LEB 320f modules 15-30 Notes PDF

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notes taken from the modules 15-30 and many of the cases in between them....

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MODULE 15: Rational Basis: Rational basis scrutiny means a level of scrutiny applied by courts while determining cases involving issues of constitutional due process or equal protection issues pertaining to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny when compared with intermediate scrutiny and strict scrutiny. Rational basis is the default level of review that a court applies when engaging in judicial review. Ex: most social and economic regulations are subject to the rational basis test. Laws or government policies that make distinctions based on gender must be justified as furthering important government interest when challenged in court on the 14th amendment. Intermediate Scrutiny: Where the government must prove that the classification substantially advances an important government interest. Supreme courts apply a “middle tier” of protection that applies to distinctions based on personal characteristics other than race or national origin. Most gender-based distinctions will be found to violate the equal protection clause. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in cases where the right to freedom of religion and freedom of expression from government interference is involved. Strict Scrutiny: Strict Scrutiny is used when a law or government action discriminates against someone because of the person’s ethnic group/ancestral origin. If the government seeks to justify the law then the government must demonstrate that the distinction is necessary to protect a compelling interest and that the distinction is narrowly tailored to discriminate no more than absolutely necessary. The government will almost always fail this. Courts will apply strict Scrutiny test primarily intentional racial distinctions by government. If a distinction or classification is neutral on its face but happens to have a disproportionate impact on a particular group, strict scrutiny usually doesn’t apply. In this case, its called de facto discrimination, they apply the rational basis test.

Affirmative Action: one of the only forms of a distinction based on race that has been upheld by the courts. Ex. Programs for minority in colleges, for minority owned business First amendment guarantees a right to free speech. Free speech generally applies when the government tries to restrict speech and other forms of expression. However, it doesnt generally offer protections against private people and organizations restricting speech. Private organizations can not allow certain expressions of speech (kneeing during anthem). Constitution doesn’t require private companies to allow protest. The Free Speech Clause has been expanded to limit not only the actions of the federal state giv but also the state and local gov. What Counts as “SPEECH” All methods of expression are within the scope of the Free Speech clause including spoken and written Communications, those recorded on tape, film. Symbolic expression is also protected. meaning expression by nonverbal means such as wearing black armbands or picketing is protected from government suppression. The giving of money to publish political candidates, charitable organizations, or various other entities is still a form of protected expression. However a government limitation on symbolic expression is more likely to be upheld than a limitation on verbal expression. The right of Association is a component of free speech. Any type of government limitation on a person's ability to associate with

groups Omar choice is a limitation on Free Speech. not only does Free Speech include the right to express oneself but it also includes the right to avoid expressing opinions that we do not agree with. 1. The first category of unprotected speech is obscenity. Companies that sell extreme forms of pornography cannot expect 1st Amendment free-speech protection. 2. A second category of unprotected speech is defamation. companies or individuals who communicate lies are potentially liable in damages to the person whose reputation is injured. 3. The third category unprotected speech is rather a amorphous one commonly referred to as fighting word: threats, false alarms, epithets, and the light by which their nature are likely to lead to violence and significant risk of physical injuries to people. the old saying goes you can't shout fire in a crowded theater when there is no fire. Corporate Speech The first amendment has also been interpreted to protect the expressions of Corporations and other organizations. Corporate speech like individual speech has informational value, it contributes to the public debate on important issues. Commercial speech is protected only if it relates to lawful activity and if it is not misleading. Corporate speech receives a lower level of protection than noncommercial speech. A restriction on Commercial speech will be valid if the government can show that it is Necessary is further a substantial governmental interest, does further. Governmental interest, and does not restrict commercial speech to any greater degree than is necessary to advance the governmental interest. In first National Bank of Boston v. Bellotti is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amendment right to make contributions to ballot initiative campaigns The ruling came in response to a Massachusetts law that prohibited corporate donations in ballot initiatives unless the corporation's interests were directly involved.In 1976 several corporations, including the First National Bank of Boston, were barred from contributing to a Massachusetts referendum regarding tax policy and subsequently sued. The case was successfully appealed to the Supreme Court, which heard oral arguments in November 1977. On April 26, 1978, the Court ruled 5-4 against the Massachusetts law. ● As a result of the ruling, states could no longer impose specific regulations on donations from corporations in ballot initiative campaigns. ● A speech by corporations and truthful commercial speech by corporations each receive first amendment protection. CASE: Sorrel Vs. IMS Health This is a United States Supreme Court case in which the Court held that a Vermont statute that restricted the sale, disclosure, and use of records that revealed the prescribing practices of individual doctors violated the First Amendment. In 2007 Vermont passed a prescription confidentiality law that required, records containing a doctors prescribing practices not be sold or used for marketing purposes unless the doctor consented. This law was response 2A Vermont Medical Society resolution stating that using the prescribing history of doctors in marketing was an intrusion into the way doctors practice medicine. they had found. Marketing efforts of pharmaceutical companies used in large part the data of individual doctors prescribing patterns, sold to the company's by pharmacies without a doctor's consent and successfully lobbied the Vermont legislature to enact the law. the data mining companies and pharmaceutical manufacturers contended that the law violated their first amendment rights and sought declaratory and injunctive relief against the Vermont officials. United States district court for Vermont denied relief and the plaintiff appealed to the United States court of appeals for the second circuit which reversed the Judgment saying that the law violated the first amendment by restricting the speech of the companies without adequate justification. Vermont attorney general appealed to the Supreme Court which granted

