Lola, a lawyer licensed to practice in California, took a job as a document reviewer for Skadden Arps in a large MDL venued in a federal court in Ohio.  He was placed in that position with Skadden by a staffing agency, Tower Legal Staffing.  (Tower Legal provides attorneys and paralegals to law firms on a contract basis, and thus remained Lola’s direct employer during his period of service to Skadden.)  Lola spent 14 months reviewing documents in North Carolina for the case; his Complaint alleged he typically worked 45-55 hours per week.  He was paid $25 per hour, without overtime.

After the engagement ended, Lola sued Skadden and Tower Legal in a Fair Labor Standards Act “collective action,” which is the FLSA’s statutory version of a class action (see 29 U.S.C. § 216(b)).  Lola claimed that he and all those similarly situated were entitled to time-and-a-half for work in excess of 40 hours per week. 

The FLSA exempts from overtime requirements any “employee employed in a bona fide professional capacity,” including “any employee who is the holder of a valid license . . . permitting the practice of law . . . and is actually engaged in the practice thereof . . . .”  29 C.F.R. § 541.304.  Skadden and Tower Legal argued that Lola’s document review responsibilities constituted “the practice of law” within the meaning of the FLSA and supporting regulations, and he therefore was exempt from overtime pay. 

Lola admitted that he was licensed to practice (the fact that it was in a jurisdiction with no connection to any aspect of his work doesn’t matter under the FLSA), so the wage-and-hour question boiled down to whether or not he was “actually engaged” in the “practice of law.”  Lola alleged that his responsibilities as a document reviewer were completely mechanical and devoid of judgment—that he was given a list of key words and names and told to “code” documents in a specified way if those words or names appeared in the document.  Period.  On a motion to dismiss (where these allegations had to be taken as true), the District Court found that these activities constituted “the practice of law.”  The Second Circuit reversed, finding that work that ministerial and rudimentary did not comprise the practice of law, though more typical document review work requiring “a modicum of judgment” likely would.  (As related in my earlier post, most document review jobs do involve some degree of judgment in determining documents’ responsiveness to a request or potentially privileged status, judgments that a fair reading of the appellate opinion suggests would qualify as “the practice of law” under the standard the decision articulates.  The Second Circuit agreed with the District Court that the FLSA borrows the law of the state governing the services at issue to determine whether they qualify as “the practice of law,” which in this case was North Carolina, though North Carolina’s definition is typical in most respects.)  The case was remanded to determine whether Lola’s job required him to be the automaton he alleged.

I'll address the settlement and what it does and doesn't tell us about the future after the jump.

BioNews: Egg donors to challenge US payment rules in court

From BioNews:

Egg donors are suing the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) in a class-action lawsuit for setting a 'price cap' on compensation to egg donors. . . .

The guidelines, which have not been adjusted since they were first established by the ASRM in 2000, advise that reimbursement above $5000 for egg donation requires 'justification' and that compensation above $10,000 is 'beyond what is appropriate'. . . .

Despite these guidelines, compensation for donor eggs in the USA regularly goes up to $75,000 dollars and there are even reports of six-figure sums being paid out.

Law professor Kimberly Krawiec from Duke University, North Carolina, argued that the guidelines are a clear violation of the legislation against price-capping, and that if the subject had been anything except human eggs 'we wouldn't be having this conversation'.

In contrast, Professor of Bioethics Arthur Caplan at New York University said: 'Egg sale is not egg donation. Opening a free market in human eggs risks increasing bamboozlement of couples with phony eugenic promises of eggs that will result in beautiful geniuses and the risk of exploiting poor women dazzled by money into ignoring risk.'

I’ve seen no evidence that egg donor compensation “regularly” exceeds $75,000 in the US, though there may have been isolated cases. Admittedly, reliable data on egg donor compensation is pretty scarce, but the studies that are out there tend to suggest that most payments are under the $10,000 guidelines. See my earlier posts here and here, for example.

But I’m happy to see Art Caplan protecting young women and intended parents from the coercive effects of money, which apparently only begin at the $10,000 mark.

