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We the People Occupy Wall Street: Democracy on Display October 27, 2011

Posted by legalethicsemporium in Law, Ethics & Society, Occupy Wall Street, U.S. Constitution.
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A leaderless movement….decision by consensus…everyone has a vote…sounds a lot like my son’s world history chapter on ancient Greece and the development of pure democracy.  Our Founding Fathers took note of the Greeks, but also studied the Roman system of representative government or a republic.  Synthesizing the two, along with the philosophies of Locke, Rousseau and others, our country was founded as a democratic republic–we all vote for the our representatives and the president and then they take it from there. We agree to be governed in exchange for the government’s promise to protect our fundamental rights. Under Locke’s theory of social contract, if those we elect, ( i.e. the  government) are not living up to their obligations, we have a right to call for change.  This “call” from the people is bolstered by our First Amendment rights to free speech and freedom of assembly.

And so we have the 99% camping out in cities all over our country essentially claiming that their has been a tremendous breach of the social contract.The citizens defining themselves as the 99% believe that they are living up to their end of the contract. They explain that they  have abided by the law, paid taxes and worked hard to succeed.  Many are now facing unemployment, foreclosure, mounting student loan debt–the list goes on. Their frustrations stem from not only their own struggles, but also from the bailouts of wall street, the insurance industry and the big banks–some how those institutions that also faced financial ruin seemed to have been bailed out of their problems while individual citizens are suffering without relief in sight.

Okay, so what’s the solution?  Exactly how  do the 99% want “the contract” amended? They are exercising their First Amendment rights and engaging in a modern-day version of the Greek’s pure democracy.  Pure democracy–therein lies the rub–a leaderless movement spread across thousands of miles….no specific platform, no elected leaders.  The movement has succeeded in garnering the attention of the public, the politicians and the media. An impressive feat!  Now is the time for it to speak specifics.  I guess that means it will need some designated spokes people.  Maybe even some policy requests supported by….the majority of the 99%?  Perhaps it’s time to read the chapter on the Romans….or just consult our Founding Fathers about how a group articulates its frustrations as cogent demands for social and political change. 


My Year in Review…Independence Day and the Internet July 4, 2011

Posted by legalethicsemporium in Law, Ethics & Society, Mindfulness, U.S. Constitution.
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I started blogging about a year ago….June 2010.  Encouraged by friends and family to share my insights on current events and legal ethics,  I have engaged in the luxury of writing about whatever struck me as compelling, ludicrous, noteworthy and/or ironic.  Never knowing who might read my thoughts, I have enjoyed sharing them nonetheless.   The truth is that taking a few moments to pause and consider what one really feels and thinks about an event has value regardless of whether anyone else decides to read about those thoughts and feelings.

So, perhaps there is a hidden value in the quick paced, far-reaching world of technology in which we live. Although there is much bemoaning about information overload and everyone’s access and ability to post status updates, tweet and blog about their opinions, when used thoughtfully, technology may not only inform, but encourage reflection.  

As society and its use of technology evolves, there may be less destructive and outrageous behavior and more understanding if we take time to ponder and share our views.  Never before have we had the ability to learn what so many people are thinking and feeling simultaneously.  Sometimes it is TMI (too much information), but other times it provides great insight, bonding and even democratic revolution.  

We have come a long way from ink wells and messages delivered on horseback.  No telling what might have been accomplished in 1776 on a laptop…..Just a thought about the future as we look back on Independence Day

The Great Divide–Ethics Codes & Unethical Behavior May 30, 2011

Posted by legalethicsemporium in Criminal law, Education, ethical decision making, ethics codes, Law, Ethics & Society, Mindfulness.
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Really, does one need a formal ethics code to restrain a person from unwarranted and non-consensual sexual behavior visited upon another? Does an ethics code in the work place inhibit an employee from cheating on his/her spouse? (Or even inhibit supporting dueling pregnancies or running for president in the midst of marital infidelity?)  Is a “close relationship” with a subordinate at work only a “potential” conflict of interest?  Please, someone enlighten me!

While today’s New York Times article on the International Monetary Fund does provide insight into the two tiered system of ethics codes and enforcement systems within that organization, it really does not provide any enlightenment into the impact of those codes on human behavior. Nor does it note the distinction between unethical behavior in ones professional life and personal life–although some would argue that this is a distinction without a difference.  However, think inappropriate gifting to impact government decision-making or sexual harassment on the job as professional life settings and infidelity occurring outside of the workplace as personal.

