The Eternal Ethics Conflict: Drawing Lines, Enforcing Them

cross-the-line

Yesterday traffic caused me to arrive a bit later than usual at my monthly gig as the instructor in the legal ethics portion of the D.C. Bar’s mandatory orientation session for new admittees. It was after 9 AM (my segment starts at 9:20), and as I approached the glass doors to the lecture hall lobby, I saw a distraught women angrily berating one of the D.C. Bar staff. I knew instantly what was going on.

You see, the courts approving the program insist that every attendee be there at the start: the doors close at 9, and anyone arriving late, no matter what the reason, is out of luck. They can’t attend the session, can’t get credit for it, and have to return the following month. That rule is on the website and in all communications with the Bar, along with the warning that there are no exceptions, and no effective excuses. Every month, someone misses the deadline; every month, that person goes ballistic. This women, however, was remarkable.

She had flown to D.C. on the redeye, she said. Her cab was stuck in traffic, and when she arrived in the cavernous Reagan Building where the day-long course takes place, she had ten minutes to spare. Unfortunately, the Reagan Building eats people. I have wandered its halls lost many times. I keep expecting to encounter a bearded, Ben Gunn-like figure who grabs my pant leg and jabbers about how he’s been trapped by the bewildering signage, and has been living off of Cub Scouts since 1992. The woman made it to the right hall in just 12 minutes, which is impressive without a GPS. But she was still two minutes late.

She could not understand why the staff would not make an exception in her case. ONLY two minutes late. ALL the way from L.A. MAJOR hardship having to come back. TRAFFIC. LOST in the government office building from HELL. She was red-faced and on the verge of tears. I intervened, and told her I sympathized, but it would be unfair to allow her to do what every other late attendee, including others who had flown in for the course, had been forbidden to do. (The staff also didn’t have the authority to overrule the policy.)

“Why not?” she said. “This doesn’t have to be precedent!”

“But it will be,” I said. “If two minutes and a flight from L.A. gets a pass, why not four minutes and a flight from Omaha? Or ten minutes and a drive from Wilmington? There has to be a line. You were told about it. We can’t make an exception for you.”

Now, the fact is that while we were talking, nothing substantive was occurring behind that closed door. My presentation was the first significant part of the course. Why couldn’t we just let the poor woman in, and make an exception just this once?

The answer is that reasonable lines have to be drawn, and once there is fair and sufficient notice, the fact that they are crossed by a lot or a little can’t matter, if there is going to be a line at all.

This drives people crazy, and it’s understandable. What difference is there really between the student who flunks a course by one point on a hand-graded essay test and the student who passes by the skin of his teeth? Not much; quite probably nothing…except the single point. But this is a reality of life. If you miss an airplane by 30 seconds, you’ve still missed it.

Lawyers should be especially attuned to this: be late for trial, and you can be facing discipline, or at least an angry judge.  Today “Above the Law” has a story about a lawyer who lost the opportunity to file a 2.5 million dollar lawsuit because he botched the payment of a two buck filing fee. It’s seductively easy to say “this isn’t fair,” but fairness to a group may require what appears to be arbitrary harshness to the individual. If there is going to be a fee, it has to be paid. If most lawyers pay it, then it is unfair to them to allow other lawyers to cross the line without consequences. If a line isn’t consistently enforced and respected, the system lacks integrity.

This is one of the persistent chasms between conservative thought and liberal reasoning. The conservative will insist that the rule be followed and the line respected even when it is clear that the result will be excessively harsh or unreasonable. The liberal will argue for ignoring, moving or altering the line to avoid apparent injustice, even though the results may be, and often are, chaotic. This is the two divergent meanings of “fairness” going to war. Both approaches are ethical, and they are mutually exclusive.

The 2000 election, which was recently discussed here, was an excellent example. Republicans, with some logic and also self-interest, wanted to stick to the law as it was: over-votes and under-votes didn’t count as votes. The instructions were clear: shake out any hanging chads and check your ballot, or risk not having it count. Democrats, however, successfully got partisan judges to change the rules mid-vote count, because of “fairness.” If we could discern the intent of the voter, shouldn’t the vote count? Thus  the nation was flung into Chad Hell.

I vividly remember a TV segment at the time in which a passionate Gore surrogate argued for a vote-by-vote standard as just and fair. “There was a ballot where someone confused by the voting machines just scrawled on the card, ‘I want to vote for Gore!’ Now how could anyone argue that this should be a valid vote?” the talking head asked. That’s funny:  it’s exactly what I would argue. That isn’t a vote. The law said a vote was registered by punching out a hole next to a name, not by writing on the card, not by shouting out the chosen candidate in the town square, not by dropping a marble in a box. If you allow one voter to vote however she likes, then it is unfair to prevent anyone else from inventing a similarly “clear” voting method.

