Law Libraries & Pro Se Litigants: Accessing the Information to Access Justice

One of the many effects felt downstream during the U.S. economic slump of the past several years has been the tremendous rise in pro se litigation (i.e., citizens who choose to represent themselves in court, generally due to their inability to afford an attorney) in today鈥檚 courtrooms. However, even as the need for access to professional legal services increases, officials in both federal and state government find themselves needing to cut existing services to lower budgets. Accordingly, many public law libraries find themselves taking on an ever-increasing role as the de facto 鈥渇ront line鈥� for the growing demand for access to legal information, leading to increased pressure on law librarians and other legal-information professionals who provide reference services and often balance myriad other 鈥渘ew鈥� duties in this transitional period of our profession.

With this new environment comes not only increased patron counts, but also the kind of expectations many of these laypersons have when they come see a 鈥渓awyer librarian.鈥� In this role, we have a very important legal boundary when dealing with these patrons 鈥� we are not their attorneys, are not practicing law in this role, and cannot steer them into decisions by providing legal advice. It鈥檚 not only unethical; it can have negative repercussions should the person not have things go their way and feel they relied on your opinion to make a decision. With so many resources and layperson forms available now, however, and because many people are directed to law libraries by local court staff members without much direction as to what can be offered, many patrons have unrealistic expectations of what the reference librarian can do for them. That said, those in this field are librarians first 鈥� while legal boundaries must be respected, there is also a professional obligation for reference librarians of all stripes to treat all patrons equally and fairly and provide them with the tools they need to access and use the information that they seek.

Pro se patrons are a unique group of people from all sorts of different backgrounds, but almost all share a very limited background when it comes to the practice of law. Nonetheless, as persons representing themselves in court, they are required to perform at least some research to have a basic understanding of their legal issue, and they must submit documents that follow a certain basic format to be deemed acceptable in court. These patrons typically ask for assistance in choosing and drafting pleadings and forms, interpreting what something says, and in researching statutory law. Ethical conflicts arise regarding the level of reference service a librarian can give to the patron in this context, often when choosing forms, and particularly in drafting forms to be used in court. Patrons frequently inquire about the legal expertise of the person helping them, and, if that person mentions that they have a law degree, those expectations become even higher. Many library policies are vague on issues such as these, leaving librarians on their own when an insistent patron鈥檚 inquiry becomes problematic. The trick for librarians is to perform as experts on finding information, rather than as experts at analyzing all of the information gathered, in order to assist the patron in a meaningful way but also not cross into the unauthorized practice of law.

Fulfilling Ethical Duties While Avoiding Unethical Conflicts

The tools of legal reference are often very confusing to pro se patrons, and it is important that these patrons have someone to assist in the navigation of these tools, because, office water cooler stories aside, helping them remains our duty as librarians. To leave the user floundering about, unable to use available resources would be no less a disservice or wrong action than would giving out bad legal advice. The librarian鈥檚 loyalty lies with the patron and their information need. Yet fulfilling this need comes with restrictions that protect both the librarian and the patron who has taken on the task of handling the matter on their own. It is best for law librarians to help the patron as much as possible 鈥� providing basic source and term suggestions; instruction on using the tools, guides, referrals, and other pieces of assistance; and avoiding any lawyerly performance that might arguably establish a client-attorney relationship. There are certainly a broad range of approaches to this process, with some librarians acting as a source guide, and others as someone who teaches the self-litigant how to research on their own, but the bottom line is the same: if the line into 鈥渓awyerly function鈥� is not crossed and the librarian is working inside the boundaries, they may assist their patrons without needing to fear unauthorized practice of law.

Game-planning for Law Libraries

Many library policies do not specifically address the problem of giving clear guidelines to both staff and pro se patrons about the scope of available reference service, beyond cautioning their librarians to tread carefully. Placing stated policies regarding the scope of available legal reference services in a prominent position where patrons can easily spot and read it as they wait their turn at the desk can be a great way to get everyone, staff and patrons alike, on the same page. In addition to increased awareness of policies, there should be available directories and referral lists of attorneys and local association numbers available to the patrons who need legal advice 鈥� what better way to show that librarians are here to help, but we are happy to defer to the 鈥渆xperts鈥� when it comes to the actual practice of law?

Additional Reading

Randy Diamond and Martha Dragich. Professionalism in Librarianship: Shifting the Focus of Malpractice to Good Practice. 49 Library Trends 395 (2001). Retrieved on September 27, 2013 from https://www.ideals.illinois.edu/bitstream/handle/2142/8346/librarytrendsv49i3c_opt.pdf?sequence=1

Paul D. Healey. Pro Se Users, Reference Liability, and the Unauthorized Practice of Law: Twenty-Five Selected Readings. 94 Law Lib. J. 133 (2002). Retrieved on September 29, 2013 from http://www.aallnet.org/products/pub_llj_v94n01/2002-08.pdf

Paul D. Healey. Professional Liability Issues for Librarians and Information Professionals (Neil Schuman Press, 2008).

Stephen Parks. A Lawyer/Librarian鈥檚 Efforts to Avoid the Unauthorized Practice of Law. Library Student Journal (2013). Retrieved on September 30, 2013 from http://www.librarystudentjournal.org/index.php/lsj/article/view/267/318

Drew A. Swank. The Pro Se Phenomenon. 19 BYU J. Pub. L. 373 (2011). Retrieved September 28, 2013 from http://www.law2.byu.edu/jpl/papers/v19n2_Drew_Swank.pdf

Arthur J. Lachman. Self-help services: Reducing risk by avoiding the formation of lawyer-client relationships. NLDA Insurance Program Bulletin. Retrieved September 27, 2013 from http://www.nlada.org/Insurance/Insurance_Bulletin_Winter_2005

The post The Pro Ses Are Coming appeared first on The Arkansas Journal of Social Change and Public Service.

I. INTRODUCTION

During one of the most politically divisive eras in America鈥檚 history, a time in which name-calling and blame-shifting have replaced compromise as the modus operandi of politicians at all levels of government, it is a breath of fresh air to see Americans almost universally agree on an issue: the need for campaign finance reform. According to the most recent Associated Press-National Constitution Center Poll, eighty-three percent of Americans currently believe that there should be limits on the amount of money that corporations, unions, and other organizations may donate to outside groups that influence the campaigns of presidential candidates.[1] This national accord comes in the wake of the United States Supreme Court鈥檚 highly publicized Citizens United v. Federal Election Commission[2] decision, which declared that limits on corporate independent expenditures are unconstitutional violations of free speech.

Citizens United is often criticized for the basic principle at the heart of the decision that spending money equates to speaking, with spending thus protected under the First Amendment.[3] The removal of limitations upon this form of corporate 鈥渟peech鈥� lead to the 2012 Presidential Election being met with a deafening roar of newly liberated 鈥渧oices.鈥� President Barack Obama and Governor Mitt Romney raised 2.23 billion dollars between their personal fundraising efforts, political party fundraising efforts, and the efforts of Political Action Committees (鈥淧ACs鈥�) such as Priorities USA and Restore Our Future.[4] The issue of eye-popping campaign finance statistics is not limited to national races, as here in Arkansas Sen. Mark Pryor and Congressman Tom Cotton already have a combined $6.2 million on hand almost a full year before the Senate seat both are vying for is decided.[5]

Despite the public outcry against unlimited corporate campaign expenditures, the nation鈥檚 courts continue to open the avenue wider for corporate campaign finance. In particular, the Eighth Circuit Court of Appeals鈥� decision in Minnesota Citizens Concerned for Life, Inc. v. Swanson[6] continues an unsettling trend of deregulating corporate campaign finance. In Minnesota Citizens, the Eighth circuit held that reporting requirements and structural regulations imposed on corporate independent expenditures by Minnesota state law constituted an impermissible infringement on First Amendment rights.[7]

Meanwhile, the Eleventh Circuit faced similar disclosure requirements as those at issue in Minnesota Citizens and held in Worley v. Florida Secretary of State[8] that those requirements were entirely constitutional and supported by sufficiently substantial government interests. These two cases differ factually in several ways that allowed the Worley court to distinguish its holding from Minnesota Citizens without having to state outright that Minnesota Citizens was incorrect, but the two cases still contain a great deal of conflicting language as to the general constitutionality of disclosure requirements that creates uncertainty.

Minnesota Citizens is an impermissible and dangerous expansion of the basic tenets of modern campaign finance law as established in Citizens United. Despite the Court鈥檚 explicit ruling in Citizens United that disclosure requirements remained constitutional under the revised framework, the Eighth Circuit took deregulation one step further and relaxed regulations affecting how a corporation can donate unlimited amounts through independent expenditures. With corporations already dubiously allowed to spend money without limit in order to affect elections, holding that corporate free speech requires protection from additional reporting requirements journeys into the realm of preposterousness. With corporations, non-profits and Super PACs spending billions of dollars to secure elected positions for specific candidates, it is unwise to remove disclosure safeguards that ensure that the public at least knows the source of these billions. Accordingly, the Court should clarify its ruling in Citizens United and resolve the contradictions between the Eight Circuit in Minnesota Citizens and the Eleventh Circuit in Worley by holding that the types of disclosure requirements at issue in these cases are in fact constitutional.

II. BACKGROUND

Reporting and disclosure issues have been regulated as far back as the 1890鈥檚, with regulations usually premised on the basic principle that the public has a right to know from where a campaign鈥檚 money comes.[9] This focus on disclosure regulation has continued in recent decades with both state and local legislatures strengthening disclosure requirements and enforcement methods.[10] Generally, the Supreme Court has held that 鈥渕andatory disclosure of contributions and expenditures is a constitutionally sound form of campaign finance regulation.鈥漑11] Whereas Citizens United dramatically overhauled the Court鈥檚 approach to limitations on independent expenditures, the Court stayed firmly within the traditional analysis of disclosure requirements being a constitutionally viable means for regulating campaign finance.[12]

In making that decision, the Court relied upon both the well-established nature of disclosure requirements and the government interests outlined in key disclosure-related decisions such as Buckley v. Valeo[13] and McConnell v. Federal Election Commission.[14] Buckley established, and Citizens United upheld, that disclosure requirements 鈥渋mpose no ceiling on campaign-related activities.鈥漑15] Additionally, the Court in McConnell stated that those challenging the constitutionality of disclosure requirements 鈥渘ever satisfactorily answer the question of how 鈥榰ninhibited, robust and wide-open鈥� speech can occur when organizations hide themselves from the scrutiny of the voting public.鈥漑16] Cases decided after Citizens United have continually held that in a variety of circumstances 鈥渆lections are special circumstances where a right to anonymous speech must generally give way to governmental interests in the overall integrity of the democratic process.鈥漑17]

It will be helpful at this point to briefly describe the type of disclosure and reporting requirements that were challenged in Minnesota Citizens and Worley. In the case of Minnesota Citizens, which dealt with corporations or associations seeking to make direct independent expenditures to candidates for public office, the state鈥檚 Campaign Finance and Public Disclosure laws outline the necessary requirements, which include setting up a political fund and making regular reports.[18] In addition, the corporation must appoint a treasurer to make sure the political fund does not become commingled with other business accounts, file a 鈥淪tatement of Organization,鈥� file an annual report detailing contribution activity, and file statements of inactivity for every year the fund exists but does not contribute any funds.[19] In Worley, though the facts were slightly different in that there were individuals seeking fund communications in opposition of a ballot initiative, the actual disclosure requirements were substantially the same.[20]

III. ARGUMENT

The Supreme Court should overturn the Eighth Circuit鈥檚 decision in Minnesota Citizens so as to clarify their ruling in Citizens United that reporting requirements and disclosure rules are constitutional. By embracing the holding and underlying legal basis of the Eleventh Circuit鈥檚 decision in Worley, the Supreme Court can ensure that America at least knows the source of the money flowing rapidly into our elections and can hold elected officials, corporations, and PACs accountable.

To understand where the Eighth Circuit erred it is important to understand the standard under which disclosure regulations are examined in terms of their constitutionality. Courts have long used the 鈥渆xacting scrutiny鈥� standard to evaluate the constitutionality of disclosure regulations, which does not rise to the level of strict scrutiny.[21] The reason for this less demanding constitutional standard is that although disclosure requirements certainly have some negative First Amendment implications, they 鈥渁ppear to the be the least restrictive means of curbing the evils of campaign ignorance and corruption….鈥漑22] The specific formulation of exacting scrutiny is that there must be a 鈥渟ubstantial relationship鈥� between the disclosure requirement and a 鈥渟ufficient government interest.鈥漑23]

The primary problem with the Minnesota Citizens decision is that it inaccurately applies the exacting scrutiny standard, placing far too much weight on the restrictions themselves and glossing over the crux of the issue: does the government have a sufficient interest that is substantially related to the disclosure regulations in question. The Eighth Circuit, instead of searching for the 鈥渓east restrictive means鈥� or 鈥渓ess problematic measures,鈥� should have followed the established precedential framework from Citizens United and a long line of other cases. If the Eighth Circuit had given the state鈥檚 proffered interests their due analysis, it would have been clear that the regulations in questions meet the 鈥渆xacting scrutiny鈥� standard.