Clearly the New York Times did not seek to explore the psychological underpinnings of human behavior in today’s article;  it is simply reporting upon and providing insight into the inner-workings of the  ethics codes and enforcement at the IMF. The impetus for the article is the recent resignation of the IMF Managing Director,“Dominique Strauss-Kahn, on charges of sexually assaulting a hotel housekeeper in New York. Mr. Strauss-Kahn, who denies the charges, has resigned his position at the fund.”

It just seems that there is a disconnect between whatever flaws there may be in the IMF ethics procedures and the alleged behavior of its Managing Director.  One has to wonder whether a more  transparent ethics procedure equipped with greater sanctions would really deter an alleged sexual assault. [We have criminal statutes that certainly do not deter individuals from criminal conduct, including sexual assault,–certainly one may argue that engaging in criminal behavior is generally unethical–although that is a much larger topic.]

So, what’s the point?  The point is that as a society we need to encourage a culture of ethical behavior and develop a consensus as to whether there is some behavior, conducted in a personal or professional setting, that reflects such a lack of judgement as to disqualify the individual from certain positions in society.  It is an evolving process–one that is aided by ethics codes that guide and create the minimum standards of conduct that we require in a particular setting.  However, until we further understand and address the psychological underpinnings of  decision-making and the role of ethics in the actual moment of the decision, ethics codes, such as the one that exists at IMF, will probably have little impact on behavior such as the alleged sexual assault and resignation of its Managing Director.

A New Version of THE DREAM: Martin Luther King and the Public Employees’ Unions April 5, 2011

Posted by legalethicsemporium in Education, Labor Issues, Law, Ethics & Society, Racial Discrimination, U.S. Constitution.
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Irony, progress or backward motion?  Perhaps a bit of all three…Labor unions and civil rights groups organized sit-ins and teach-ins all across the country yesterday to protest the assault on the rights of public employees’ unions to engage in meaningful collective bargaining in Wisconsin and Ohio. The sponsors of the “We Are One” rallies noted Dr. King’s tie to the rights of public employees and his plans to march with striking sanitation workers–his plans were foiled by his tragic death.

“What we are witnessing is nothing but an ideological assault on Dr. King’s vision for a more economically just nation,” said Wade Henderson, president of the Leadership Conference on Civil and Human Rights.

Yes, irony, progress and backward motion….

Irony– Because some of the same folks against whom he marched no doubt have descendants that are now employing Dr. King’s philosophy and methodology to fight for their rights.

Progress– Because  although Dr. King would no doubt be troubled by the states’ strategy to solve  their financial crisis by denying public employees’ unions the right to meaningful bargaining, he probably would be gratified to see that this new rally and call for equality is composed of individuals reflecting a rainbow of ethnicity, race and gender.

Backward motion–Because although we have become a nation in which there is greater opportunity for minorities, arguably the gap between the haves and have-nots has grown even larger.

Regardless of ones view on the rights of public employees, it is a testament to our democracy that Dr. Martin Luther King lives on not only in our memories, but  as a contemporary guide to employ the First Amendment to voice our opinions, to assemble and to petition the government with our grievances.

March Madness: Facebook & Virtual vs Actual Democracy March 25, 2011

Posted by legalethicsemporium in Abortion, Immigration, Law, Ethics & Society, Mindfulness, U.S. Constitution.
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Middle Eastern uprisings sparked by  Facebook connections, public employees protesting in Wisconsin, Arizona’s reaction to protests over its immigration laws, and South Dakota’s new abortion law….March is a compelling month for the study of natural rights and the democratic process.

According to John Locke and our Founding Fathers we are all born with inalienable rights….or more simply stated…We are free and should only be constrained by  a democratic government in which we give up certain rights in exchange for the protection of our fundamental rights–a social contract.  Somehow, a number of dictators around the world didn’t get that memo…Despite that fact, the human spirit remains strong and with the advent of technology, we have seen a new version of democracy in action–the use of Facebook, Twitter, and texting as a means of revolution.

Groundbreaking, history in the making, and certainly worth noting and contrasting with our open society.  Why?  Because democracy is sometimes messy, often adversarial and down right unpleasant. However, underneath the unpleasantness remains the fact that we have a system that is to be cherished as the best method that human beings have been able to create to support fundamental freedoms.

The people of Egypt and other Middle Eastern countries have been able to use technology to accomplish uprisings against governments under which our brand of democracy does not exist.  By contrast the Wisconsin public employees “simply”exercised their constitutional rights to protest government imposed limits on public employees’ labor rights. The ongoing dispute with the state legislators is now headed for the state’s supreme court.

Arizona has developed a reputation as having some of the harshest immigration laws on its books and a governor who openly supports a tough stance.  There have been protests, media coverage and social media discussion criticizing Arizona’s recent laws , including on this blog.  It appears that all the criticism is not good for business as Arizona has lost tourist and other revenue, so recently five newly proposed restrictive immigration laws failed to muster the necessary votes  in the Arizona state legislature.