Sorry. Follow directions. Make the deadline. Plan ahead. Be accountable, and don’t expect the system to turn itself inside out because you miscalculated.

In the end, the frustrated woman at the D.C. Bar course actually placed a curse on the staff, saying that she wanted all the children of the staffers to be treated as badly as she had been some day. As curses go, this was pretty pathetic: “May all your seed experience bureaucratic obstacles in fulfilling continuing legal education requirements!” is hardly Stephen King. Still, I understand where it came from: when you barely cross a line and still inherit the full brunt of a penalty, it can seem like you have been mistreated.  Ethics, however, demands that when that line is clear, reasonable, necessary and well-communicated, the real unfairness would be in placing individual hardship above the system’s integrity.

70 thoughts on “The Eternal Ethics Conflict: Drawing Lines, Enforcing Them

  1. The problem is the choice between a unbending law and rule by arbitrary opinion. I don’t like the former approach, but I fear and dread the latter. You can appeal to have an unjust law changed. There is no appeal when the decision is allowed to rest in someone’ arbitrary whim.

  2. I wonder what curse she flung at you, not knowing your role in the seminar when you said, I need to come in, I’m sorry I’m late. To which the door guards said “sure, come on in Mr. Marshall”. Or if she just staggered around D.C. in pure shock.

    • Actually, she opened that issue, saying, “And I suppose you’re going to let THIS man in?” Whereupon I said, “Yes, but because I’m a presenter, not an attendee.” I was told about the curse, with occurred after I went in, but then again, one key page in my notes DISAPPEARED, and it really was mysterious: I put it in my notebook right before leaving the house, and it was just gone when I turned the divider. Oh–and I am now covered with scales.

      • “You’re all PIGS!”, screeched Jean Marsh from the battlements, causing Val Kilmer to grunt and sprout tusks. Many people would like to see Kilmer with those… but not you, Jack!

  3. So everyone caught speeding should get a ticket. No warnings. No “but I was trying to get to the hospital that was just around the corner and getting there was faster than calling 911”. No excuses period.

    And when they get a ticket, no leniency should be granted by the judge. No “hey this is my first offense and I am having a rough go of it at the moment, could you consider a smaller fine/offense”

    What about Bowels v Russell where an appeals court gave bowels 17 days to file an appeal even though he only had 14 days under the law. He followed the instruction of the court but the court was wrong and Bowels paid the price for it.

    Yes, I am a liberal. And yes I believe the court was ABSOLUTELY wrong in Bowels v Russell. He relied on information given to him by the court, information that one should reasonably expect to be correct when it comes to a filing deadline. Yet I would infer by your post that you agree 100% with the ruling because them’s the rules.

    “Ethics, however, demands that when that line is clear, reasonable, necessary and well-communicated, the real unfairness would be in placing individual hardship above the system’s integrity.”

    Reasonable and necessary are often subjective. Often people set up reasonable cushions in to their presentations to allow for the imperfectness of the world. Sometimes businesses that allow for clock ins will allow 8:07 to count as 8:00. If a person is able to get the entirety of the seminar (i.e. the reason they come there) then it is not unreasonable to allow people who get there before the main/first presenter (you) to start speaking (or at least enter).

    • So everyone caught speeding should get a ticket. No warnings. No “but I was trying to get to the hospital that was just around the corner and getting there was faster than calling 911″. No excuses period.

      That’s much fairer than the current system, where whites get warnings and young blacks get tickets, and pols, celebrities and women with big—eyes get special treatment. Speeding tickets are an excellent example of where there is no integrity and no consistency.

      • That is inconsistent leniency with established biases that need to be fixed.

        The argument of “if we are a little lenient that will just lead to more and more leniency” is a slippery slope logical fallacy.

        • No, it’s not. The slippery slope is only a logical fallacy when it assumes a parade of horribles that do not follow from the conduct being permitted. See, the conduct being permitted here is “fudging the rules.” That IS a slippery slope, because fudging engenders fudging. What you want is the Rationalization “Don’t sweat the small stuff.” Small stuff unsweated gets out of control fast. That rationalization is what you are actually appealing to.

          Biases can’t be assumed away. They will always exist. That’s why the law bans exceeding the speed limit, not exceeding the limit plus not sufficiently lying/flirting/begging/appealing to the officer.

          Work on that: the misunderstanding that properly identifying an SS is a fallacy. It’s not. The fallacy is assuming that every choice is a slippery slope.

      • You never commented on Bowels v Russell. Was the SCOTUS ruling correct in that Bowels didn’t file on time or should he have been ok because he relied on the courts to know which date was the deadline?

