By use of the case study method, my work will present and analyze moral dilemmas of the marketplace from the perspective of American law, secular business ethics, and Jewish law. The types of moral dilemmas I will deal with are those that one encounters in everyday life in the roles of market participant and citizen. Economic analysis and public policy considerations are a feature of my work.

I hope to show with my interdisciplinary approach that secular scholarship and economic analysis open up vistas, nuances, and subtleties for cases discussed in ancient and modern Jewish law sources.

The moral dilemmas in this work are organized topically. The topics include: professional ethics; fair competition; marketing ethics; labor relations; privacy issues; public policy; and ethical issues in the protection of property.

The first chapter deals with professional ethics.

In section one the issue of false good will is taken up. Our concern here will be to identify the parameters wherein the capture of goodwill is the legitimate entitlement of the person who generated it. Another issue for investigation is the identification of the circumstances where the opportunity to capture legitimately earned goodwill must be passed up.

By means of the case study method, I set out to explore these issues in the setting of a number of moral dilemmas a rabbi faced in the course of going about his professional duties.

In section two we take up the issue of truth telling in the context of labor and crisis negotiations. By means of the case study method we will investigate the ethics of the use of such tactics as false demands, false promises, false threats, diversionary tactics and insincerity of both the transparent and non-transparent variety. The acceptability of these various tactics will form the basis of the judgment on whether the standard of truth telling in the setting of negotiation is any different from the standard of truth telling in other settings.

Chapter two deals with the ethics of various competitive tactics in the marketplace.

Section one will focus is on the extent to which Halakhah protects an established firm from competitive pressures of new entrants. By means of a case study, we will show that Halakhah espouses rules of “fair competition” for competitors. For Halakhah maximization of consumer welfare is not the only criterion for governance of the marketplace. We will then draw a contrast between Halakhah and American law on the issue of protecting an established firm from the competitive pressures of new entrants.

Section two deals with the “post-employment restrictive covenant.” In this agreement an employee agrees, upon being employed, to conform to certain conditions following termination of employment with his present employer. Besides competition in the post employment period, other issues relate to trade secrets, confidential business practices and customer lists.

Parties to a mutually advantageous transaction rarely meet on equal terms. Instead, one party has leverage or an advantage over the other. If the leverage consists of market power, it will come as no surprise that the stronger party will walk away from the transaction with the lion’s share of the gains. This is the way of the marketplace.

The focus of the case studies of this section is with the ethics of exploiting an existing leveraged situation for further gains. Indeed, the distinction between negotiating a lopsided deal and unilaterally changing the terms of that deal once it has been negotiated may become blurred or even lost entirely in the mind of the advantaged party.

In what could be called reverse leverage, the weaker party has the ability to maneuver to escape an obligation because it is so insignificant from the perspective of the advantaged party that the weaker party hopes the obligation will go unnoticed. Alternatively, the weaker party can maneuver to escape payment because on a cost-benefit basis it is not worthwhile for the advantaged party to pursue his claim through legal channels.

Exercising leverage may run into violation of oshek (extortion) and the prohibition of lo tahmod (coveting). In inter-Jewish loan transaction, the exercise of leverage may run afoul of the rabbinical extensions of the biblical prohibition of ribbit (the charging and the payment of interest on loans).

Chapter three deals with ethical issues in marketing and salesmanship.

We examine Joe’s philosophy not in terms of how it promoted success, but rather, in terms, of whether it resulted in virtuous and ethically acceptable behavior in the marketplace.

Section two explores the ethics of marketing techniques that relate to telemarketing industry. Both the business practices of this industry and the way consumers have reacted to these practices present a number of serious moral dilemmas. These include the use of pressure tactics, pricing policies, conduct consumers engage in to thwart the telemarketer, and using the information the telemarketer offers without compensating him for the provision of that information.

In section three we deal with the ethics for an employer to spring work rules on an employee when these rules were not agreed to by the employee before he signed the contract.

Chapter four takes up the issue of privacy in the workplace. By means of the case study method, we will investigate whether Halakhah validates pre-hiring screening for drug, tobacco and alcohol abuse. Is the issue of screening job applicants with pencil and paper integrity testing and handwriting analysis treated the same way? If pre-hiring screening for some purpose is halakhically valid, perhaps, once a candidate is hired, the employer should not have the right to periodically monitor the employee for the matter the pre-hiring screening tested for. Is privacy in the workplace all a matter of contract between the employee and employer? Another issue we take up is company monitoring of employee e-mail. Finally, the issue of the role of the polygraph in the workplace is taken up.

Chapter five takes up ethical issues of the marketplace that require government involvement in the form of public policy.

In section one we take up the issue of government regulation of advertising. For secular society the issue of government regulation of advertising revolves essentially around the issue of deception. At once, Halakhah’s concept of deception is far stricter. Beyond the issue of deception, Halakhah’s concern is for the promotion of the value of truth telling and also for prescribing rules for “fair competition” in the marketplace.

Section two deals with the issue of whistleblowing. In the comparison we draw between the secular and halakhic approaches, a major difference arises. The secular approach is distinctly a utilitarian approach. If whistleblowing is justified, it is only because the good it produces outweighs the harm it causes to those responsible for the harm. In sharp contrast, the halakhic approach focuses entirely on the victim or would-be victims. To be sure, satisfaction of a number of conditions must be met before the disclosure is justified. Nonetheless, these conditions are constraints and nothing but constraints. Accordingly, if the disclosure will produce a benefit in the form of restitution for a victim or deterrence against future harm, the disclosure should be made.

In dealing with whistleblowing we are also interested in creating both an organizational structure and a corporate culture that precludes the problem of whistleblowing in the first place.

Finally, we turn to a consideration of the protection the whistleblower enjoys under law today and the critique of these laws from the standpoint of Halakhah.

In the final chapter of this work we deal with identifying the permissible bounds for protecting and defending one’s property and other rights against infringement. Does this right extend even to causing possible harm, loss and even death to potential infringers and intruders?

By means of the case study method, section one deals with the right to protect and defend one’s property in the following settings: The right of a homeowner to protect his property against theft; the right and duty of a student to protect himself against cheaters. Finally, does the responsibility a teacher has to discipline his students extend even to the prerogative to confiscate the property of his students?

Finally, the task of section two is to explore the duty a property owner has to insure that his premises will not cause injury to someone who enters it. In addition, if the entrant sustains injury while on the property, to what extent is the owner of the property liable? In the comparison we draw between the secular and halakhic approaches, the cases of Lee v. Chicago Transit Authority and Smith v. Wal-Mart Stores will be used as backdrop.