May 14, 2012 at 7:48 am
The Sixth Circuit has been asked to decide an interesting trademark question: whether Jose Cuervo tequila can use a red wax seal on its bottles. Makers Mark bourbon is arguing that the seal is too similar to the seal on its bottles, and a reasonable drinker might be confused. In other words, I might think I am opening a bottle of whiskey, only to learn it is tequila. I am not sure it really matters (I am much more of a tequila person), but why aren’t reasonable drinkers just reading the labels? 
Unless you have already had a bottle, wouldn’t you be able to tell the difference?
Regardless, the Court ruled in favor of Maker’s Mark, finding that it was entitled to protect its distinctive seal.
By Rachel Spooner
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Posted in Uncategorized
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May 4, 2012 at 6:53 am
Here is another interesting article about the Facebook IPO. It says that the company plans to make more shares available to regular old people, like you and me. So who is in for our LA 245 share?
By Rachel Spooner
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Posted in Uncategorized
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May 2, 2012 at 9:14 am
By Rachel Spooner
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Posted in Uncategorized
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May 1, 2012 at 11:47 am
One of your classmates was kind enough to share this uplifting article about a veteran that bootlegs movies and sends hundreds of DVDs of current movies to soldiers serving in Iraq and Afghanistan. Totally illegal, but totally nice. A utilitarian analysis would certainly find this ethical, as the greatest good for the greatest number is served by this man's illegal activities. This is a great example of where ethics and law do not align. My lingering question is why the movie companies haven't already been doing this. It would be an inexpensive and popular way to give back.
By Rachel Spooner
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Posted in Uncategorized
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April 22, 2012 at 4:40 pm
The weird thing about being a lawyer and an ethics professor is that bad news is great news for me. So today, when splashed across the New York Times was the headline, "Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle", I was giddy for a split second. Then I felt guilty for being giddy about another example of ethical failures and illegal conduct by top executives, so I stopped smiling and started reading. But truly, this story has something for every one of my students.
This is a long article, but worth the time. Basically, in 2005 a former executive at Wal-Mart's Mexican subsidiary sent an email to a top Wal-Mart lawyer describing how Wal-Mart de Mexico had engaged in widespread bribery of local officials in order to fuel Wal-Mart's rapid growth in Mexico. My LA245 students should know that paying bribes in Mexico is a violation of the Foreign Corrupt Practices Act, if true. This is too bad, but this case is more about what Wal-Mart didn't do, than what it did do.
After hearing from this whistleblower, who was well positioned to be credible because he was the attorney that obtained construction permits for Wal-Mart de Mexico for years, Wal-Mart rejected the advice of its outside counsel to engage in a widespread investigation of its operations in Mexico. Instead it conducted its own internal investigation of a few pieces of its business in Mexico. When its lead investigator found evidence of violations of Mexican and American laws, and recommended further investigation, Wal-Mart shut down the investigation. No one was fired, nothing was reported to the authorities in either country. In fact, several executives involved were promoted. No one knew anything about it until the New York Times started its investigation that led to this article in 2012.
For my ethics students (which is really everyone), you should be able to easily identify several of the pitfalls we have discussed in class. Increasing pressure from labor critics, a sagging stock price, and unrelenting pressure to grow led to a focus on outcomes rather than the process. I am sure the Wal-Mart executives in Arkansas had motivated blindness due to these pressures, and the desire to build in Mexico. Wal-Mart executives relied on others to do their dirty work, another ethical pitfall. In Mexico they were called gestores, which are people commonly employed to do things ranging from waiting in line for you to get a drivers license to quasi-lobbying.
I am not naive enough to believe that bribery doesn't occur, or that the FCPA will stop American companies from bribing foreign officials. The thing that really scares me is Wal-Mart's attempt to hide it all. Any company the size of Wal-Mart is going to have corrupt pockets, no matter how healthy the corporate governance, ethics, or audit functions are at the company. How you deal with it is the true test of an organization's values, a test that, if this investigation is to be believed, Wal-Mart has failed miserably.
By Rachel Spooner
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Posted in Uncategorized
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Tagged crime, ethics, Foreign Corrupt Practices Act, global
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April 12, 2012 at 7:48 am
My entire ethics class is focused on learning how to make a difficult decision. Ethics education is not about teaching someone to have better morals, but about how someone can make decisions that align more closely with his or her own values. You see, I believe most people share a common set of values -- even across cultures -- but we don't always make decisions that align with those values. We saw a great example of this in my law and ethics class last Monday. We were doing a case about a consultant that had been asked to lie to get competitive information. When we started class, the students were almost unanimous in their opinion that lying is the wrong choice; this reflected our shared value of honesty. But once we worked our way through the facts of the case, and the obstacles that the facts presented, the majority of the class voted for the consultant to lie. Thus, many students in the class were advocating for a decision that was inconsistent with their values. Figuring out why we do this, and how to stop it, is my goal for any ethics teaching I do.