The first and most important government interest in disclosure and reporting regulation is the informational interest. The Court explained the informational interest in detail in Buckley, stating that the sources of a candidate鈥檚 campaign finances 鈥渁lert the voter to the interest to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.鈥� [24] The great weight of the informational interest is demonstrated by the Court in Citizens United failing to even address proffered government interests other than the information interest because that interest alone was sufficient to justify the application of disclosure requirements.[25]

This informational interest is even greater in the digital age, when a vast amount of information is available at our fingertips almost instantaneously. The Court in Citizens United summarized how this greater access of information increases the weight of the government鈥檚 interest by stating that exceedingly prompt disclosure (and the resulting transparency) provided by the Internet allows shareholders to be informed of their company鈥檚 political motivations, citizens to be alert to possible corporate corruption, and for a more transparent, open marketplace of ideas as intended by the First Amendment.[26] The importance of disclosure requirements makes any infringement on First Amendment rights a necessary infringement, as:
The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.[27]

Opponents of disclosure regulations often argue that the informational interest is not a sufficient interest because the types of small donations that are required to be reported do not give the electorate any significant information.[28] The Supreme Court and courts around the country have consistently rejected this argument because the issue is not whether each individual disclosure provides a sufficiently large piece of information to satisfy the exacting burden standard, but instead 鈥渢he issue is whether the cumulative effect of disclosure ensures that the electorate will have access to information regarding the driving forces backing and opposing each bill.鈥漑29] Disclosing small and seemingly de minimis contributions and expenditures also has benefits outside of the 鈥渃umulative effect鈥� argument, such as how a variety of small contributions can show a breadth of support for a candidate or issue and how it prevents individuals and corporations from breaking up their large donations into numerous small donations to avoid having to disclose.[30]

Outside of the informational interest, there are several other government interests that the Court could rule are sufficient interests so as to satisfy the exacting scrutiny standard. One of these reasons, applicable only to disclosure regulations aimed at corporations such as those at issue in Minnesota Citizens, is that the public nature of corporations themselves suggests strict disclosure requirements should be held constitutional. The very nature of a corporation, in that 鈥渃orporations are public actors because they exist only through a publically granted privilege,鈥漑31] implies that they should not be afforded the same privacy rights as an individual. Just as corporations are not allowed to keep private their economic affairs, they should not be allowed to keep private their political affairs. The public nature of corporations considered with the need to protect the stockholders and the need to provide complete information to the marketplace of speech presents a compelling reason for the Court to overturn the Eighth Circuit鈥檚 unwarranted extension of its Citizens United decision. Another important governmental interest is the law enforcement interest, which essentially is defined as the interest the government has in full and complete disclosure records as a manner of policing to make sure no other campaign finance regulations are being broken.[32]

Apart from the traditional analysis of whether the government has a sufficient interest that is substantially related to the regulation, the simple fact is that disclosure regulations do not do much to actually burden corporations or even individuals so as to create a constitutional violation initially. The Eighth Circuit paints a distressing picture of small businesses tangled up in limitless red tape, but the reality is far less burdensome. As the Worley decision points out, most if not all of the requirements of typical disclosure regulations are things that 鈥渁 prudent person or group would do in the same circumstances anyway.鈥漑33] Certainly there is a small burden on organizations and individuals as a result of these disclosure requirements but by no means does that mean it is an undue burden. Corporations are already required to keep detailed records and books for tax and business purposes, it is hardly 鈥渦ndue鈥� for them to have to keep a separate spreadsheet and send in a report once every three months detailing their campaign expenditures.

IV. CONCLUSION

The Supreme Court of the United States should overturn Minnesota Citizens and clarify that strict disclosure and reporting requirements for campaign finance expenditures is entirely constitutional. This is a prime opportunity for the Court to prevent the further deregulation of corporate campaign finance by ensuring that the billions of dollars flowing into the election process at least remain accessible and not shrouded in mystery. Citizens United has been an exceedingly unpopular decision, but the Court must ensure that one of the only bright spots from that decision, the confirmed constitutionality of disclosure requirements, remains in effect. In doing so, the Court will potentially quiet some of the current political unrest across the nation regarding campaign finance, and hopefully provide for a more open and fruitful environment for public discourse, something sorely needed given the political status quo.

Works Cited

1 Associated Press & GfK Roper Public Affairs & Corporate Communications, THE AP-NATIONAL CONSTITUTION CENTER POLL at 21 (2012).
2 558 U.S. 310 (2010).
3 Id.
4 Gregory Giraux, Bloomberg By the Numbers: 2.23 bln, BLOOMBERG.COM (Dec. 12, 2012, 6:00 AM), http://go.bloomberg.com/political-capital/201212-12/bloomberg-by-the-numbers-2-23-bln/.
5 James Hohmann, Tom Cotton, Mark Pryor both raise $1m and change, POLITICO.COM (Oct. 15, 2013 10:09 AM), http://www.politico.com/story/2013/10/pryor-raises-1m-for-cotton-race-98321.html
6 692 F.3d 864 (8th Cir. 2012).
7 Id. at 877.
8 717 F.3d 1238 (11th Cir. 2013).
9 Richard Briffault, Campaign Finance Disclosure 2.0, 9 ELECTION L.J. 273, 273 (2012).
10 Id.
11 Id. at 279.
12 Citizens United, 558 U.S. at 366.
13 424 U.S. 1 (1976).
14 540 U.S. 93 (2003).
15 Buckley, 424 U.S. at 64.
16 McConnell, 540 U.S. at 196, (quoting McConnell v. Fed. Election Com鈥檔, 251 F. Supp.2d 176, 237 (D. Dist. Col. 2003)).
17 Ciara Torres-Spelliscy, Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed, 27 GA. ST. U. L. REV. 1057, 1084 (2012).
18 MINN. STAT. 搂 10A.01 et seq. (2012).
19 ID. at 搂搂 10A.12, 10A.20.
20 FLA. STAT. 搂 106 et seq. (2012).
21 Worley, 717 F.3d at 1243.
22 Buckley, 424 U.S. at 64, 68.
23 Id.
24 424 U.S. at 67.
25 558 U.S. at 366.
26 Id. at 370.
27 Id.
28 Worley, 717 F.3d at 1249.
29 Nat鈥檒 Org. for Marriage, Inc. v. McKee, 649 F.3d 34, 41 (1st Cir. 2001).
30 Worley, 717 F.3d at 1251.
31 Daniel Winek, Note, Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United, 120 YALE L.J. 622, 655 (2010).
32 Buckley, 424 U.S. at 68.
33 717 U.S. at 1250.

The post All Quiet on the Corporate Front: An Argument for the Constitutionality of Campaign Finance Disclosure Requirements appeared first on The Arkansas Journal of Social Change and Public Service.

We are about to start another month at the Journal. This month we are looking forward to our Second Annual Symposium, Catalysts for Change. This Symposium is going to be held on November 8, 2013 in Room 323 of 糖心Vlog传媒LR’s William H. Bowen School of Law. We have more information about this event under the Catalysts for Change section of the website. There are going to be two free hours of CLE credit offered during this event, with one hour focused on cause lawyering and one hour focused on the use of interpreters in the courtroom. The CLE hours are going to be from 2-4pm. If you are planning to attend we would appreciate an e-mail at socialchange@ualr.edu, just so that we can get a head count.

The Journal鈥檚 publication focus this month is loosely framed by public service. Following the partial government shut down and entering into the traditional election month in U.S. politics, we wanted November鈥檚 publication to also talk politics on some level. Therefore we are starting off with an article by one of the Journal鈥檚 members, Daniel Ford, which discusses the need for disclosure requirements to be made by electoral candidates. His article takes a look at some state reactions to Citizens United.

In the middle of the month we will publish an article from Bowen Law Library faculty member, Jeff Woodmansee. Professor Woodmansee’s article focuses on how the increase in Pro Se Litigants is affecting public law libraries across the country as well as the duty these professionals must serve while avoiding the trap of providing legal assistance.

We also are going to publish a book review of How Change Happens – Or Doesn’t- The politics of US Public Policy, by Elaine C. Kamarck. Her well written book offers an interesting look at the history of “change in the government and politics鈥� of the United States.

We hope that through these articles we can open up a dialog on the duty of politicians and other public servants to maintain honesty and fairness. We once again want to extend the invitation to respond to our articles through the website, or through any of our social media outlets. If you have a written response article that you would like published, send it to us at socialchange@ualr.edu. We look forward to hearing from you and seeing all of you at our Symposium on November 8!

Thank you,

Alexis Cook
Editor-in-Chief
Arkansas Journal for Social Change and Public Service.

The post Letter from the Editor appeared first on The Arkansas Journal of Social Change and Public Service.

In many ways, it seems that corruption is a necessary evil. After all, it does exist in almost every society and is present among different races, religions, and socioeconomic classes. News outlets often cite corruption as being the catalyst for many social ills. For example, when Greece鈥檚 economy tanked, US News and World Report wrote a story entitled, Survey: Greece seen as most corrupt in EU (Rising, 2012). The New York Times states that corruption within the Russian government is tied to both human rights violations and environmental devastation (Friedman, 2012). TIME Magazine blames the president of Haiti鈥檚 corrupt practices for much of the country鈥檚 continued suffering despite receiving so much foreign aid (Fieser, 2012). The Washington Post states that corruption within the Catholic Church is seen as a major contributor to the allegations that high-ranking church members ignored allegations of child molestation, putting thousands of children at risk of abuse. (Stevens-Arroyo, 2012). So with corruption leading to all these terrible outcomes, why does it continue to exist?

Corruption is never a preferred outcome. But like many other bitter pills, it must sometimes be swallowed for the greater good. Corruption is never the end that one wishes to achieve; instead it is the means to reach that end. I do not advocate corruption in every situation. Nevertheless, when corruption is a necessary means through which to achieve the greater goals of a society, it is ethically permissible.

1) What is corruption?

Whether one feels that corruption is ethically permissible is highly influenced by how one defines corruption in the first place. It leads one to ask, what does corruption look like? Prominent media outlets have labeled the Catholic Church, the Russian government under Putin, the president of Haiti, and the Greek government as all suffering from this devastating ailment. They are all corrupt. But, these are very different entities and individuals within these societies are charged with different crimes.  Some accept bribes, others ignore the needs of the people, and yet more just overall abuse their citizenry. So with such a myriad of sins constituting corruption, it can be difficult to nail down a definition. The Fight Against Corruption attempts to define corruption.  The article acknowledges that corruption is difficult to define. Yet, the authors do see some similar characteristics between so-called corrupt individuals. Corruption can be defined as 鈥渢he misuse of public office for private ends or private gain鈥� (Everett, Neu & Rahaman, 2006).

The above-mentioned article looked at corruption through a moral lens. An economist sees corruption in a different light. Ethics, Corruption, and Economic Gain defines corruption as being the 鈥渁bsence of economic freedom鈥� (Eiras, 2003). People experience economic freedom when the government does not control the means of 鈥減roduction, distribution, or consumption of goods and services beyond the extent necessary for citizens to protect and maintain liberty itself鈥� (Eiras, 2003). Economists measure corruption by considering the influence that the government has on the financial inputs and outputs of a nation. They look at issues such as the government鈥檚 trade policy, whether prices and wages or controlled, and investigate individual property rights. The more a government directly influences these markets through coercion, the higher that government will rank on a scale of corruption.

Though the two definitions do not appear to relate, there is a connection. Corrupt government officials use the money and power that comes from being in an elected office to control the economic opportunities of those around them. If a leader is embezzling money that would otherwise serve the citizenry, then they are in fact meeting both definitions of corruption. The same could be said if a leader is using government funds on projects that do not support the greater goals of the community. Whether or not corruption can be ethically justified is not solely determined by one鈥檚 definition of corruption. Instead, it is largely defined by the ethical standard by which you are judging behavior.

2) Utilitarian Justification for Corruption

When evaluating the ethics of corruption, a utilitarian would say that corruption is valid when it benefits more individuals in a society than it harms. Utilitarianism works towards achieving the largest amount of good for the greatest number of people. Bentham, the father of Utilitarianism, saw the human psyche as being governed by two primary feelings: pleasure and pain. Under a utilitarian point of view, humans are driven towards maximizing pleasure and minimizing pain for the most individuals (Sandel, 2009).

Utilitarianism doesn鈥檛 judge morality by a predetermined set of ethical standards. There are no innate rights and wrongs. Instead actions are right when they maximize the most good for the greatest number of people; actions are wrong when they cause more pleasure than pain for the greatest number of people. Utilitarianism measures all forms of pain and pleasure on a single scale. This measuring scheme is one of the chief criticisms of utilitarian theory.