Finally, South Dakota, a state without a high incidence of abortion, but with a high percentage of republican legislators, has passed legislation that requires “women who are seeking abortions to first attend a consultation at such ‘pregnancy help centers,’ to learn what assistance is available ‘to help the mother keep and care for her child.'” It is probably unnecessary to explain the furor that this has caused in this controversial area….Planned Parenthood has indicated that it will move the debate from the legislature to a courtroom where the interpretation of  a woman’s constitutional rights in this area will be argued and decided upon once again.

Emotionally charged disputes in fundamental areas of society–employment, immigration, pregnancy–controversy abounds. However, regardless of how one feels about public employees’ union rights, immigration rights, or abortion, we can embrace the fact that we live in a country in which we have a right to publicly dispute these issues and a government that has a process by which to revisit and resolve our disagreements.  It might sound like a huge piece of American pie, but given what is transpiring in the Middle East, it seems worth taking a moment to pause and savour the sweet taste of democracy.

Legislating Conscience: Distinguishing Abortion from Contraception And All That Jazz February 19, 2011

Posted by legalethicsemporium in Abortion, Health care, Law, Ethics & Society, Religion, U.S. Constitution.
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So, if you work for a medical provider and you oppose abortion, regardless of  legality, you cannot be compelled to participate in providing a woman her legal right to have an abortion.  Alternatively, if you assist a woman in obtaining this medical procedure, you are within your legal rights to do.  The right to be guided by your personal moral compass as it pertains to another individual’s decision to implement her medical rights was initially codified in 1973 in the Church Amendment. Since then other federal and state  laws have been passed and are generally referred to as “conscience protection statutes.”

‘Sort of a paradox of the democratic process that seeks to protect and provide everyone with a voice and a right to acknowledge, but not necessarily support individual prerogative when abortion and sterilization procedures are involved.  This paradox is back in the news as the Obama administration has revisited, revised and repealed aspects of the regulations pertaining to the conscience protection statutes that the Bush administration put into effect in the waning days of its administration.  Interestingly, the statutes functioned without regulations for over 30 years.

The Bush regulations immediately drew criticism for being redundant, overly broad, vague and perhaps, most significantly, for arguably collapsing the definition of contraception into abortion and thereby making it more difficult for individuals to obtain legal health care. Additionally, interpretation of the Bush regulations permitted the possibility that individuals could be denied services based upon evidence of a lifestyle that offends the health care provider’s conscience.

The new ruling makes clear that neither the intent  nor the language of the federal statutes is to define contraception as abortion. “The provision of contraceptive services has never been defined as abortion in federal statute… There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception.”

The Department of Health and Human Services further explains that,

“The Department agrees with concerns that the 2008 Final Rule may have caused confusion as to whether the federal statutory conscience protections allow providers to refuse to treat entire groups of people based on religious or moral beliefs. The federal provider conscience statutes were intended to protect health care providers from being forced to participate in medical procedures that violated their moral and religious beliefs. They were never intended to allow providers to refuse to provide medical care to an individual because the individual engaged in behavior the health care provider found objectionable.”

Nancy Keenan, president of NARAL Pro-Choice America, applauded the revision of the rule which,” had it been finalized in its original form, would have allowed insurance companies to deny claims for birth-control pills, hospitals to refuse emergency contraception to rape survivors, and employees at HMOs to refuse their patients referrals for abortion care.”

“The Obama Administration was correct in rescinding the highly inaccurate and dangerous provisions in a regulation imposed by the Bush Administration in late 2008,” said National Women’s Law Center Co-President Marcia D. Greenberger.

“It put the health and safety of American women at risk by expanding far beyond legal limits the ability of health care providers to refuse necessary treatment and information to patients—particularly when seeking reproductive health care, but going far beyond. The highly controversial regulation, which has been challenged in the courts, in effect encouraged providers to deny access not only to abortion services and information but also to contraception, treatment for infertility, depression, substance abuse, and HIV/AIDS in ways that the law does not allow. Indeed, virtually any medical service could have been swept within its expansive purview.”

Query:  When one individual’s personal values clash with another individual’s legal rights, to what degree should we protect one person’s moral values and thereby deny another person access to legitimate healthcare?

