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Deal or No Deal? Congress Considers Legalizing & Taxing Online Gambling. July 29, 2010

Posted by legalethicsemporium in Law, Ethics & Society, sports.
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The tension between morality and the law is ever-present when gambling is on the table.  Four years ago Congress deemed Internet gambling to be a criminal activity.  The law does not seem to have  impacted the popularity of gambling, but did move the sponsors offshore. “On Wednesday, the House Financial Services Committee approved a bill that would effectively legalize online poker and other nonsports betting…”  (NYTimes article linked)

Gambling is characterized as immoral and undesirable as well as fun and harmless depending upon one’s point of view.  Clearly, in 2006 Congress decided that online gambling was on the undesirable end of the spectrum and banned it in an effort to take the “right” action to protect society. 

So, why the change of hearts?   Money—Tax Dollars— a projected 42 billion dollars over ten years that could be used for all types of projects.   Some members of Congress  have essentially stated that the ends justify the means–It’s a lot of tax revenue that could be put to good use.  Others are outraged at the thought of infecting society with easy access to gambling.

It should be an interesting debate because as a society we struggle in deciding whether to acknowledge and accept various controversial conduct (and tax it accordingly). The conduct generally is wide-spread; the issue is whether we condone or condemn it.   It harkens back to the times that we actually used amendments to the U.S. Constitution to both prohibit alcohol and then repeal prohibition (and tax alcohol).   The legalization of marijuana is often debated in the same manner as  folks in California have recently considered whether to legalize and tax marijuana to alleviate the state budget deficit.

So, the question is does every issue have “its price?”  At some point does the societal equation tip in favor of tolerating controversial, but popular, behavior when the sum of the  financial reward is great?  Deal or No Deal?  Let’s watch and see….

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Andre Dawson Hits Another Home Run! Baseball, Cooperstown, and Ethics July 26, 2010

Posted by legalethicsemporium in sports.
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Miami’s own Andre Dawson was inducted into the Baseball Hall of Fame yesterday and his induction was arguably based upon his integrity and work ethic  as much as it was his impressive statistics.  His plaque list the stats, 438 home runs, 2,774 hits, and 314 stolen bases, that were amassed during his 21 year career, that was plagued by 12 knee surgeries.  However, along with all the stats, it states, “A powerful run producer whose poise, work ethic, respect and unsurpassed determination made him a complete player and a leader by example.”

It was a proud, and perhaps refreshing, moment for the game of baseball which has been much maligned in recent years because of illegal steroid use by some of its players. During his acceptance speech, Dawson warned players to stay away from “the dark side.”  “There’s nothing wrong with the game of baseball,” said Dawson. “Baseball will, from time to time like anything else in life, fall victim to the mistakes that people make. ”

Hats off to Andre Dawson who remains a role model and exemplifies the integrity and character requirements for entry into the history of America’s  own sport and “favorite pastime.”

Mirror, Mirror on the Wall, Who is the Most Conservative Supreme Court of Them All? The Roberts Court Analysis July 25, 2010

Posted by legalethicsemporium in Law, Ethics & Society.
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Beyond the talk of judicial activism, there is actually a coding system and analytical tools employed by political scientists to characterize the nature of the Supreme Court at a given point in time.  Having applied these codes to the past five years of Chief Justice Roberts’ tenure, the conclusion is that this Supreme Court is the most conservative one in “living memory.” ( Click here to read the New York Times article that explains this analytical coding in more detail.)

While scholars disagree about the methodology of analysis of the Court, the article mentioned two points of particular interest.  First, it appears that although it is deemed The Roberts Court after the Chief Justice, the most significant variable in the equation is the appointment of the conservative leaning Justice Alito to replace the more liberal Justice O’Connor.  One substitution of ideology seems to have swung the balance to a 5-4, historically significant, right of center perspective.

What is more interesting; however, is that this coding system does not factor public attitude as a variable.   Public opinion reflected in other polls, reported in the same article, appears to indicate that over 30% of Americans believe that the Court is too liberal and just under 50% think that the court is “just  about right.”  On specific issues, polls have shown that the majority of the public is aligned with the Court’s decisions.   Even so there is no shortage of criticism and accusations of (conservative) judicial activism pertaining to the Roberts Court.

So, all of this analysis begs the question: do our laws  mirror society’s values at given point in time? And, who comprises “society” if that is true?  Does “society” equal the majority rule of a democracy?  And if so, how do we protect  the rights of the minority?  Mirror, Mirror on the Wall…..calls for reflection from us all.

Backward Progress? The Shirley Sherrod Attack: Racism & Redemption July 22, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Racial Discrimination.
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WOW—That’s the first word that comes to mind when reviewing the recent events surrounding Shirley Sherrod’s speech, firing, and White House apology with an offer of a new job.  If you are wondering why you have never heard of Shirley Sherrod before, there is a good reason.  Until about a week ago, she was a midlevel employee at the Department of Agriculture with no particular notoriety.  Her inadvertant fame is the result of her forty-five minute speech to the N.A.A.C.P. in which she described how her father was murdered, in 1965, by white men who were never indicted and her initial feelings of reluctance when she was later called upon to assist some struggling white farmers who were trying to keep their farm.

Understandable right?  Sure, especially since she ultimately did assist the farmers, the Spooners, who have spoken out in her support and indicated that all would have been lost without her support.  It was an experience of enlightenment that Ms Sherrod was describing—The problem is that her comments of initial reluctance were taken out of context and posted by a blogger– Two and one half minutes of a forty-five minute speech were taken out of context and created a firestorm on the internet and cable news networks that  resulted in even the national office of the N.A.A.C.P. calling for Ms. Sherrod’s  resignation.

