Category Archives: ethics

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.)

Upon Further Review: Ethical Controversies in Campaigning

Post 1: VOTING VIOLATION and the Cruz Campaign Mailers

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 counts as fair play in campaign competitions.

The issue:

In recent days, many have accused the Cruz campaign of using “dirty tricks” during his presidential campaign (you can watch Seth Meyers’ Late Night segment on Cruz for a more entertaining rundown of some of his ‘tricks’). While Cruz has provided those of us interested in campaign ethics with an abundance of material to examine, I want to focus on one particular (and lesser known but perhaps more interesting) controversy that Cruz was forced to address in the past month.

Iowans (and a handful of pundit) were upset about the mailers distributed by Cruz staffers insinuating that potential caucus goers’ participation rates would be publicized. In hopes of increasing turnout, Cruz (presumably) sent these notices—which can be seen in the image below—to those his campaign thought would be likely to support him in the caucuses (a strategy that seems to have backfired in the case Tom Hinkelday).

 

Cruz Mailer

The accusation:

Iowa Secretary of State Paul Pate condemned Cruz’s tactic because “it is not in keeping in the spirit of the Iowa Caucuses.” Iowa Governor Terry Brandstad called the mailers “unethical and unfair.”

The accused’s response:

After criticism about the misleading mailers, Cruz said: “I will apologize to no one for using every tool we can to encourage Iowa voters to come out and vote.”

Categorization:

After the mailers made headlines, the Cruz campaign was accused of dishonesty by some and outright fraud (but not illegality) by others. As noted above, Pate and Brandstad argued that Cruz was violating the spirit of the competition. Almost all agreed that the mailers were legal (in fact, Donald Trump deleted a tweet where he stated that they were illegal). And though some accused Cruz of personal immorality following the mailer controversy, his campaign was usually criticized on the grounds that it circumvented the rules of the political game by sending the mailers. Moreover, Cruz himself did not deny that the mailers were deceptive and manipulative (perhaps implicitly acknowledging that, in his view, deception and manipulation have a place in campaigning). All things considered, both Cruz and his critics appear to believe that one’s ethical judgment about the mailers were depends on how one understands the rules of the game. In short, this ethical controversy is about fair play more than personal morality or legality.

Other possibly relevant information:

These mailers have been distributed in previous campaigns with little or no fanfare. Why did this controversy make headlines? Some have argued that this particular mailer was worse than others because assigned letter grades (which usually happened to be an “F”) next to the names of individuals. Others have stated that it looks much more like an official state document than previous mailers. While it seems as though the mailers are now generally taken to be more evidence that Cruz is personally untrustworthy (which, as many have pointed out, is ironic considering he usually speaks in front of ‘TrusTED’ banner), that didn’t seem to be the case, initially.

Upon Further Review: Ethical Controversies in Campaigning

Post One: Introduction

Like the NFL’s attempts to determine what counts as a catch, this year’s primary contests have been marked by disagreement about what constitutes ethical behavior in campaign competitions. To cite a few prominent recent examples:

At first glance, the negative reactions to these developments are not particularly surprising; all this behavior seems intuitively wrong, at least in the context of everyday morality. Yet there have been other instances of candidates engaging in actions that one would usually frown if witnessed in daily life that that were not met with outrage and controversy. For example:

So what’s the difference? Why do we censure some actions while accepting others as part of the rough and tumble nature of the political game? In other words, what ethical criterion or moral framework does one use to determine the moral ‘wrongness’ of any candidate’s actions? Is it (il)legality of the act? Is the behavior judged in light conventional norms of interpersonal interactions (e.g. lies and insults are generally frowned upon)? Or, are actions judged by something else entirely—like the ‘spirit’ of the competition?

While I eventually intend to develop an empirically informed answer to these questions, this blog will serve as a sort of data collection depository for disagreements about what constitutes fair play in the campaign game. More concretely, I will use it to list and categorize (e.g. take note of the justifications provided by both the accused and accuser) some of the ethical controversies that arise during this election season. I suspect some patterns will emerge and I hope that they will help us make begin to make sense of the ‘inner morality’ of elections and campaigns.

