Litigation
Cal. Litig. 2021, Volume 34, Number 3
Content
- A Lion in Winter: Senior Circuit Judge J. Clifford Wallace at 92
- California LITIGATION
- Can California Protect Employees from Entering into Mandatory Pre-Dispute Arbitration Agreements and Avoid Federal Preemption?
- Dirty Harry Turns 50: What If Harry Had Worn a Body Cam?
- EDITOR'S FOREWORD No Longer on Demand
- Flood v. Kuhn: Paving the Way for Athletic Bargaining and Free Markets
- From the Section Chair
- "Isn't that Special": The Limited Powers of Special Masters
- "Present at the Creation"
- She's No Rookie: Associate Justice Amy Coney Barrett Emerges as a Key Influencer in Her First Term
- Table of Contents
- The California Supreme Court, 2020-2021: Tracking the Impact of the Pandemic
- Three Recent Decisions on Section 998 Settlement Offers
- Chevron Corp. v. Donziger and Paying the Piper
Chevron Corp. v. Donziger and Paying the Piper
By David M. Majchrzak
David M. Majchrzak is an ethicist, civil litigator, and certified specialist by the State Bar of California in legal malpractice law. He is Deputy General Counsel and a shareholder of Klinedinst PC in San Diego. He is a member of the ABA Standing Committee on Ethics and Professional Responsibility, the immediate past co-chair of the California Lawyers Association Ethics Committee, and president-elect of the San Diego County Bar Association.
As a college freshman, I was invited to participate in a then-new program, called thematic option, where general education requirements would be fulfilled. There, we had a class size of 16 students, giving a pretty solid teacher to student ratio in a world class university. Although I took something away from all my classes, I remember those more than the others not just because of the intimate environment, but because of the philosophical discussions. Little did I know that I would revisit much of the moral philosophy we discussed roughly 30 years later when I watched the situation comedy, The Good Place. In both settings — my first exposure to a healthy dose of the Socratic method, and passively watching Ted Danson play a demon — the participants discussed what should determine whether particular conduct was moral.
Though, of course, there are many theories, two often dominate the conversation. Consequentialism, often associated with Jeremy Bentham and John Stuart Mill, takes the Monday morning quarterback view of actions. Looking backwards, it considers the result in assessing the morality (i.e., the ends justifying or condemning the means). At the other end of the spectrum is the deontological approach that Immanuel Kant, among others, advocated, where an action is evaluated based on whether it fulfilled a duty. That is, conduct is moral so long as it follows the rules of the way we are supposed to act since results — good or bad — sometimes may occur through fortune or happenstance, rather than as a direct result of the action.