A Utilitarian would say that corruption is good when it maximizes the independent pleasure of the populace on the whole but that it is not good when it creates pain for the majority. So from a utilitarian point of view, the results of corrupt behavior are determinative of whether or not corruption can be ethically permissible.  For example, the act of embezzlement can create great pleasure for a single family. However, if many more families suffer without the money that was stolen, then embezzlement can be said to generate more pain than pleasure. On the other hand, if an individual embezzles money that would otherwise go towards a government project that is already overfunded or if an individual steals a negligible amount of money from multiple sources, there might not be a lot of pain that results from the act. In fact, it is possible that no one would even notice.

Different studies have different opinions of what effect corruption has on economic growth. Some studies show that corrupt behavior like requiring bribes or embezzling money hinders economic growth because outside entities, who do not share corrupt practices, will be slow to invest in that environment.  Conversely, other studies show that these sorts of behaviors actually contribute to greater amounts of economic growth (Huant, 2012). Even when corruption does spur growth, it generally reduces wages across the populace. A Utilitarian would likely support economic growth in this context. Yes, the lowering of wages across the community would create pain for many individuals. There is also a possibility that the procedures that lead to the actions of corruption, such as the demanding of bribes, can create fear in the populace, which generates pain. Nonetheless, the greater availability of jobs across the community would create pleasure, especially for those who had previously been unable to find employment.  In this context, pleasure would likely outweigh pain. For this reason, a Utilitarian could justify corruption in certain contexts.

Rawls Social Contract Theory on Corruption

Locke argues that one tacitly signs a 鈥渟ocial contract鈥� by being a part of society. So though individuals are rarely asked to explicitly agree to follow the laws of society, each person is assumed to have given consent just by remaining in society. Rawls builds upon Locke鈥檚 theory by arguing that if each person were in a true position of equality, which he calls the 鈥渧eil of ignorance,鈥� they would choose to support the same principles within society (Sandel, 2009). All differing characteristics disappear behind this veil. One does not know whether one is rich or poor, black or white, religious or non-religious. Instead, individuals are forced to pick ideals that they feel will best suit their interests no matter which group they end up in. For instance, individuals behind the veil of ignorance would likely not support an institution like slavery. One does not know whether one will end up being the slave or the slave master. For this reason, it is unlikely that an individual would want to take the chance of supporting an institution that could, in effect, destroy all the individual鈥檚 chances of success. In other words, no one would want to take a chance on being the slave in this situation (Sandel, 2009).

Rawls argues that two principles would emerge from this theoretical social contract if individuals were truly given a choice.  First, a society would adopt a justice system that supports the basic liberties of the citizenry. This system would support values like freedom of speech and religion. Second, Rawls believes that society would adopt an economic system that promotes a relatively equal distribution of wealth among the citizenry. After all, if one is starting from a neutral equal starting ground, one never knows if he or she will end up as one of the poor. They would have an interest in ensuring that, even if they end up poor, they would have a reasonable quality of life (Sandel, 2009).

Sandel gives several examples of behavior that technically meets the qualifications of being corrupt but that works to the great benefit of the poor and ignorant. For example, Sandel tells a story about his two sons. They boys are several years apart in age. Both boys collect baseball cards and enjoy trading them. The older boy understands money and value much more so than his younger sibling. Therefore, he often trades his younger brother less valuable cards in exchange for more valuable cards.  The younger brother doesn鈥檛 understand what the cards were worth and is happy to appease his older brother. After several occurrences, Sandel stepped in and now requires his sons to show him which cards they are going to exchange before they are allowed to trade. This protects the interests of the youngest son and prevents him from being taken advantage of (Sandel, 2009).

Now imagine that Sandel鈥檚 oldest son was a regional government leader, his youngest son was the chief of an indigenous population, and Sandel was the national government leader. Who would be corrupt? Sandel鈥檚 oldest son would be taking advantage of his position as a government officer to better his own net-worth. Even if he was acquiring the land for the government, rather than for personal gain, there is an argument that he was bettering his own position politically by taking advantage of a local individual who does not have nearly as much bargaining power as the larger government entity. Sandel, as the national government, would be protecting the interests of a vulnerable population. However, if one accepts an economist鈥檚 definition of corruption, than Sandel could be the corrupt individual in this situation. Both parties consented to the uneven exchange. By stepping in and creating red tape, he is discouraging the regional government from buying land from the indigenous community. This prevents this community from gaining money which they would then spend which would likely fuel economic growth. By limiting the distribution of wealth and controlling the economic inputs and outputs of the society, Sandel could be considered a corrupt government official.

Despite the fact that he could arguably be participating in corrupt behavior, Sandel would certainly be upholding the principles of Rawls鈥� social contract. By protecting the rights of those who are less fortunate, whether economically or intellectually, Sandel is working towards a more even distribution of wealth. Sandel鈥檚 intervention prevents the wealthy and more knowledgeable from taking advantage of those at the bottom of the socioeconomic ladder. It is likely that government intervention would likewise be effective in protecting other rights promoted by the social contract.

The US government has provisions that serve this purpose. These types of government interventions do technically interfere with the exchange of money throughout society.  The fact that they protect those who have lesser bargaining power, justifies this type of government control.  Though this type of government control is not traditionally called corruption, it is technically an example of a government controlling aspects of the distribution of wealth in a society.

It is likely that Rawls would say that corruption is unethical if it only benefits one individual as opposed to the entire society. But, if corruption within a society benefits the whole of the community rather than a few individuals, Rawls would likely say that corruption is ethical. Though he supports an egalitarian view of justice, he does not feel that the best should be hindered to support the weak. Instead, he says that the most talented individuals should be encouraged to do their best. These individuals must understand that their superior efforts will not bring them any more clout in society than the efforts of someone with mediocre talents will bring to them. The spoils of an individual鈥檚 superior talents would belong to the community rather than the individual. Enforcing this view of justice would require a rather large amount of government interference. Governments would interfere in the making of contracts and the distribution of goods to make sure that everyone is being treated equally.  An outsider, especially one with an American value system, would likely call this type of government corrupt. However, when government corruption takes the form of controlling economic interactions within a society for the purposes of protecting the weak, Rawls would likely declare that this form of corruption in fact ethical (Sandel, 2009).

How should a society deal with corruption?

Corruption is not always detrimental to societies. Especially within developing countries, corruption can create a vehicle for economic growth. Corruption can lead to faster processing times and can provide incentives for individuals to work harder in society. However, corruption does have its limitations. Though it can lead to more jobs, it often lowers wages. This phenomenon is particularly prevalent in several Asian countries (Huant, 2012). Also, because corruption can take many forms, not every corrupt behavior leads to more jobs in society. Corruption can hinder growth and create massive poverty and limited accountability. Even though corruption is not always an unethical practice, an ideal economic system does not require corrupt behavior to be successful.

Traditionally, societies have been encouraged to handle corrupt behavior through the criminal justice system. In America, government leaders are required to submit budgets that show exactly where the government is spending taxpayer funds. If an individual is found to have overstepped his or her authority, they can lose their job and even face criminal prosecution. The criminal justice system largely controls corruption within the American government but it is not always an effective means of controlling corrupt behavior in other places.

It seems that the best way to control corruption within a society is to eliminate the need for corruption. I believe that if individuals feel that they can accomplish their goals through legal means, they will do so. But if the legal machine repeatedly dashes their attempts at being successful, they will resort to other measures. Corruption is most widespread in the developing world, where individuals often struggle to meet their basic human needs. When one is desperate for food, water, shelter, or basic healthcare, one is much more likely to resort to corruption to gain access to these things. If one鈥檚 basic needs are readily being met, one is more likely to have the time and resources to go through legal means to access what one needs.

When I consider corruption, I am reminded of a man that lived in my community when I was a small child. He worked at a large rock quarry and drove a delivery truck. He hauled coal, granite, and fuel out to various work sites. He also served as an informal Robin Hood in our community. He stole thousands of dollars worth of coal, gas, and other resources from his job. In turn, he sold them privately at a fraction of the cost. When asked about his behavior, he would say that he felt it was a shame that the company had all those resources and there were people in our community who were freezing and he wouldn鈥檛 stand for it. He did make a profit on the material that he sold. But his prices were significantly lower than other legitimate businesses in the area. Eventually, he was caught and he lost his job. Though he was not a government official, he was participating in a type of corrupt behavior. He was stealing from his employer and selling materials for a personal profit. However, without his intervention, many individuals in our community who could not afford to buy materials from larger companies would not have had gas to heat their houses.

If natural gas prices were more affordable, then no one would have had to go to that man to purchase fuel to heat their houses.  If community governments gave out vouchers to help individuals make it through the colder months, then no one would have bought the stolen materials. The system was not serving the basic needs a large sector of the community and, therefore, people were forced to turn to corruptive behaviors to gain what they needed. I feel that fixing the system is the only way of combating corruption effectively. It鈥檚 true that corruption can lead to increased income inequality but it can also increase economic growth. When one is struggling, a low paying job is better than nothing at all.

Ideally, government actors would be held accountable for the living standards of the population. There should be mandatory government programs that would ensure that everyone鈥檚 basic needs could be met in a society. Furthermore, government entities would be required to perform frequent audits that would ensure that systems work efficiently and individuals would not have to resort to actions like bribing to get things done in a timely manner. If the institutional issues that breed corruption in the first place are repaired, corruption will die without any further assistance.

Conclusion

 Corruption is not an innately unethical practice. Both proponents of utilitarianism and proponents of social contract theory could find an ethical basis to support corruption in certain situations. However, corruption does limit the success of a population by creating greater social inequality. For this reason, corruption is not usually a long-term solution for economic growth. To control corruption in a society, government entities should eliminate the conditions that made corruption an issue in the first place. Corruption develops in communities where individuals don鈥檛 feel like they can access what they need through legitimate means. Therefore, they are more likely to turn to illegal practices. Government officials are more likely to abuse their power in government structures that do not hold them accountable for their behavior. If officials feel they will lose their power and influence through corruptive practices, they are more likely to avoid corrupt behavior. By promoting basic standards of living across all sectors of society, societies can work towards a day when corruption is no longer needed.

Bibliography

Eiras, A. I. (2003). Ethics. corruption, and economic freedom. Heritage Lectures, 813, 1-6.

Everett, J., Neu, D., & Rahaman, A. S. (2006). The global fight against corruption: A foucaultian, virtues-ethics framing. Journal of Business Ethics, 65, 1-12.

Fieser, E. (2012, April 14). A year under Martelly: Corruption controversy sidetracks Haiti’s effort to rebuild. Retrieved from

Friedman, M. (2012, August 18). For russians, corruption is just a way of life. Retrieved from

Huant, C. (2012). Corruption, economic growth, and income inequality: Evidenc efrom ten countries in asia. World Academy of Science, Engineering, and Technology, 66, 354-358.

Rising, D. (2012, December 05). Survey: Greece seen as most corrupt in EU. Retrieved from

Sandel , M. J. (2009). Justice: What’s the right thing to do?. (pp. 31-166). New York, New York: Farrar, Straus and Giroux.

Stevens-Arroyo, A. (2012, April 23). Is the church corrupt?. Retrieved from Fieser, E. (2012, April 14). A year under martelly: Corruption controversy sidetracks haiti’s effort to rebuild. Retrieved from http://www.time.com/time/world/article/0,8599,2112023,00.html

The post A Bitter Pill That Must Be Swallowed: An Ethics Based View of Corruption appeared first on The Arkansas Journal of Social Change and Public Service.

In some instances, corruption is ethically permissible. A society should address corruption with a combined 鈥渧oice鈥� and 鈥渃ontrol鈥� solution by engaging citizenry to improve legal institutions and public policy (Everett, Neu & Rahaman, 2006). To examine the ethical permissibility of corruption, it is necessary to first address what corruption is.

Chinung-Ju Huang cites three types of corruption. First, there is 鈥済rand corruption鈥� which involves 鈥渃orruption among high level executives in government鈥� (Huang, 2012). Next is 鈥渓egislative corruption . . . among representatives of the general public鈥� (2012). Finally, there is 鈥渂ureaucratic corruption鈥� involving 鈥済overnment officials and staff鈥� (2012). The general definition of corruption per the 鈥渃orruption perception index (CPI)鈥� is 鈥溾�榯he misuse of public power for private benefit鈥欌�� (Huang, 2012).

Everett, Neu, and Rahaman necessarily expand on the definitions cited by Huang.  Everett et al. add the following types of corruption: 鈥渂ureaucratic; political; petty; grand; productive; malignant; systematic; individual; private-to-private; private-to-public; official; and fiscal鈥� (2006). The authors note that, 鈥渨ithin these many definitions a wide range of acts is also often implied鈥� which within one type of corruption (鈥減rivate-to-public鈥�) there may be a range from 鈥溾�榖ribery鈥� to, simply, 鈥榠ngenuous acts鈥欌�� (2006). The synthesized definition offered by Everett, et al. closely resembles that of Huang: 鈥渕ost commentators are clearly referring to acts involving specific actors, namely public figures, civic employees, bureaucrats, and politicians鈥� (2006).  Corruption is seen 鈥渁s 鈥榯he misuse of public office for private ends or private gain鈥欌�� (2006).