Related Posts:

The NY Times Weighs In On Egg Donor Price Fixing

If You Want A Market, Have A Market . . . Otherwise

“Feeble Even By Normal Litigation Standards”

Egg Donor Antitrust Suit In Today’s WSJ

Sunny Samaritans’ Suit Survives

ASRM Seeks Dismissal of Egg Donor Suit

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

The Value of Smart Eggs

Common Rule NPRM Finally Out (& the Ethics of Cause Lawyers Advising Clients to Disobey Preliminary Injunctions)

I'd begun a blog post about claims (see Mark Joseph Stern in Slate and Howard Wasserman at Prawfs) that the cause lawyers representing Rowan County, KY County Clerk Kim Davis acted unethically by "advis[ing] her," according to Stern, to disobey a court order preliminarily enjoining her practice of allowing her office to issue no marriage licenses to either same-sex or opposite-sex couples, thereby putting her at (considerable) risk of contempt (that show cause hearing, in which the ACLU has requested fines but not jail time, is scheduled for tomorrow). My quick and dirty take is that unless one is prepared to say that disobeying a preliminary injunction and accepting one's lumps in the form of fines and/or jail time is itself per se wrong and outside the bounds of legal ethics, such that advising a client to defy an injunction is no different than advising them to, say, lie on the stand (which doesn't seem to be the view that either Stern or Wasserman takes), then I tend to think that the legal and other risks (financial, emotional, reputational, etc.) of this strategy compared to her alternatives is something that should be subject to (to draw an analogy to medical ethics) shared decision-making between professional and client.

A cause lawyer should, of course, bend over backwards to ensure that her client understands all of her options and the likely consequences of each, especially when presenting options that align with the lawyer's cause and/or pocketbook. (I can't tell from Stern's bare assertion that Liberty Counsel "advised her to disobey the ruling" whether such a conversation took place or not.) But it's not obvious to me that including disobey-and-risk-the consequences among those alternatives is per se unethical. Indeed, one could make the case that deliberately withholding that possibility from the client out of concern that it is "too risky" is itself unethical in its paternalism. Nor was it unethical of the ACLU cause lawyers representing the couples in this suit to "advise them" to continue to litigate in order to establish a legal precedent that will mostly benefit others (and give the ACLU a very public win), despite the fact that the couples could instead drive 30 minutes to an adjacent county and start married life significantly sooner—provided that the plaintiffs were adequately informed of their options.

Yes, plaintiffs' sacrifice in this case is much more likely to be rewarded by a legal victory than is the defendant's, but legal (and medical) outcomes are not laypersons' only or necessarily most important measures of success, even if that is what lawyers (and doctors) tend to focus on. Some patients can and do reasonably value their ability to converse with lucidity over their ability to be free from pain, their ability to die a death they deem dignified over additional days, weeks, or even months of life, and so on. Who is the professional to say that a fine of $X, jail time of Y days, or a delay in legally recognized marriage (with its attendant benefits) of Z weeks or months is "too risky" or "not worth" the anticipated benefits, whether medical/legal or otherwise? These trade-offs, after all, are not primarily or ultimately professional judgments, even though professional expertise appropriately feeds into them. Or so I've previously argued in the context of cause lawyering.

But that will have to be my only comment on that topic, because after more than four years, sixteen federal agencies and departments have finally released their Notice of Proposed Rulemaking, suggesting numerous and significant changes to the Common Rule (the federal regulations that govern IRBs and much human subjects research).

It is 519 pages long.

I hope to have some quick thoughts at some point relatively soon. In the meantime, here is the tl;dr version of the NPRM, highlighting its major proposed changes (this also appears at pp. 21-26 of the NPRM):

The One Where Joe Miller Eats a Dog Biscuit

That would be Episode 72 of the always interesting, frequently zany Oral Argument podcast, in which I join Joe Miller and Christian Turner to talk about the Dallas Cowboys, the new Star Wars movie and, eventually (starting at around the 23-minute mark), the Facebook mood contagion experiment and whether Facebook should be regulated like a utility or a burrito stand. And yes, Joe does actually eat a dog biscuit during the show. One of the ones pictured here, in fact. Joe reports that, inexplicably, the peanut butter treats taste like chicken.