        • The theory behind the decision is that since the Court doesn’t have the power or authority to change or waive the law, it’s false version of the period can’t stand. It’s good law, but bad ethics. I agree with the legal reasoning, but the plaintiff was screwed. It’s not a good case to use for any proposition other than the fact that what is legal isn’t necessarily ethical.

          • But isn’t your argument that denying him his appeal is legal and ethical because if you make an exception for him that it would lead to exceptions for others?

            • Yes, because it WOULD. The Fallacy is when someone simply free associates the worst conceivable, unlikely or impossible worst case scenarios as if the situation being discussed is the same as those.

              • It could, perhaps lead to exceptions to those in that exact circumstance. But not in any other circumstance that does not share the same characteristics.

    • The judge doesn’t agree, however, and his/her welcome is considered part of the program, as is the description of the day, the equipment, and the introduction of staff. If it’s in the program, why allow one, anyone, everyone, to skip it? If you can come 20 minutes later without penalty, why won’t everyone do that? If no one comes and the 20 minutes have value, why not start that part 20 minutes later? And what if someone comes 2 minutes late then?

      The Bra tells me that they tried being lenient, and people came later, and later, and later. Your argument is classic, and it doesn’t work. Sadly. But it doesn’t.

      • See I figured that you were being a bit silly with your saying nothing substantive took place before your scheduled speaking portion. But I couldn’t assume that for sure because I wasn’t there and you didn’t say “haha, just kidding, she would have missed a part”.

        Do they give a test at the end to show they absorbed what took place?

        • 2. Nope.
          1. It isn’t substantive. It’s administrative. Literally nobody would be the worse for missing it who had the sense to ask someone what was said—the summary would take three minutes max. But I’ve taken whole semesters like that.

          • I would think that passing a test at the end would prove that the person actually absorbed the ethics lessons. I mean, if all you have to do is show up and be a warm body in a seat, how is that any evidence that one picked up on any meaningful ethics education? (I know, a little off topic)

            • I could not agree more. I addressed the national CLE association making that exact point. I was not invited back. The course are an income center. Presumably forcing lawyers to send X hours in an ethics seminar does more good than nothing, but there is no data to prove it.

  4. I actually had the opposite experience: when my DC bar application was pending, I noticed on my other state bar’s website that the DC orientation class could count for CLE credit there, and that the course was cheap. Killing two birds with one stone, I signed up and took the course. When my application was approved, I received a packet of materials that unexpectedly contained the word “post-admission.” Taking a shot, I submitted a copy of the DC bar admission materials and a screen shot from the other state bar website, neither of which contained that word. Obviously, I admitted, I had taken the course pre-admission – but you can see how the mistake was made and I was after all just 17 days early?

    I knew I was dead when the response began with the words, “This a post-admission requirement….” I at least got the satisfaction of being the only person ever to take the course twice who wasn’t being punished for something.

  5. I know an Olympic athlete who was denied entry because he was a few minutes late for a deadline. Was this unfair?
    No. For all the above reasons.
    He kept training for 4 more years and did it right the second time and won a gold medal.
    Late is late. You can’t call back many things so easily, the plane taking off, for example. It’s best to learn it young and well, and plan ahead.
    This is an especially valuable lesson for a lawyer to learn as Jack mentioned above.

  6. This probably ties in to the previous post about America becoming a nation of cheaters – but it also may belong here.

    What a lot of people do not understand about rules, processes, and procedures is that they are there to ensure fairness for everyone. When the rules, processes, and procedures get short-circuited – even for what some believe to be the noblest of causes, it will be no surprise when the losers cite that short-circuited process as part of the reason they feel cheated.

    Take a look at the situation in Alabama vis-a-vis same-sex marriage. While Roy Moore’s getting the headlines, what is more worrisome should be the fact that the Supreme Court, which is slated to hear a case to decide gay marriage – refused to grant a stay of a district judge’s ruling imposing gay marriage on Alabama.

    Put yourself in the position of the attorneys who will be defending the marriage amendments in Ohio and three other states that the Sixth Circuit upheld. They now have to know that they will be arguing their case in front of a court – of which at least five members have already made up their mind before they saw a single brief or heard oral arguments. Put yourself in the position of anyone who has opposed gay marriage. Wouldn’t you feel cheated?

    So, proponents of gay marriage have not only short-circuited the democratic process – now, it will look like they will have gained it not only via the Supreme Court (which would generate hard feelings among those who worked to pass measures like Proposition 8), but they will also get it not via a fair and impartial hearing, but by a court whose mind was apparently made up long before a brief was filed or an oral argument made. How will those who supported this ever trust the courts to be fair and impartial ever again?

    I fear that this ruling will be worse than Roe v. Wade – because in Roe v. Wade, the pro-life movement didn’t feel cheated. When the Supreme Court makes its ruling this June, supporters of traditional marriage will feel they were cheated, and the court will lose a ton of respect.