Sticks & Stones May Break My Bones, But Guns Can Always Kill Me: Rhetoric & Violence in Tucson January 11, 2011

Posted by legalethicsemporium in Criminal law, Gun Control, Law, Ethics & Society, U.S. Constitution.
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There is little to be said that has not already been said about the tragic shooting in Tucson that killed 6 and wounded many others including Representative Gabrielle Giffords.  The media and internet is inundated with analysis attempting to explain/blame the impact of the vitriolic, hyperbolic political rhetoric that has become the mainstay of many politicians, bloggers, and media coverage.

However, regardless of the sociological debate about the ability of words to incite violence in an already unbalanced human being, one simple, bare fact remains true.  If it weren’t so easy to purchase a semi-automatic pistol that holds 30 rounds of ammunition then maybe 20 people would not have been shot instantaneously.

As Robert Dallek writes, “Only one thing seems certain in trying to understand the gap between rhetoric and action in our national discussions about violence in America: the ease with which perpetrators can acquire the means to commit mass murder. However often we lament the horrors committed by deranged killers, we seem incapable of reining in the capacity of the murders’ ability to acquire the handguns, automatic weapons, and rifles they use to create such mayhem.”

In fact, the New York Times reports that, “Arizona’s gun laws stand out as among the most permissive in the country. Last year, Arizona became only the third state that does not require a permit to carry a concealed weapon. The state also enacted another measure that allowed workers to take their guns to work, even if their workplaces banned firearms, as long as they kept them in their locked vehicles. In 2009, a law went into effect allowing people with concealed-weapons permits to take their guns into restaurants and bars…

In the last two weeks, two bills were introduced relating to the right to carry guns on college campuses, one allowing professors to carry concealed weapons and one allowing anybody who can legally carry a gun to do so.”

Query: Even if the Founding Fathers envisioned that the Second Amendment would ultimately permit citizens to own hand guns for use beyond the needs of forming a state militia–which is the subject of vehement debate in our country–does any private citizen really need a concealed weapon that holds a 30 round magazine?


Raising Arizona: Tucson’s Mexican-American Studies Program Under Attack January 9, 2011

Posted by legalethicsemporium in Education, Law, Ethics & Society, Racial Discrimination, U.S. Constitution.
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Dueling perceptions of the reality of Tucson’s ethnic studies’ programs have caused the state legislature to pass a bill directed at Tucson’s ethnic studies program.  No, wait a moment…Did I say ethnic studies? Seems that the African-American and Native-American studies program are safe, but the Mexican-American program is so controversial that it resulted in its own “private” legislation.

The bill, known as HB2281, was actually passed last fall, but just became effective.  Tom Horne, Arizona’s Superintendent for Schools who has just become  Arizona’s Attorney General, is a proponent of the law that “authorizes the state superintendent to stop any ethnic studies classes that promote the overthrow of the U.S. government, promote resentment toward a race or class of people, are designed primarily for pupils of a particular ethnic group or advocate ethnic solidarity instead of the treatment of pupils as individuals.” In fact, Horne has conceded that Tucson’s program is the target of this law. His successor, John Huppenthal, supports Horne’s findings against Tucson’s Mexican-American Program.

Shortly after this law was passed last fall, a group of Tucson’s teachers filed suit to have the law overturned, alleging constitutional violations including First Amendment free speech claims and a lack of due process under the Fourteenth Amendment.  While Horne and Huppenthal have alleged that the Mexican-American program teaches anti-American precepts such as Ben Franklin was a racist and promotes undesirable “ethnic chauvinism”, both student and teacher testimonials applaud the inclusion of history from a “Mexican-American” perspective and assert that the program “has been effective in reducing dropout rates among Latino students, as well as discipline problems, poor attendance and failure rates.”

The controversy in general and the lawsuit specifically could serve as another great opportunity for a sociological, legal and cultural debate on both free speech and the educational system in a diverse democratic setting except for one serious constraint.  HB2281 comes equipped with some serious financial teeth; if Tucson does not dismantle its program within 60 days then the state can devastate the entire Tucson educational system by imposing a 15 million dollar penalty upon Tucson. The lawsuit requests an injunction to prevent the law from being imposed prior to the lawsuit being resolve and apparently the Tucson School Board has already submitted a letter to the state detailing the current program’s compliance with the law.

Arizona’s battle is one worth watching as it represents cultural and educational issues that impact our children and the future of our country.  Besides….after seeing the copy cat immigration legislation popping up in campaigns last November, it won’t be surprising if other states’ legislatures start debating and attempting to legislate ethnic studies programs in our own backyards.

