Dress codes and the Tipsy Jim Crow

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There are few remnants of Jim Crow and institutionalized discrimination as commonly tolerated and accepted as dress codes. Their role as exclusionary gatekeepers is by nature prejudiced and often reflects an attitude of classism, racism, sexism, and sometimes all three.

Let’s look at an example that was recently brought to my attention from an establishment in Des Moines, Iowa called the Tipsy Crow. By compiling an encompassing list of banned articles and styles worn commonly by African-Americans (particularly of lower socioeconomic status), the Tipsy Crow is sending the message that an entire segment of society is unwelcome in their establishment. Whether or not this is discrimination isn’t even the question—it is CLEARLY discrimination based on preferred dress and not-so-subtly discrimination based on race.

The questions worth examining here are, to what extent do private enterprises have the freedom to explicitly discriminate so casually and what are the ethical considerations that comprise this debate?

Dress is generally understood within a cultural context to be an expression of the individual or as a part of society as a whole. It runs the gamut from liberal and unrestricted (think Caribbean carnival attire) to conservative garb meant mostly to cover (a niqab or burka for example). In the United States, our society historically and institutionally values individual liberty and one need look no further than to the First Amendment of the Constitution to see freedom of expression prioritized as a principle emblem of our freedom.

It’s here I’ll explore the first of the four principles of biomedical ethics: respect for autonomy. Defined by Beauchamp and Childress as the right for an individual to make his or her own choice, dress codes violate this principle simply by disallowing the freedom to choose what to wear. This private sector paternalism is egregiously heavy-handed, not simply suggesting a preferred aesthetic but barring from its establishment those who don’t abide by an arbitrary set of discriminatory wardrobe standards.

Justice is the principle of fair distribution of resources and again, this principle is violated by the premise of the dress code. If we evaluate a business such as the Tipsy Crow through the lens of providing the resources of food, services, and space to gather, it’s clear their dress code violates the principle of justice. All else equal, if two people try to enter, but one has baggy jeans and is wearing Timberlands and is thus denied, there is an ethical problem here.

We’ll try not to assume that a black person would have any harder of a time entering than a white person wearing baggy jeans and construction boots, but based on the obviously racially-motivated list of banned attire, you can draw your own conclusions.

There’s also the problem of subjectivity when it comes to some of the items on the list. What constitutes baggy jeans? Do mine need to be clinging to my thighs like Saran wrap in order for me to gain entry? If this is left to the discretion of the doorman, personal biases are liable to play a role and again the principle of justice is at risk.

The principles of beneficence (doing good) and nonmaleficence (doing no harm) go hand in hand and can be applied with elementary ease to this case. Scenario A: You let people dress how they want and let them in to patronize the establishment. No one is discriminated based on how they appear. This is beneficence. Scenario B: You bar certain people from the establishment based on how they dress. They are discriminated. This is maleficence.

In the weeks since the Charlottesville, VA debacle, the question might arise: Is it wrong to limit the freedom of someone wearing a Swastika or confederate flag as part of their attire? This is obviously another topic entirely, but if you have to make a jump in logic from “plain white T-shirt” or “construction boots” in the Tipsy Crow example to a symbol of racism and ethnic genocide, clearly there is a difference. The First Amendment and freedom of expression stops at speech that leads to defamation and imminent violence, both of which were tenets of Nazism.

A dress code as clearly racist as the Tipsy Crow should be classified as outright discrimination and has no place in our society. According to news reports, the sign identifying the dress code was removed after public outcry, though the owner failed to state if the policy was actually changed. Regardless of the specifics for this particular instance, the problematic nature of dress codes is an ethical quandary better erred on the side of the fundamental freedom of choice.