Despite these generalized definitions, it is critical to note the distinctions among the types of, as well as the acts of corruption in order to analyze whether it is ethically permissible in any context. The analysis therefore is contingent on the circumstances of the corruption.  By applying an analysis to specified circumstances it is useful to evaluate the causes of corruption, which 鈥渕ay be seen as either 鈥榙emand-side鈥� or 鈥榮upply-side鈥欌�� (Everett, et al., 2006). The demand-side/supply-side causal evaluation is particularly relevant in considering whether corruption is ethically permissible in the United States immigration system.

United States immigration policy began as an inherently racist system. The Naturalization Act of 1790 provided 鈥溾�榯hat any alien, being a free white person . . . may be admitted to become a citizen鈥欌�� (Douglas, 2005). The Chinese Exclusion Act of 1882 鈥渁llowed the Executive branch to exclude Chinese nationals from entering the United States鈥� (Sandoval, 2011). Citizenship was not extended to African Americans until 1870 (Douglas, 2005). The Immigration Act of 1924 was the product of a 鈥減ush for racial limits on immigration鈥� and established the national origins quota system (Clarke, 2011). During the Great Depression, one million Mexican nationals were repatriated in order 鈥渢o ensure that only 鈥榯rue Americans鈥� held jobs in the United States鈥� (Sandoval, 2011).

The Immigration and Nationality Act of 1952 preserved the national origins quota system and 鈥渄eep-seated racial beliefs remained central to the legislation鈥� (Clarke, 2011). In 1954, Congress passed 鈥淥peration Wetback鈥� to import temporary Mexican agricultural workers in order to address labor shortages due to World War II鈥� (Sandoval, 2011). In 1986, Congress passed the Immigration Reform and Control Act, which 鈥渇ocused primarily on enforcement in the context of labor and employment鈥� (Clarke, 2011). Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. The laws were 鈥渄esigned to tighten the influx and regulate the presence of immigrants in the country鈥� by expanding 鈥溾�榯he litany of crimes for which aliens c[ould] be summarily deported, eliminated waiver of deportation relief, and precluded judicial review of certain deportation orders鈥欌�� (Clarke, 2011).

The historic racial underpinnings of United States immigration law continue to influence the law and the politics of immigration in the country today. While the Immigration Act of 1965 鈥渁bolished the national origins quota system and barred racial considerations from expressly entering into decisions about immigrant visas鈥� it simultaneously created a new discriminatory scheme (Johnson, 1998). The quota system was replaced with an 鈥渁nnual numerical limit of 20,000 immigrants from each nation鈥� (Johnson, 1998). The result has been that immigrants from Mexico, the Philippines, and India 鈥渇ace radically different waits for immigration鈥� than similarly-situated persons of other nations (1998). Immigration laws also include public charge exclusions which have a disproportionate effect on noncitizens of color from developing nations (1998).

Johnson argues that 鈥淯.S. law and policy toward noncitizens who have fled civil war, political and other persecution, and genocide in their native lands historically have been influenced by nativism and racism鈥� (1998). The support of this theory comes primarily from the method by which the U.S. government handled the influx of Haitians claiming asylum in the 1980s and repatriation efforts of the Bush administration in the 1990s.

It is within the United States asylum system that corruption is ethically permissible. To obtain protection, refugees and asylees 鈥渕ust meet the U.S. statutory definition of a refugee鈥� (Settlage, 2009). That definition provides:

[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . .  ((A)).

Refugee status is granted to persons outside the United States. The grant of status is contingent upon a determination made by the United Nations High Commissioner for Refugees (UNHCR) that must be approved by the U.S. Department of Homeland Security.   Conversely, asylum seekers 鈥渕ust request protection while inside the United States or at its borders鈥� (Settlage, 2009). Thus the U.S. government has discretion to 鈥済rant protection or to send the asylum seeker back to his or her country of origin鈥� (2009).  Citing a 2006 UNHCR report, Settlage explains, 鈥淯.S. immigration laws, . . . the asylum process, and even adjudicators themselves, have shown an ever-increasing bias against protection seekers, who are increasingly viewed as criminals or illegal immigrants鈥� (2009).

Equally troubling is the fact that because applying for asylum requires that refugees be able to afford to reach the United States, only 鈥渁 fraction have the means鈥� to do so (Settlage, 2009). Furthermore, to reach the United States, an asylum seeker 鈥渕ust have a valid passport from his home country and, in most cases, must obtain a U.S. visa鈥� (2009).  Settlage cites a report issued by the Department of Homeland Security and the U.S. Department of State that notes:

Embassies may appear to disproportionately refuse applicants from less developed regions of the world, or from poor sectors of the population, but it can be much more difficult for applicants who are unemployed or marginally employed to show that they intend to return to their country after visiting the United States (2009).

Settlage explains that unsurprisingly, 鈥渟ome asylum seekers use fraudulent documents to travel鈥� (2009). Asylum thus invokes something akin to the 鈥渋ndividual, demand-side鈥� corruption that is described by Everett, et al. (2006). The authors explain that 鈥渋ndividual鈥� corruption may be the product of 鈥溾�榬esource scarcity鈥�: low or non-existent salaries and wages often motivate people to engage in what is termed 鈥榣ow-level鈥� or 鈥榩etty鈥� corruption鈥� (2006).  In fact, the corruption that results in response to the U.S. asylum system is the product of something more than 鈥渞esource scarcity.鈥� This corruption is the product of desperation.

Mirroring the statutory definition of refugee, the U.S. Citizenship and Immigration Services website states: 鈥淩efugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion鈥� (U.S. Citizenship & Immigration Services, 2011). The United States鈥� obligations to persons seeking refugee status or asylum arise primarily from the United Nations Refugee Convention (Settlage, 2009).  Thus the end of asylum is to ensure human rights. The purpose is to preserve human rights by providing a safe haven for people in danger.

Given the purpose of the asylum system, corruption is ethically permissible under an Aristotelian view.  Sandel refers to two ideas 鈥渃entral to Aristotle鈥檚 political philosophy鈥� (2009). Justice is 鈥渢eleological鈥�– we must ascertain the 鈥減urpose, end, or essential nature鈥� of the practice. (2009). And justice is 鈥渉onorific;鈥� teleological reasoning requires an analysis about the virtues that should be honored and awarded (2009).

Sandel explains that to Aristotle, justice is about 鈥済iving people what they deserve鈥� and that 鈥淸j]ustice involves two factors: 鈥榯hings, and the persons to whom things are assigned鈥欌�� (2009). The subsequent analysis is about what is being distributed to whom; it is 鈥渞elevant excellence鈥� that determines the merit-based distribution of the things (2009). Because Aristotle requires that the just distribution of the good be determined by the purpose of the practice, it follows that with asylum, human rights must be distributed to those who can best utilize those rights. That is, asylum ought to be granted to those most in need.

The current process for asylum does not grant status to refugees who have the greatest need; it grants status to those in need who have the means to arrive safely at the borders of the United States. Therefore, if the underlying purpose of asylum is to grant human rights to those with the greatest need, corruption is permissible in order to achieve that end.  Ethically permissible corruption would then be in the form of Huang鈥檚 鈥渂ureaucratic corruption鈥� as the 鈥渟upply-side鈥� coupled with an 鈥渋ndividual, 鈥榣ow-level,鈥� 鈥榬esource scarcity鈥� demand-side鈥� corruption, a combination of elements described by Everett, et al. (2012 & 2006). This might be manifested in a scenario in which a United States immigration official accepts false documents to permit an endangered refugee to enter the United States in order to apply for asylum. If by doing so, the refugee is saved from persecution 鈥渙n account of race, religion, nationality, and/or membership in a particular social group or political opinion,鈥� then the refugee has obtained the 鈥済ood鈥濃�攈uman rights.

A proposal of this sort is difficult, particularly in a post- 9/11 United States.  According to the 9/11 Commission, the nineteen hijackers responsible for the attacks did not enter the United States surreptitiously; most were able to obtain visas through forged documents (Garcia & Wassem, 2004). The hijackers came from varied socioeconomic backgrounds, however Bin Ladin, who was very wealthy, personally chose each hijacker and gave them money to obtain U.S. visas in Saudi Arabia (National Commission on Terrorist Attacks upon the United States, 2004). This is perhaps the most tragic result of an immigration policy that is most accessible to those with the greatest financial resources.

The protection of United States citizens is critically important. Sandel believes that the 鈥渂est argument for limiting immigration is a communal one鈥� (2009). However, he explains, 鈥渞estrictive immigration policies also serve to protect privilege鈥� (2009). The current asylum system does precisely this. Though Sandel鈥檚 analysis refers explicitly to the protection of privilege of citizens of the United States by restricting Mexican immigration, the concept is relevant with regard to the protection of a broader citizenry. The current asylum policy serves to protect privileged people of the world.

A society should address corruption with a combination of the 鈥渃ontrol鈥� and 鈥渧oice鈥� solutions described by Everett, et al. (2006). The control solution is 鈥渁imed at improving legal, electoral, educational, and other institutional systems, through, as the name implies, the establishment and enhancement of control鈥� (2006). 鈥淰oice鈥� solutions 鈥渁re based on the idea that what is needed to fight corruption is the active participation of civil society鈥� because 鈥淸c]ivil society knows the causes and consequences of corruption better than do distant and 茅lite experts鈥︹�� (2006). The authors explain that establishing an effective control solution 鈥渋s not easy, and requires concerted efforts from members of civil society and, often, members of the international community鈥� (2006). Thus, an effective control solution essentially requires that it be combined with a voice solution.

The appropriate response to the corruption that results from the restrictive United States asylum system is institutional reform. There is a need for broad reform of United States immigration policy, too.  Institutional reform ought to be accompanied by a 鈥渄eontic ethical perspective鈥� contained within a 鈥渧oice solution鈥� which respects 鈥渁 wide array of perspectives, desires, and forms of practical knowledge鈥� (Everett, et al., 2006).   A voice solution addresses 鈥渢he needs of each and every citizen and ensures that none becomes a mere means to any prescribed end鈥� (2006).

Immigration reform in the United States must shift from being a strictly domestic policy to being a type of hybrid domestic/international policy.  Reform then must truly contemplate the 鈥渨ide array of perspectives鈥� of a 鈥渧oice鈥� solution (Everett, et al., 2006). The perspectives considered should not be limited to those of current United States citizens.  Immigration policy should be based on the needs of the citizens of the world.

Handling corruption through institutional reform of the United States immigration system should incorporate a (global) voice solution because it is the ethical thing to do.  Sandel argues that, 鈥渢he accident of birth is no basis for entitlement . . .鈥� (2009).  This notion should be embraced when recommending solutions for immigration policy.  It is also necessary that leaders thinking about how to solve corruption 鈥渁cknowledge that they may well be an endogenous variable or determinant factor in the corruption equation鈥� (Everett, et al., 2006). That is, leaders must acknowledge that the existing institution in fact perpetuates corruption in the asylum process and other processes of the United States immigration system. Everett, et al. describe virtue ethics as arguing: 鈥渕orality is first and foremost an integral and embodied part of the person, and that what is generally needed to make the world a better place is not simply more ethical rules, but more inherently moral people鈥� (2006).  The authors note that, 鈥渧irtue ethics uses such concepts as 鈥榮elf-mastery鈥� and 鈥榮elf-overcoming鈥� to draw attention to the embodied and character-based nature of morality鈥� (2006).  It is critical that leaders incorporate the voices of the global citizenry by looking to virtue ethics to reform immigration and thereby reduce corruption.

* Margaret Hobbs is a graduate of Hendrix College with a degree in political science, Hobbs is participating in the concurrent JD/MPS program with the 糖心Vlog传媒LR Bowen School of Law and the Clinton School of Public Service. Before entering law school, she worked in the office of U.S. Congressman Vic Snyder and served as an interpreter for a local free medical clinic. At the Clinton School, Hobbs worked with the Arkansas Legal Services Partnership to complete a comprehensive study that assessed the civil legal needs of low-income Arkansans and worked in Puerto Rico to study the the Constitutional rights of Puerto Ricans in the context of the jury trial.

References

Clarke, R. (2011). Reaffirming the role of the federal courts: How the sixties provide guidance for immigration reform. Washington and Lee Journal of Civil Rights and Social Justice, 17(463), 463-509.

Douglas, J. (2005). The 鈥減riceless possession鈥� of citizenship: Race, nation and naturalization in american law, 1880-1930. Duquesne Law Review, 43(369), 369-427.