Finally, I should note that I am not interested in making judgments about the morality of any particular action, here. One can find a wide variety of opinions both defending and criticizing a candidate’s behavior, regardless of how outrageous or offensive it might be, elsewhere. Thus, I’ll usually refrain from weighing in on any controversy in the interest of uncovering what others think it means to compete fairly during campaign season.

War Ethics for Dumdums (Bullets)

Posted by Sarah:

Before sports or electoral politics, there was war.  It is the primordial adversarial institution and only recently has there been a concentrated effort to legally establish permitted weapons, methods, and targets.  Yet, with common sayings like, “all’s fair in love and war,” and “war is hell,” it’s clear that these efforts have had only modest impact on “civilizing” war by bringing deliberate ethical standards to its conduct.

Unlike other adversarial institutions, such as sports and business, there no powerful global regulatory authority to make states play by the rules.  Instead, adherence to the rules of war depends, for the most part, on positive reciprocity and mutual self-respect. Deposed dictators and war criminals on the run may get dragged into international courts now. But powerful states have always been free to choose to forgo the rules – e.g., in situations where the enemy is at a distinct military disadvantage or where abrogation confers the only or best opportunity to defeat a superior enemy.

The US and its NATO allies have routinely been accused of flouting the rules of war in recent engagements. But we can find great powers selectively ignoring, or “gaming,” the rules of war for as long as there have been attempts to formalize such rule.

Consider how the British ignored the St. Petersburg Declaration (1868), which outlawed exploding “dum dum” bullets, in the Battle of Omdurman (1898) during the Mahdist War (also called the Anglo-Sudan War) between the Mahdist Sudanese and Egyptian/British forces.  The effectiveness of the dum dum bullets allowed the British to kill over 11,000 Dervishes, compared to only 47 British casualties.  The British justified their actions by arguing that the St. Petersburg Declaration only applied to signatories, which did not include the Dervishes.

As one Greek officer during the Balkan Wars reasoned, “When you have to deal with barbarians, you must behave like a barbarian yourself.  It is the only thing they understand.” Such logic implies that that the “barbarians” will not adhere to the rules of law and thus, “civilized” societies must adopt barbaric practices as well — otherwise it would be like fighting with one hand tied behind their back.  When one side refuses to comply with international agreements limiting weapons or tactics, abiding by a standard that was designed to be bilateral puts a state at a distinct disadvantage.

It is clear, however, in this battle, the Dervishes could not have used dum dum bullets, regardless of whether they were signatories to the St. Petersburg Declaration.  With no threat of retaliation, the British took advantage of a legal loophole to obliterate the enemy with the most effective weaponry at the time.

When the object is decisive victory with the lowest cost, were the British actions at the Battle of Omdurman “cheating” or immoral – or were they ethically acceptable?  If both sides have not agreed to adhere to the rules, are all actions morally permissible? What mechanisms mediating international relations exist or might be created to augment incentives to comply with ethical norms in conducting war, particularly when conflict is asymmetric, involving inferior or irregular combatants?

These are the kinds of questions I’ll be exploring in future posts on this blog.

Bipartisan or Bust?

It seems that nearly every time President Obama or Speaker of the House John Bohener makes a speech the magic B word is somewhere in it—bipartisanship. Just yesterday when the Senate passed a stopgap measure to avoid a government shutdown, Obama said, “I’m pleased that Democrats and Republicans in Congress came together and passed a plan.” Throughout his campaign, Obama also crafted an image of bipartisanship. I can’t help but ask the question, do Democrats and Republicans truly want to work together like they claim? If they do, then there actions (like voting to repeal “Obamacare” by the Republicans or walking out of the Wisconsin state legislature by the Democrats) don’t seem to match their words. And if they don’t actually want to be bipartisan, then why do they insist on spending so much time on it?

The American political party system is an example of an adversarial institution. What makes this institution so interesting is that nothing in our Constitution creates a party system, in fact our founding fathers warned against the influence of parties. Now, however, we have a highly regulated system with complex rules and the party system is one of the foremost features of American democracy. There is a common notion, however, that the party system is somehow detrimental to our democracy and that being an “independent” is a matter of pride.