Call for Papers: Designing Ethical Review Processes for Big Data Research

The Future of Privacy Forum is hosting an academic workshop supported by the National Science Foundation to discuss ethical, legal, and technical guidance for organizations conducting research on personal information. Authors are invited to submit papers for presentation at a full-day program to take place on December 10, 2015. Papers for presentation will be selected by an academic advisory board and published in the online edition of the Washington and Lee Law Review. Four papers will be selected to serve as “firestarters” for the December workshop, awarding each author with a $1000 stipend. Submissions, which are due by October 25, 2015, at 11:59 PM ET, must be 2,500 to 3,500 words, with minimal footnotes and in a readable style accessible to a wide audience. Publication decisions and workshop invitations will be sent in November. Details here.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

When Is Document Review The “Practice Of Law,” And When Is It The “UNAUTHORIZED Practice of Law”? The Answers May Surprise You.

Yesterday the Second Circuit decided Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, et al., a case rich in ironic implications.  (Hat tip to my friend Matt Sawchak at Campbell Law for the heads-up.)  The Slip Opinion is here.  A lot of people are going to try and tell you that this case holds that document review is not the “practice of law”; Above the Law already has (see here).  But that grossly oversimplifies everything that’s important about it.  What the decision actually does mean is much harder to discern, and once you figure it out it is very hard to justify.

Let me start by telling you what Lola is about.  David Lola is a lawyer licensed to practice in the State of California.  He took a position as a document reviewer for Skadden at $25 an hour.  Skadden was involved in a big case in the Northern District of Ohio, and sent Lola to work on a huge document review that took place entirely in the state of North Carolina and lasted well over a year.  Lola typically worked 45-55 hours per week, and was paid no overtime. 

Lola eventually sued on behalf of himself and all others similarly situated for what these days is popularly referred to as “wage theft,” specifically and more technically violations of the federal Fair Labor Standards Act.  The FLSA requires employees with the right kind of responsibilities to receive time-and-a-half for work in excess of 40 hours per week.  The legal question presented is whether Lola did the right kind of work to be entitled to overtime.  Long story short on the legal standard, certain kinds of professional work are exempt from the FLSA overtime requirement, specifically including the “practice of law.”  So if Lola was engaging in the “practice of law,” he was exempt from any right to overtime; if he was not “practicing law,” and was engaged in merely clerical or other ministerial tasks, he was entitled to overtime, and presumably so would quite a few other document reviewers who work long hours for Skadden and other BigLaw firms on the document-heavy litigation in which they often are involved.

One big problem is that any meaningful definition of “practicing law” is (to put it politely) elusive, and the Second Circuit’s decision provides surprisingly little help in determining when the very common task of document review is or is not “practicing law” for any purpose. (A quick aside:  The Second Circuit’s decision holds that the FLSA incorporates state law to determine when an employee is “practicing law” and thus exempt from overtime, and gives useful guidance on which state’s law a federal court should choose.  In this case, the state law at issue is North Carolina’s, where all the document review work at issue was done.  But North Carolina's definition of "practicing law" is similar to most states'.)

It’s the specific circumstances of this case that make the opinion so difficult to understand and apply more broadly:  The District Court granted a motion to dismiss for failure to state a claim, so the Second Circuit is of course obliged to take the facts as the plaintiff pleads them.  And Lola is at pains to allege in his Complaint that his work as a document reviewer accorded him no room at all for judgment or discretion.  Streamlining just a little, he essentially asserts that he was handed piles of documents and lists of key words chosen by others, and instructed that if a document contained a particular word, he should “code” it into a particular category.  Just that simple, just that rote. 

