Heidi Li Feldman

I am, among other things,  a professor of law and philosophy at Georgetown University and a big fan of the fabulous calico cats, Finnegan and Brannegan!

Here's what I'm up to lately:

Book proposal and articles related to the topic “Fiduciary Rationalization: The Failures of Disclosure and the Antidote of Loyalty”; adviser to Georgetown Law Center’s initative to develop a master’s degree in legal studies; member, faculty consultative group to Georgtown University President Jack DeGioia’s initiative for a Center on Public Scholarship; pro bono consultant to the American Law Institute regarding Restatement of the Law of Torts – Economic Loss; pro bono legal consultant to Hilary Rodham Clinton’s presidential campaign.

Details: 

Current academic research: 

Abstracts for papers to accepted for the upcoming Edinburg Legal Theory Festival  - Internation Legal Theory and Philosophy Conference (if you refer to these, PLEASE cite appropriately):

First abstract: (more general) 

Bullshitting and the Law

         There are many ways to twist the truth or to trick people. Not every instance of truth-twisting or trickery is serious enough to demand legal attention. But generally, if people play fast and loose with the truth in an effort to achieve gain for themselves at the expense of others, and that expense involves large financial losses, serious physical injury, or severe pain and suffering, the law steps in.  Legal readiness to intervene has, however, tended to focus upon whether harms arise from lying and forms of misrepresentation closely related to lying.

         Philosopher Harry Frankfurt has noted there is another species of misrepresentation, rather unlike lies. Frankfurt calls this type of misrepresentation “bullshit” and elegantly, if preliminarily, analyzed the concept in a small book, On Bullshit, published in 2005. Frankfurt argues that bullshit differs qualitatively from lies. In contrast to half-truths or material omissions, bullshit is not simply a variation on lying. It is a distinctive form of misrepresentation. While I believe there are some significant differences between the concept of bullshit and the activity of bullshitting, Frankfurt’s analysis helps to identify the distinctive propositional attitude common to bullshitters.

         My paper will clarify the distinction between bullshit and bullshitting, and will argue that disclosure -- the typical legal antidote to misrepresentation--has not proven effective in preventing legally troubling bullshitting.  Disclosure assumes that releasing the truth will impede bullshitting. But because bullshitting can be accomplished without ever lying, disclosure is not necessarily effective in undermining bullshitters. Indeed, as I will argue, bullshitters can often use disclosure to their own advantage.

         The deliberate bullshitter differs categorically from both the deliberate liar and the deliberate truthteller: rather than try to instill true-or-false beliefs, the bullshitter aims to misdirect the listener’s attention. If the bullshitter is opportunistic, the misdirection is meant to give him the chance to take advantage of the listener. If a person bullshits as a means to pursue his own gain at the expense of others, and thereby he proximately causes significant harms to others, the law ought to offer his victims a remedy. The law should make such a remedy available because, for reasons of justice and of prudence, the law frowns upon injurious self-serving conduct.  That frown should not be blunted just because somebody bullshits, rather than lies.  If, as I will argue, disclosure does not derail bullshitting, what might? In nonlegal settings, I maintain that loyalty (as opposed to truthfulness) disinclines somebody from bullshitting somebody else.

         In the law, loyalty has actually been operationalized as one element in the area of fiduciary duty. But, not surprisingly, as bullshitting rather than lying has become an increasingly common and popular method for corporations, advertisers, and other actors to reap ill-gotten gains, the extent and content of fiduciary duties has been increasingly circumscribed, supplanted by disclosure and reporting requirements. In my view, this strategy gets things precisely backward. I argue that even those seeking to profit from another can act loyally toward that other, and this would appropriately promote the fiscal, physical, and psychic safety of all.

        Ultimately my central concern is with whether, where, and how the law of fiduciary duty should be revitalized or introduced. Notably, this approach does not necessarily involve an overall increase in legal responsibilities. Rather it favors a different kind of legal responsibility, replacing the demand for data and information with a duty of loyalty. I oppose the imposition of ever more reporting and disclosure requirements. Such imposition has been the standard legal response to trickery driven by greed at least since the era of the American New Deal.

         Changes in law, business, and general social circumstances have partly, if not wholly, blunted the reforms of the first Roosevelt administration.  I will argue that to for protection against bullshitting we should look to early common law doctrines that impose, or could easily be modified to impose, robust fiduciary duties, enforceable if breached.

         The proposed paper will analyze at least one concrete example, probably a look at the corporate fiascos involving Enron’s demise in the U.S. and Parmalat’s misconduct in Italy.  I may also discuss bullshitting in marketing and advertising (in areas ranging from pharmaceuticals to mortgages to food); and even some circumstances that do not implicate legal fiduciary duties but do, in my view, implicate ethical duties of loyalty. Such instances include perjury and obstruction of justice in investigations into U.S. executive branch misconduct and the use of steroids in professional sport.