    But today, we are in an “ends justify the means” era. Obama voters probably view Lois Lerner as a hero for going after the Tea Party. They celebrate Obama’s executive action on immigration (which he admits is intended to “drown out” conservatism). They probably view Obama’s lie about his support for gay marriage as one that was necessary – and chortle at how he put one over on people.

    When both sides get to doing that… our politics will go from dysfunctional to civil war by other means – and then things will get scary.

    • I can see Jack’s argument about why the woman shouldn’t be let in, even though I disagree with his general point that lines cannot be crossed for any exception.

      I do not see your argument here at all. It assumes:

      A) That rights should be subject to the Democratic process. They should not.

      B) That only 5 of the judges have biases prior to them hearing arguments over these other gay marriage bans. I guarantee you that all 9 are biased on the issue of gay marriage one way or the other. I am also sure that judges will look at the arguments made and make a decision based on those arguments and (sometimes) previous precedent.

      C) That challenging cases in court is somehow “short circuiting” the process. It is not. Challenging state law in federal court for review is a reasonable way to tackle issues such as this.

      D) That just because one works hard for a measure (like prop 8) that they should somehow feel cheated when that law is deemed unconstitutional. States do not have the 10th amendment power to enact laws that violate the Constitution.

        • How could you possibly read either my post or my comments, not to mention the rest of the blog, and interpret it that way? The conclusion was this: “Ethics, however, demands that when that line is clear, reasonable, necessary and well-communicated, the real unfairness would be in placing individual hardship above the system’s integrity.”

          • In this post and your responses I see no leeway in your position.

            Reasonable, necessity, and even if something is well communicated can all be subjective.

            I can think of reasonable, necessary, and well communicated lines that are drawn and plenty of situations where such lines should be crossed. The Bowels case I brought up being one of them. The time allowed for appeals is reasonable, it is needed, and I would argue that it was well communicated (in general, even if not perfectly communicated in the instance in question). Bowels should have been allowed his appeal.

            • Then you don’t know how to read.

              You know, you contribute a lot here, but if a new commenter made such a grossly lazy and incorrect statement about a post, I would fry him in words that would lead him to incorrectly accuse me of an “ad hominem attack,” leading me to explain that when I call someone who says idiotic things an idiot, it is a diagnosis based on observable facts.

              “Reasonable, necessity, and even if something is well communicated CAN all be subjective,” but as the law recognizes, they are objectively quantifiable as well. The operative principle is, “will the system work if the exception is extended to everyone?”

              Your statement “I disagree with his general point that lines cannot be crossed for any exception” is ridiculously inaccurate.

              1. The general point is that this is a a classic ethics conflict (two equally valid ethics principle pointing to different results), and AS THE POST SAYS, whether an exception or rigid enforcement are seen as fair or not depends on whether one is the individual seeking the exception or the population that has managed to meet the requirement. Lazy Mistatement #1

              2. As I just said, “Ethics, however, demands that when that line is clear, reasonable, necessary and well-communicated, the real unfairness would be in placing individual hardship above the system’s integrity” was my conclusion as it applies to THE LINE IN THE POST, not “Lines,” as in “all lines” as your statement wrongly suggests. Which part of “Both approaches are ethical, and they are mutually exclusive” don’t you understand? If they are both ethical, I obviously did not say that either approach is ALWAYS, as in “cannot be crossed for any exception,” right. If an exception, on balance, is clearly more just and fair and utilitarian than not making an exception, and that includes whether making the exception damages the rule and makes it impossible to enforce, then it is ethical to make it. This is Ethics Decision-making 101. The post is not about why you can’t make exceptions, it is about why you can’t ALWAYS make exceptions. How the hell did that little detail escape you?

              Then there’s the little matter of my comments on YOUR OWN THREAD, in which I said that had it been within my authority, I would have let the woman in as a one-time only, not precedentiary situation where applying the rules strictly didn’t work well, exactly the same reason I argued in the Bush v. Gore post that the Supreme Court was justified in doing what it had to do to finish an election that was stuck in an endless loop.

              What you absurdly claim that I never said is in fact a theme here, The Ethics Incompleteness Principle, which Tex immediately recognized from the post and created his long Comment of the Day. How did he correctly discern the point where you seemed to have missed it entirely?

              As I say, I don’t want to bust your chops too much, because I like you and you have constructive things to say. But you have to do better than this.