Everett, J., Neu, D., & Rahaman, A. (2006). The global fight against corruption: a foucalultian, virtues-ethics framing. Journal of business ethics, (65), 1-12. doi: 10.1007/s10551-005-8715-8

Garcia, M., & Wasem, R. Library of Congress, Congressional Research Service. (2004). 9/11 commission: Current legislative proposals for u.s. immigration law and policy (RL 32616). Retrieved from website: http://www.au.af.mil/au/awc/awcgate/crs/rl32616.pdf

Huang, C. (2012). Corruption, economic growth, and income inequality: evidence from ten countries in asia. World Academy of Science, Engineering and Technology, 66, 354-367. Retrieved from

Johnson, K. (1998). Race, the immigration laws, and domestic race relations: A 鈥渕agic mirror鈥漛1 into the heart of darkness. Indiana Law Journal, 73(1111), 1111-1158.

National Commission on Terrorist Attacks upon the United States. (2004). The 9/11 commission report: Final report of the National Commission on Terrorist Attacks upon the United States. Washington, DC: National. Commission on Terrorist Attacks upon the United States.

Sandel, M. (2009). Justice: What’s the right thing to do?. (1st ed. ed.). New York: Farrar, Straus and Giroux.

Sandoval, L. (2011). Race and immigration law: A troubling marriage. Modern American, 7(42), 42-53.

Settlage, R. (2009). Affirmatively denied: The detrimental effects of a reduced grant rate for

affirmative asylum seekers. Boston University International Law Journal, 27(61), 61-110.

U.S. Citizenship & Immigration Services. (2011). Refugees & asylum. Retrieved from http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=1f1c3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextoid=1f1c3e4d77d73210VgnVCM100000082ca60aRCRD

The post Corruption and Ethics appeared first on The Arkansas Journal of Social Change and Public Service.

My friend and I had somehow gone an entire day without paying a bribe. We were riding across Zanzibar, Tanzania on motorcycles and assumed that we would be easy targets for the notoriously corrupt police force. Sure enough, a police officer flagged us down towards the end of our journey and proceeded to explain why we owed him money for pulling over on the wrong side of the road. I felt as though the officer was being unethical in that I was being used as a means to an end and that I had my freedom greatly restricted in the process. In addition to this, I felt as though this officer had reduced the overall welfare of the island of Zanzibar. I would likely curtail my spending in the local economy to make up for the unexpected loss and had formed a slightly less positive opinion of Zanzibar culture in response to this act of corruption. The repercussions of this corrupt act are still being felt 鈥� you, the reader, are currently making your own judgments about Zanzibar that may or may not have negative impacts down the line.

While not all acts of corruption are as cut and dry as bribery from a state official, this example does stress the multifaceted ethical impermissibility of corruption. Michael Sandel explores different faces of justice and ethical permissibility in his book Justice: What鈥檚 the right thing to do? To do this, Sandel filters the most relevant literature and theorists into three fairly broad themes: welfare, virtue, and freedom (Sandel, 2009). This paper explores the issue of corruption using the same demarcations to address whether corruption could be ethically permissible within any of these three frameworks. After concluding that only radical libertarian ethics could possibly permit corruption, this paper offers solution that fit within each of Sandel鈥檚 three ethical categories. Finally, suggestions for effectively and ethically reducing corruption in modern society are drawn from the available solution space.

Definition

Corruption is the misuse of power for personal gain. Typically, this power comes from public office and most definitions of corruption reflect this commonality. Gray and Kaufmann, as quoted in Everett, Neu & Rahaman, argue that corruption is the 鈥渕isuse of public office for private ends or private gain鈥� (Everett, Neu & Rahaman, 2006). This definition is limiting, however, and should be expanded to those who hold private office. Is insider trading 鈥� using private knowledge and power for private gain and public loss 鈥� not corrupt? Expanding the definition of corruption makes it easier to address the ethical parameters of corruption without becoming disoriented in the individual nuances and manifestations of the phenomenon.

Ethical Framework: Welfare

Sandel鈥檚 welfare approach is essentially consequentialism; the notion that every decision should be made in light of the potential consequences (Sandel, 2009). In this ethical framework, the ends can justify the means if the action passes a cost-benefit analysis and it is clear that it served the 鈥済reater good鈥� (Sandel, 2009). Sandel invokes the utilitarian theorists John Stuart Mill and Jeremy Bentham to illustrate this ethical conception.

Corruption rarely passes the utilitarian examination of a welfare-based ethical perspective. According to utilitarian scholars, an action is morally permissible if the resulting consequences create more benefit than cost, more happiness than sadness, or more pleasure than pain (Sandel, 2009). In examining corruption, then, the question becomes whether or not corruption is worthwhile on the 鈥済reater good鈥� scale. Most scholars who operate in this utilitarian framework 鈥� particularly economists 鈥� attempt to approach the topic of corruption using empirical evidence. Through complex calculations and measurements, economists intend to prove that the overall impact of corruption is either beneficial or detrimental. If it were to be beneficial, then it would be deemed ethically permissible.

In Selcuk Akcay鈥檚 perspective, this divides the relevant scholars between efficiency enhancing and efficiency reducing factions. While Akcay acknowledges that arguments have and can be made in either group, his empirical collection and analysis of human development data as it relates to corruption indices shows that corruption is most often negatively associated with human development (Akcay, 2006). In most of the 63 countries observed there was a pattern that greater corruption levels correlate with slower human development rates. This was true regardless of status in the global economy; both developed and developing nations of varying economic strength were measured. The correlation seen in this study is strong, but the author wrongfully invokes causality in this study by claiming that 鈥渃orruption in all its aspects retards human development鈥� in the last sentence (Akcay, 2006). This cannot be drawn from the data 鈥� it could just as easily prove to be the case that sluggish human development, caused by other factors, creates corruption. As other scholars argue, corruption can actually be both the cause and the effect  (Everett, Neu & Rahaman, 2006).

Corruption will rarely result in 鈥済reater good鈥� outcomes because it represents an equilibrium that lacks pareto efficiency. Pareto efficiency is a term borrowed from game theory, the field of study that explores decision-making when dealing with multiple imperfectly rational and self-interested individuals. Pareto efficiency occurs when the involved individuals or groups reach a stable outcome that creates the greatest possible overall good. One of the most famous thought experiments in game theory, the prisoner鈥檚 dilemma, occurs when there is an incentive to choose an option other than cooperation. In other words, while there is a benefit to cooperation, there is an even stronger benefit for that person to defect if the other cooperates. Unfortunately, because the actors in the dilemma cannot communicate with one another, they will almost always end up in a situation that is worse off for all parties involved 鈥� one that lacks pareto efficiency (Dixit & Nalebuff, 2010).

To use a practical example, it is widely known that traffic would flow much quicker without people changing lanes. Whenever traffic gets dense, drivers begin shifting lanes more often to try to find the lane that offers the fastest commute. Unfortunately, everybody else is also looking for the fastest lane and is switching at the same time. Not only does this decrease overall happiness by frustrating individual commuters, it also creates a slower commute for all individuals involved in this large-scale prisoner鈥檚 dilemma. If everyone were to stay in their own lane, it is likely that the average driver would arrive at their destination faster.

This is corruption. If everyone were to cooperate and be entirely lawful and just in their actions and interactions, it is likely that the utilitarian 鈥済reater good鈥� would be improved. Instead, we are left with an outcome lacking pareto efficiency due to a personal incentive (or even need, as will be discussed in later sections) to defect and perform a corrupt act. This person then has the advantage over others, creating an inequality that fosters a system expecting corruption, thereby creating greater incentive to be corrupt because cooperation is not trusted or recognized. Eventually, the social contract disintegrates as the trust between state and citizen erodes.

Social contract theory, most famously explored by Jean-Jacques Rousseau, takes the principles explored in game theory and applies them to the modern nation-state. In order to escape the 鈥渟tate of nature鈥� and rise above it in a just and civilized society, the citizenry must have a government structure that is for and by the people (Friend, 2004). Each individual relinquishes the same freedoms for the sake of an orderly and safe existence but is also expected to submit to the same restrictions (Friend, 2004). According to Rousseau, the only way to have a virtuous social contract is for these restrictions to apply to those in public office and people with authority as well. When it doesn鈥檛, as is the case with most forms of corruption, then it is appropriate and expected of the citizenry to hold the government accountable. The French interpreted this virtue as cause for revolution 鈥� a more modern democratic approach would be to vote out the corrupt and vote in the righteous. The bitter injustice of corruption is that reform is not quite this easy. The corrupt remain in office through fraudulent elections and cronyism. The righteous tend to disappear.

Ethical Framework: Virtue

If corruption fails to meet the virtue-based stipulations of a just society, it holds even less water when each act and actor is examined using Emmanuel Kant鈥檚 categorical imperative. The categorical imperative suggests that a moral agent should consider if the action is universalizable 鈥� that if everyone adopted the action it would not lead to a worse off condition (Sandel, 2009). Using this rule, the moral agent would have to imagine a scenario where everyone was corrupt. A state of complete and universal corruption would create rifts in social and political fabric and a collapse in the state. Corruption actually requires non-corrupt individuals to be effective, so corruption fails to meet Kant鈥檚 rule of virtuous actions. The categorical imperative exists in the narrow space between the golden rule and utilitarianism but has applications beyond each of these notions. For example, the categorical imperative requires that the means are also appropriate and virtuous rather than just the corresponding ends (Sandel, 2009). This brings a different aspect of corruption to closer examination: could corrupt means to a beneficial end be ethically permissible and even virtuous? This requires a closer view of the means that corruption takes.

Nearly all corruption is based around self-interest in some form. Whether an individual commits a corrupt act for subsistence or for excess, it requires using another person as a means to an end. Kant would argue that this is ultimately unethical, even if the overall benefit outweighed the immediate pain caused by the corruption. Corruption is unethical because it cannot be made a universal rule and because it devalues humans. It is ethically impermissible even when a wealthy individual pays a bribe to a low-income government employee with hungry children. The very process of corruption is unethical regardless of the consequences because of the relationship it builds between humans. Freedom-based theories, on the other hand, might permit exceptions to this rule for the sake of preserving individual liberties.

Ethical Framework: Freedom

Some ethical authorities posit that all ethics are relative and that each individual person has the right to decide what to do with his/her person and property. It is only within this framework 鈥� of pure, unadulterated freedom 鈥� that corruption might be ethically permissible. Staunch supporters of individual liberty argue that we cannot restrict a person鈥檚 freedom in any way (Sandel, 2009). The actions they take will be harmonious with their own moral code and there cannot be any external force regulating what is and is not moral. This form of strict freedom-based ethics borders on anarchism and rarely takes serious form in ethical discussions. Instead, most loyalists to freedom-based ethics take a libertarian approach and suggest that there must be a governing force in place to ensure that people do not inflict any direct harm to one another and that contracts are upheld (Sandel, 2009).

In either approach 鈥� anarchism or libertarianism 鈥� it could be interpreted that corruption is a natural course for society and should not be regulated. Some libertarians view corruption as a sign that there is freedom and entrepreneurship in the private sector and that the market will be able to settle out any undue corruption (Jang & Hodgson, 2006). If the prices are unfair or the corruption unjust, then the competitive free market will set in and somebody will provide a less corrupt alternative. The tenets of modern libertarianism revolve around the notion that it is ethically impermissible for the government to restrict individual liberty. Many suggested solutions to corruption involve increased control and regulation 鈥� mechanisms incompatible with libertarian ethics (Nichols, 2009). While there might exist ethical permission for corrupt acts within a freedom-based moral code, it is often seen that practicing libertarians are against corruption.

In practical application of freedom ethics, libertarians are against corruption for two main reasons: they believe that corruption can cause direct harm to contracts and individuals and that corruption can limit freedom in the markets. Both reasons rely on a definition of corruption that is focused on public offices and government rather than the holistic definition that includes the private and social sectors (Eiras, 2003; Hodgson and Jang, 2006). With this fairly limited definition in mind, libertarians suggest that government is the cause of corruption. The first reason is the fault of the government for not upholding the rule of law (for not being controlling enough) and the second reason is to be pegged on cumbersome and inefficient regulations and unnecessary bureaucracy in the government (for being too controlling). Ana Isabel Eiras from the 颅Heritage Foundation, a primarily libertarian think tank, argues that corruption is the result of restricted economic freedom. When freedom is restricted due to regulation (lengthy permitting processes) or inefficiencies (bribery), citizens will turn to an informal market that is naturally predisposed for corruption (Eiras, 2003). Whereas the strict libertarian or anarchist might see corruption as ethically permissible as part and parcel of individual freedom, the practicing libertarian would view corruption as limiting freedom and would actively seek out a solution to the corruption problem.

Solutions

Corruption is effectively ethically impermissible in all three major perspectives of justice and ethical conduct. As such, each perspective has a corresponding approach to reducing corruption and creating a more just society.