That kind of arrangement is not unheard of, but it’s hardly typical.  Usually, document reviewers are asked to make at least preliminary determinations about whether documents might be responsive to a document request, might pertain to a particular subject, or might be privileged.  All of those tasks involve the exercise of legal judgment (that is, interpreting the scope of the document request and the document to determine if it falls within the terms of a particular demand or pertains to a subject of interest, or applying the law of privilege, all of which can be quite subtle and difficult, and frequently demand analysis and judgment) applied to the specific facts of the case (that is, the specific documents on the document reviewer’s desk or screen).  And the nub of the Second Circuit’s decision is that the “practice of law” under North Carolina law (which is typical of most states’ definitions) must involve “at least a modicum of independent legal judgment” by applying general legal principles to a specific client’s particular circumstances.  Thus the Second Circuit concludes that some document review—including the kind I just described as typical—does amount to the “practice of law,” but the more limited activities described in Lola’s complaint do not.

That doesn’t mean (and c’mon, you had to know it was coming) that whatever Lola wants, Lola gets.   Skadden remains free to prove on summary judgment or at trial that, despite what Lola alleges in his Complaint, in fact it called upon Lola and those similarly situated to exercise that “modicum of independent legal judgment” typical of much document review that would free Skadden from paying them overtime.  How much “independent legal judgment” amounts to the legally necessary “modicum” under all the prevailing facts and circumstances (with possible interjurisdictional variations for different workers in different places assigned to the same case based on differing state-law standards) is nobody’s fantasy of a predictable outcome. 

And the Second Circuit provides us with no effective guidance on how much a “modicum” is.  The closest we get to even a vaguely functional test is this:

“A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

It is not clear whether the Second Circuit intends this “machine” test to define the outer limit of what is not “practicing law,” or whether it intends it merely as an example.  Either way, it’s worthless.  Does a legally-related task need to be so devoid of any judgment that a truly dumb machine could do it in order for it not to be “the practice of law”?  That’s an awfully low bar, and it means that most people working for lawyers today are “practicing law” for wage-and-hour purposes, and exempt from the right to overtime.   Virtually all secretaries and legal assistants, for example, could not be replaced by dumb machines; if they could have been, they would have been by now.  (This is one reason why I suspect Lola’s allegations may not prove out as neatly as he might like—it seems implausible that a firm as sophisticated as Skadden would have paid large numbers of people $25 per hour to do something that could be accomplished more cheaply and accurately by nothing more than an optical-character reader and word-search software.)  And why should the standard for “practicing law” be so strictly dependent on the rapidly developing state of computer technology?  There already exists today “Predictive Coding” software that allows a machine (a computer) to make complex preliminary judgments about privilege and responsiveness.  On that standard, Lola was not “practicing law” on either party’s version of the facts (because “a machine” could do whatever he turned out to have been doing).  The lawyer representing Skadden should never have conceded at oral argument that the “machine” test is a proper standard for anything—he or she may have given away the overtime store to save one remote corner. 

So Lola v. Skadden actually tells us next to nothing about when document review is the “practice of law.”  But there is yet another, more subtle, reason why the Second Circuit’s standard makes no sense:  The Second Circuit borrows the “modicum of independent judgment” standard from the state law defining what kinds of activities comprise “practicing law” for the purpose of determining when the person undertaking those activities needs a law license to do them, and then inexplicably misinterprets it.  If Skadden is factually right that Lola was exercising a “modicum of independent legal judgment” and was therefore “practicing law,” then he was practicing law without a license (something commonly referred to as the “unauthorized practice of law,” or UPL, and remember that Lola was licensed in California, but not in North Carolina where he was working and whose law governs whether he was “practicing law”).  Unauthorized practice is a misdemeanor in most states, and Skadden is effectively confessing to aiding and abetting it hundreds of times a day.  And if any person who is making preliminary judgments about responsiveness or privilege, or preparing drafts of contracts or pleadings, is “practicing law,” then countless legal secretaries and paralegals all over the country have been practicing law without a license for at least a century.