              • When I read “that line” I believed you were referring to a general line that was being drawn in each circumstance not the line specifically referred to in this particular post. What confused that more was that you didn’t just leave the discussion about lines that shouldn’t be crossed to just this woman arriving 2 minutes late but also to strictly discerning votes in 2000 and the lateness of a filing fee in an “Above the Law” story and not paying a full amount of money causing one to miss out completely on the opportunity to file. So if you are bringing up more than one instance where lines should be crossed, why would I assume that the “that line” comment was discussing the particular woman in question and this specific scenario and not other lines. Other comments that would lead me to believe that you were not just limiting the conversation to this particular instance is comments like “If a line isn’t consistently enforced and respected, the system lacks integrity.” Had you said “If this” instead of “If a” I would have known that this was a comment specifically about this instance, this rule, this particular line. s

                The comment of both sides (liberal vs conservative) being ethical and mutually exclusive seemed contradictory in light of the rest of your analysis, but I left it alone because the rest of your comments seemed to imply that while line crossing might be an ETHICAL argument that can be made, that you still don’t believe in line crossing in any instance because while it may be ethically ok, it still would make the system lose integrity. Make sense?

                How did Tex come to the same conclusion that you did but not I? Probably because Tex and you agree far more often than you and I do. He is also a far more avid reader/contributor to the site than I and as such is much more likely to get certain points that you are making.

                However, when I read Tex’s post on the issue I clearly see that he believes exceptions should be made. I do not get that impression from what you had posted previously. So while I can accept that you say you agree with him, I am not sure how I was supposed to get that by the nature of your posts.

                • Huh? So because I choose a second example of a line that that arguably can’t be crossed with leniency, that means I’m including all lines? As I said before, the post makes it abundantly clear that this wasn’t the point or the message. Sorry you missed it, but it was not hard to grasp.

                  • No, that you chose several examples of lines meant, to me, that you were not simply discussing this one particular line. You had given me no evidence to believe that there are lines you feel can be crossed.

                    Lines you stated that believe should not be crossed:
                    1) Being allowed into an ethics seminar 2 minutes late.
                    2) Votes only counted in a particular manner.
                    3) Paying fees late/incompletely before due date.
                    4) Speeding
                    5) Appeals process deadlines given incorrectly by a judge.

                    Lines you have stated that can be crossed;
                    1) Still waiting….

                    I am being asked to believe you support something that you have given no evidence of yet. Sorry, but if I see no evidence of something, I don’t believe it.

                    • I will admit to not reading every single post before making a response. But that comment is still contradictory to his final statement. Had I seen the statement made at the time I would have asked him about it, because to me it seems to contradict his last statement.

                    • I’m sorry Dan, but you have exceeded the level of stupidity and wilfull obtuseness that I will deal with in a 24 hour period.

                      Final effort, and then I’ll leave you to gibber like a chipmunk about any damn thing you please:

                      Lines you stated that believe should not be crossed:
                      1) Being allowed into an ethics seminar 2 minutes late.

                      FALSE, as I already showed you. I specifically said otherwise, in this one case, though not in all such cases.

                      2) Votes only counted in a particular manner.

                      NO, votes defined by law as being completed in a particular manner. Votes that do not meet the definition of votes as set before an election are NOT VOTES.

                      3) Paying fees late/incompletely before due date.

                      Yup. No way out of that one.

                      4) Speeding

                      Nope, didn’t say that. I did say that allowing discretion guarantees abuse, and it does. I would waive the ticket for the care speeding to the hospital.

                      5) Appeals process deadlines given incorrectly by a judge.

                      No choice there. That’s right.

                      You’re a sad three for five, and the two you missed disprove your next sentence.

                      Sorry, I’m through with you on this one. You are all over the map, and either intentionally misinterpreting the post and comments, or having some kind of cognitive breakdown.

                    • Actually at the very least I am 4 for 5 since I agree with you on the votes thing. You can only count the votes legally cast. Period.

                      And as such you draw a line there. Not sure why you are being critical of me there. But hey, whatever.

                      I will have to rethink my coming here though. You have been rather harsh since my return. We can disagree without being disagreeable. I have presented my criticisms of your arguments with respect, you have not done me the same. So… we shall see.

                • To be clear, I think leniency should only be considered when other ethical considerations are driving the exception being claimed…

                  That is, in this case, the 2 minute late woman doesn’t have an excuse if she didn’t get on a taxi earlier, because one should expect traffic jams in a big city….

                  The 2 minute late woman, however, WOULD have an excuse if the reason she is late is because she just applied CPR to a dying person on the sidewalk.

                  Another thing to say:

                  I think we grant way too many exceptions when we shouldn’t – such as police forgiving speeding tickets because it’s an attractive woman.

                  And because, in general, we are lazy, we don’t grant leniency to legitimate exceptions, because they are so rare we don’t know how to handle them or the ethical balances they require. We also are afraid of having to voice how Person X gets an exception but Person Y doesn’t (even if their exceptions LOOK a whole lot alike). So, in that case, I don’t think we grant enough leniency for valid exceptions that we ought…

      • A) The democratic process is still a process in this country. You “liberals” have made it a habit to use the courts to overturn results of that process not to your liking. For the most part, you’ve never had the support of the people for same-sex marriage… you’ve used judges to cram it down people’s throats.

