Flashback – Rights

Here are some ideas about our constitutional rights from an entry four years ago. The same problematic behaviors have been even more evident since then. 

[Thinking about how people behave toward the rights of others lately can become very confusing.

About six weeks ago leading up to the [2016] election, there was quite a bit of talk about exercising your right to vote. Public service ads appeared on TV about how important it was to vote and how your vote made a difference. As is usually the case around election time, some volunteers worked with car pools and vans to make sure all voters were able to get to the polls. Some continued to subscribe to the argument that requiring voters to present photo identification at the polls was a burden and discriminatory. In short, many people came together in an effort to make it as easy as possible for everyone interested to exercise their right to vote.

We also have a right to bear arms, yet I have seen no efforts to make it as easy as possible to buy a gun. In fact the opposite is true. Exercising this right is burdened by several requirements: background check, waiting period, etc. Where are the people who will drive me to the gun show or the firing range if I have trouble getting there on my own? – The idea of this seems silly. There aren’t television ads encouraging people to exercise this right, and most comments are to the contrary. Two rights receive opposite reactions.

We also have a right to trial by jury and to be considered innocent until proven guilty. This seems to be a right everyone is in favor of for themselves, but objects to for others. If law enforcement or courts do not do what citizens think they should have done, based on knowledge of the case picked up from the news or social media, the protesters begin demanding “justice.” Sometimes they even ignore the crime victim’s or their family’s pleas for calm and patience as the process plays out.  

We also have a right to free speech. Supposedly you can say what you want to without repercussions, particularly from the government. But students at various universities protest against the appearance of outside speakers because what they say may be offensive or not correspond with their worldview. Students are supposedly in college to learn. Sometimes their ideas are wrong, and sometimes it’s just educational to understand another’s point of view. Instead, they protest demanding a cancellation of the event, or they attend to heckle the speaker already having made up their minds that the person is evil or offensive. When confronted with the idea of freedom of speech, they smugly argue that the First Amendment only applies to government interference.

It has gotten to the point where a few universities have adopted the Chicago Principle, originated at the University of Chicago. It holds that if the speech or written statement is legal and not threatening, harassing, defamatory, or a substantial invasion of privacy, it must be considered, discussed and debated regardless of whether it may be thought by some to be offensive, unwise, immoral, or wrong-headed. This action tries to move the focus from some vague notion of offense or anticipated offense to one of learning.

And it’s not just students. Society bans the use of certain words by certain people, and they can only refer to them by their initials, even when discussing the word itself. Many people feel they must consider their word choice very carefully for fear of committing an inadvertent offense or micro-aggression. If you refer to America as a melting pot, you are demeaning someone’s heritage and traditions. If you refer to our Forefathers, you are subjugating half the population. And on it goes. Political rallies have become scenes of name-calling and accusations rather than of debate and the post-rally walk to the car features fighting in the streets. 

Critical thinking leads to the conclusion that we don’t treat rights the same. Some are encouraged, some defended, some ignored, some opposed and some applied selectively. Isn’t that worth considering?]

Ridiculous Damages

The verdict is in, literally. Baby powder can kill you, legally. Of course legally is very often different from scientifically.

 A short time ago a jury in Missouri awarded 22 women $4.69 billion in a class action lawsuit “that alleged the company's talc-based baby powder products contained asbestos and caused them to develop ovarian cancer.” The CDC recognizes asbestos as a carcinogen that has been linked to lung cancer, asbestosis and mesothelioma (but not necessarily ovarian cancer).

Of course Johnson & Johnson intends to challenge the verdict and any payout is still years away.

The story itself brings up several points to consider. First, legal liability is not necessarily indicative of any danger nor is it a determination of actual responsibility.

Take the case of breast implants from years ago. This report from PBS gives a chronology of silicone breast implant usage, legal action and scientific evidence, showing how often courtroom evidence and laboratory evidence conflict. Sometimes women were awarded millions in damages, while others had their cases dismissed as new studies were published. Sometimes judges and juries paid attention to the science and at other times they followed their own feelings. This timeline ends at 1999 and does not include the final 2006 FDA approval after the big controversy during the 80s and 90s.

The situation is pretty much the same with baby powder, except there is less guessing about the science. The FDA statement in the article seems clear enough: “After careful review and consideration of the information provided in the Citizen Petitions submitted in 1998 and 2008, and the review of additional scientific information, the FDA concluded in 2014 that it did not find conclusive evidence of a causal association between talc use in the perineal area and ovarian cancer.” The National Cancer Institute seems equally certain: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.” But those are only scientific and medical opinions and often carry little weight in the courtroom.

Like those tobacco lawsuits and settlements, people tend to rejoice at the idea that big business has to pay. This may be a desire for revenge for some apparent slight, or it may be driven by envy of anyone richer; but the companies rarely suffer from these punitive damages nor do they typically make major organizational changes. The idea of punitive damages has flaws that juries rarely grasp. Can you name a single tobacco company that went out of business or a single executive who lost his job as a result? Economic understanding tells us that any money paid out ultimately comes from their customers, be they smokers or users of Tylenol.