All of this is reflected in the recent hazing incidents that have occurred at B.U. If asked out of context, the vast majority of people would agree that they would never treat other human beings in that way, and that if they saw it, they would stop it. But there are obstacles in the way of making choices consistent with our values. For example, tunnel vision on your goals, for which you all work so hard, makes it difficult to see what is going on around you. Allowing small bad choices makes it harder to turn back, hence the slippery slope leads us to that basement in a frat house. The key is to recognize the obstacles, which will allow you to stop and consider your values before you act, or fail to act. None of this is about you being a bad person, or immoral. It about recognizing why we decide the consultant should lie, when we all value honesty.
Making hard choices won't get any easier when you leave B.U. and the stakes will be higher. All these negative headlines about our university should serve as a wake up call, and allow all of us, even those who have nothing to do with fraternities, sororities, or hockey teams, to start thinking more about how to make hard choices.
By Rachel Spooner
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Posted in Uncategorized
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April 3, 2012 at 7:41 am
The government sure likes to keep tobacco lawyers busy. In yet another case involving the industry, a court recently ruled that the city of Worcester's limit on tobacco advertising in windows is unconstitutional. The city had made it illegal for a store to display cigarette ads that show brand names in a store window. As you can tell from the article, the court applied the rational basis test in invalidating the law.
By Rachel Spooner
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Posted in Uncategorized
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Tagged First Amendment, Smoking
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March 30, 2012 at 1:58 pm
Long ago, just calling three references was enough for an employer to make sure that you are a normal (enough) person to hire. Now, as we live our lives online through social media, employers are increasingly monitoring Facebook and other social media outlets in order to keep their employees under watch. First we began reading about employees being fired for things that appear on their Facebook accounts. For example Ashley Payne was asked to resign for photos that appeared on her Facebook account of the school teacher drinking wine while on vacation. She lost her case because of technicalities under her union contract. But if she were an at-will employee, she would have been out of luck as well. This article outlines several other Facebook-related firings. In one, the employee won the case because the employer was found to have violated the Stored Communications Act when it forced employees to give it access to a Myspace page created for employees, but not managers.
And what if you vent about your boss on Facebook? Complaining about your boss is an activity as old as time, but it used to take place at the water cooler in whispered tones. Today, if you have something to complain about, you do it online. I have a personal experience with this aspect of social media: years ago I made a comment on twitter about students being less than enthusiastic on a given day in class. It didn't identify where I worked (at the time I taught at two different schools), and it was a fairly innocuous statement that I had actually echoed in class in a more obnoxious way (I know, shocking). One of my former students (not at BU, so don't bother speculating), was following me on Twitter, and actually called the Dean to complain. I was shocked when I got the phone call, but quickly realized that I needed to reset my privacy settings, and refrain from saying anything about work online. I occasionally break down, but that one phone call certainly had a chilling effect.
As controversial as all those cases may be, recently we have crossed into new territory: potential employers asking interviewees for their social media log in information during an interview, or even on a job application. As you can see from this article, this intrusion is becoming standard fare for many government employers, as well as for universities offering scholarships to athletes. But I am increasingly hearing stories from my own students about this happening to them during job interviews. The linked article does a good job raising some of the legal issues presented here, and there probably are more. Try in your comments to brainstorm about what law might come into play on this issue, and we will discuss it on Monday in class as well.
By Rachel Spooner
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Posted in Uncategorized
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Tagged employment law, Facebook, First Amendment, Fourth Amendment, social media
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March 30, 2012 at 7:51 am
Apparently the footwear industry is a litigious group. Athletic footwear has always been an innovative industry. I remember when Air Jordans came out, and the idea of an air pocket in the sole of a sneaker was the next great thing. More recently, we saw claims of toning sneakers, shoes that made you more fit just by walking around in them. Those claims were challenged by the Federal Trade Commission, an administrative agency that protects consumer. And now we have have barefoot sneakers. Designed to simulate running barefoot, the company that makes them claims that running in barefoot shoes is healthier. Be careful what you claim, however, because they have now been sued by a Florida woman that disputes those claims, and in fact argues that the shoes can be more dangerous for runners. Personally, I find the shoes so ugly that they are dangerous to people around the runners wearing them. But I am not sure I can sue for that.
By Rachel Spooner
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Posted in Uncategorized
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Tagged administrative law, consumer protection, shoes
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March 19, 2012 at 9:16 am
You may recall the mass shooting at Virginia Tech in 2007. It was a scary day for all of us, particularly those involved in a university. Last week a jury found that the university was negligent for its failure to take adequate steps to warn students that the shooter was on a rampage on campus. The parents of two of the victims had sued for wrongful death of their children, claiming that the incident was foreseeable, and the university should have had warning systems in place.
We talked about this very case in LA346 when discussing the duty to rescue. It is an interesting application of foreseeability, because nothing of this scope had ever happened before at Virginia Tech, but there had been school shootings in other places. It is certainly an example of the jury taking a broad view of negligence law.
In terms of policy, this is a great example of tort law creating incentives. Every university in America should now have, or will soon have, a warning system for dangers on campus. We have one here at BU, as you may have noticed the few times we received 37 texts in a row from campus police. Of course BU is concerned about your safety, but after last week's decision you can be certain that the threat of liability will incentivize the university to use the warning system liberally. Better safe than sorry.
By Rachel Spooner
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Posted in Uncategorized
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Tagged negligence, stupid, torts
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