        B) Re-read what is being said about the handling of Alabama’s request for a stay. (Good commentary is here: http://www.nationalreview.com/bench-memos/398246/handwriting-wall-ed-whelan)

        C) When an issue is being worked out via the democratic process, and someone then runs to the courts to halt said process, how is that NOT short-circuiting the process? If gay marriage was popular, then you wouldn’t NEED the courts to impose it.

        D) Let’s review the handling of Alabama’s request for a stay, the actions of Vaughn Walker, and Ruth Bader Ginsberg’s recent public comments… and tell me again whether supporters of measures like Prop 8 shouldn’t feel cheated.

        • A) The Democratic process IS a process in this country. That doesn’t mean that everything passed by the Democratic process is constitutional. Let’s say, for example, a state decided to vote that one person can own another person. Clearly such a democratically passed law would be unconstitutional because the Constitution expressly prohibits slavery. Now, some states a while ago banned interracial marriage. Does the constitution ban such actions? Not specifically, but the laws were challenged because the combination of all rights protected by the Constitution makes such laws unconstitutional. And the same will eventually apply to marriage between same sex couples as well.

          A1)Nothing is being crammed down your throat. You are not being forced to marry anyone other than who you wish.

          B) That article doesn’t disprove my argument that all 9 justices have their biases. However, the stay was only dissented by 2 justices. Weird that Alito and Roberts did not join, eh?

          C) No. Just because something is popular doesn’t make it right. Just because something is unpopular doesn’t make it not right. Rights should never be subject to popularity contests.

          And again, nobody is imposing gay marriage on anyone. The rulings are just allowing two consenting adults of the same gender to form a legal marriage contract just like two opposite sex consenting adults can do.

          D) They may very well FEEL cheated. However, I don’t believe that anyone SHOULD feel “cheated” if they cannot have their way when it comes to keeping unconstitutional laws on the books. Marriage isn’t a 0 sum game. We don’t have a set number of marriages that can take place in a year. Gay couples marrying are not taking away the ability of straight couples to marry each other. You can be free to expand on the specific actions of walker and words of RBG to let me know how you feel that backers of prop 8 should feel cheated.

          Now, I will say this. I wouldn’t have had an issue had SCOTUS issued a stay until it could hear oral arguments. It would have been reasonable to do so. However, just because it is reasonable to take one course of action it doesn’t make the other action unreasonable. Not granting the stay was also reasonable.

    • (reply to Inquiring Mind Feb 11, 4:16 pm)
      “They probably view Obama’s lie about his support for gay marriage as one that was necessary – and chortle at how he put one over on people.”

      I am convinced that Obama has now lied about his lying, with Axelrod’s help. Why? Because I don’t recall any celebration of same-sex couples sitting in the same church with Obama and Rev. Wright for 20 years.

      At best, Obama just did the usual politician’s cowardly dodge: Personally being OK with SSM all along, while (1) staying quiet while lying to cover up his personal views and (2) keeping his finger wet and in the winds, vigilantly, until he knew he’d be safe in his own “coming-out.” The lawyer part of Obama might have been sharp enough to conclude that SSM would be legalized inevitably in courts – but I can only speculate “might.”

      We might not know even yet what all of Obama’s views on marriage are.

  7. Jack,
    Surprised as you may be, my, hippy, contrarian, libertarian-minded opinion agrees with yours.

    Some years ago, I was waiting in line behind a gentleman at Blockbuster (it’s hard to believe how dated that reference is already) who was told that his videos had been returned late and would have to pay a fine. He protested, however, saying he was habitually late by a few hours and this was the first time he’d ever been penalized (“But, Officer, I ALWAYS drive drunk!”). The cashier explained that their return policy came with a two-hour grace period in which late videos weren’t penalized and, this time, he had missed even THAT deadline. His immediate response was “But, I was only 1/2 hour past that, why not make an exception?” These were much the same complaints evinced by coworkers who would clock in past the 5-minute grace period and then get written up.

    It amazes me how even those who’ve been cut slack turn around and immediately ask for MORE slack. Had you agreed to let the woman in, she no doubt would have complained even more vocally when she was thrown out for talking on her cellphone.

  8. Rules; Where They Are Set

    To start off, let’s establish a couple of scenarios that require rules to govern them, just as aids for explanations. These examples, will be used as analogies for ethical systems (and ultimately legal, in fact one example will be legal). In example one, at the end of any school year, we examine students to measure their mastery of a body of knowledge or skills. In example two, on any highway, we have to balance the needs of individual drivers, their limitations should unexpected contingencies arise and their interaction with other drivers on the road. This balance leads us to Speed Limits.