Welfare: Control Solutions

In order to maximize welfare and create a situation that results in the greatest good for the greatest number, those that take a welfare-based approach would favor what Everett, Neu, & Rahaman describe as 鈥渃ontrol solutions鈥� (Everett, Neu & Rahaman, 2006). These solutions most often involve both state and non-governmental organizations pushing for increased control and regulation of activities that either qualify or cause corrupt acts. Through the rule of law, reform, and command-and-control regulation, all aspects of corruption (public, private, social) can be reduced. Control solutions are comprehensive but by no means easy and require concerted effort from all major societal stakeholders to ensure that trust is rebuilt in the state鈥檚 authority and that credibility is restored in the private sector.

Virtue: Voice Solutions

Those that view corruption as ethically impermissible because it is morally reprehensible for each individual to commit a corrupt act or use corrupt means would likely favor 鈥渧oice solutions鈥� (Everett, Neu & Rahaman, 2006). Voice solutions require increased accountability and transparency in business, governance, and society as a whole. By tracking and exposing corruption, virtue theorists expect that corruption will be eradicated as it becomes better understood. In exposing injustice, they intend to create societal shifts that will call for a less corrupt system 鈥� power through knowledge.  Transparency International has been keeping a Corruption Perception Index that red flags corrupt institutions with the hopes of shifting the flow of money and influence. A government with a high corruption score on one of these indices might lose aid funding or votes and a business with a high score might lose clients or investments (Everett, Neu & Rahaman, 2006). In addition to these organizational countermeasures, voice solutions include increased freedom of press and citizen information campaigns. All of these initiatives intend to empower those that are on the receiving end of corrupt acts and measures.

Freedom: Exit Solutions

Subscribers to a freedom-based code of ethics, or at least those that view corruption as a limit to freedom rather than an expression of it, support 鈥渆xit solutions鈥� (Everett, Neu & Rahaman, 2006). These solutions revolve around the libertarian hypothesis that government is entirely to blame for corruption. If government is the problem, than exit solutions advocate for the reduction of government to the bare necessities of maintaining an orderly state. Libertarians suggest reallocation of government resources so that the state becomes more effective at enforcing the rule of law and less effective at controlling the free market. This will shift business and public outreach to the formal economy, thereby reducing the corruption capacity that currently lies in the informal economy.

Discussion and Conclusion

Control solutions are the best option for reducing corruption. They rearrange the incentive structure in ways that the other two solution strategies cannot. People are not always corrupt because they are unethical. Corruption is often circumstantial and the other two solutions do very little to rearrange or change these circumstances. As seen in game theory and social contract theory, increased communication or a governing body are needed to create the incentive for cooperation in a society that has already experienced corruption.

Exit solutions are especially passive in their altering of the incentive structure. They believe that the state will naturally drift towards fairness and ethicality if the barriers to freedom are removed (Everett, Neu & Rahaman, 2006). Regardless of whether or not government and public institutions caused corruption, removing them is not going to alleviate it. The equilibrium without pareto efficiency that is a corrupt state might be imperfect, but it is stable. Corruption will maintain the default once it becomes the norm 鈥� corruption begets corruption. Slackening regulations will not help the system find a less corrupt equilibrium.

Similarly, voice solutions lack the authority or assertiveness needed to rearrange the incentive structure of a corrupt state. They come a step closer than exit strategies by opening communication and transparent flow of information but do not eliminate the incentive to defect. Voice solutions would be analogous to having a conference call among all commuters on a highway. Everyone could communicate with everyone else and come to the universal conclusion that they should not shift lanes. However, if there is a history of self-interested lane shifting and an individual benefit in doing so, there might not be the trust needed to uphold this sort of informal agreement. Agreement does not guarantee cooperation, and suspicion could easily lead back to massive defection and a pareto inefficient equilibrium. In the case of voice solutions, even if people became more aware of corruption and there was greater accountability for corrupt decisions, certain people (out of greed or need) might use corruption to maximize their utility. Voice solutions can increase the social pressures that denounce corruption but cannot eliminate it, especially if there is already a lack of trust.

Control solutions must be used to rebuild the social contract thereby ensuring that the public and private sectors are working for the people by the people. These will rearrange the incentive structure by either punishing actions that are corrupt or by rewarding cooperation. Any control solution will need to be especially mindful of the fact that corruption is most often circumstantial and a response to need 鈥� it should be nuanced to accommodate these circumstances (Nichols, 2009). However, as seen in the prisoner鈥檚 dilemma, the greatest total benefit comes from cooperation.

Control solutions do not rely on but are tolerant of virtue- and freedom-based reasons to avoid corruption. While Kant might take issue with the notion that acting virtuously is incentivized in that this might dilute the deontological duty for acting, the individual can still act out of duty and happen to receive a reward for doing so. For those that choose not to or cannot afford to use Kant鈥檚 virtue-based rational for avoiding corruption, control mechanisms will provide instrumental incentive and comply with the 鈥済reatest good鈥� emphasis of utilitarian ethics. These solutions even comply with some of the more relaxed elements of libertarianism. While these rules and regulations might reduce freedom in the short term, they will ultimately increase individual freedom by improving the rule of law and decreasing the restrictive nature of corruption. Hardline libertarian policies and deregulation might be effective once confidence in the state has returned, the social contract has been mended, and society has been reminded of the benefits of universal cooperation.

References

Akcay, S.: 2006, 鈥楥orruption and Human Development鈥�, CATO Journal 26(1), 29鈥�48.

Dixit, A., & Nalebuff, B. (2010). The art of strategy. New York, NY: W. W. Norton & Company.

Eiras, A. I. (2003). Ethics, corruption, and economic freedom. Heritage Lectures, (813).

Everett, J., Neu, D., & Rahaman, A. S. (2006). The global fight against corruption: A foucaultian, virtues-ethics framing. Journal of Business Ethics, 65, 1-12. doi: 10.1007/s10551-005-8715-8

Friend, C. (2004, October 15). Social contract theory. Retrieved from http://www.iep.utm.edu/soc-cont/

Jang, S., & Hodgson, G. M. (2006). The economics of corruption and the corruption of economics: an institutionalist perspective. Retrieved from

Nichols, P. (2009). Multiple communities and controlling corruption. Journal of Business Ethics, 88, 805-813. doi: 10.1007/s10551-009-0320-9

Sandel, M. (2009). Justice: What’s the right thing to do?. New York, NY: Farrar, Straus and Giroux.

The post Ethically Impermissible: An Analysis of Corruption from Welfare, Virtue, and Freedom Perspectives appeared first on The Arkansas Journal of Social Change and Public Service.

The laws surrounding corruption have centered on ethical considerations since society made its first attempt at curbing corrupt behavior. As the laws prohibiting corruption were written, legislators undoubtedly focused on what is morally or ethically wrong to determine what type of behavior constituted corruption. In this paper, I examine ethicality in its relation to corruption and seek to describe circumstances in which corruption would be considered ethical. After defining the two terms and examining Kantian ethics, I determine that whether or not corruption is ethically permissible rests on an assumption that an actor acts out of a duty, not an inclination, toward self-gratification. Then I examine the positive and negative repercussions of corruption, define differing strategies to 鈥渄eal鈥� with corruption, and then endorse the Integrative Social Contract Theory as an effective measure for reducing corruptive practices.

Is corruption ever ethically permissible?

In contemplating the question above, one must first define the terms 鈥渃orruption鈥� and 鈥渆thically permissible.鈥� While defining both terms is a daunting task, attempting to determine whether corruption can be justified as 鈥渆thical鈥� is challenging. Even though 鈥渆thical corruption鈥� may be a paradox for many, this paper seeks to rectify the two terms by examining circumstances that are defined as 鈥渃orrupt鈥� and justifying actions taken in those circumstances as 鈥渆thically permissible,鈥� or morally good.

The term corruption is vague  and is not easily defined. Corruption can take on different meanings depending on whether the acts occur in the public or private sector (Eiras, 2003). Corruption can be thought of as embezzlement, fraud, bribery, treason, or acts that constitute a conflict of interest (Everett, Neu, Rahaman, 2006). The unclear term can involve different types of corruption including political corruption, grand corruption, productive corruption, and petty corruption, among others (Everett et al., 2006). Other authors who seek to define the term have included just under sixty different actions that constitute corruption in the manner we think of today (Everett et al., 2006). For purposes of this paper, corruption will be any act deemed illegal due to the belief that it creates an unfair advantage for one party over the other. For example, fraud or embezzlement can be considered corrupt because it places the fraudulent party at a personal advantage over the non-fraudulent party.

The term 鈥渆thically permissible鈥� or 鈥渆thical鈥� can be just as arduous to define. An ethical act is one that is generally thought of as an act that society has not deemed 鈥渨rong.鈥� According to Merriam-Webster, ethics is 鈥渢he discipline dealing with what is good and bad鈥︹�� (Eiras, 2003). Ethics is often referred to as the study of morality 鈥� what society deems 鈥渃orrect鈥� or 鈥減roper behavior;鈥� therefore, what society deems moral can also be considered ethical. But the focus and intent of this paper is not to define ethical behavior based on obvious moral codes; to determine whether something is ethical, one must look to the philosophies that determine 鈥済ood鈥� or 鈥渂ad鈥� behavior.

Immanuel Kant, a Prussian philosopher who died not long after the end of the 18^th century, defined morality by focusing on intent, not the consequences, of acts carried out in our day-to-day lives (Sandel, 2009). Kant鈥檚 focus was on motive 鈥渙f a certain kind鈥� (Sandel, 2009, p. 111). If a person choses to act a certain way simply because it is right, then, according to Kant, they acted morally. An act is not moral if it only conforms to moral teaching or societal laws; an act is moral if the motivation for acting is rooted in a motive of duty (Sandel, 2011).        If there is any other motive behind an action, then it cannot be considered moral under Kant鈥檚 theories. Actions that satisfy our desires or wants, such as self-gratification, are not ethical because an inclination to satisfy our self-interests exists, not a duty.

Take suicide, for example. It is quite easy to develop the commitment not to commit suicide due to one鈥檚 love of life or one鈥檚 simple desire to live. Kant would indicate that this motive lacks moral worth (Sandel, 2011, p. 114). The person that chooses to stay alive because they love life chooses not to commit suicide from an inclination, not a duty to stay alive. However, when you consider a person who loathes life and chooses not to commit suicide out of duty to stay alive, they have acted morally because they maintain their existence despite the availability of a solution that compliments their dissatisfaction very well. The same goes for a compassionate individual who enjoys altruistic behavior such as donating time and money to a local charity. If she does it for the gratification she feels, her actions lack moral worth. If she does it because it is the right thing to do, the action is moral (Sandel, 2011).

From this very basic description of Kantian ethical theory, one can conclude that certain 鈥渃orrupt鈥� behaviors may be deemed ethically permissible. This is due in large part to the actions taken, which may arise under a duty and not an inclination toward a self-gratifying or advantageous outcome. For example, consider Bob who works for ABC cooperation. Bob is an accounting executive in Seattle and through his subordinates has almost complete full control of ABC鈥檚 cash flow and other assets. Dan is a secretary for ABC in Dallas. Due to the current economic recession, ABC has chosen to downsize its administrative staff in Dallas and Dan is the first and only secretary selected to be terminated. Dan is a single father raising five children in a Dallas suburb. He relies on government aid to provide food and healthcare for his family. Upon learning of the circumstances surrounding Dan鈥檚 life and that Dan would be the first and only secretary terminated from ABC鈥檚 affiliate office, Bob took action. After long and careful consideration of the illegal nature of his actions, Bob decided the duty to help another outweighed the possibility of future criminal sanctions. While he knew he was committing fraud and that he was engaging in corrupt practices, Bob manipulated ABC鈥檚 accounting books to ensure that funds for Dan鈥檚 position were available.

Bob鈥檚 decision was corrupt and ethically permissible. Bob鈥檚 manipulation of ABC鈥檚 accounting books was corrupt given that it was a fraudulent act and, while it may be a stretch, may also be considered embezzlement. Determining that his actions were ethically permissible, or moral, rests on the assumption that Bob acted only out of the duty to help others, not an inclination that would give him any sense of gratification or alleviate guilt. In this hypothetical situation, Bob received no gratification and would have actually felt happy about losing an unnecessary secretary; he definitely would not have experienced guilt. Like the altruistic actor in Sandel, Bob chose to help someone based on the duty to help. Therefore, his corrupt actions were moral and ethically permissible.

How should a society deal with corruption?

Corruption has far-reaching impacts throughout differing cultures and regions of the world. While some economists such as Chiung-Ju Huang argue that corruption may increase economic growth in some areas of the world, the majority of opinions assert that corruption has 鈥減rofound damage鈥� on society as a whole (Nichols, 2009). Many recent attempts to prevent the desire for corruption have failed due to an emphasis on 鈥渘arrow legalism鈥� that provide only criminal sanctions that seek to control corrupt behavior (Kaufmann, 2005). The best approach for 鈥渄ealing鈥� with society鈥檚 inclination toward corruption is to focus on Integrative Social Contract Theory while keeping an eye on other solutions labeled as control, exit, and voice strategies.