But wait, you say, that can’t actually be the law.  Well, you’re right.  In every American jurisdiction I know of, if a lay person selected by the lawyer applies legal principles to the client’s specific circumstances under the lawyer’s supervision, the lawyer rather than the subordinate is the one “practicing law.”  With a skilled secretary or paralegal and a responsible supervising lawyer—and there are hundreds of thousands of both all over the country—this supervisorial arrangement works just fine, saves lawyers a lot of time, and saves clients a lot of money.  Thus a North Carolina State Bar Formal Ethics Opinion on which the Second Circuit in Lola expressly relies (and which is replicated in a number of other states) holds that a North Carolina lawyer may outsource document review to a foreign legal process firm (say, Pangea3 in India) staffed by numerous people there the lawyer has never met who are licensed to practice in no U.S. jurisdiction, so long as the North Carolina lawyer adheres to the applicable “selection and supervisory requirements.”  And there’s always been a fair amount of play in determining how much “supervision” of lay staff by the licensed lawyer is sufficient, with the minimum consistently set a lot lower than you’d probably think to accommodate what’s actually been going on above-board and successfully as long as anyone can remember.

From this you might infer that someone without a law license in the relevant state and who is exercising “a modicum of independent legal judgment” under a licensed lawyer’s supervision is not “practicing law”—after all, if he were, then he would be “practicing law” without a license, and his employer would be aiding and abetting a crime.  Yet Lola stands squarely for the proposition that, if David Lola’s document review involved the exercise of even a “modicum of independent legal judgment,” then Lola was “practicing law” under the state-law standard for what comprises activities that must be undertaken with a law license, regardless of the fact that Skadden lawyers were supervising his work in a manner universally viewed as proper. 

In short, either all those document reviewers are “practicing law” without a license under the governing state law the FLSA borrows, and Skadden (while it need not pay them overtime) is the mastermind of an ongoing criminal conspiracy unless henceforward it hires only document reviewers who are licensed to practice law in the state whose laws govern the service provided, or else none of the document reviewers are “practicing law” and they should all get overtime.  But you can’t have it both ways.  In this commentator's humble opinion, the Second Circuit screwed the pooch. 

The better answer, of course, is that—consistent with state law on what comprises practice and unauthorized practice all over the country—document reviewers who are properly supervised by licensed lawyers are not “practicing law” precisely because they are properly supervised.  But that means the doc reviewers should all get their time-and-a-half.

Of course, if properly supervised document reviewers don’t need a law license to do their work—which is pretty clearly the case in most if not all states—then their law schools should not be reporting them as holding Bar Passage Required jobs.  In fact, since they’re doing work that is indistinguishable from work that legal assistants and legal secretaries have done for a hundred years and are still doing, it’s a big, ugly stretch even to call those jobs “JD Advantaged,” unless you’re prepared to call legal secretary and paralegal jobs “JD Advantaged” too.  Which no one in their right mind should.  Should they?

--Bernie 

More on the A/B Illusion: IRB Review, Debriefing, Power Asymmetries & A Challenge for Critics

Here are a few clarifications and further thoughts arising out of my co-written Sunday NYT op-ed based on my forthcoming law review article (here, I speak only for myself, and not for my op-ed co-author).

First, as is usually the case with op-eds, we didn’t write, or even have any advance notice of, the headline. It’s easy to see why the Times chose it, as it’s clickbaity, but “Corporations, Please, Experiment On Us. You don’t even need our consent” is not very reflective of the nuances of our position. Now on to some of those nuances.

A Clarification About the Op-Ed’s Position on IRB Review and Debriefing

On Twitter, James Grimmelmann worries that New York Times readers will interpret one part of the op-ed, as he did, to be making a problematic claim. In the piece, we ask readers to imagine a hypothetical CEO who worries that some of her employees aren't taking optimal advantage of the company's generous 401(k) matching program. She has a hunch that adding to the usual matching letter information telling each employee what his or her similarly-aged peers are saving would nudge the low-savers to save more. We explain that the CEO could implement this peer information letter policy in the next enrollment cycle and observe the result, but that, regardless of whether savings went up or down, she'd never really know what effect, if any, the policy had without running a randomized, controlled experiment in which half the employees receive letters with no peer information and half receive letters with peer information. We also explain that telling employees in advance about that the company would be sending out different letters and why would badly bias the results by altering employees’ behavior. We then explain that our hypothetical CEO isn’t so hypothetical:

Economists do help corporations run such experiments, but many managers chafe at debriefing their employees afterward, fearing that they will be outraged that they were experimented on without their consent. A company’s unwillingness to debrief, in turn, can be a deal-breaker for the ethics boards that authorize research. So those C.E.O.s do what powerful people usually do: Pick the policy that their intuition tells them will work best, and apply it to everyone.