Mark Twain Revisited: The Ethics of Revisionist History January 6, 2011

Posted by legalethicsemporium in Law, Ethics & Society, Racial Discrimination, U.S. Constitution.
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Huck Finn and Tom Sawyer are about to live in a world in which the words “nigger” and “injun” have been retrospectively deleted from their vocabularies….they will now be speaking in terms of “slaves” and “indians.”  Just as Twain noted that he worked “painstakingly” to reproduce the dialects of the time, apparently Professor Alan Gribben has  worked diligently to remove and replace the authentic language. While presumably Mark Twain endeavored to author entertaining and meaningful fiction, Professor Gribben’s intentions are to render Twain’s works less “painful” and more acceptable to modern audiences who have been hurt, offended or out right banned the works.

(Leaving the First Amendment issue of banning books for another day…..) Professor’s Gribben’s new publication begs the question: Does a sanitized Huck and Tom enlighten today’s readers or deny the history of our society and undermine Mark Twain’s literary contributions? Some say that we must all change to reflect what is acceptable in our time and that includes a deceased and legendary Mark Twain. Others view Huck and Tom not only as endearing characters, but also as invaluable reminders of life as it was in their America—two boys whose adventures are set in a sociological time period that is truthful and poignant even as it may be painful or unpleasant to confront.

Rather than being offended by the language of Twain’s works, perhaps there is a lesson in studying the story not only for the fictional writing style, but also as a slice of history, In fact, my son who is currently reading The Adventures of Huckleberry Finn in his 10th grade english class, responded to the news of the new version by explaining to me that,”the language of the book is a large part of the point of the book.” Simply stated …and clear that he didn’t see much point in reading about Huck and Tom if the context in which their adventure occurs is altered and rendered less authentic.

As always, the test of time will determine whether Huck and Tom will remain more popular in their “native” language or whether society will embrace Professor’s Gribben’s “translation.”  Regardless, our history remains…

Comedians, Satire and the Law: 2010 “Cultural First Responders” December 29, 2010

Posted by legalethicsemporium in Gay Marriage, Gays in the Military, Immigration, Law, Ethics & Society.
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The idea of our republic is that we elect representatives to effect change.  Seems lately that perhaps we are having greater success when our favorite comedians speak on our behalf   Satire has always played a role in addressing hypocrisy and highlighting the issues of the day. However,  Jon Stewart’s impact on the recent passage of the bill to provide 9/11 first responders with health care benefits transforms the role of the comedian from social commentator to catalyst for change.

There has been much written about Jon Stewart’s role in securing healthcare for 9/11 first responders. While he has declined to comment on the passage of the bill, those who were struggling against what began as overwhelming odds credit the Daily Show’s coverage for “shaming” Congress into action.

“…[S]ome of those who stand to benefit from the bill have no doubt about what — and who — turned the momentum around. “I don’t even know if there was a deal, to be honest with you, before his show,” said Kenny Specht, the founder of the New York City Firefighter Brotherhood Foundation, who was interviewed by Mr. Stewart on Dec. 16.”

New York City Mayor Michael Bloomberg added, “Success always has a thousand fathers,” …“But Jon shining such a big, bright spotlight on Washington’s potentially tragic failure to put aside differences and get this done for America was, without a doubt, one of the biggest factors that led to the final agreement.”

While Jon Stewart often insists that his is just a comedy, fake news show, Jon Stewart and his colleague, Steven Colbert, of the Colbert Report, have taken on the cable news networks and highlighted many of the cultural/legal issues being debated in our country.  (In addition to their nightly pieces, this year brought us the Rally to Restore Sanity/Fear, and other dramatic examples, such as Steven Colbert’s show on which he spent the day along side migrant workers and his controversial trip to Capital Hill to testify about their working conditions.)

Jon Stewart and Steven Colbert are certainly not lone social commentators.  As the momentum builds to legalize gay marriage in view of the repeal of Don’t Ask, Don’t Tell, Jay Leno quips, “What does that say about us as a nation when we believe gay men can now handle armed combat, but aren’t yet ready for the fighting that happens in marriage?”

Whether  the comedic world will have a measurable impact on changing the law remains to be seen; however, clearly the comedians are voicing the views of a significant cross-section of the country regardless of the action or inaction of Congress. In fact, the flurry of Congressional activity in the waning days of the December session during which Don’t Ask Don’t Tell was repealed, The Dream Act failed to pass, and 9/11 first responders were provided with health care benefits evokes the following query.

Is the law a reflection of society’s current values or does the law serve to motivate behavioral change that eventually changes overall societal values?  Like many aspects of law and society, inevitably, the general answer is: it depends upon the circumstances and one’s perspective.

More specifically, it also appears to depend upon who is interested in calling attention to the various cultural issues and values at play. Perhaps instead of continued lobbying on Capital Hill, the students marching in support of the Dream Act should “elect” their local comedians in hopes of making the dream of an education become a reality.

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