certiorari to resolve the contradiction of the ruling. The supreme court said that the law violated the First Amendment and affirmed the Judgment of the Court of Appeals,The second finding was that the Vermont did not meet its burden to justify its content-based law as consistent with the First Amendment

MODULE 16 Processing Ethical Dilemmas Employees would rather work for, customers would rather buy from, suppliers would rather sell to, and and investors would rather invest in companies with reputations for acting well. ●

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Utilitarianism is an ethical theory that is committed to promoting “ the greatest good for the greatest number”. as an abstract Theory utilitarianism makes a lot of sense. utilitarianism and other approaches. Concentrate on the consequences of moral choices are termed, Similar to consequentialist theories.Something that benefits the MAJORITY ○ In actual practice this theory is quite difficult to calculate, what specific actions are likely to provide the greatest benefit to society and even deciding how to define "benefit to society" can be an exercise in futility because of the many possible value judgments involved. ○ Focuses on rightness and wrongness of actions with focusing BY examining the consequences. “Consequence- based” Deontological Ethics is viewed on a rule based analysis, often identified with German philosopher Emmanuel Kant who wrote that every person's actions should be judged morally by asking the question "Candace action be justified by reasons that are uniformly applicable to all other person?" basically saying that people cannot make exceptions for themselves; one's behavior is morally defensible only if everyone else could do the same thing without interfering with the optimal functioning of an organized Society. We should treat others the same way we want to be treated which is also known as the Golden Rule and this is very common in many religions all around the world. ○ Focuses on rightness and wrongness of actions without focusing on the consequence. “Duty-, rule-, obligation based” ○ Deontology tells us that we should never lie amd that lying was bad. But what if “you are hiding your next-door neighbor from her abusive husband and he shows up on your doorstep with an ex asking if you knew where she was”, Telling the truth in this circumstance would be an inappropriate response. Virtue Ethics Concentrates more on the actor attempting to become a virtuous person in all aspects rather than on the resolution of specific ethical issues. the focus is not on deciding individual moral dilemmas in the correct way instead the notion is that each person should focus on developing and practicing important virtues such as honesty, Integrity, truthfulness, reliability and so on and isn't a person embodies these virtues then there are ethical decisions he/she makes will likely be good ones. ○ Utilitarianism would say kill the joker bc it compares the many lives lost against one ○ Detenology would focus on the fact of murder itself, it wont be morally right for any person to kill him. He is evil but still human and deserves some humanity ○ Virtue Ethics would highlight the character of the person who kills joker. Do they wanna be the person that takes someone’s life? If he killed once could he stop from doing it again? All three of these lead to the main question of which is the more ethical solution. The best approach to be an ethical person and in making ethical decisions includes elements of each approach.

The “Moral Minimum” Lawrence kohlberg said that morally mature individual bases his actions on “principles chosen because of their logical comprehensiveness, their universality, and their consistency”. We always know that we must treat people how we would like to be treated and that there are certain levels of respect that we must obtain in our society however the question is where did we get these standards? and if they can be found can they ever be expressed with enough certainty to provide meaningful guidance for our conduct? Moral minimum is a set of General standards that constitute the ethical minimum necessary for the functioning of civilization.Put on I standards that can be on their own without needing to be offended by a rational person. Compliance with such standards requires no defense or jurisdiction it actually would be where a rational person would demand of defense or jurisdiction for a failure to comply with them. the reason for expecting such a justification is that failure to comply with the standards to destroy the social and economic relationship that causes Society to function effectively. HONESTY: A rational person does not have to justify telling the truth. we are always expected to justify why we don't tell the truth so that when we do there's no need to justify anyting. without reasonable expectations of honesty we are not able to maintain the personal business relationships that create order and economic well-being. there are specific principles and illegal Domaine that is there to encourage honesty, with things like legal prohibitions against fraud and criminal punishment for perjury. the moral obligation is however more broader and more encompassing. LOYALTY: In any culture there are certain Voluntary relationships in which one party place has a higher degree of trust and confidence in the other than one would place in a stranger. these relationships are not forced upon us we consent to them. A moral duty of loyalty is based on two facts: 1. By virtue of a the relationship we have created in the other person ever lived intimate expectation that we will further his or her interest 2. The relationship has placed us in a position where we have the ability to cause serious harm if we do not act in that person's interest. ( Relationships often give one party some degree of control over information or assets that are valuable to the other person) When we enter a relationship we take on an affirmative obligation to 1. fully disclosed to the other person all material information that is relevant to our dealings 2. keep confidential any information that the other party reasonably expect us to protect 3. Avoid undisclosed conflicts of interest 4. Generally act in the best interest of the other party even if such action is not entirely in our own best interest The moral duty of loyalty is one of those ethical obligations that has a very close and analog in the legal domain. The law identifies certain Fiduciary relationships such as agent- principal, in which there are legally enforceable obligations of loyalty KEEPING COMMITMENTS: Social and Commercial relationships among people are quite difficult to maintain without accepting the notion that we should keep the promises we make to each other. for this reason the rational person is not likely to feel it necessary to defend his actions in keeping commitments. Gun fails to keep them then there would be some form of