According to Huang, corruption decreases a company鈥檚 competitiveness and economic growth, but some scholars opine that corruption may be attributed to positive economic growth. While income inequality is worsened by corruption, some countries can experience an increase in economic growth primarily due to the fact that corruption lessens the time needed for transactions, simplifies administrative procedures, and also increases the efficiency of bureaucracy (Huang, 2012). For example, bribery in a nation鈥檚 legislature may produce incomplete legislation that results in less rigid laws regulating business transactions.  This is somewhat paradoxical considering shortly, I will discuss authors who opine tight regulations are one of the largest contributors to corruption in the first place.

According to Nichols, 鈥渃orruption inflicts profound damage on society鈥� (p. 806). Corruption increases child and infant mortality rates, distorts roles of governments, reduces funding for health and education, increases military spending, distorts markets, depreciates national currency, and slows down long-term domestic and foreign investments. The social effects of corruption may include decreasing the legitimacy of governments, especially democratic government, and can possibly lead to uprisings by undemocratic leaders. Businesses are affected by increased costs, degraded administrative support, and decreased capabilities of enforcing agreements (Nichols, 2009).

If the focus of 鈥渄ealing with corruption鈥� is to strive for its eradication, there are several theories concerning the proper approach. Eiras proposes less regulation on the market while Nichols focuses on the Integrated Social Contract Theory. Everett, Neu, and Rahaman described three different strategies labeled as control, exit, and voice strategies. After describing all of those listed, I will endorse and further discuss the Integrated Social Contract Theory.

Control, exit, and voice strategies are three differing approaches that focus on institutional systems, availability of substitutes, and active participation of civil society, respectively (Everett et al., 2006). Control strategies place emphasis on improving legal, electoral, and educational systems through systems of control, for example, stricter laws. These laws can be tax reforms, strengthening regulation agencies (auditors, etc.), and protecting whistle-blowers. These strategies increase regulation and state intervention, which is, quite often, viewed negatively. Therefore, there is a preference for exit strategies over control strategies (Everett et al., 2006). These strategies are based on the idea that alternatives must be in place so that when the potential for corruption arises, actors have other available options to choose from. Proponents of this theory argue that lowering trade barriers, abolishing subsidies, and reducing regulations will reduce opportunities for corruption because it increases available options for actors. Voice strategies are founded on the idea that civil society can actively combat corruption. It is concentrated on the idea that society knows the causes and effects of corruption and therefore must be involved in any attempt to eliminate it. This can involve NGOs, public surveys, information campaigns, and other avenues for the public voice (Everett et al., 2006).

According to Eiras with The Heritage Foundation, corruption is not the root of the problem but a symptom of overregulation (p. 1). Due to the lack of economic freedom, an 鈥渋nformal economy鈥� develops, takes a larger share of GDP, and fosters unethical behavior. As a result of increases in regulatory measures, small to medium investors and business owners find it difficult to operate and engage in ethical behavior. In an informal economy, business owners are able to negotiate terms of employment that are tied to performance, and not controlled by rule of law. Much like the exit strategy described above, Erias and The Heritage Foundation advocate for less regulation based on the assertion that less regulation will foster a more conducive environment where small and medium businesses can prosper without corrupt behavior (Eiras, 2003).

Corruption presents an ethical dilemma because it involves an assurance problem; however, it can be mitigated or possibly remedied by adopting strategies that incorporate Integrative Social Contract Theory. Assurance problems exist when, because one actor has cheated, other members of a group are immediately disadvantaged. According to Nichols, if one member of a group cheats, the other members of the group are disadvantaged if they do not cheat and advantaged if they do (p. 805). If all actors in a business environment act according to the rules, all are equally benefitted. After one deviates from the rules, the environment almost demands that others act corruptly in order to survive. Those that steadfastly adhere to the rules will more than likely suffer and may be driven out of business (Nichols, 2009). In a corrupt environment, criminal sanctions are inefficient deterrents due to the ability to 鈥減urchase favorable decisions rather than suffer the actual penalty鈥� (p. 807). Therefore, it is essential that those who seek solutions closely examine Integrative Social Contract Theory.

According to Nichols, Integrative Social Contract Theory combines two sets of contracts: implicit social contracts, also referred to as macrosocial contracts, and microsocial contracts (p. 807). The macrosocial contract is the type that Locke focused on in his discussion surrounding theories of ethics and social organization. These contracts contain the terms that would be agreed to by 鈥渢he majority of rational and educated members of a society鈥� (p. 807). Macrosocial contracts contain the normative principles of a society; they are the 鈥渙ughts.鈥�

Microsocial contracts are a result of free association prescribed by macrosocial contracts and fill in the gaps left out by macrosocial contracts; they embody what 鈥渋s.鈥� Integrative Social Contract Theory is the unification of the two types. The macrosocial norm that gives smaller communities the right to create rules or standards is referred to as a hypernorm. Any macrosocial or microsocial contract that violates a hypernorm 鈥渉as no power or legitimacy.鈥� (p. 808). A hypernorm, for example, is the universal belief that corruption should be condemned. Corruption, therefore, violates the fundamental hypernorm of social efficiency and destroys social good.

Nichols posits that microsocial contracts have the ability to reinforce hypernorms by 鈥減osting an agreed-upon 鈥榠s鈥欌�� (p. 809). These contracts will have more details than a hypernorm or macrosocial contract and efficiently addresses the complex behaviors associated with corruption. A simple law forbidding corruption fails to provide adequate guidance and results in a decreased assurance that other actors are cooperating with the rules, which creates a 鈥渃onundrum鈥� for those faced with a decision between normal or corrupt behavior. Microsocial contracts, at the very least, should provide minimum standards of conduct. For example, the United States鈥� Foreign Corrupt Policies Act 鈥渇orbids transnational business-related bribery except bribes paid to facilitate non-discretionary clerical acts鈥� (p. 810).  This microsocial contract establishes a 鈥渕inimum standard鈥� and actors are obviously able to act with higher standards of conduct if they wish. However, all have agreed to carry out this minimum standard of conduct. Microsocial contracts enable actors to bring everyone to the table for discussion regarding regulations. The act of openly discussing and brainstorming standards of conduct can foster trust and understanding among actors (Nichols, 2009).

This theory is preferred because it brings individuals to the drawing board rather than several independent nations. The problem with nations is that their visions are more idealized than reality; nations are interdependent and unorganized entities. Integrative Social Contract Theory taps into levels of human organization that are unachievable in international law. The theory is also drastically more democratic than international laws (Nichols, 2009).  Separate laws in different countries do not always adequately represent the will and desires of its citizens. Integrative Social Contract Theory ensures authenticity because those that will be governed decide upon the rules (Nichols, 2009). Because international law is unrealistic, eradicating corruption requires a focus on rules that were developed by the actors themselves and focus on the interactions that foster trust and adherence to the rules.

Conclusion

Even though the terms 鈥渃orruption鈥� and 鈥渆thically permissible鈥� can be difficult to define, it is easy to understand the meaning behind each term by looking at examples of corruption and defining ethical behavior based on morality theories enumerated by Immanuel Kant. Corruption can be considered ethically permissible under Kant鈥檚 theories if the actor acts out of duty and not a motive that alleviates guilt or results in self-gratification. While some theorists explain corrupt practices can actually result in economic growth, the general consensus is that corruption has overwhelmingly negative implications on societies that have trouble eradicating it. There are many theories that focus on reducing corruption including control, exit, and voice strategies. Exit strategies are much like those proposed by Eiras due to their focus on reducing governmental regulations. Integrative Social Contract Theory is the preferred method for eradicating corruption due to its focus on the conundrums faced by individual actors and its deviation from theories that holistically attempt to prohibit corruption on an international scale.

Works Cited

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1-6.

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Sandel, M. (2009). Justice: What’s the right thing to do?. (1st ed. ed.). New York: Farrar,

Straus and Giroux.

*Chris holds bachelor鈥檚 degrees in Spanish and international business from the University of Arkansas at Little Rock and currently enrolled in the JD/MPS concurrent program with the 糖心Vlog传媒LR Bowen School of Law and Clinton School of Public Service. He has served as an AmeriCorps volunteer with the 糖心Vlog传媒LR’s Children International. Chris currently works for ACLU of Arkansas and is interested in international development.

The post Is Corruption Ever Ethically Permissible? appeared first on The Arkansas Journal of Social Change and Public Service.

The 2013-2014 Arkansas Journal of Social Change and Public Service publication schedule has begun.  You might have noticed that we started this year with two articles related to healthcare.   We first published an article addressing the need for behavioral health advance directives by David Jung. We then followed up with an article by Dr. Robert C. Patton discussing EMTALA and reverse dumping in emergent care.  This is the model we are attempting to follow this publication season. We strive for monthly themes and hope to publish at least two substantive articles each month relating to the theme, with other, lighter articles, photo essays, book reviews, and essays (all relating to the theme), interspersed throughout the month.  Our hope is that by focusing on thematic ties for an entire month we can initiate conversation and ideas in our readers.  The Journal members would like to encourage feedback to our articles 鈥� both on the website itself and through other social media outlets like Twitter and Facebook.  Our ultimate goal is to increase the candid exchange of ideas in order to give social change initiatives a voice and a direction, not only in Little Rock, but throughout the world.

For the month of October we will publish multiple articles that attempt to answer whether corruption can ever be ethically permissible?  This is the question we would like to pose to our readers this month.  Is corruption ever ethically permissible?  We will offer four voices in response to this question and we welcome the addition of your voice to the fray.  If you want, you can wait to read them all and then respond or if an individual article sparks your attention and you would like to respond, feel free.  You can use the comment section at the bottom of the article or you can submit a written response in the form of another article or a photo essay or even poetry. We will strive (with editorial consent) to post it alongside our articles.  If your response can be restrained to 140 characters you can use Twitter to respond; @ARSocialChange, #permissivecorruption.

In the same vein, if you have an idea for a monthly theme, or if you have an article that you would like to submit, please send it to us at socialchange@ualr.edu .  We look forward to hearing from you.

Also, I will provide a monthly letter from the Editor which will set the stage for the scope of our monthly theme. In the next couple of weeks, be on the lookout for more information regarding this semester鈥檚 symposium 鈥� Catalysts for Change. We have heard many times people say they have social change ideas or see a public need not being served.  So often we get ideas or see injustices around us but fall short of implementing a plan because we have no idea how to take our ideas and create the change we want to see.  There will be more information in the next couple of weeks but for now, mark your calendars for November 8, 2013.  We hope to see you there!

Sincerely,

Alexis Cook

Editor-in-Chief

The post Letter from the Editor appeared first on The Arkansas Journal of Social Change and Public Service.

ABSTRACT

This paper reflects on the Emergency Medical Treatment and Active Labor Act鈥檚 (EMTALA) provision regarding hospitals who fail to properly accept an incoming, emergency ill patient 鈥� a process also known as 鈥渞everse dumping.鈥� Offered as the single most important piece of legislation affecting emergency medicine passed in the last quarter century, the author explains that many EMTALA violations are due to carelessly written inter-hospital emergency patient transfer policies. He argues that these policies may result in significant patient harm through unnecessary delays in patient transfers and that such harm goes unnoticed or is hidden on many occasions. Though rare, it is through the catastrophic case which results in significant injury or death that the consequence of 鈥渞everse dumping鈥� is revealed.

An overview of EMTALA鈥檚 origin and important provisions is followed by a discussion of the role the law of agency plays in the Act鈥檚 mechanics. The author suggests when a transferring hospital directly contacts the on-call physician at the receiving hospital, a situation of 鈥渁pparent agency鈥� is created by those receiving hospitals who continue to place their on-call, private medical staff at the forefront of the patient transfer process. This action could expose the hospital to a violation of EMTALA provisions without the hospital鈥檚 knowledge. Nonetheless, a refusal may result in sanctions, a fine, or both.  The seminal case of St Anthony Hosp. v. United States Department of Health and Human Services is explored, along with the author鈥檚 personal experience in the field of emergency medicine following the St. Anthony ruling.

The recommendations of the author to combat 鈥渞everse dumping鈥� are preceded by a review of proffered solutions found in current legal literature. The author goes on to propose a statutory solution to the problem of 鈥渞everse dumping鈥� by amending Arkansas鈥檚 Definition of Emergency Medical Care Act to include a new subsection dealing with the inter-hospital transfer of patients with emergency medical conditions. The Definition of Emergency Medical Care Act mirrors the mandates of EMTALA by requiring a timely medical screening exam on all patients presented to an emergency department regardless of their ability to pay.  The Arkansas Act does not address the patient dumping issues enforced by EMTALA. The establishment of a Transfer Center, either in each hospital or centralized for the State of Arkansas, is proposed as the method to ensure compliance with EMTALA and the addition to the Definition of Emergency Medical Care Act. The author argues that a transfer center would allow for the status of hospitals with specialized capabilities or facilities to be continuously updated regarding their capacity to treat emergency injured or ill patients. Likewise, the author argues the establishment of such a transfer center would eliminate unnecessary delays in a patient receiving definitive care for their time-sensitive, emergent condition.