It is this paragraph that has James worried:

Your argument appears to run: (1) people will be outraged about being experimented on if they're debriefed; (2) managers "chafe" at de-briefing because of the outrage, (3) IRBs would require debriefing; so (4) it’s reasonable for companies not to go through IRBs at all [and to conduct the nonconsensual A/B test of 401(k) letters with no debriefing afterward].

(The above is three tweets strung together but otherwise verbatim; the bits in brackets are my words, but I think they fairly reflect James’s other tweets and the logic of his argument. I trust he’ll tell me if I’m wrong.)

To be clear: No, this is not the position we intended to take in the op-ed. I thank James for bringing this possible misreading to my attention so that I can correct it here, at least. More after the jump.

New York Times Op-Ed on the A/B Illusion

I have an op-ed with Christopher Chabris that will appear in this Sunday's New York Times on one theme in my recent law review article on corporate experimentation. Despite the rather provocative headline that the Times gave it, our basic argument, made as clearly as we could in 800 words, is this: sometimes, it is more ethical to conduct a nonconsensual A/B experiment than to simply go with one's intuition and impose A on everyone. Our contrary tendency to see experiments—but not untested innovations foisted on us by powerful people—as involving risk, uncertainty, and power asymmetries is what I call the A/B illusion in my article. Here is how the op-ed begins:

Can it ever be ethical for companies or governments to experiment on their employees, customers or citizens without their consent?

The conventional answer — of course not! — animated public outrage last year after Facebook published a study in which it manipulated how much emotional content more than half a million of its users saw. Similar indignation followed the revelation by the dating site OkCupid that, as an experiment, it briefly told some pairs of users that they were good matches when its algorithm had predicted otherwise.

But this outrage is misguided. Indeed, we believe that it is based on a kind of moral illusion.

Responses to the Dewey Trial Survey

Response to our Reader Survey predicting outcomes in the Dewey LeBoeuf trial was less than robust—just a couple dozen of you registered your views.  But the trend in our admittedly small  sample is clear:  In Megaphone Mark Slackmeyer’s timeless words, “That’s Guilty! Guilty, Guilty, Guilty!!”

About 80% of respondents opined that former Firm Chair Steven Davis would plead to or be found guilty of all or some of the charges he faces.  Davis is the manager against whom we’ve seen the least evidence so far of knowledge or complicity (though I wouldn’t say we’ve seen none, and we still have a long ways to go).  About 90% of respondents believed that former CFO Joel Sanders would plead to or be found guilty of some or all of the charges.  And (count ‘em) 100% of you think former Executive Director Stephen DiCarmine is headed for the Big House. 

The differences among your assessments of the defendants' chances are interesting because it bears remembering that Sanders is a CPA as well as a lawyer, and was in charge of the accounting function at the firm.  The upper-middle managers who have pleaded guilty appear to be saying that Sanders signed off (figuratively, if not literally) on the bad things they admit being a part of, though only some have testified so far.  If I were handicapping the Race to Rikers at this point, I’d have put Sanders in the lead.  (And no, I don’t think any of these guys will literally spend time in Rikers Island if convicted; they seem more likely destined for some minimum-security facility.  Readers familiar with the New York prison system may have more sophisticated guesses than mine.)

Judging from the daily news reports, the skilled and aggressive defense lawyers are making a few points here and there, but they don’t seem to be racking up the kind of score needed to win over the jury.  The prosecution is methodically presenting a fairly textbook case of accounting fraud; it may not be flashy, but it seems to be getting the job done.  Whether the People will inject some emotional oomph at some point remains to be seen.  The direct victims of the fraud were the bank and other financial institutions that loaned the Dewey firm the lost money--not  the most sympathetic victims you ever saw.  But thousands of Dewey employees lost their jobs in a depressed economy as a result of the piggery of a fairly sizeable cadre of partners (most of whom were not part of the criminal conspiracy alleged in the pending trial) who demanded too much and provided too little in return, and that was enabled by the accounting fraud the prosecution is presenting. 