    For the first example – test scores – we decide that of 100% of the knowledge related to this topic, you need to demonstrate 70 % of it to show sufficient mastery to advance. So, some students score 71% and pass, and some students score 69% and fail. At just a 2% difference, how is it that the 71% student gets to advance along with the 100% student, despite their difference being 29%??? Can’t we just have a little mercy for the 69% student?

    No. If we give mercy to the 69% student, then why not the 67% student? After all, that’s only 2% from him… then why not the 65% student? That’s only 2% from the next guy you just gave mercy to. Maybe the 69% student was just having a bad day, but otherwise COULD demonstrate the knowledge. Maybe the 71% guy really is less intelligent than the desk he sits at but just got lucky on some guesses. How is that fair?

    Well, the truth of the matter is, maybe 60%, in an ideal world of students who perform exactly as they ought to perform given their level of mastery, would be a passing grade. But the role of education, is to advance people who have FOR SURE demonstrated mastery at a certain level…this means that if 60% is an *ideal world* passing rate, but in a non-ideal world, Melvin Shlubnuckles, who would on a normal day only manage a 58, somehow lucked out and got a 65%. Well, if ideal-world passing rate is applied, we’ve just advanced a detriment to education to the next level. So to ensure that we haven’t accidentally advanced guys who only LUCKED their way to a good grade, we have to cut some of the barely good enough guys who would have passed. Yes this accidentally gives the axe to guys who otherwise demonstrate mastery (in the ideal grade) but are low enough to get busted by the 70%. But that’s the only safe way to ensure QUALITY advances, and those who need extra learning won’t – which is the purpose of education. (THERE CAN BE A HUGE ALTERNATE TO THIS PARAGRAPH – which should assuage the anguish of any bleeding hearts that disagree with this paragraph – but for explanation purposes I needed two separate methodologies for establishing cut off points of rules)

    In the second example – Speed Limits – we decide that an individual person, by themselves, on a highway, with no contingencies to worry about, can probably drive 100 mph safely. But, we know, there are always contingencies – curves in the road, unexpected conditions, OTHER DRIVERS. We’ve decided that, on a bell curve average (please remember this visual), a safe speed limit would be 80 mph at the middle of that bell curve. But we can’t choose that, because that puts a ton of people on the road with a speed limit much greater than they can react to, with people driving that speed that they must react to. So we skew the speed limit to the “safe” end of the bell curve and make the speed limit 60 mph, so most people are compelled to drive within the limits that ALL (or just about ALL) can handle.

    So, much like the Test Grade rule, but from a different approach, the speed limit rule also has margins and exceptions. Where in an “accommodating” world, a high speed limit is more fair to those who can handle it, but allows a ton of people who cannot handle it to suddenly be placed in situations they can’t handle. The Libertarian in me says so what, let people takes the risks they want…good thing that part of me is tempered.

    To make a long story short – we make our rules, and they have to be Black and White rules, even though they govern individual instances of conduct that may derive from a whole host of background reasons and therefore lie on a gray continuum. So it seems really really unfair, when Conduct X, looks almost exactly like Conduct Y, but X is banned while Y is allowed only because of small differences. This compels us, when making those rules, to decide, for each particular rule governing a particular continuum of conduct, does this rule need to SKEW on the side of allowing some unethical behavior so that all ethical behavior (even on the margins) is allowed, or does the rule need to SKEW on the side of disallowing some of the ethical behavior on the margins to ensure that ALL (or most) of the unethical behavior is disallowed.

    Head spinning yet?

    Mine is. Yet we derive almost all of our rules from one of those two balances – even our legal process does this. It SKEWS on the side of allowing some guilty people to walk free to ensure that ALL (or most) innocent people are not accidentally (or falsely) convicted.

    Ethics Incompleteness Theorem

    So, on the Highway, we’ve limited the speed to 60 mph. We’ve deemed that to be the Safe Speed minus the “Leniency Buffer” or a “Contingency Buffer” or any other type of marginal decrease. One Rule, One Scenario. But the scenario, although the norm, doesn’t factor in exceptions. The highway speed limit scenario considers the Normal use of the road – you trying to get from point A to point B while considering other drivers’ needs & likely contingencies. Well, what if the driver is a woman in labor? A man with a dying child in the back seat? We can come up with any number of “exceptions” that would compel breaking the speed limit. But the speed limit is still broken. So why can’t we just formulate a set of rules that covers EVERY last exception we can think of.

