Professor Spooner's Blog

I used to spend extensive time in my Law and Ethics class discussing capital punishment. This is an important issue to me; I spent years working on a death penalty appeal for a man who spent 21 years on death row before being released. Growing up, I was vaguely in favor of the death penalty. It seemed to me that are some crimes that are so terrible, some criminals who are so evil, that jail is insufficient.

That all changed my senior year of college. I took a class with Senator Terry Sanford, a former U.S. Senator, Governor of North Carolina, and President of Duke University. Senator Sanford took our class on a tour of the highest security prison in the state of North Carolina. Part of the tour was the death chamber. I will never forget how it chilled me to the bone to think that the warden who was running our tour would take actions to kill another human being in that room. In the abstract, capital punishment can seem reasonable to many; but for me, in the actual death chamber, it seems morally repulsive for any of us to choose to take another person’s life. It seemed we are no better than the criminals if we use capital punishment.

Then I went to law school, and through my studies there and as a lawyer, I became convinced of an indisputable reality: the flaws in our criminal justice system make it impossible to effectively use capital punishment.  While reasonable people can disagree on the morality of capital punishment (indeed, I have wavered over the years and when faced with certain horrible crimes), the facts show that our system is flawed; we have likely executed several innocent people and others may be sitting on death row today. For me, the (not so low) chance that we execute one innocent person is enough to require that we eliminate capital punishment altogether.  So, I ultimately oppose the death penalty on due process grounds. My favorite articulation of this argument came from Judge Rakoff in Quinones. It is worth a read; basically Judge Rakoff reasons that because execution means by definition that the defendant runs out of chances to prove his innocence, and given the high likelihood of error in our system, we are denying the defendant due process by executing him.

This is all fascinating stuff to the law and ethics people in the world, but I began to have doubts that it was relevant in a business school. So I cut the topic out of my syllabus. Interestingly enough, I have had several former students write me to say how meaningful those discussions were for them; so maybe there is room for this topic in the “general interest” column. But the newest set of arguments against the death penalty actually cue up a fascinating business ethics dilemma.

As described in this bone-chilling article about the execution of Dennis McGuire in Ohio last week, the latest war in capital punishment has to do with the method of execution. Basically, over the years most states have moved to lethal injection as the method of execution. This process requires the defendant to receive several injections of drugs meant to first anesthetize him, then to paralyze the muscles and the heart. Kentucky’s three drug protocol was upheld by the Supreme Court a few years ago, despite concerns about whether it could be administered incorrectly and result in a painful death. (The process used in Kentucky is not approved by vets for putting down animals, by the way.) Most states bought their lethal injection drugs from European companies; many of those companies, faced with the ethical dilemma of their drugs being used for capital punishment, decided to refuse to sell them to the states. So now many states are facing a shortage of the drugs, and are getting creative. That is how Dennis McGuire ended up receiving a new cocktail of lethal injection drugs, which apparently resulted in “struggling, his stomach heaving, a fist clenching.”

In addition to raising serious issues about the measure of our morality, the issue of lethal injection drugs is a great example of how ethical decisions arise in a business setting. The executives at pharmaceutical companies are neither lawyers nor ethicists; they are business people who are now faced with decisions with great moral consequences. How do they make the decision whether to sell the drugs to the state? If the executives have varied views on capital punishment, how do they make a choice as an organization? Do they research the likelihood of pain and suffering when their drugs are used in this way?

For me, I always end up in the same place; we cannot do capital punishment well, so we should not do it at all. For me, the measure of a person is how we treat our worst enemies. If we knowingly inflict pain and torture on another, we are no better than the bad guys. And no one can figure out a way to use capital punishment without pain. Worse yet, because of flaws in our justice system, it is really difficult to be sure that the defendant actually committed the crime. My view pains me when I read of a terrible crime committed by a monster-like person. I want to punish that person; I see the injustice in the victim(s) losing their life while a criminal lives on. But I cannot live with being just as guilty as that criminal.

I might seem to be picking on JP Morgan this week (where, ironically, several of my friends and former students are employed), but we can blame the NY Times, who has a new article every morning about the financial behemoth.*  Yesterday JP Morgan agreed to pay $2.6 billion in exchange for receiving a deferred prosecution agreement for its involvement in the Madoff pyramid scheme. You see, Bernie kept most of his big bank accounts at JP Morgan, and evidence (those damn emails again!!!) shows that as early as 1998, JP Morgan had reason to suspect that Madoff was a fraud. The bank, like all others, is legally required to file an SAR (Suspicious Activity Report) in such an instance, but did nothing. Well, not exactly nothing. The bank protected itself in last 2008, when it reduced its investments in Madoff's funds by 80% and vetoed a $1 billion deal because Madoff refused to show the bank his books. (Hiltzik, LA Times)

The $2.6 billion payment comes on the heels of a $13 billion fine paid for fraudulent mortgages. All told, JP Morgan has paid $20 billion to the government in the last year. This should be a time of great celebration down in the Southern District of NY, where most of these cases are prosecuted. Preet Bahara, the U.S. Attorney in Manhattan, has been on an epic winning streak, winning trial after trial in white collar cases, and going hard after banks like JP Morgan in ways we have really never seen before.