One thing we’re not seeing is anyone who had the courage or the vision to call out the nonsense while it was going on.  That’s interesting—even Enron had Sherron Watkins.  It bears considering why, so far was we can tell, no one at Dewey said a word.  What was it about this place that stifled, or lulled, any hint of dissent?

I’ll report further as time and interest dictate.

--Bernie

Memoir, Fiction and the Vanishing Truth: A Complement to Steve Lubet’s Posts on the Peculiar Case of Alice Goffman

We all owe thanks to our new Lounge Colleague Steve Lubet for his exceptionally interesting and thoughtful string of comments here and elsewhere on Alice Goffman’s On the Run, an “immersive” sociological study of an impoverished Philadelphia neighborhood.  (See here (Lubet’s original book review in The New Republic), here (Goffman’s reply), here and here (Lubet’s response to Goffman’s reply), here (UCLA sociologist’s Jack Katz’s comments), and here (Lubet’s rejoinder to Katz).)  I’d like to offer another perspective on the Goffman book that may provide a useful complement to those expressed so far.

This additional perspective arises out of what I agree with Lubet is the striking and disturbing inconsistency between Goffman's original presentation in her book of her actions and motivations on the night she drove around with her armed friend Mike looking for their mutual friend Chuck’s killer in the hope of exacting revenge, and her later restatement of the same events after Lubet had pointed out that, as Goffman had originally portrayed her own conduct and intentions, she had not only committed a felony, but had endangered human lives.  (Neither of these practices, it is fair to say, is or ought to be a common feature of sociological fieldwork, “immersive” or not.  That may not be a very limiting constraint, but even if it were, I would hope that it could command a broad consensus.)

Specifically, Goffman relates in her book that, Mike having earlier affirmed that “somebody gon’ die regardless,” she volunteered to drive Mike around one night in search of their friend’s killer “because, like Mike . . . , I wanted Chuck’s killer to die.”  Goffman says she waited in the car with the motor running, “ready to speed off as soon as Mike ran back and got inside,” as Mike got out with his gun to go after someone he thought might be the killer (it turned out he wasn’t).  After Lubet raised serious and legitimate questions about what the hell an assistant professor of sociology was doing engaging in conduct that appeared to comprise a conspiracy to commit attempted murder, Goffman posted an explanatory response on the Internet asserting that “I had good reason to believe that this night would not end in violence or injury”; and that “Talk of retribution was just that: Talk.”  As Lubet explains in more detail, you can shuck and jive all you want, but the “before” and “after” versions of Goffman's story can't realistically be reconciled.  The discrepancy raises important and serious questions about which narrative more accurately presents Goffman's actual actions and intentions.  As Lubet points out in one of his posts, we don't know, and that in turn raises troubling issues about the reliability of Goffman’s entire book. 

That prompted me to think about the uncomfortable (and unwelcome) erosion of the distinction between memoir and fiction, which Lubet’s commentary began to persuade me might be traced to, or at least compared with, developments in social science research implicated here.  It is my superficial understanding that, as originally conceived, sociological and anthropological ethnography was an observational science in which the investigator as dispassionately and “objectively” as possible described the behavior of a culture's members, and through observation and interview inferred their beliefs and motivations.  (Readers should supplement or correct this understanding in the Comments if it’s incomplete or wrong; I freely disclaim any depth of expertise.)  “Immersive” study allowed the investigator to step into and become to some degree a part of a culture or its practices:  Instead of depicting Yaqui Indians engaging in ritual ingestion of hallucinogens, describing their gestures, words and post-hoc recounting of their experiences, Carlos Castaneda actually takes peyote with his brujo, Don Juan, and tells us what he saw and felt.  (Castaneda’s first three books were part of his undergraduate and graduate studies in anthropology at UCLA.)  More generally, “immersive” observation allows the investigator to observe her own feelings and reactions as well as describe those of the subject population, and hopefully thus gain additional understanding and perspective on the culture being investigated that is meaningful, and meaningfully different from dispassionate “objective” observation.