– Tyler

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Fight For Your Right to Die

With Donald Trump’s nomination of Neil Gorsuch to fill the open seat on the Supreme Court vacated by Antonin Scalia’s death, questions of the judge’s position on a number of issues from gay rights to healthcare to abortion have been mostly left to speculation.
But one position Gorsuch has been consistently candid in addressing is his opposition to physician-assisted death and euthanasia. His vehement disapproval of the practice (legal in 6 U.S. states and the District of Columbia) manifested in the 2016 book he authored entitled The Future of Assisted Suicide and Euthanasia. In short synopsis: Gorsuch equates physician-assisted death and euthanasia with “taking of human life” and opposes it on the grounds that all human life is fundamentally valuable and it’s always wrong to intentionally kill.
This type of paternalistic imposition of religious values is oppressive of human choice and autonomy and has no place being legislated in a society that otherwise appears to value individual liberty above all else. Federal opposition to euthanasia violates the bioethical principles of respect for autonomy, justice, and beneficence—the duty to do good.
It is wrong to deny a mentally competent person the right to safely end their life should they choose to do so. By outlawing physician-assisted death, suicide often becomes physically dangerous and puts the wellbeing of others at risk, such as suicide by cop, automobile, firearm, or jumping. Not to mention, those exposed to non-physician suicides are likely to suffer significant psychological trauma as well.
When might a mentally competent person seek euthanasia? Take the case of Dax Cowart, a former Air Force pilot who was severely burned and lost sight in both his eyes following a natural gas explosion in 1973. While his father died in the blast, Cowart survived the ambulance ride to the hospital despite his attempts at refusing treatment knowing the debilitating extent of his injuries. While being held in the hospital, Cowart continued to plead with doctors to let him die even as they “forcibly” administered treatments that he likened to “being skinned alive” for ten months. This is a clear violation of the principle of beneficence, the duty to do good and perhaps the principle of nonmaleficence, the duty to do no harm.
During the course of these ten months, he repeatedly attempted to commit suicide on his own, including trying to jump out of the hospital window to end his suffering. Following his eventual release from the hospital, he chronicled his story in a video entitled “Please Let Me Die” and went on to earn a law degree, which he uses to advocate for the patient rights he was denied.
A ban on euthanasia also violates the bioethical principles of justice, the fair distribution of resources and treatment. When patients have clearly expressed preferences via advance directives that they don’t wish to be artificially sustained in life while incapacitated, providers who continue treatment despite these wishes divert precious financial and medical resources that could be used to treat those who actually do want to be treated and kept alive.
Judge Gorsuch may passionately believe that life is always worth sustaining, but for patients who are forced to maintain an existence of suffering and pain, his stonewall opposition is an obstruction to relief and a violation of autonomy, liberty, and patient rights.

– Tyler

Droning on from Obama to Trump

The deployment of unmanned aerial drones by the United States military and C.I.A. to execute alleged enemies of the U.S. is unethical, unconstitutional, and undermines its credibility as a source of global leadership, justice, and integrity. These drone missions threaten relations with international allies and must cease if the United States is to remain a respected leader in the global war on terror.

The use of unmanned combat aerial vehicles, known colloquially under the sinister guise of ‘drones,’ has more than tripled under the Obama administration. While no president wants to be responsible for the deaths of American soldiers, the unmanned drones that have replaced on-the-ground troops in many areas are neither capable of informed wartime decision-making nor precise execution. The result is that one in three people killed by a U.S. drone in Pakistan has been a civilian–a staggeringly high percentage of innocent victims from the military leading the so-called fight against terrorism.

This practice is bad for the countries with which the United States collaborates and is equally bad for the U.S. Drone attacks fuel anti-American sentiment and spark distrust for local governments and their law enforcement efforts. Deadly suicide bombings have increased following drone attacks, while the imprecise nature of the execution attempts has made their success questionable at best. Taliban leader Hakimullah Mehsud, for example, was reportedly killed multiple times by drone attacks due to the misinformation and inexactitude that prevails among drone operations.

The use of unmanned drones also marginalizes the role of United States soldiers. In many instances, Special Forces personnel are better equipped to deal with the available intelligence and unconventional war tactics in Pakistan, Afghanistan, Libya, and Iraq. Instead, they are replaced by remote control devices, which can neither react to immediate changes in theater nor make informed judgments during the course of the mission. While soldiers commit their lives to rigorous training and sacrifice, drone missions often rely on brute force, sloppily delivered and resulting in the collateral deaths of innocent civilians.

The fallout from drone executions has marred United States foreign policy among its allies. United Nations special rapporteur on extrajudicial killings, Philip Alston delivered a harsh judgment on drone attacks saying they present a “risk of developing a Playstation mentality to killing.” When it comes to the stress placed on servicemen and women piloting, the New York Times reports that drone pilots suffer the same PTDS and stress-related depression as soldiers on the ground.  Meanwhile, Pakistan, the country in which the majority of attacks are taking place, has publicly objected to the executions despite their complicity.

For his part, president-elect Donald Trump has vowed to continue using drones to execute alleged terrorists. Coupled with the rampant Islamophobia that characterized the rhetoric of his campaign, drone expert Jameel Jaffer fears the outlook is bleak without a significant public backlash against use of combat drones in the Middle East.

Unmanned drone killings are neither ethical nor effective and are jeopardizing the status of the United States as a credible world leader in the global fight against terrorism. In order to salvage the damage done by these machines, the U.S. must significantly reduce its use of unmanned drones in combat roles and begin working with its few remaining allies in the Middle East to rebuild the trust it has lost from the terror its drones have inflicted.

– Tyler

 

 

Outside the ballot box

When federal election results are being tallied on the evening of November 8th, the votes of nearly 6 million American citizens will be missing as a result of systematic disenfranchising laws that disqualify ex-convicts from voting. The majority of states in the U.S. enforce some penal restrictions on voting: In the most egregious cases, Florida, Iowa, and Kentucky permanently bar all people with felony convictions from voting while Alabama, Mississippi, Arizona, Nevada, Wyoming, and Tennessee permanently disenfranchise at least some ex-criminals. As you can see in this interactive state-by-state map of disenfranchising laws, the only states that do not restrict voting for ex-offenders are Vermont and Maine.