And yet, Ferrari dealers of New York can relax and realtors in the Hamptons can rest easy, because the JP Morgan bankers can all expect to receive their usual generous bonuses this year. JP Morgan continues to flourish despite all of these fines and prosecutions, because it is making so much money. In all seriousness, I am not one to trash bankers for getting bonuses, but the JP Morgan example raises a serious legal and ethical question: are banks too big to punish? If $20 billion doesn't "hurt" the criminal defendant, what will?

A deferred prosecution agreement is viewed as a slap on the wrist. This is an agreement between the government and the company that the government will not prosecute unless the company fails to meet certain requirements, such as additional compliance. Think of it as probation for a company.

Well, according to Judge Rakoff of the Southern District of New York, we need to go after more individuals. I tend to agree; no organizational punishment will keep the many individual bankers in a huge place like JP Morgan acting ethically. Throw a few of those bankers in jail, and people might start to pay attention. This is classic deterrence theory. The problem is that many behavioral economists don't believe deterrence works.  Dan Ariely  thinks that deterrence doesn't work; no one thinks about long term punishment before breaking the law. In most cases, we take little steps down that slippery slope towards breaking the law. No bankers woke up deciding to break the law and ignore Bernie Madoff. But, according to Ariely, we all have a small "fudge factor" that allows us to cheat in small ways, cut some corners, and still rationalize that behavior. The problem comes when, as at JP Morgan, all those cut corners add up to a big mistake with dire consequences.

So, what do we do? I have started examining another version of this problem: academic integrity. The vast majority of students are ethical and want to do the right thing. But in my opinion, we still have cheating at SMG (although no more so than any other university). We are just beginning our efforts, but our preliminary hypothesis is that we need to change the culture. It has to be socially unacceptable to bend the rules, cut corners, plagiarize, and look over your classmate's shoulder. Students have to be willing to come forward whenever they see cheating, and those students (and faculty) who report academic misconduct should be celebrated, not shamed. I am not sure how we will get there, but I think we are on our way with our new emphasis on ethics. At SMG we must "walk the talk" on ethics in order to change our culture. It might be easier to change the culture at SMG than at JP Morgan, but it is too early to say.  In the meantime, the prosecutors will keep busy, and JP Morgan will continue to set aside of a reserve of legal funds. The winners in all of this mess? The lawyers!

*Huzzah! Always wanted to use that word.

I am not a procrastinator by nature; actually quite the opposite. But I have been putting off writing this blog entry for months. When Edward Snowden became perhaps our country's most famous whistleblower of all time, I should have been all over the story. Despite some discussion in class and off-line with students, I have been stewing on what I should write about this complex situation. I just can't decide what the case is really about.

Snowden's story may be about the ethics of blowing the whistle, in which case I should be applauding Snowden, like this editorial. I spend a lot of time encouraging students to voice their values, blow the whistle on wrongdoing, and stand up for what they believe. If in fact this is Snowden was doing when he stole loads of confidential government files and ran off to Russia, then I am a terrible hypocrite if I don't applaud his efforts. The subtle point here is deciding whether the information he made public about the NSA's efforts to monitor American communications was a report of wrongdoing. In other words, if you are accepting of the NSA's efforts, then Snowden wasn't blowing the whistle, he was just running amok with our national security. I disagree strongly with anyone who puts our country in danger because of philosophical differences with his employer, so that would leave me to view Snowden as unethical.

You may be starting to see why I waited so long to write about Snowden and the NSA. I really cannot decide who wears the white hat in this situation. It is entirely possible that everyone involved has on a decidedly gray hat.

After lots of debate with my friends and family, and endless reading, I decided only one thing for sure: I am entirely unqualified to weigh in on the national security issues here. I have no idea whether NSA's monitoring has protected us from terrorism, although I hope it has. I will leave that debate to more qualified people (feel free to weigh in on comments below).

I do understand the legal issues presented by the NSA's monitoring, however. At this point, the courts are entirely split on whether the NSA monitoring is constitutional. First, Judge Leon of the U.S. District Court for the District of Columbia ruled that the NSA mass collection of phone records is probably a violation of the Fourth Amendment's ban on unreasonable search and seizure. Judge Leon ruled that we have a reasonable expectation of privacy in our phone records, and that such an expansion collection of historical data is unreasonable. He distinguished a key Supreme Court precedent, Smith v. Maryland, which allowed the police to monitor the phone records of an individual without a warrant because he had no expectation of privacy once the phone number is shared with the phone company, by explaining that the scope of the NSA's efforts is so much larger, and that a lot has changed in 34 years.