Nancy Rosenblum, a Harvard professor of government, writes in her book On the Side of the Angels: An Appreciation of Parties and Partisanship, that there is a notion in America that anti-partisanship is an ideal to strive for. In an interview with the Dartmouth student newspaper, she said that “Anti-partisanship is as old as politics and as old as the dinosaurs.”

Rosenblum, however maintains that partisanship is exactly one of democracies strongest positive features, and without it the system of American democracy that exists today would look totally different—and worse. “We don’t need independence or post-partisanship, but better partisanship.”

So, maybe instead of always throwing out empty words about bipartisanship and “above the Beltway” rhetoric, our political leaders could do well to reexamine their own party politics.

Be careful what you ask for; you just might get it

In a 1923 essay called “The Ethics of Competition,” Frank Knight, who would become one of the founders of the Chicago School, thought that business had become a kind of game or sport, and he wondered how good or “healthy” a game it was.

Knight begins his classic text by rehearsing the argument from an earlier essay of his, “Ethics and the Economic Interpretation.” He had previously tried “argue against the view of ethics most commonly accepted among economists…” It was, he argued, “against ‘scientific ethics’ of any kind, against any view which sets out from the assumption that human wants are objective and measurable magnitudes and that the satisfaction of such wants is the essence and criterion of value…”

The problem with the so-called “scientific ethics” – by which he means some kind of utilitarianism – is that it cannot really distinguish between “higher” and “lower” wants, and therefore reduces the former to the latter.

But, Knight argues,

the fact is that human beings do not regularly prefer their lower and more “necessary” needs to those not easily justified in terms of subsistence or survival value, but perhaps rather the contrary; in any case what we call progress has consisted largely in increasing the proportion of want-gratification of an aesthetic or spiritual as compared to that of a biologically utilitarian character, rather than in increasing the “quantity of life.”  The facts, as emphasized, are altogether against accepting any balance-sheet view of life; they point rather toward an evaluation of a far subtler sort than the addition and subtraction of homogeneous items, toward an ethics along the line of aesthetic criticism, whose canons are of another sort than scientific laws and are not quite intellectually satisfying.

In short, for Knight, we cannot judge how valuable or successful our lives are in the same way that companies organize and analyze a balance-sheet. In the financial arena the balance sheet is used to analyze what a company has (assets) and what it might be risking or not have (liability).  But how would we ever make sense of the owner’s equity section in a balance sheet? And how are we supposed to ensure that the assets and liabilities sides of the balance sheet should be equal or balanced?

Knight rejects the view that is still predominant in economics more than 75 years later, of “want satisfaction as a final criterion of value.” We can’t accept that because even in our own lives we don’t “regard our wants as final; instead of resting in the view that there is no disputing about tastes, we dispute about them more than anything else.” In fact, for Knight, “our most difficult problem in valuation is the evaluation of our wants themselves and our most troublesome want is the desire for wants of the ‘right’ kind.”

This is a profound, and these days much more widely accepted, critique of utilitarianism. Why is it relevant for adversarial ethics? Because we need to be able to judge whether the market system produces better overall results (via the invisible hand) than some other system. But how do we evaluate what is a better overall result? Not, Knight is arguing, by judging whether it satisfies more wants. We might not really want those wants. Or worse still, as he will go on to argue in this essay, because the system (or adversarial institution) itself has generated the wants that it satisfies.

Sometimes a founder of the Chicago School can sound remarkably like a founder of the Frankfurt School….

 

Adversarial ethics under the stars: competitive time-wasting in K-Ville

This is the inaugural post by Leonard Ng’eno and Michael McCreary.

Hours before this year’s basketball showdown in Cameron Indoor Stadium between consummate rivals Duke and University of North Carolina Chapel Hill, the chancellor of UNC—Holden Thorp—took an early swing at the Blue Devils by tweeting, “Our students are talking about the future and asking smart questions instead of wasting time sitting in a tent.”[1]

The Krzyzewskiville tradition involving hundreds of Duke undergraduates camping out for weeks in advance to get their single-square-foot claim on courtside real estate for one of the most highly anticipated events in all of sports has become iconic of both the institution and fandom at large.  Duke fans, or Cameron Crazies, are known for their intensity and are proud to serve as the “Sixth Man” on Duke’s squad, providing an added advantage for the home team which is soundly reflected in the record books.  As Duke undergraduates, we were obviously offended by Thorp’s cheap shot at our tradition, our team, and our friends, but after the initial sting began to fade we started to wonder: Was Thorp right?  Is spending a month in a tent in order to see a premier basketball game a waste of time?