 Not only that, but the Secretary of Agriculture, Mr Vilsack, actually demanded her resignation stating that the Department of Agriculture does not tolerate any type of racism.  WOW is the operative word here…..Because now that everyone has access to the entire speech, Ms Sherrod has received an apology from Mr. Vilsack and the White House and has been offered a new position that will allow her to contribute to erasing the Agriculture Department’s “checkered civil rights history.”   

One has to ask whether in our fast paced, technologically advanced world, we need to call for a moment of pause, reflection and investigation of the facts of an event before reacting.  The answer seems clear: adopting an approach of mindfulness so that we can respond thoughtfully, rather than react emotionally based  upon an incomplete picture, ought to be the way to go. A healthy dose of skepticism with a sprinkle of mindful reflection may have avoided this entire event.

Jesse Jackson concluded that there remains a ” redemptive story book ending.”    He further stated,  “I wish that Shirley Sherrod and the Spooner family could be invited to the White House and give them the credit that they’re due, because it is a great American story. A rural white family in Georgia and a black woman, overcoming years of segregation. It would be great if the president were to seize this moment.”

Just seems that an awfully backwards process ultimately shed light on Ms. Sherrod’s and the Spooner’s civil rights progress.  Whether it is a “story book” ending for Ms. Sherrod remains to be seen as certainly it appears that she has been caught in an unimaginable nightmare of late.

Time Out for LeBron! July 8, 2010

Posted by legalethicsemporium in sports.
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LeBron James is coming to Miami!

So we could analyze the craziness and hype of the free agent season….Or we could have some profound discussion about the relative worth of one human being …Or debate the value of sports in our society… Or even discuss the fundamental values of our society.–All worthwhile discussions….But….Tonight Miami is just taking a time out to enjoy this basketball wonder and dream about the most thrilling season ever!

Bang Bang II— Want a Gun? Go West…No Just Look West July 6, 2010

Posted by legalethicsemporium in Law, Ethics & Society.
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An earlier Bang Bang post  reflected upon the Supreme Court’s recent decision that requires state and local governments to recognize an individual’s  2nd Amendment ‘s right to bear arms.   Bang Bang II is posted to  note the fact that anyone wanting  to carry a concealed firearm may be able to get licensed by the state of Utah without so much as ever learning how to shoot the deadly weapon.

That’s right, apparently 32 states recognize a gun license if it is issued by Utah and Utah will accommodate you in your  state—The proverbial “go west young man” is made unnecessary by a gun safety class that is  available for $62.25 in your own state  and does not require any shooting practice.  (To read the entire article from today’s New York Times just click here.)

 ‘Just kind of leaves you wondering… If the Founding Fathers could have imagined the state of Utah, what would they think?

The Fireworks of “Judicial Activism” and Social Change—Elena Kagan and the Thurgood Marshall Connection July 4, 2010

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On July 4th “we the people” celebrate our independence–it is the anniversary of the Declaration of Independence in which Thomas Jefferson employed John Locke’s social contract theory to inform the British government that we  were going to “do our own thing.”  This year the holiday coincidentally, but appropriately, comes on the heels of the confirmation hearings for Supreme Court nominee Elena Kagan. 

Now let’s note that during the hearings the banter is focused on the Supreme Court and some of its Constitutional decisions.   The Constitution was not drafted and signed for another eleven years after we declared our independence. And  we know that the “guys” that adopted the Constitution did so intending  to protect “the guys”–that is white, property-owning males–slaves remained property and women became nonvoting citizens.

So, how did we (the people) become more than just “the guys?”  Well, some may call it social change and others may call it judicial activism.  In fact, just this past week  there were  U.S. Senators who expressed concern about  Elena Kagan’s fitness based upon the fact that she had clerked for that  “activist”  Justice Thurgood Marshall.  Now, it is true that Justice Marshall, who was the lawyer who argued Brown v. Board and the first African-American Supreme Court Justice, is considered a champion of civil rights.  Does that make him a judicial activist?

Well, to even analyze the question, you have to define the term which generally has a pejorative connotation and involves a case in which it is said that a judge involved his personal views in the decision-making.   But, what does it actually mean?  Interestingly, it is not a term of art from our Founding Fathers, but rather seems to have made its debut in 1947 when Arthur Schlesinger Jr. used it in an article that was published in the Atlantic Monthly. Since that time it has been applied to both conservative and liberal judges and never been succinctly defined. ( see “The Origin and Current Meanings of ‘Judicial Activism'” by Keenan D. Kmiec linked above.)

 Noah Feldman explains that the liberal justices that were appointed to the court by President Roosevelt began their tenure as proponents of judicial restraint which is what President Roosevelt required to succeed in passing the New Deal legislation.  Professor Feldman further reveals that:

“Then a funny thing happened. Little by little, the liberal majority began to realize that it had the capacity to protect minority rights and to expand individual freedom. Its members maintained the liberal constitutional orthodoxy that the court should not impose a single economic vision in the name of the Constitution. But when it came to equality and individual liberty, most of the liberal justices slowly moved away from judicial restraint, actively protecting religious and racial minorities and defending civil liberties.”

And so it goes…It is an extremely complicated topic about which there are many scholarly articles written, but there is one underlying compelling question here.  How does society evolve without a little activism propelling its population and the institutions of its government?  Is judicial activism always a bad thing?

Frank Rich eloquently recounts our civil rights evolution with July 4th of 1776, 1964, and 2010 as markers. He takes note of Strom Thurmond’s coining the phrase “judicial activist” to define Thurgood Marshall and notes that the Senators echoing Thurmond’s words this week  reflect that America is still “very much a work in progress.”  Progress requires action.  What is the difference between action and activism?  I guess it depends upon who is defining the terms.

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