The practical implications of these laws are problematic for representative democracy, while the ethical grounds on which they stand call into question why they were imposed in the first place. The biggest and most obvious problem is that for those who have been convicted and are no longer incarcerated, being stripped of voting rights provides another barrier to reintegration and civic engagement already made difficult by challenges that exist in obtaining gainful employment, stable housing, and societal acceptance.

Proponents of disenfranchising laws argue that ex-criminals have forfeited their rights by engaging in activity that runs contrary to the goals of a lawfully-functioning society. Let’s put aside for a moment that not all those who are convicted and serve time are even guilty of the crimes for which they’ve been charged. This is a big problem, but we’ll assume that most who are sentenced are guilty and even so we can dismantle the arguments behind the practice of disenfranchising.

The next logical problem here is that no state strips voting rights for all types of illegal activity so instead we have a system in which some crimes lead to disenfranchisement while others don’t, even in instances when the alleged threat to the public good is nearly identical. Proponents would like to believe severity is commensurate with consequences, but the arbitrary nature of the justice system means that isn’t necessarily the case. For instance, a driver in Iowa cited thrice for operating a vehicle under the influence receives a felony sentence and is permanently barred from voting even after release. An equally unsafe driver who similarly violates traffic laws and is charged with reckless endangerment or excessive speeding while sober will not face the same disenfranchisement despite that their behavior is a similar threat to the safety of the public and can reasonably be assumed to result in the same outcome (property damage, injury or loss of life, etc).

This arbitrary lineation and disenfranchisement violates the bioethical principle of justice, described by Stanford Medical as the concept of fair distribution of resources (or in this case, consequences) among society. In the case of the drunk drivers versus reckless drivers, states make their best guess at what constitutes impairment, with the majority thresholds falling around a .08 blood alcohol concentration (BAC). Our understanding of neurobiology, tolerance, toxicity and metabolism, however, recognizes that this is an inexact science and a nondrinker with an even lower BAC may be significantly impaired while someone with a higher tolerance is able to maintain homeostasis and normal functioning well over the .10 mark. This is an unfortunate inexactitude but realistically necessary as a preventive mechanism for deterring drunk driving.

However, the permanent disenfranchisement that happens for one but not the other makes no sense through the lens of the justice principle. It also makes no sense from a penal perspective, because disenfranchisement is unlikely to be an effective deterrent against such crimes since the consequences are often years in the future.

There are myriad reasons why a repealing of disenfranchisement laws results in a more just, equitable, and most importantly, democratic society. Permanent barring of voting is a counterproductive and oppressive practice that discourages reintegration and erects insurmountable barriers to representation that no free citizen should be without.

– Tyler

The gold standard of Olympic sex testing

It’s the first summer Olympics since trans and gender-neutrality issues have come to the forefront of national discussions about sex and gender identity, duality, and exclusivity in the United States on the heels of legislation passed in several states to assign bathroom usage restrictions. The debate about the fluidity of sex and gender is at a pivotal moment that has yet to find any consensus, and not the least of which is apparent in regard to organized athletics.

Up through early 2016, the official strategy of the International Olympic Committee has focused on testing levels of “natural testosterone” which can lend to a diagnosis of “intersex” individuals whose combination of XX and XY chromosome mutations can lead to deviations that often go unknown to the individuals until they are tested. Aside from the tests being incredibly invasive and stigmatizing and leading to disruptive surgeries undertaken to “prove” these athletes are of a certain sex, the justification of the IOC stands on shaky ground ethically.

There are a few problems with this kind of discriminatory testing. The IOC argued that it’s necessary for women to have an even playing field that is not skewed in favor of those born with a certain level of hormones that is higher than others. But why is it just natural hormones that give someone an “unfair”advantage? What about a hurdler born with naturally longer legs, a runner with a naturally high lactate threshold, an Olympic weightlifter with naturally high creatine levels?

The truth is for as much hard work and dedication as Olympic athletes put into their training, the benefits of winning the genetic lottery play a bigger role than most of society cares to admit. Shaquille O’Neal wasn’t a great basketball player because he honed his skills through practice and could shoot the ball through the hoop. Not at all. He was a terrible shooter and once missed all eleven of his free throw attempts in one game. He was a great basketball player because he was enormous, and was born with the genetic makeup that made him so. The same is true of female athletes who excel in fields where uniquely high levels of testosterone prove beneficial. They should be discriminated no more than someone who won a 1996 gold medal in the Olympics with the help of his God-given traits…Shaquille O’Neal.

