Monthly Archives: March 2016

Alexander Hamilton and the Supreme Court nomination crisis

By now there is (probably) not a single person in the country who remains unaware of the impending, but also already incredibly intense, showdown over President Obama’s nomination of a new Supreme Court Justice to replace Antonin Scalia, who died last month. (Facts: here. Conspiracy theories: here.)

cjones02182016-e1455763067689

In justifying their refusal to consider any nominee, many Republicans cited the authority of both precedent and even some vague Senate “rule,” arguments which have since been unmasked as straight up not true. The number and intensity of opinions seems to be growing wilder and fiercer by the day, so I thought I’d one-up Republicans by appealing to an authority even higher than mere precedent or tradition: Founding Father Alexander Hamilton.

The Brennan Center for Justice at NYU does a great job explaining in this article (which can be read alternatively as a cross-posting at The Huffington Post if, for some reason, you prefer Arial to Helvetica) how the framers of the Constitution, particularly Hamilton (and Madison), expected situations like this would be handled by future generations.

As its authors note: “Our constitutional system only works if the institutional players adhere in good faith to the Constitution’s basic rules.”

Politics is an appropriately adversarial system; however, it is inappropriate, and even dangerous, to play political games with the basic, constitutive rules of a government. Politicizing the mere maintenance of the fundamental institutions of a system of government risks gutting the framework and crippling the stability of that system.

Advertisements

Confessions of Olympian saboteurs

03-nancy-kerrigaan-tonya-harding-museum.w529.h352

I have blogged elsewhere about why I think a contest that does not involve defensive tactics barely qualifies as a sport. Or at any rate, in the aesthetics or connoisseurship of sport, the highest ranking sports are those for which good defensive play and strategy is as satisfying for the spectator as good offense. That’s why most events in the Winter Olympics — ice hockey and curling aside — will never rank highly in my pantheon of great sports. But I digress before I have even started.

When using sports in the service of understanding the ethics of competition in other adversarial realms (law, business, politics, war, etc) it is worth paying attention to the extent to which “defense” is a permissible, or even admirable, feature of the competition. Is it acceptable to try to win by thwarting an opponent’s offensive tactics (the way one does in hockey, American football, or chess)? Or is the competition the kind in which the only permissible winning strategies involve making yourself perform as well as possible (as a sprinter runs as fast as she can, or a pianist competing for a prize plays his heart out, or a law-school applicant presents a dossier with her highest possible grades and test scores, etc)?

Competitions that do not involve “defense” tend to present fewer challenges for adversarial ethics. Competitors can still cheat — by puffing or fabricating their alleged achievements, plagiarizing, bribing judges, using banned performance-enhancing substances (say, cocaine for LSATs). And if such cheating is widespread, or believed by the competitors to be widespread, it is especially problematic in an adversarial realm, because it strongly incentivizes all competitors to cheat. But when there are no opportunities for defensive tactics (a law school applicant has no way to make her rivals look worse — the way a politician, lawyer, or salesperson can), there is less directly adversarial behavior to have to regulate or monitor.

Of course, when competitors find a way to undermine their rivals in a competition that does not permit defensive tactics, that can lead to grave, and often super sleazy, ethical violations. In his seminal paper on this topic, Joe Heath reminds us of the time one figure skater, Tonya Harding, tried to improve her chances for an Olympic medal by having her ex-husband and a hired goon kneecap her main American rival, Nancy Kerrigan, at the US Figure Skating Championships in 1994. There is no playing defense in figure skating. And certainly not that kind. (Harding plead guilty to a felony. The USFSA — figure it out — booted her out for life, citing her “clear disregard for fairness, good sportsmanship and ethical behavior.”)

Teachers who grade on a curve hear similar blood-curdling tales of classmates who hide books in the library, mess up their classmates’ lab experiments, and refuse to cooperate in study groups, so that they can climb over their fellow students and claw their way higher in the curve.

Anyway, all of this is a rather pretentious set-up for a totally low-brow, and misleadingly advertised bit of clickbait from the Onion’s Clickhole entitled

8 Olympic Athletes Tell Us About Their Most Successful Time Sabotaging A Competitor

Put it this way: nobody’s going to jail for any of these revelations. Nobody is going to have to make a living in their post-athletic careers through professional wrestling, celebrity boxing, or selling sex tapes (Harding’s fate). But the concept of “sabotaging a competitor” — especially in adversarial realms that don’t allow any defensive tactics — remains a critical and controversial one in adversarial ethics.

Tonya Harding Defeated By Samantha Browning

MEMPHIS, TN – FEBRUARY 22: Tonya Harding is hit by a right jab from Samantha Browning during their women’s bantamweight bout at The Pyramid on February 22, 2003 in Memphis, Tennessee. Browning won the fight by way of decision after 4 rounds. (Photo by Al Bello/Getty Images)

Is the Academy an Adversarial Institution?

The recent wave of student protests against racism have inspired significant opposition by some academics. The protests have prompted the formation of the Heterodox Academy, a “politically diverse” group of social scientists and other academics who are concerned about “the loss of lack of ‘viewpoint diversity’” on campuses.

