The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Mike Barry, the Dean of the South Texas College of Law, sent an insightful message to the students and faculty concerning the Houston Astros cheating scandal. With his permission, I reproduce it here.
I long have been a fan of baseball. I particularly appreciate how baseball is, in many ways, a great metaphor for life. For instance, baseball understands that one doesn't succeed every time. Indeed, a batter who fails on fewer than seven out of ten attempts is considered a pretty good hitter, and a team that wins 100 games (just under 62% of the 162 games each season) is considered exceptional; that's a good reminder on days when things don't necessarily go our way.
I also like that, as in real life, data can be used to improve performance, whether it is the spin on a slider or the likelihood that a batter will hit to a particular field; in the real world, we do the same (for instance, how we here are at South Texas are using data to assist those taking the bar exam so that they can succeed on their first attempt). There also is a workmanlike quality to baseball, as the players are on the field virtually every day during the season – going about their business, day in and day out; similarly, those in the working world face similar expectations. And, the little things matter in baseball, whether it is the code of the game (don't admire a home run you just hit, for instance) or how little improvements in a pitcher's mechanics or a batter's approach can yield significant results. I find that in life, little things matter, too – such as how each of us can attempt to treat our coworkers and colleagues with respect and can try to improve, even just a little, on the day before.
But, the latest issues involving the Astros stealing signals in violation of Major League Baseball rules reveal some potentially significant life lessons, as well, for those of us in the study of the practice of law. Here are three conclusions that I might ask you to consider, and some questions that those conclusions prompt:
First, culture starts at the top. Many of you will run your own law firms. Others will rise to prominent positions in government, the judiciary, business, and the legal community. And, regardless of the role you find yourself in, you will be a leader for, at the very least, your clients and your staff. You will set the tone for those who work for you and who work with you. In the case of the Astros, one line from the findings (which are attached) is particularly telling:
Many of the players who were interviewed admitted that they knew the scheme was wrong because it crossed the line from what the player believed was fair competition and/or violated MLB rules. Players stated that if Manager A.J. Hinch told them to stop engaging in the conduct, they would have immediately stopped.
I added the emphasis. If the manager – their on-field leader – had told the players to stop, they would have done so. When you are a leader, your action – or your inaction – speaks volumes. What you tolerate, you teach. What you condone, you own. Every leader must set not only a culture of ethical conduct, but must identify and eliminate behavior that deviates from that standard. Here's how the report identifies those responsibilities:
to adequately manage the employees under their supervision, to establish a culture in which adherence to the rules is ingrained in the fabric of the organization, and to stop bad behavior as soon as it occur[s].
At all times, each of us should ask two questions of ourselves: Are you proud of the culture of the organization for which you have responsibility? If not, what will you do as the leader to change it?
Second, mind the grey areas. Some have suggested that the Astros' practices were not specifically prohibited by the relevant rules at the time; others are convinced that the rules were explicit. Regardless, there was enough specificity that players and the manager collectively knew that what they were doing wasn't proper. As attorneys in practice and students of the law, we understand better than most that there invariably are grey areas; in fact, we have a responsibility to represent our clients zealously, and much of that zealous representation is conducted in those interstices. It is how we deal with those uncertainties, however, that reveals our character and our commitment to justice. There is letter and spirit to the law. There are larger issues of justice. And, there often are issues beyond the legal concerns; personal, professional, and business interests typically must also be considered. It is important not only to have your own moral compass to guide you through these grey areas, but also to have a group of trusted friends, mentors, and advisors to use as beacons and north stars. The advantage of our profession is that there always are folks we can call when uncertain, individuals with more expertise and / or distance from the issue to help ensure that we are making the right calls. Who are those mentors for you? On whom can you rely for wisdom?
Third, actions have consequences, and reputations are easily damaged. In this day and age, when just about everything we say, do, type, or search is recorded, we are creating a seemingly endless record of our actions. As a result, it is increasingly unlikely that bad activities will remain undiscovered. And, if and when that misconduct is identified, there will be a paper trail (in the case of the Astros, some 70,000 emails were reviewed). Here, the Astros were fined the maximum amount possible under MLB's constitution, lost several prime draft choices, and now have a perceptional asterisk next to their World Series victory. Their reputation (and that of several of their leaders) is tarnished. If an attorney were involved in a comparable scheme in the legal domain, sanctions could include the loss of the client's case, financial penalties against the attorney and / or the client, and professional discipline for the attorney (up to and including disbarment – a prohibition on ever practicing again). And, once an attorney's reputation has been tarnished, an attorney can find it well-nigh impossible to restore it. That is why we tell every 1L at Orientation that your reputation begins in law school – and that it should be jealously guarded. Your actions will bolster or undercut your reputation. Are you comfortable that your activities withstand that review?
There likely are many more lessons to be considered from this situation; I expect that the Harvard Business School and major magazines soon will publish a case study on the Astros and the leadership and management failures that permitted this scandal. And, as with anything in sports, others may see the situation differently and reach different conclusions. But for me, these three lessons – and the questions they prompt – seem most relevant for us in the practice and study of law.
The report concludes that the Astros created a culture "that valued and rewarded results over other considerations." We, as attorneys and leaders, have a responsibility – as officers of the court and as individuals entrusted by society with significant powers – to understand and weigh those other considerations, as well. How we do so will reverberate for our clients, our professional careers, and our communities – potentially for years to come.
I agree entirely with Dean Barry. If a Professor was aware his students were cheating, but took no steps to stop the cheating, the Professor should be fired. If a Dean even had an inkling that students were cheating, but took no further actions to investigate, he should be fired.