The anti-NSA folks didn't get much time to celebrate Judge Leon's decision (which has been stayed pending appeal), because only a few days later another judge, this one in the Southern District of New York, ruled the very opposite way. Judge Pauley dismissed a case brought by the ACLU against the NSA, ruling that the NSA's collection of phone records  "represents the government's counter-punch" to eliminate al-Qaeda's terror network.  He ruled that the large scope of the government seizure of data was necessary to accomplish its goal of protecting us from the terrorists. In other words, going small wouldn't work.

Both decisions were made by federal trial court judges; this means that both decisions will be reviewed by the respective Circuit Courts of Appeals (D.C. and 2d Circuits). Depending on how those courts rule, the Supremes may weigh in.

I am still just as split as the courts; it isn't that the law is that complicated here, it is that I am really torn on the validity of the government justification.  I do a tremendous amount of myth-busting around the Bill of Rights. One of the common myths to bust is that we have absolute individual rights against government action. No! The government has lots of power to do all the things we grow up thinking they can't do: unwarranted searches, censorship, taking our property away. The Bill of Rights provides us with individual rights, but if the government has sufficient justification, they can step on those rights. The 4th Amendment is an area where this is clear: the Supreme Court has interpreted the Constitution to allow for lots of unwarranted searches by the government, as long as the government has a proper justification. It isn't that our rights against unreasonable searches go away, but they are balanced against the government need.

The events of September 11, 2001, brought that balance into the light more than ever. I don't know Judge Pauley, and as far as I have read he has not expressed any of the views I raise below. But I clerked in that same court the year before the attacks, so I am well aware of the profound impact of the attacks on every person who works in that courthouse. (And so many others, of course.) The Southern District of New York has been home to many trials for terrorists; several of the judges on the Court have 24-hour security because they have presided over those trials. The courthouse was literally in the shadow of the Twin Towers. I am not implying that Judge Pauley failed to be objective, but I thought a little context on his expressed view of the government interest in national security might be helpful.

Apparently I am just as split as the courts are here; I want to applaud whistleblowing, but I am not sure that the government was entirely doing wrong through its monitoring program. Thoughts?

This security guard from Reliant Stadium in Texas, home of the Houston Texans, claims that he was fired for taking this picture with Tom Brady. The stadium owner, the guard's employer, has a rule against employees taking pictures with any players. This makes sense; players don't want to be annoyed by every hot dog vendor sneaking a picture, and the security guards should be securing the premises, not following Tom Brady around with a camera.*  The guard claims that he was off duty, thus not in violation of any rules. Conspiracy theorists think that the guard was fired for taking a picture with the "enemy," the leader of the team that had just beaten the Texans. My son points out that any self-respecting football fan would want a picture with Tom Brady, as he is a legend. My son went as far as to say that, "even a Jets fan would want a picture with Tom Brady."

Pop quiz time: does it matter whether he was on or off duty when he took the picture? This is a fabulous test question, by the way.

*Let it be known that in Hawaii in February 2002, I spent an entire two week vacation chasing Tom Brady around with a camera. I did get a few pictures, but have no idea where they are now. I did not violate any stalker laws, as far as I know, although my husband accused me of doing so. I didn't get fired, either.

Sometimes what we know is good for us, we don't want to do. For example, eating your vegetables -- we all know the green leafy stuff is the best thing we can eat to be healthy, but aren't french fries and ice cream so much better tasting?

This semester I started using low stakes quizzes in LA245. I put these quizzes in the "Eat Your Vegetables" category. Most of my students will (begrudgingly or not) agree that they are good for us, but sometimes you just want to sleep in/take a night off from reading/daze off in class.  But research now supports my theory that these quizzes can be important for learning. As this article reports, studies have shown that frequent tests help you learn more, and evens the playing field among students.

I started doing these quizzes for several reasons. First, my students were constantly clamoring for more "practice" for exam questions. Second, I wanted to assess how much students knew when they walked into the classroom. Third, and perhaps most importantly, I wanted to motivate students to come to class prepared so we could spend our time doing fun experiential learning. My anecdotal evidence shows that the quizzes are accomplishing all of my goals, although some more than others. Although I know many students prefer to cram before an exam, you learn SO much more if you read before class, not after. If the looming threat of a quiz motivates more students to do that, more students will be engaged in class.

In academic circles, "flipping the classroom" is all the rage (yes we all need to get out more, because more exciting things should be the rage). In case you don't know, flipping the classroom is the idea that students learn the fundamentals outside of class, and do the practicing (that used to be for homework) in the classroom. It all sounds great, except that it puts a much greater burden on students, who can no longer count on their professors to be content-delivery machines. Doing frequent quizzes in class is a way to incentivize students to do their part. I can judge when I need to do more lecture, or can free up time for projects, by results on quizzes.

The informal feedback I have received on our quizzes has been positive. I wonder what you think? Are you learning more (or better)?