Second abstract: (more technical)

When Bullshitting Becomes a Legal Wrong

I.  Bullshit versus Bullshitting

In his 2005 publication, On Bullshit, Philosopher Harry Frankfurt offered a preliminary analysis of’ the concept of bullshit. Frankfurt argues that bullshit differs qualitatively from lies. In contrast to half-truths or material omissions, bullshit is not simply a variation on lying. It is a distinctive type of misrepresentation.

Frankfurt captured some important features of the concept of bullshit. But there are philosophically and legally significant differences between the concept of bullshit and the activity of bullshitting, While Frankfurt’s analysis helps identify the distinctive propositional attitude common to bullshitters, my focus in this paper is the distinctive activity of reportorial.

II. Reportorial Bullshitting Constitutes Fiduciary Rationalization

Bullshitting comes in many varieties. Here, the concern is with one particular variety, reportorial bullshitting. In the legal setting, reportorial bullshitting constitutes fiduciary rationalization, a type of unlawful conduct that, when injurious, should be legally redressable. Currently it is not.

II.  Reportorial Bullshitting Roughly Sketched

I will argue that reportorial bullshitting has the following distinctive features:

1.      It is a performative speech act;

2.     Meant to vouchsafe the quality and usefulness to the listener of the information conveyed to the listener;

3.     May include true assertions;

4.    May include false assertions;

5.     May encompass communicative acts other than assertions

6.    Is performed to give the bullshitter an unfair advantage over his or her audience by inducing them to rely on faulty information.

Furthermore, reportorial bullshit is a specific social practice that occurs in particular social settings, many of which are inherently juridical or closely related to areas of juridical concern. A prime example, which will be explored in detail in this paper, is financial reporting to legal and nonlegal authorities, both public reporting and private reporting (this reporting may be in the form of conventional accounting but does not have to be.) Another set of excellent examples is comprised by a variety of advertising and marketing practices, which I will discuss, time and space permitting.

One telltale sign that reportorial bullshit has happened is that once listeners become aware that they have been bullshitted in this way, listeners feel betrayed, a distinctive moral sentiment.

III. Reportorial Bullshitting As Opposed to Other Forms of Bullshitting

Not all types of bullshitting are reportorial. For example, a magician engages in bullshitting, but several characteristics distinguish the magical bullshitter from the reportorial one. Magical bullshitting is not essentially directed to information. It is not intended to give the magician an unfair advantage over his or her audience. Nor does the magician seek the audience’s reliance upon information. This relates to the further point that even when a magic trick is revealed, the typical sentimental response is delight or pleased realization.  Another example is puffery in business negotiations between equals: while the puffer is a bullshitter, he or she is known to be this sort of bullshitter to the other side; and furthermore, he or she expects to be bullshitted in the same way by the very audience for his or her own puffery.

There are other ways to separate reportorial bullshitting from different kinds. Some bullshitting is not as embedded in convention, not as structured and formal. Some bullshitting is understood by the participants in a communicative setting to be part of a more gamelike discourse.

IV. Reportorial Bullshitting Deserves Special Attention from the Common Law

Course development:

Tort Law and Federalism: 

There are various – and surprising ways – in which “traditional” tort law implicates and involves a number of issues related to federalism, but with regard to the way state law relates to federal law and the way different branches of the federal government involve themselves with state tort law or with statutorily enacted tort-like schemes. In this course we will examine these points of intersection by looking at “constitutional torts” – torts arising from state action that violates constitutionally guaranteed rights; Title VII law aimed at protecting individual rights to a nondiscriminatory workplace, with particular focus on gender and, to a slightly lesser extent, race; and finally an exploration of the aspects of the most recent wave of tobacco law and regulation, ranging from relatively typical tort suits to the federal government’s civil RICO action against a group of leading tobacco companies.  By the end of the course, students will have a richer understanding of the way tort concepts permeate many other areas and kinds of law; and of the ongoing tension between the federal government and state governments, and different branches of government in both, with regard to the protection against personal injury. 

Medical Malpractice for Nonphysicians:  

Many patients receive care from healthcare professionals and providers who are not physician. Yet many people think only of doctors when thinking about medical malpractice. Nurses, midwives, alternative/complementary treaters all have to cope with avoiding malpractice and dealing with litigation when it happens.  The issue also confronts hospital administrators, who well understand that patients receive care not only from doctors, but nurses, physicians’ assistants, and others. In this seminar, we will examine medical malpractice from the various perspectives of healthcare providers other than physicians. The seminar will conclude with a collaborative effort to produce a brief video that could be used to raise attention to these perspectives.