We’ll let K-Ville residents speak for themselves as to whether or not their month outdoors was worth their while this year; the specific questions we wish to address are these: What is the function of K-Ville?  What are its shortcomings?  And is there a preferable alternative?

The necessitation of K-Ville comes from the foundational economic principles of supply and demand, where supply represents the limited number of seats available and demand represents the number of undergraduate students vying for those seats.  This excess demand creates the need for some filtration process to achieve equilibrium.  In effect, tenting at K-Ville serves as a kind of “price adjustment” mechanism, increasing the cost (not monetary, but physical) of attendance and as a consequence lowering the demand.

K-Ville, and lining up in general, functions from a deliberately adversarial point of view where many students are competing against one another for a limited number of seats.  The principal shortcoming of K-Ville is that very few students—including the ones who participate—enjoy sleeping out in the cold while concurrently paying for a nice, heated room: grades suffer, relationships are strained, and comfort is sacrificed.  Yet, it is K-Ville residents themselves who dictate their own fate.  Living in a tent is not, strictly speaking, a requirement of attending the game.  Admittance relies on a “first-come first-served” policy, and K-Ville residents are merely admitted because they are the first in line.

In this way, we can see how lining up poses a serious collective action problem; one which, according to Professor Joseph Heath, “can easily degenerate into a race to the bottom, in which each individual, responding to the actions of the others, generates an outcome that is successively worse, but where each iteration of the interaction only intensifies their incentive to act in the same way.” While lining up early may be in one’s own self-interest in order to guarantee a spot, the inherently competitive move prompts others to line up earlier as well and can eventuate into months of waiting for hundreds of students.  On the other hand, if the amalgam of attendees turned up just an hour before the game, the result would be the same as if they had lined up in the same order months ago.

The primary problem in dodging this race to the bottom, however, is that there is no way to know who would commit to lining up first without going through the process genuinely (i.e. with every intent to sleep there for the entire duration).  It could be conceived that one year K-Ville residents decided to form a pact, after completely intending to stay there the whole time, that said they would each get in line in their set order an hour before the game and avoid camping out.  However, problems with this solution would be that there would be no way to prevent others from lining up during that time or to ensure that signatories of the pact would not break their oath.  Furthermore, such an agreement would, to some extent, undermine the legitimacy of the next year’s line, as some might line up with an expectation to make another pact while some might not line up at all, thinking that they could just outwit the people who make the pact this time around.  In essence, there doesn’t seem to be any way to artificially generate and ensure the results of the natural queuing process.

To tackle this problem, we need to reduce the demand for seats by setting up a fair competition that does not lead to a race to the bottom.  In arriving at our proposed solution, we took as a premise that a fair competition is one that favors those who want to go to the game the most (i.e. those who are willing to pay the highest price).  This premise is not only founded upon common marketplace ideas, but also seems to be the source of legitimacy for the existing queuing system.  Thus our method was to find some competitive system that would allow the most devoted students to demonstrate their fanaticism by paying a more productive and fun cost than standing in a line.  By definition, costs are rarely productive or fun (you aren’t going to reduce demand by giving people free candy), and so it took some thinking to come up with something, but in the end we were pleased with our solution.

We propose setting up a competition based on attendance of other Duke Athletics events.  Those who have attended the most Duke games, of any sport, would get priority for the seating to men’s basketball games, including the marquee matchup with UNC.  The university already has a system in place that rewards students for attending sporting events, called The Inferno.  We suggest that The Inferno be expanded to not only give points to students for attending games, but also to reward students with game seats when demand is expected to exceed supply. Thus by basing admittance to the Duke-UNC game on a student’s attendance at other Duke games, we avoid the race to the bottom result that forces students to camp out for longer and longer periods each season in order to attend one game.


[1] Thorp has since taken down the tweet and apologized.