Following the good practice of some, I offer the following disclosure statement. As an academic in a world of increasing distrust of anyone with authority or power, I believe these statements are critical to enable anyone to judge the credibility of any statement.
In addition to the rules I describe here, I am also guided (and subject to) the Harvard Law School Conflict of Interest Policy.
How I make money
I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.
I also get paid for some of my writing. I write books that are sold commercially. When possible, my book contracts include a clause that requires that the book be licensed under a Creative Commons license at some point. I have been commissioned to write articles for magazines. In all cases, while I may contract about the subject matter I will address, I never contract about the substance.
I have (though rarely) been paid to consult on matters related to my work. If I have, my behavior conforms to the NC Principle articulated below.
I give many public lectures (see the GIGS tab above), and I am sometimes paid to deliver those lectures. If I am paid, I will contract as to subject matter (e.g., whether the speech is about innovation, or corruption, or privacy, etc.). I will never contract as to substance. In addition to receiving an honorarium sometimes, I also accept payment to cover travel expenses.
I am not compensated for my work with nonprofits.
I have no regular commercial clients. I have served on many non-profit boards (see my CV for the full list) but am currently on the board of the AXA Scientific Research fund only, and an Emeritus member of the Creative Commons board.
I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards. In 2010, I became a “mentor,” along with others, to Neoteny Labs, an early-stage technology incubator founded by my friend Joichi Ito. My role in that capacity is to offer advice and support to this research lab.
The Non-Corruption (NC) Principle
It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.
With perhaps one exception (politicians), no one forces professionals into this compromise. We ourselves choose the values we live by. And as the freedom I have to say what I believe is — to me at least — the most important part of my job, I have chosen a set of principles that limit any link between money and the views I express.
I call these principles “non-corruption” principles because I believe that any behavior that is inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a climate change scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming science.” That is not the sort of “corruption” I am talking about.
I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors. (I describe this corruption as "institutional corruption" in my books America, Compromised (2019) and Republic, Lost (2011, 2015).)
I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.
So, the NC principle:
The simple version is just this:
- I do not shill for anyone.
- I never promote as policy a position that I have been paid to advise about, consult upon, or write about.
- If payment is made to an institution in a way that might fairly and reasonably be said to benefit me indirectly, then I will either follow the same rule or disclose the payment.
The precise version needs to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.
- “I never promote as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t typically do legal work for money. But everyone should understand that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth.
- “promote” means in any public forum — so an op-ed, testimony, or a lecture.
- “that I have been paid “: “Paid” means directly or indirectly. “Directly” would be direct compensation to me, or support for my research, or other funding I otherwise wouldn’t have been entitled to.
- “Indirectly” means compensation to an entity that I am responsible to raise money for from an easily identified interest. This line is hard to draw in many cases, but relatively easy to draw as it applies to me: I am not hired to fundraise for my law school. Thus, if you give a substantial amount of money to Harvard, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)
- “to advise about, consult upon, or write about“: I mean this clause to include all the possible ways in which someone might try to make another person’s life better off financially. So sometimes people are paid money to write articles; sometimes special research programs are funded; sometimes a consulting fee is paid — all with the express promise that no “obligation” is intended. All of these count for purposes of this rule.
- “If payment is made to an institution in a way that might fairly and reasonably be said to benefit me indirectly, then I will either follow the same rule or disclose the payment“: By this, I mean to target payments not to me but that benefit me in ways I wouldn’t otherwise have been benefitted. So that doesn’t include, e.g., a general contribution to Harvard — since, again, I don’t have obligations to raise money for Harvard, and Harvard already has a fixed contractual obligation to pay me. But it would include a payment to a non-profit for which I have an obligation to raise money. (I am currently not sitting on any board that requires me to raise funds for that organization.) The effect of this clause in these cases is to give me an option about whether indirect contributions result in silence by me or disclosure by me.
But isn’t disclosure always enough?
Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.
I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.
(There is a difficult line here that turns upon practice. When I was a professor at the University of Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would include in the first footnote “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)
What the NC principle is not
The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle — not because they are not sometimes troubling, but because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.
Why is money different from flattery, or being a liberal? Good question. There are some obvious reasons. For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…
Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling our testimony.
So what does all this promise?
If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.
I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.
But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it.
Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have. I am eager to see the ideas of others addressing this same topic. I’d be grateful to be shown a simpler way to achieve the same objective.