One reason for this concern is that the liberal views and “PC culture” that are mainstream in universities may lower the quality of research and silence dissenting views, especially in notoriously/proudly leftist fields such as anthropology, sociology, and social psychology. Members of the Heterodox Academy, who include prominent members such as Jonathan Haidt and Steven Pinker, quote Mill’s On Liberty to illustrate their position:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them…he must know them in their most plausible and persuasive form.

Philosopher Jason Stanley thinks this position is disingenuous: conservative academics have cried “free speech!” in response to social justice concerns, but have not shown the same zeal for free speech when it comes to pro-Palestinian (or anti-Israeli, or anti-Semitic, depending on your ideology) positions. Moreover, Stanley argues that the opposition between free speech and social justice issues is a false dichotomy. Continue reading

The Most Expensive Honey I’ll Ever Have

I’m a skilled dog whisperer. Given that, I was talking with my dog, Honey, the other day about current events. After she complained to me that she was being cruelly starved (really, is it too much to ask for some lasagna and apple pie in her food bowl, too?), she brought up Martin Shkreli of Turing Pharmaceuticals and his actions concerning a prescription called Daraprim. Honey, the intellectual she is, informed me that Daraprim is the only treatment for humans with a parasite infection but not an immune system strong enough to fight it (an example of such a person would be a cancer patient). The medicine costs mere cents to make and was originally sold for about $13 per pill. So, Honey thought, Turing made excellent profits to begin with. But then hedge fund manager Shkreli increased that price to over $700 per pill, making him and the company exorbitant profits (imagine how many chew toys you could buy with that money!).

So, if a human were in the position that he needed Daraprim, he either needs to empty his pockets or die. So what are the people in this situation going to do? They’re going to pay it, if they can, and otherwise they have to wait on a looming death sentence as they die off slowly. Unfortunately, Honey, commented, humans aren’t as lucky as animals because they can’t be euthanized when death is imminent (an ethical discussion for another day).

So, is there a valid reason for this price inflation of Daraprim? Some people might label it greedy. Heartless, even. It’s one thing to pick on people, but to pick on the feeble and dying? That just seems so much more wrong.

Then Honey brought up a good point – people are enraged by this manipulation, but actually it’s more common than you’d think. Such price gouging already exists in the medicinal market; it’s just that many don’t think twice about it because, legally, it involves property. She was referencing herself, her animal friends and veterinary medicine. Honey and my family know the price of veterinary medicine too well. Honey was diagnosed with cancer about 18 months ago. At the time, my family was given two options: (1) let her die within the next few months or (2) treat the cancer, which could keep her alive for years. That treatment, though, would cost hundreds of dollars per month. It wasn’t a hard decision – Honey made a list of all of the good she brought into my family’s life (how else would we get exercise except for chasing her when she stole undergarments and shoes? who was going to perform the important task of shredding wrapping paper on holidays? how would we fill the silence in the morning without her whining…hem…singing?). My family didn’t need much convincing; we created a budget and started Honey’s treatment immediately.

Honey is an integral part of my family, just as many other pets are to their families. It’s not just us that are willing to go to great lengths for our four-legged friend; thousands go to veterinarians with their pets, diagnosed with life threatening conditions, and are willing to do anything in order to same them, even if it costs them a small fortune. How is this so different from when someone’s grandma is diagnosed with cancer and unable to fight off a parasite except for a prescription that costs an arm and a leg, but pay it anyways because they love her? Why are the market ethics of human medical treatment and animal medical treatment so polarized? They both have to do with living beings. Honey thinks that pet pharmaceutical companies, like Shkreli, bank on that emotional attachment to the lives that the law has so cruelly reduced to property. Why are they allowed to profit off of expensive but necessary medication for pets, but it’s taboo if the profit is a byproduct of expensive human medication? I brought up to Honey they differences between human and animal care, especially research funding and healthcare, but she still thinks that both should be approached, at least morally, from similar positions.

Honey’s story has a happy ending (maybe a better word would be continuance) – my family was able to get her the necessary treatment and she, the champion that she is, managed to beat the cancer into remission. The vet thinks that Honey has a lot of years left in her. We think that more animals should have such chances.

Upon Further Review: Ethical Controversies in Campaigning

Post 3: Bernie Sanders’ “Endorsements”

When and why do pundits, candidates, and campaign staffers cry foul during election season? As I mentioned in my introductory post, this section of the blog will serve as a sort of data collection depository for disagreements about what constitutes fair and unfair play in campaign competitions.

The issue:

Bernie Sanders’ campaign was criticized for running misleading ads in the days before the New Hampshire and Iowa primaries. One ad in particular, titled “Endorsed” (see below), contains excerpts from editorials in Nashua Telegraph and The Valley News praising Sanders. While neither newspaper actually endorsed Sanders, the viewer could be forgiven for thinking otherwise (I highly recommend watching the ad—it’s only thirty seconds long and quite cunning).