    In an ideal world, that’s precisely what a study of ethics does…but always remember, as we determine new rules that take into consideration factors that weren’t ever calculated before, those new rules WILL always generate new areas where exceptions may be found. In legal terms – the Speed Limit – we can’t drive down a highway, glance at a speed limit sign with 284 separate permissable speeds depending on your personal situation and expect life to be relatively seamless. The community & commerce would either be utter chaos or frozen in its tracks. That is why we have judges and police with limited discretionary power to decide if a particular breaking of the speed limit was reasonably exceptional for leniency or not.

    Likewise, where is the room for leniency in the test score example? Well, as demonstrated, establishing a 70% cut-off may axe a handful of guys who are *just right there* but need a few more points to pass and would otherwise have been included in the passing grade if it weren’t so high to cut-out the dummies who got lucky. Well, here is where we give teachers discretion. Will the teacher who knows that Frederick O’Middlin, who has demonstrated all year that he has mastered the skills or excelled on the projects or shows real promise, go ahead and award him points or give him a chance to re-test when he just had a bad day on the day of the test? Sure. Why not? More factors than the teacher should reasonably be expected to consider for grading papers may occur which may skew a student’s grade *slightly*. Does this make it unfair for Richard MacPhlegmatic, who often skipped class, failed several quizzes, botched practical demonstrations, and got the same grade by luck to be denied extra points by the teacher? NOPE!

    Leniency Should be Factored into making the rules

    Because exceptions exist that add ethical considerations to any Rule Violation, leniency must be permitted, BUT only a case by case basis. And each EXCEPTION must be clearly explained why it is an exception. It does no good that the pregnant woman in labor gets off the hook for speeding if it isn’t explained that that is why when the non-pregnant woman demands an exception also.

    But that isn’t the only way exceptions are demanded, because there will always be calls from the margins for more leniency. Remember that bell curve for determining safe speed limits? Well, the race car drivers who live on the far side of that bell curve, who could survive a highway full of contingencies and other fast drivers, will be perpetually frustrated by slow speed limits. They know they can handle it safely (they may not care about other’s needs though), and so they will perpetually clamor for a change in the standards to their advantage. The exception those guys want is in a completely different class from the exceptions like the pregnant woman.

    Ethics Surrender & Everybody Does It

    I find that a lot of the calls for leniency are often derived from Everybody Does It. That’s not acceptable. But it certainly leads to calls for Ethics Surrender.

    On this topic, it would seem that the woman who was late, may have been 2 minutes late to the “stated standard”, but the established rule, may very well have been derived (as per the methodology described above) from already factoring in a LENIENCY buffer of 20 minutes… that’s why seminars say “Arrive Between 8:30 and 9:00 – no admittance after 9:00”…because the ACTUAL rule is “Arrive at 8:30….but we’re giving you a 30 minute no penalty buffer…which is more than enough if you shoot to arrive at 8:30”.

    That’s where slippery slope begins and the fun of Ethics Incompleteness…

  9. The fact is that some things have an absolute standard. If you slip on the edge of a tall building gravity doesn’t take into consideration that you are a really good person and that it was a mistake and that your family will miss you. Fires burns, planes take off, babies are born, and bones break. When we deal with those things we learn not shout about how unfair it is. It just IS. It’s a fact. We factor it into our decisions.

    When we start dealing with people we bring in all the variables, but even then there are some absolutes. There are absolute consequences to everything. Sleeping in 5 minutes will make you late. Not watching your speedometer will lead to driving faster than you think. People figure out, what they are willing to trade off for a perceived benefit. If you ever raised a child you know this begins at a very early age. You also know that if a rule can be stretched the child figures that out very quickly and factors that in. It’s automatic and human to do that.

    Human laws and rules exist in part to take the place of harsher natural laws to keep people factoring in the consequences. Otherwise it would be chaos as others who are much smarter than I am have already mentioned. Human rules should be as well considered and inflexible as possible because it’s the flex that causes people to make dangerous trade offs.

  10. If anyone who can understand it and isn’t struck dead wants to take up Dan’s banner, be my guest: I’ll be happy to tear it down. Was I harsh? OK, the “gibbering like a chipmunk” thing was mean, but for the love of God: This isn’t rocket science or even Little Red Wagon science. I defy anyone to articulate a policy permitting someone who missed a clear deadline by two minutes, coming by plane, from LA, who got stuck in traffic and lost in the building that would not, with absolute certainty, through a series of incremental variations demanding EXACTLY The same level of compassion and fairness on exactly the same theory that “well, you can’t allow THAT, and not allow THIS” lead to permitting someone who missed the same once clear and absolute deadline by 20 minutes (By this process 2-3-4-5-6-7-8-9-10-11-12-13-14-15-16-17-18-19…), coming by bus, from Baltimore, who wasn’t paying attention as the taxi took her to the wrong address, went to the wrong entrance, and turned an ankle, slowing her down.

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