Professor Spooner's Blog

As future managers and business owners, one of the most important legal (and ethical) issues that you will face is when you are responsible legally or ethically to prevent harm to your clients or customers. In the law, we call this issue negligence. We will be learning about negligence this week in LA245, and while it seems at first to be a lawyer issue, if you look around you see it quickly becomes a crucial business and ethical decision.

Case in point is the lawsuit just filed by victims of the shooting at the Aurora, Colorado movie theater. Most of us have heard about this tragedy.  But how many of you thought about whether the movie theater should have had more security to prevent this incident? That is what the plaintiffs are arguing in their lawsuit: that Cinemark, the company that owns the theater, was negligent in failing to provide adequate security. The link above has the entire complaint; read through it and let me know what you think. We will be discussing this in class as well as we learn what the plaintiff's burden is in a negligence claim.

I have always said that despite the increasing numbers of legal protections for whistle-blowers, the decision as to whether to report illegal activities of your employer must be an ethical one. The price a whistle-blower pays is high if you look closely at historical examples. A NY Times article from this weekend emphasizes my point. Not only are whistle-blowers usually fired, but they are typically unemployable thereafter. Personal strife follows, including divorce, loss of friends, and depression. This is an interesting study in how the law can start a societal change by creating an incentive to blow the whistle, but it takes a long time for people to change how they view whistle-blowers. What else can we do to make it less traumatic for those that report wrongdoing?

I heard from many of my students yesterday, who had all noticed that French shoe maker Louboutin won the appeal of their trademark case. In case you aren't shoe-obsessed like me, Louboutin shoes are well known for their red lacquered sole.

When Yves Saint Lauren made and sold a shoe that had a similar sole, a fashion legal battle began. The trial court originally held against Louboutin, reasoning that no company can trademark a color, because that red is simply a design tool available to all shoe designers. In other words, no company can monopolize a color. This seemed contrary to many rulings where companies have been allowed to trademark a color: Tiffany's blue, Green Monster Green, to name a few.   This week the Court of Appeals overruled the trial court, ruling that Louboutin has the right to protect the red soles, as long as they contrast with the rest of the shoe. The Court refused to ban the sale of Yves Saint Lauren's all red shoe, however. Here is a quote from the judge: "We hold that the lacquered red outsole, as applied to a shoe with an 'upper' of a different color, has 'come to identify and distinguish' the Louboutin brand and is therefore a distinctive symbol that qualifies for trademark protection," U.S. Circuit Judge José A. Cabranes wrote in a 31-page opinion.

I have to agree with Judge Cabranes. Anyone who knows anything about shoes immediately recognizes the red sole. That is everything to a brand, and if we protect anything in fashion design, it has to be something iconic like the red sole.

It all just makes me want to buy a pair.

If you read the local papers you may have already heard about the cheating scandal at Harvard. While you know I take any opportunity to make fun of Harvard (simply because my husband went there for his MBA), this story made my stomach hurt. According to the investigation, Harvard suspects that as many as 125 students may have cheated on a take-home exam by collaborating. Truly every teacher's worst nightmare. The students accused have responded by saying the rules were not clear and they had been allowed to collaborate before. My LA346 students will learn next week about pitfalls that prevent us from acting ethically. Two key pitfalls here: 1. rationalization and 2. "everybody is doing it." I think the students are simply rationalizing their unethical behavior by pointing out the lack of clarity in the rules. If they were really confused, they would have asked the professor (or TA, who is really who you deal with as a Harvard undergrad in many cases. Hurray for SMG and your ability to talk to me personally!). They didn't ask because the students didn't want to hear the answer. Those students knew that they should feel uneasy about collaboration, but did it anyway. Why? As Warren Buffet has said, "'Everyone else is doing it.' These are the five most dangerous words in business." I would add "and in education."

Now, with all my ranting here you might mistakenly believe I think these Harvard students are bad people. Actually, quite to the contrary. These students are like every other student I have ever caught cheating: smart, motivated, under pressure, and in a panic. Ripe for ethical pitfalls. If you asked these students during a calm moment when a take-home exam was not due whether they would cheat, they would all say no. And mean it. But research shows that our brains play tricks on us in certain circumstances, allowing us to make choices that are not in alignment with our values.

It raises the question: does everyone cheat? And if so, how do we stop it? Certainly having clear rules and open communication between students and professors would help. I try to live these ideals and still catch students cheating. Dan Ariely, a professor at Duke University, thinks reminders of our moral code helps prevent small scale cheating and lying. His research found that having people swear on the Bible reducing lying significantly, even among people that don't believe in God. Harvard has no academic equivalent of the Bible -- an honor code -- but is reconsidering whether it should implement one. Do you think this would help? Why do you think students cheat?