The accusation:Trump tweetCarroll, the editor of the Nashua Telegraph, called Sanders’ ad “deceptive.” Hillary Clinton’s campaign released a “briefing” outlining Sanders’ alleged habit of using misinformation. Without explicitly accusing him of unethical behavior, one of her ads on Sanders closes with the question, “Why is Bernie Sanders misleading voters?” A Newsweek piece titled “Advocacy Groups Call Foul on Sanders Campaign in Iowa, Nevada,” reports that some have accused the Sanders campaign of “playing dirty.”

The accused’s response:

During a recent debate, Sanders addressed the accusations (sort of). He said, “As I understand it we did not suggest that we had the endorsement of the newspaper. Newspapers who make endorsements also say positive things about other candidates and to the best of knowledge that is what we did. So we never said, that somebody a newspaper endorsed us that did not. What we did say is, blah, blah, blah, blah was said by the newspaper.”

Categorization:

Nobody claimed the ads were illegal. Like the Cruz mailers (a controversy I examined in an earlier post), the ads also don’t appear to be a violation of everyday moral norms. And though technically not false, the ads (especially the “Endorsed” ad) are clearly misleading—something Sanders never explicitly denied. That leaves us with unfair play. While not illegal or an egregious display of personal immorality, critics appear to believe that the Sanders campaign was ‘playing dirty.’

Other relevant information:

Interestingly, few, if any, pundits (that I know of) have questioned Sanders’ personal integrity in the wake of these controversies. In contrast, many attacked Cruz’s personal integrity after his campaign engaged in similar ‘dirty’ tactics.

No Longer a Bench Player: A Decade Later, Justice Thomas Gets in the Game

1330266699999-cached

As was widely reported, yesterday marked the first time in just over a decade that Justice Thomas asked a question during oral arguments. Thomas’s questions came about during oral arguments in the case of Voisine v. United States, in which the legal questions are, first, whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and second, whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution. Thomas directed questions to the Justice Department’s lawyer, Illana Eisenstein, about whether there were other areas “where a misdemeanor violation suspends a constitutional right.”

From an adversarial ethics perspective, the questions from Justice Thomas during oral argument signal a significant shift in his view of the proper role of the justices—or, at least his own role—in Supreme Court cases. For one, Thomas has previously said he frequently relies on the written briefs and therefore does not see a need to ask questions of the lawyers appearing before the Court. At other times, he has cited respectfulness to the lawyers and the propriety of not interrupting them. Thomas once mused that, “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”

In general, however, it seemed he believed that the adversarial process should involve the parties to the case making arguments to the Court—not the Court engaging in arguments with the parties. Thomas has long held that, basically, Supreme Court litigation is adversarial enough without the justices adding to the hostility. At the very least, Thomas has believed that they ought not to “badger people.”

Perhaps Justice Thomas, following Justice Scalia’s death earlier this month, feels that the new makeup of the Court gives the more liberal justices an unfair advantage to pick the winners and losers in cases if he remains silent. Though he might think the justices should be rather more like impartial referees than active participants in litigation, his role as a just another warm body at the end of the bench might be over for good.

On Monday, Justice Thomas was a player.

Things fall apart: Williams v. Pennsylvania and judicial conflicts of interest

It seems self-evident that no person should be permitted to judge a case in which they have an interest, but our laws do not yet reflect this principle clearly, if at all. The Brennan Center for Justice at NYU recently published this article about a capital case—Williams v. Pennsylvania—in which conflict of interest has had a leading role.

This is a particularly timely article because the U.S. Supreme Court—narrowly divided on this issue several times in the past, though now more evenly so with the recent passing of Justice Scalia—heard oral arguments in this case yesterday, February 29th. (Transcripts and recordings of the oral arguments will be available here by March 5th.)

What is important for us to note is that, at issue are not disputes over guilt or innocence, but rather whether the fundamental concept of procedural justice has been tainted by a judge’s conflict of interest; and what kind of threat that would pose to both the perception and reality of justice and fairness in our legal system.

As the article notes, we all have the right to a fair trail before an impartial judge; yet

Mr. Williams was denied that right, by any reasonable reckoning, when Pennsylvania’s Chief Justice, Ronald Castille, who is now retired, declined to recuse himself in a 2014 ruling by his court upholding Mr. Williams’ death sentence, notwithstanding an astonishing conflict: He personally approved and oversaw Mr. Williams’ prosecution and post-trial defense of the death verdict in his earlier role as Philadelphia’s district attorney.

 

5.0.2

“You look familiar. Have I prosecuted you somewhere before?”

Our legal system is necessarily, and fortunately, adversarial; and removing that adversarial component from this case puts the integrity of the entire system at risk.

Lawyers are to argue their client’s case competently, perhaps even very aggressively, and an impartial magistrate is to judge the proper course of action after listening to and considering both sides. But what might we expect to happen if one of those lawyers were to become the “impartial” judge of the case at a later stage of the trial and then refuse to recuse himself? (Spoiler alert: objectively bad things, many of which are certainly immediately apparent to the reader even as pure hypotheticals.)