Should APA Membership Come with Terms and Conditions?

As most of you know, the APA has recently released a statement on sexual harassment in the profession. It includes a lot to like, but as Eric Schliesser has pointed out, there is also some discussion to be had about the APA’s conclusory statement that certain punitive or ameliorative measures might expose the APA to “excessive legal liability.

I don’t doubt that taking action might open the organization up to liability it would not otherwise face. Of course, lots of things we do every day expose us to legal liability: driving a car, buying a house, operating a business, getting married. We don’t usually consider that liability when we act except to the extent that the legal rules tend to conform to moral rules we already accept (exercising reasonable care in driving a car, say). Organizations or other large actors naturally need to consider liability more explicitly than individuals, so it makes sense that the APA may have consulted with a legal team in exploring its options. I don’t know what kind of liability that consultation may have raised fears about, but my best guess involves tort liability of various sorts.

As a result of the increased exposure of being an organizational actor, most such actors set up explicit terms and conditions on interacting with the organization. Think about all those terms you click “accept” to every day. Those, for the most part, are binding on you whether you read them or not.

Why doesn’t membership in the APA and use of the APA website come conditioned on terms that could limit the APA’s liability while giving it a basis for, e.g., withdrawing membership or denying conference registration?

When a person signs up for APA membership now, they just fill out information and pay the fee, but the membership could easily come on the condition that members agree to any number of things. (The only terms and conditions I could find on the APA website were for listserv rental.) Members could agree, for example, that their membership be contingent on being in good standing with their university/not in violation of any university policy. That kind of policy wouldn’t eliminate liability and enforcing it might raise secondary legal concerns, but as I expressed in my first post, we live in a world shaped and constrained by law. We’re never free from liability, so we have to decide what’s worth doing, who we’re scared of and why, and what kind of changes our system requires.

15 thoughts on “Should APA Membership Come with Terms and Conditions?

  1. let’s be very careful here, okay? Take, for instance, agreeing that APA membership is contingent on one’s being in good standing with one’s university. If I had to guess, I’d guess that that proposal is being made with the hope that those who have been found to have violated a university’s sexual harassment policies would not be eligible for APA membership. I get that. But I think one also should not underestimate the possibility of corruption at the university level. Suppose one’s university is in violation of some policy which actually protects folks against discrimination, like Title IX. Suppose, for instance, that in retaliation to a discrimination complaint, one finds oneself in something other than good standing with one’s university. Not me, but could so easily be. The proposed APA policy would then have the opposite of what I imagine are its intended effects.

  2. Okay, but contractually agreeing to a buddy system? Does anyone else have a prima facie feeling that a buddy system is insulting?

  3. 1. Anyone find the buddy system prima facie offensive?
    2. I wonder whether the lawyers rejected the conjunction (sanctions & buddy system) or each conjunct. The letter insinuates the latter, but it’s ambiguous enough to allow for dissembling.

  4. Right, that’s part of why the policy needs further thought, but the answer is not simply that any action is unworkable because of liability. This sort of case could also be handled by discretion on the part of the APA. Does that raise further issues and concerns? Yes, but that’s how anything of this nature works.

    Thanks for the comment.

  5. Yes, I admit I’m also picked about what the legal problem with the buddy system might be. I think you’re right that they may not have intended the statement about liability to cover that part, but it sure makes it seem that way.

  6. I would suspect they are most concerned about defamation charges, which is logical; those would be difficult to contract around. I personally wouldn’t agree to limit my liability, especially in light of how the current debate over sexual harassment is being carried out.

  7. Defamation occurred to me. There are certainly ways to avoid liability there, though, depending on jurisdiction. Not publishing the bans to a third party, truth, and conditional privilege come to mind, but I imagine there are others.

  8. There are a couple of ways that come to mind, though the different laws between jurisdictions is the killer. Even if you’ve established a good basis for no liability, just need one judge not paying attention or one jurisdiction with draconian defamation laws and they could be on the hook for a lot of money. It’s also quite possible that they just don’t want to deal with what is a political third rail and are overstating what the lawyers said.

  9. I am troubled by the thread throughout this post that seems to suggest that the APA should attempt to exploit contract law to limit its legal liability under tort law. Generally speaking, it is not excellent social policy to have agents exploit contract law to limit their legal liability. This is usually a tell tale sign of an unconscionable contract of adhesion. One could argue that that might be the case here, per the suggested contractual scenario, given that the APA is THE professional organization for philosophy academics. And, the suggestion seems to be to push legal liability onto universities. I would also be very curious to know which universities would be willing to open the personnel files of their faculty to the APA. I’m going to go ahead and guess none.

    Legal liability is not the devil. The point of contract law is to generate legal liability. Legal liability is a good thing. That’s why people feel comfortable interacting with one another in the public sphere, because they know that they may seek redress and compensation in the courts, if someone were to, say, defame them. People don’t worry about legal liability when they go about their daily lives, because it’s there. It means our legal system is working. You only have to worry about the harms that you and others may inflict upon one another when it’s not there, because our legal system isn’t working, or if you’re going out of your way to incur legal liability. Fortunately, there are a few attorneys around, to let us know when we’re going out of our way to incur legal liability. (If we really want the APA to incur excessive legal liability, then we can all contribute to a legal defense fund.)

    I want to suggest that the problem isn’t legal liability, but the culture in philosophy academia. I want to suggest that people (at the university level) are more concerned with the social and professional repercussions of standing up to predators than they are the legal repercussions. That’s not something that the APA is going to fix by exploiting contract law in an attempt to limit its legal liability under tort law. That is something that the APA helps to change by writing the kind of letter that the leadership has written. (And the protections against defamation suits that you suggest (bans on the release of information to third parties; truth; and conditional privilege) are going to be far more effective at the university level than they would be at the level of the APA, in terms of encouraging people to report and speak out against predators.)

  10. In general I agree with your point that legal liability should be a reflection of the harm we think a person’s actions have for society. I think the criticism is inapt with respect to the suggestion here that the APA set up clear expectations in the form of a contract. Rather, it’s a way for the APA to make clear what it expects as a condition of membership while also providing them with some agreed upon ways of responding when other parties fail to meet those expectations.

  11. “Why doesn’t membership in the APA and use of the APA website come conditioned on terms that could limit the APA’s liability while giving it a basis for, e.g., withdrawing membership or denying conference registration?”

    “Members could agree, for example, that their membership be contingent on being in good standing with their university/not in violation of any university policy.”

    I think it’s very clear that the suggestion is to exploit contract law to limit the APA’s legal liability under tort law, specifically defamation law, and to have universities bear the brunt of such legal liability. I was just pointing out that this is, generally speaking, a not great idea.

    Not that it hasn’t been tried, repeatedly, by the unscrupulous. But, usually, only the powerful can get away with it. That’s why it’s usually a give away that you’re dealing with an unconscionable contract of adhesion — i.e., a take it or leave it contract between parties of unequal bargaining power — usually in the form of a form contract, including online versions.

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