Access the full article here: EMTALA Article

*Robert C. Patton, MD is a Fellow of the American College of Emergency Physicians and practices emergency medicine in Northwest Arkansas.   Dr. Patton is an experienced Emergency Department Medical Director and a member of the Arkansas Bar graduating from the University of Arkansas School of Law in 2012.

The post Death and Injury by Delay: Hidden Harm and EMTALA鈥檚 Reverse Dumping Provision appeared first on The Arkansas Journal of Social Change and Public Service.

By David C. Jung

I. Introduction

Consider the following scenarios:

You are thirty-six years old and frightened. You were diagnosed with schizoaffective disorder five years ago and have been admitted to public psychiatric hospitals several times since. During your most recent hospitalization, your treating psychiatrist barely spoke English. No matter how hard you tried to explain that taking certain antipsychotic medications would exacerbate your tardive dyskinesia,[1] the psychiatrist either could not understand or dismissed you as someone who was incapable of making informed decisions; he prescribed Aloperidin鈥攐ne of the antipsychotics you did not want to take. You know you need treatment but are so afraid of the possibility of being subjected to terrifying and dehumanizing experiences again. What can you do?[2]

Now imagine yourself a parent of John, your twenty-five year old son, who suffers from schizophrenia. You know John just stopped taking his medication. You also know that this time will be no different from the previous times John decided to stop鈥攈e will gradually deteriorate until he becomes so ill that he finally meets the standards for civil commitment. The ever-looming possibility of John committing suicide or being hurt by others makes you sick to your stomach, but so does going to court to get him committed.  When well, John has often said he understands that he needs treatment and thanks you for intervening when he becomes incapable of helping himself. Yet when he goes off his meds, he pushes you away and refuses treatment. Why do you and John have to constantly endure these destructive and taxing cycles?[3]

These questions are most germane to all who struggle with psychiatric disorders鈥攖he afflicted and their families or caretakers. Self-determination and autonomy are doctrines that have long been recognized by society and accepted by the medical community,[4] but only recently has society begun extending the application of those doctrines to people with mental disabilities.[5] All fifty states have enacted legislation permitting medical advance directives (MAD).[6] However, most of this legislation does not apply directly to future decisions regarding an individual鈥檚 mental health care.

Arkansas, like many other states, does not give equal effect to behavioral health advance directives (BHAD) as it does to general MADs. Merely enacting a statute similar to one of the twenty-six state laws specifically addressing BHADs would be insufficient. Most of those lack the force given to the traditional counterpart鈥攑ragmatically speaking, people with mental health issues are still at the mercy of medical health providers. Consequently, Arkansas and other jurisdictions should statutorily enact meaningful BHAD statutes.

After a brief, general overview of advance directives, this proposal will discuss the current status of BHAD in various states. Next, recommendations regarding implementation of new legislation will be made, followed by both immediate and extended impacts thereof鈥攊ncluding effects on health care costs, quality, and access. Finally, a conclusion will be drawn by discussing predictions on whether BHADs will actually achieve equal footing with MADs.

II. Background

A.     History of Advance Directives

Luis Kutner is often credited with introducing the idea of a living will in the United States.[7] In the years after his 1969 article was published, many states began enacting legislation formally recognizing living wills and other similar forms of advance directives.[8] Although Kutner鈥檚 theories were rooted in estate law, today鈥檚 prevailing notions behind advance directives emanate from the widely accepted right to refuse medical treatment.[9] This concept is best illustrated by the United States Supreme Court鈥檚 opinion in Cruzan v. Director, Missouri Health Department,[10] where the Court recognized that an incapacitated person鈥檚 wishes to refuse treatment could be given effect so long as clear and convincing evidence of those wishes existed. Following Cruzan, Congress enacted the federal Patient Self-Determination Act of 1990 (PSDA)[11] to promote the use of written advance directives鈥攕eemingly to ensure that the clear and convincing hurdle would always be met.[12] The PSDA firmly supplanted the legitimacy of MADs in all United States jurisdictions.

B.     Advent of Behavioral Health Advance Directives

Unlike MADs, BHADs did not begin emerging until the late 1990s. Though limited to a portion of the Americans with Disabilities Act, in Olmstead v. L.C., the United States Supreme Court held that individuals with disabilities could not be discriminated against, and needless isolation of such individuals is a form of discrimination.[13] Olmstead questioned standard practices of the American mental healthcare industry, thereby lending support to the legal recognition of BHADs. Later cases better evidence the expansion of rights with respect to the ability of healthcare providers to override BHADs. In Hargrave v. Vermont, the Second Circuit affirmed a lower court鈥檚 decision invalidating a Vermont law that 鈥渆stablished a procedure for overriding [advance directives] of certain patients who are committed or imprisoned.鈥�[14] Specifically, the state statute violated Title II of the ADA.[15] The key takeaway from Hargrave is courts today will probably find that Title II of the ADA prevents states from allowing providers to override BHADs in non-emergent situations if similar laws prevent them from overriding MADs.[16] After Olmstead and, more importantly, Hargrave, many states enacted legislation that sought to remedy the disparity in the effects given to MADs and BHADs.

C.     Types of Advance Directives

As alluded to previously, a BHAD is really just a more specific form of an advance directive鈥攍egal devices that give individuals the ability to self-direct aspects of their own health care in the event of future cognitive impairment. Generally, advance directives come in one of two forms: (1) a living will or something else that provides explicit instructions for treatment; and (2) a healthcare proxy鈥攄esignated individual entrusted with making health care decisions on the patient鈥檚 behalf.[17] A BHAD may, in fact, use the same living will or healthcare proxy systems or an entirely new system with characteristics that distinguish it from the others. Two common forms of BHADs include Ulysses contracts[18] and voluntary commitment contracts.[19]

Ulysses contracts advance patient autonomy, albeit in an unusual manner. Using self-limiting principles, Ulysses contracts allow individuals with recurring mental illnesses to determine future healthcare decisions but do not permit them to withdraw or otherwise modify those decisions later, sometimes even after reaching capacity.[20]

Rather than focusing on whether a patient meets the requirements to be civilly committed, voluntary commitment contracts allow patients to develop a plan via BHADs that will be given effect prior to involuntary commitment.[21] Some argue that 鈥渢his concept short-circuits self-determination by removing decision-making power before incompetence occurs.鈥�[22] However, if a voluntary commitment contract is truly voluntary, it still supports patient autonomy in that it allows patients to exercise their rights to treatment on their own terms.[23]

III. Current Status

A.     State Laws Specifically Recognizing BHADs

As of today, twenty six states and the District of Columbia have enacted statutes specifically authorizing the use of BHADs.[24] All of these jurisdictions can be loosely 鈥渄ivided into five categories based on the level of competency required for a patient to execute a PAD.鈥�[25] One end of the spectrum is represented by three states that create a presumption of competency.[26] The other end is supported by the laws of Louisiana and Indiana, which require a mental status exam or a psychiatrist鈥檚 attestation.[27] In between are three additional categories: one that requires witness attestation as to the individual being of sound mind,[28] a second that requires a witness attestation of competence,[29] and the last category requires that the individual is competent or not incapacitated.[30]

Though the laws of all twenty-seven jurisdictions may differ to some degree, generally, they allow mentally disabled citizens to consent to or refuse treatment such as electroconvulsive therapy, administration of specific medication, and admission to specific hospitals.[31] Another area in which they are similar is instances in which a BHAD would not be followed: when it conflicts with generally accepted community practice standards, when the treatments are not feasible or available, when it conflicts with emergency treatment, and when it conflicts with applicable state laws.[32]

B.     Arkansas Law

Currently, Arkansas does not have a statute specifically enacted for the purposes of addressing BHADs. However, Arkansas, like every other state, has enacted statutes providing for a Durable Power of Attorney for Health Care.[33] Nothing in this statute precludes it from being used for BHAD purposes.[34] To create a Durable Power of Attorney for Health Care, a person must appoint a healthcare proxy in a written document that must be signed by the principal, agent, and two witnesses.[35] The statute is also silent on duration of validity鈥攕uggesting that a valid Durable Power of Attorney for Health Care would remain until legislatively superseded or revoked by the principal.[36]

The use of the health care power of attorney as a BHAD has potential to be seriously flawed. First, people are not permitted to create a freestanding list of procedures they wish to consent to or refuse鈥攚hich would be the best way to safeguard the principals鈥� wishes. Second, although agents of the principals are able to make those decisions, an absence of additional requirements evidencing the principals鈥� wishes increases the risk of neglecting those wishes through physician coercion or agent apathy. Finally, limiting Arkansas鈥檚 offering of BHADs to just Durable Powers of Attorney for Health Care potentially limits application of the BHAD until a principal has become civilly committed. Even though some practitioners are critical of voluntary commitment statutes, many consider them a proactive means of managing a mental disability.

IV. Recommendations

The Arkansas General Assembly should enact new legislation allowing its citizens to create BHADs in which they specifically consent to or refuse certain medication, treatment, or hospital admission. Additionally, the legislation should allow people to create a more generalized disability management plan鈥攚hereby they could elect to receive treatment prior to civil commitment status. The formalistic requirements should not vary distinctly from those of the Durable Power of Attorney for Health Care, save requiring the two witnesses to also attest to the person鈥檚 competence.

Apart from enacting BHAD legislation, the Arkansas General Assembly should also amend existing legislation to maximize individual autonomy in instances of involuntary civil commitment. Current legislation leaves the balance of power firmly in the grasp of the judiciary and the physicians.[37] Clearly establishing the parameters of psychiatrists鈥� ability to exercise their power to override BHADs would also reduce the instances of questionable treatment decisions. Determining whether the situation represents an emergency should be a minimum threshold requirement before a psychiatrist is allowed to override a BHAD. 鈥淓mergency鈥� should be limited to mean situations where individuals represent a danger to others or themselves. Even if a patient is committed due to this type of emergent situation, once the immediate danger is removed, BHADs should be given full consideration and deference, continued commitment notwithstanding.

V. Impacts

 The immediate impact of enacting the proposed recommendation primarily addresses mental health parity. Parity is the single biggest issue facing mental health treatment. Historically, mental health has a unique beast that the standard medical model does not鈥攖he state can almost always commit people if they pose a danger to themselves or others. Possibly this and other reasons have cast a dark cloud over those afflicted, resulting in a widespread social stigma that cannot be overcome without legislative intervention. Congress is trying to do just that with the Paul Wellstone and Pete Domenici Mental Parity and Addition Act, which went into effect in July of 2010. The act helps improve parity by requiring certain insurers to provide equitable coverage for mental health treatment. Parts of the Affordable Care Act attempt to achieve parity as well. One portion requires mental health coverage be included within plans sold through state exchanges while another part raises the standards of Medicaid mental health coverage 鈥渂enchmark鈥� plans鈥攚hich were originally set up as comparators of inadequate private insurance plans.

The proposed recommendations do not relate to parity in insurance coverage, but they do share a common theme鈥攇iving the mentally disabled the rights they are due. By embracing patient autonomy and self-determination as fundamental rights, enacting the proposed BHAD recommendations will attempt to achieve parity on the foundational level.

Though they cannot be predicted with absolute certainty, enacting BHAD laws could have some significant long-term effects on the iron triangle (cost, access, and quality) of our healthcare system. While impossible to guarantee that the cost of treatment will be reduced by a BHAD, the BHAD may specify medications that do not work for a patient鈥攖hus alleviating the 鈥渢rial and error鈥� process often seen in psychiatric treatment. Medications and treatments have considerable costs associated with them; a BHAD can help facilitate an informed approach to treatment, helping to reduce the cost burden on the system. Through a BHAD, a patient could specify a facility for treatment, including one closer to home. Treating a patient closer to home so that family members have the opportunity to be involved can be a cost effective measure as well鈥攑ossibly reducing length of stay.

Knowing what a person prefers ahead of time can help with access in terms of admission and discharge. Mental health hospitalization is only one small piece of the treatment process. After discharge, patients often need to address issues like access to services, housing, medications, and continued treatment. BHADs give people an opportunity to review these options ahead of time and uncover care providers that were previously unconsidered. This touches on quality as well. Quality is not limited to health care services in general; it also encompasses the preferences of the consumer. Being able to choose where one wants to be treated and what treatments one wants to submit to embodies the idea of attaining quality care.

VI. Conclusion

Over half of the states have already enacted some type of BHAD legislation. However, I believe Arkansas鈥檚 immediate future for the mentally disabled does not look as bright. It would seem possible that some day, mentally disabled Arkansans and their families could receive rights equal to those electing to use MADs. But for now, the financial climate seems to guide legislative appropriation;[38] programs traditionally thought of as non-essential, especially those that may extend rights to a disenfranchised class, are bound to be moved to the back burner.

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