Finally, is there any consideration of the appropriateness of the award, or are juries just enthralled by some sense of power to enforce justice?

An award of $4.69 billion split 22 ways is a little over $213 million each. Subtract the lawyers’ cut of say, 35%, and each woman (or group of survivors) is left with a paltry $140 million. (That’s why it’s sometimes called “jackpot justice.”) That amount of money is not going to make anyone healthier or happier. (The stress of having that much money is clear from stories of lottery winners.)

These lawsuits don’t fix problems. They just make certain lawyers richer and redistribute wealth in a very minor way. The more news like this is met with a sense of delight rather than disapproval, the more America creeps in the wrong direction.

Justice!

In the last act of Comedy of Errors, William Shakespeare has a number of his characters calling on the Duke for justice.  Of course, each has something different in mind regarding this appeal.  But isn’t that the way things are in the world today?  People call for justice and their definition of justice seems to be colored by their experience, expectations and education.  Justice in this sense becomes so general as to be almost meaningless.  It joins the ranks of healthy, natural, green and sustainable as a word used to elicit automatic support from those who don’t take the time to think too hard about the specifics of the situation.

Behavior has consequences.  These consequences may take the form of hard lessons, unpleasant experiences, meant to teach us to change and improve our actions or decisions in the future.  Consequences are feedback mechanisms that either punish bad behavior or reinforce positive behaviors with pleasant outcomes.  Consequences may come immediately – touch a hot stove and burn a finger; or they may evolve over time – smoke cigarettes as a teen and develop lung cancer decades later.  Delayed consequences are more difficult to connect with the behavior and tend to be less powerful.  (That’s why the wise learn from the mistakes of others.)

Often, we find ourselves in a difficult position.  We (or the government we elect) have the power to protect people from the consequences of their behavior by bailing them out (or, in the case of government, forcing everyone else to finance the bailout).  Many consider these as just actions or just laws because they keep people from suffering.  They see these actions and laws and those that promote them as caring or compassionate, but there is a fine line between compassion and enabling:  the first protects someone who is not yet able to make changes on their own; the second protects someone who is capable but, as a result of this protection, chooses not to improve behavior.  This kind of enabling takes the responsibility away from others and is neither caring nor compassionate in its results, but instead may be very destructive.

It is not necessarily caring to isolate people from the consequences of their choices.  To deprive people of earned benefits or to protect people from earned and deserved sanctions is unjust and destructive to both the individuals and to society (because we are all linked by that economic spider web).  When the emphasis shifts too far in the direction of compassion in the name of justice, the important and beneficial concept of tough love is easily lost.

Hiding Behind a Policy

There is a difference between justice and fairness.  Fairness calls on us to treat everyone alike.  We award all the children trophies or medals for participation in a sport.  We recognize that they all tried hard and did their best.  We agonize over self-esteem issues.  This is fair, but is it just?  Try giving trophies to adult bowlers or softball players regardless of their scores or how they fared in the tournament.  They would see it as a sham and an insult.  Why would they bother to compete if everyone is treated the same.  This is not a reward for skill.  It is not justice.

Somehow we have gotten it into our heads that we must treat everyone the same and be fair, but especially in more complex situations than sporting events, the objective is to solve a problem in a way that treats everyone involved in the way they deserve to be treated.  Justice does not treat everyone the same.  Justice requires wisdom and leadership.

This is why the trend toward “zero tolerance” policies is disturbing.  They are designed to be fair, but not necessarily just.  They do not take individual situations into account.  They require no wisdom or leadership, only that the administrator follows the rules.  They require no thinking and insulate the administration or bureaucracy from blame.

So we end up with situations like this one, where two second graders were suspended for pointing pencils at each other while making shooting noises.  (The policy “also bans drawing a picture of a gun and pointing a finger in a threatening manner.”)  Earlier this year a seven-year-old in Maryland was disciplined for chewing a pop tart into the shape of a gun.  Are these examples of justice, leadership and wisdom that solve a problem, or one of teachers and principles hiding behind a policy to avoid conflicts in future situations?  Shouldn’t we expect more of public schools officials?

My 75-year-old friend told me that in his third grade class picture, one of the students was wearing a holster with his “pearl-handle” cap pistol.  Ah, but those were simpler times; today the world is more dangerous and frightening.  It makes me wonder, where did all those dangerous and frightening people come from?  Presumably they had parents.  Did we as a society let them drop the ball on being responsible parents?  The children today also have parents, parents who are ready to jump to the defense of their child before hearing all the evidence, ready to trust the word of a child over that of an adult, the teacher or principle.  Thus, public school officials are backed into a corner, forced to hide behind zero tolerance to avoid arguments or possible legal action.  Yes, it’s crazy, but we’ve made it that way by our past and continuing behavior.