But whether you're watching from the outside or the inside, there will inevitably be questions about the integrity or verisimilitude of your portrayal.  Margaret Mead's seminal and deeply influential 1928 study of Samoan culture, for example, has become a battleground over whether she got many important features right, and if not, why not.  I don’t know that anyone has accused Dr. Mead of fictionalizing or embellishing, but you don’t have to.  The problem is that any observed portrait of a culture necessarily simplifies it to make it accessible as an object for study and understanding.  And it necessarily does so by emphasizing certain details and omitting or downplaying others; finding patterns in some concatenations of circumstance but not in others; and so on.  Ironically, observation becomes characterized not by its accuracies, but by its inevitable inaccuracies—what the observer necessarily simplified, or emphasized, or left out to render us an observation that is more meaningful, organized, and accessible than the impossibly messy and inaccessible mass of countless human details the observer was watching and trying to describe.

And once you concede that your observations are necessarily inaccurate and incomplete, it is a much shorter and seemingly easier step to consciously and deliberately tailoring your observations to your conceptions in the service of the deeper "truth" that you have "found" embedded out there.  Carlos Castaneda admitted to narrative license in his work “to heighten some dramatic sequences,” while at the same time insisting that his stories were absolutely true to life.  Challenged about discrepancies in a Time magazine interview, he said, “To ask me to verify my life by giving you my statistics . . . is like using science to validate sorcery. It robs the world of its magic and makes milestones out of us all.”  Boy, is that ever a long strange trip from Emile Durkheim’s imperative of observational objectivity less than a hundred years before.  (I use Castaneda as an example here because he was so prominent in popular culture—his books were widely read in nonacademic circles, and he was featured on the cover of Time magazine in 1973.  By publishing her study as a general-interest trade book, Goffman apparently aspires to similar popular notice and influence.)

Ethnographic observation, especially the “immersive” kind, is really a memoir of sorts.  And it would be fair to say that the slide from motivated perception to self-deception to outright misrepresentation in some corners of ethnography saw parallel development in the literary memoir and, a bit later, even journalism.  The 1990s and early 2000s brought us James Frey and his Oprah-endorsed memoir of recovery, A Million Little Pieces, significant parts of which turned out to be made up; Stephen Glass, who repeatedly fabricated sources and incidents in The New Republic and elsewhere to substantiate his perspectives on modern culture, and then manufactured fake reporter's notes and otherwise confabulated to try and cover it up, and Jayson Blair, who plagiarized and invented sources for his reporting in the New York Times.  All of these people, and others like them, were using contrived "facts” to paint a picture they believed was ultimately accurate in some real and important sense, just as Castaneda’s narrative license created stories he felt were true to life (if not literally true) and consistent with the purposes of his ethnographic studies.  This entire concept is brilliantly illustrated in Stephen Colbert’s notion of “truthiness”—made-up “facts” presented as reality because they demonstrate something important the speaker earnestly and sincerely believes to be true.

Given the discrepancies between Goffman’s “before” and “after” stories, it may be that she is just reacting to the shock of recognizing the moral and mortal danger in conduct that felt perfectly natural to her at the time and accurately mirrored the thoughts and feelings of the study subjects who had become her friends.  But it may be that Goffman fits uncomfortably into the unfortunate if narrow tradition of ethnographer as fabulist.  Was her stint at the wheel that night a focused and premeditated mission of revenge or, as she now insists, just participation in a ritual of grieving that threatened no one?  How much of each version of the story, factually and emotionally, actually happened?  Can she even tell anymore?  The only thing that seems clear on the current state of the record is that both stories—asserted with equal certitude by the same observer—cannot comfortably coexist in the same reality.  Something’s gotta give. 

If you think about it, good fiction is just a skillful narration of invented facts resembling some of the ones we live with that, one way or another, illustrates truths about our culture or condition.  Really good fiction may illustrate such truths more evocatively or indelibly than the accidental vagaries of reality.  But that doesn’t mean that there’s no difference between reality and fiction.  And it certainly doesn’t mean that you’re right to claim something fictional really happened in the service of a deeper "truth" you earnestly believe.

--Bernie