justification required, sometimes there can be difficult questions about whether I couldn't has been made, however once these questions are resolved the rational mind will find little need to justify keeping the promise. once again we can find a narrower legal counterpart to this obligation-- my promise is part of a legally enforceable contract there are consequences from breaking it. DOING NO HARM: Our actions have both expected and unexpected effects on others and these effects can be positive or negative. negative effects are those that damaged some legitimate interest of another person. It is generally recognized that people have legitimate interest in their physical, economic, and emotional well-being, as well as in their property, privacy, and reputation. sometimes our actions have negative effects on people that we would have never foreseen. When cautious concerns for the welfare of others should lead us to anticipate a certain action or inaction may cause harm to the legitimate interests of others than we should do what we can to avoid any type of harm. Narrower legal concert parts for the obligation of doing no harm are found throughout the laws of the torts

MODULE 17 People would like to act ethically however there is always times where we are presented with roadblocks and making effective at the school decisions that drive from social and organizational pressures and others that stem from cognitive biases and heuristics. is very useful to notice tendencies in your own thinking that sometimes leads to undesirable results. Knowledge of these roadblocks derive from a new field of research called behavioral ethics that derives from behavioral psychology, cognitive science, evolutionary biology, primatology and several other bodies of knowledge to learn how people make that Circle and unethical decisions they do. Obedience to Authority Psychologist Stanley Milgram Did an experiment to test how much people would be willing to follow orders given by someone they believed to be in charge and how far they will be willing to go no matter what is asked of them. Experiment was where the experimenters instructed participants to pull a switch and deliver what they were told would be an electrical shock to another person wild. Person who was sent to receive the shock would protest against it. it was hypothesized that less than 1% of the participants would actually obey the instructions to administer painful and injury shocks are protesting victim, however in reality 100% of the study participants did so and 65% of them administered the maximum possible shock just because some stranger in a Grey lab coat told them to do so. Based on his research Milgram suggested: the most common adjustment of the thought in the obedient subject is for him to see himself as not responsible for his own actions. He divest himself of responsibility by attributing all the initiative to the experimenter, a legitimate Authority. He sees himself not as a person acting in a morally accountable way but as an agent of external Authority. there is substantial evidence that when people make decisions are often much more concerned about the acceptability of the decision to the people to whom they are accountable then they are about the moral content of the decision themselves. people often judge whether their decision Is right not in terms of content or philosophically ethically but whether it will be accepted to their superiors. Because of this people are more likely to undertake and unethical action in the workplace when urge to do so by a superior then to choose the unethical course of their own volition. Fundamental Attribution Error - Our tendency to overestimate how situational factors impact our poor decision making and how we tend to underestimate how situational factors affect another’s poor behavior.

Ex: you do something stupid but you blame it on the alcohol, someone else who does the same is just a horrible person. Obedience to authority - When you’re told to do something wrong and you do it because it came from authority. Need to recognize when the authority figure is leading you the wrong way. Conformity Bias - As individuals we take our social cues from society around us. Sometimes they are helpful, sometimes they’re not. Just because everybody is doing it doesn't mean you're supposed to do it. AKA social proof bias towards conforming to the actions and standards we perceive to be acceptable by our peers. Ex: people more likely to undertake unethical actions in workplace and elsewhere if peers are engaging in similar behavior, acting/projecting same way as everyone else around you is behaving Groupthink - Tendency of a group of people that not only think the same, but also amplify each other's actions and opinions. People have different points of view individually.Impairment of individual decision making causes collections of people to make much different decisions than the same people would make individually Ex: Riots. Takes one person to get violent and the actions spread because its a group or everyone thinks exactly the same way because verbal leader says something False Consensus Effect - Tendency to believe that people around you believe as you do.People are not good at detecting when they are being lied to but to the contrary believe they are astute judges of honesty. COGNITIVE HEURISTIC,BIASES AND ETHICAL DECISION MAKING. Over Optimism - An individual's view about the world and that everything will work out in his or her favor. Evolutionarily beneficial but can lead to systematic errors in decisions making and in some circumstances it can induce conduct that ...