Attorney Misconduct, Food, Legal Ethics, Reader Polls

An Ethical Transgression: The Oreo Thief?

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We asked Randy Cohen, author of The Ethicist column at the New York Times, the following question:

When I checked into a hotel in California, I was starving, so I ate the $6 box of Oreos from the minibar. Later that day, I walked down the street to a convenience store, bought an identical box for $2.50, and replenished the minibar before the hotel had a chance to restock it.

Was this proper? My view is “no harm, no foul.” In fact, my box was fresher: the Oreos I ate were going to expire three months before the box I replaced them with.

— DAVID LAT, NEW YORK

The Ethicist slapped us down, in today’s NYT. Do you agree with him?
Read more, and take a READER POLL, after the jump.


We posted the Ethicist’s response on our Facebook page — by the way, feel free to add us; we welcome friend requests — and received over 35 comments. A number of them show what it means to “think like a lawyer,” and some draw legal analogies or invoked law-and-economics-style reasoning.
Here are some comments defending our conduct:

“I disagree with the Ethicist. It’s true that paying for the Oreos is paying for a service, but by replacing the Oreos yourself they do not have to do any work to provide the service to the next guest. Had you taken the Oreos without replacing them, they would have had to buy a new box and pay someone to restock the minibar, and it would be right to pay them for that. Now they don’t have to do the work, so it would seem unnecessary to pay them.”

“[The Ethicist’s] analogy to [having a beer at] the Lakers game is inappropriate. If you had checked out, paid for the Oreos, and then gone back with the replacement and sought a partial refund, then his example would be relevant.”

“It’s more like breaking a lamp in a hotel. You don’t pay for the lamp being there — it’s subsumed in the price of the hotel room — but if you break it, you either replace it or pay the hotel to replace it.”

“[I]t was a net gain for the hotel since they ended up with fresher Oreos. It pisses me off that these hotels have got you where they want you (hungry and far away from sources of snacks) and charge a bajillion dollars for teeny little packages. I say: good for you!”

And here are some siding with The Ethicist:

“Sadly, David, I think the Ethicist is right. There’s value added to those Oreos in that they will be readily available to you at 4AM when you stumble back in to your hotel room and in desperately in need of drunken gnosh. Can any of us put a price on that?”

“At the moment you ate the Oreos from the hotel, you took advantage of the convenience of having them there on demand. You could have checked in then went somewhere else to look for food, but you didn’t. That convenience comes at a cost. The fact that you later replaced the product yourself doesn’t mean that you didn’t experience the convenience of having it there when you wanted it.”

“In a way, it’s somewhat analogous to the crime of theft (as tested on bar exams): once you take something that doesn’t belong to you with the intent of permanently depriving the owner of possession, the crime is complete. You can later change your mind and return it, but the crime remains.”

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Which side do you come down on? Here’s a poll:

Finally, for those of you who view this as insufficiently legal for a law blog, here’s a question to tackle in the comments: What civil or criminal liability could you see arising out of this incident?
UPDATE: In response to this comment, the minibar in question did not have sensors. While minibar sensors are common in big-city hotels in the United States, they are less common in small-city hotels (like the one in this case), as well as hotels located abroad.
The Ethicist: Replacement Costs [New York Times]

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