– Tyler

 

 

Corporate animals or social welfare

Perdue raises 676 million chickens annually, and for the first time, these chickens are being given the opportunity to enjoy sunlight.

The company is overhauling its animal welfare practices, and the changes have the potential to influence other producers in the country to follow suit. They will be following standards similar to those in Europe that has long been considered unnecessary and overly costly for the poultry industry in the United States. Their large position in the marketplace gives them unmatched power over the food industry. The chickens at Perdue will have windows, additional space in barns, and the company is investigating its breeding practices to potentially decrease the speed of growth in order to avoid the multiple injuries to the animals this practice has caused. Given this influence, is corporate social responsibility the answer to issues in animal welfare?

Corporate social responsibility (CSR) is a concept that suggests corporations may be held socially and ethically accountable by a variety of stakeholders including customers, employees, governments, communities, NGO’s, investors, unions, regulators and the media.[1]Formal discussion on the merits, effects, and definition of CSR began in the 1950’s.[2] It grew throughout the last half century and has now been adopted as an important part of business practice and an expectation of the public.[3] Social responsibility means that a business is aware and responsive to society. This obligation could translate into reduction of pollution, improvement of the community, better health benefits for employees, or changes in production requirements to improve animal treatment.

Positives of Corporate Social Responsibility in Animal Welfare

            There are many positive aspects to corporate social responsibility in the food industry. At its core, it represents a movement to consider the impact of practices in business that effect animal welfare.

  • Animal welfare can actually improve no matter where the request comes from, be it Perdue, the government, or animal rights activists.
  • Companies can require sweeping changes for their suppliers. In 2007 Burger King began requiring that its pork and eggs come from suppliers who did not confine their animals to cages and crates, and that they would favor suppliers who rendered the animals unconscious before slaughter.[4]
  • Companies influence each other. National restaurant chains including Burger King, Wendy’s, Denny’s, Red Robin, Quiznos, Sonic, Hardees and Carl’s Jr., have all started using cage free eggs.[5]
  • CSR is often proactive. Consumer criticism of perceived CSR deficiencies can be very damaging to a firm’s profitability.[6] CSR may draw attention to the problem and establish greater awareness of the unnecessary suffering of animals. Consumers who may not have paid attention to the production of their food would know more about it because the places they eat or shop were talking about it.
  • Finally, CSR in food production gives people a direct power to influence industry practice. Platforms like Facebook and twitter make a company’s practices more visible and the potential for backlash is significant.[7] It is a way of providing for animal welfare that is not based in government regulation in a time when government regulation is anathema.

Negatives of CSR in Animal Welfare

  • Corporate social responsibility is influenced by a company’s profit. If the mechanics of profitability shift drastically away from animal welfare, the corporation may renege on their policy. CSR gives no guarantee.
  • Corporate social responsibility in scope, method, and motive is entirely controlled by the corporation. The corporation establishes the definition of what is humane treatment. If the corporation, like Perdue, is in control, there is no enforcement mechanism. Relying on the public as a check is limited because animal production is not a very visible industry.
  • Self- regulation by corporations may be a way to avoid regulation by the government. In creating their own policies, these companies can make minimal changes to avoid public scrutiny, and remain free from laws that might require bigger change, more frequent check- ups, or putting the industry in a more public setting.

Current Laws

The Animal Welfare Act and many state animal cruelty laws don’t cover farm animals.[8] Current U.S. laws that cover farming were enacted to protect U.S. family farms from unfair competition, and so there are few regulations.[9]There are a few federal laws that regulate cruelty to farm animals but they fall short of being effective based on enforcement and limited scope. These are the Twenty Eight Hour Law, the Humane Methods of Livestock Slaughter Act, and the Animal Welfare Act.

The Twenty Eight Hour Law, first enacted in 1873 and amended in 1994, requires that animals in transit get to stop every 28 hours for water, food, and exercise.[10] There is no private cause of action in the law, meaning the attorney general alone can prosecute.[11] Not only that, but this law has been interpreted not to cover poultry. The advancement from train travel to trucking has not been acknowledged meaning enforcement of this law is rare, leading truck drivers not to adhere to it.[12]

The Humane Methods of Slaughter Act was originally passed in 1958 and requires that animals be stunned to the point of unconsciousness before they are slaughtered.[13] This law is limited in that it entirely excludes birds,[14] which make up 90% of animals slaughtered for food.[15] This law does have a private cause of action and in Jones v. Butz, a plaintiff challenged one of a practice as inhumane because the animal was aware of its pain, but the Court upheld the slaughter method under the Act.[16]

The Animal Welfare Act (AWA) was passed in 1966 and represented the first legislative effort to regulate the animal research industry.[17] The Act was designed to respond to the large number of dogs and cats that were stolen for use in animal research by requiring research facilities to purchase animals only from authorized dealers.[18] It also provided regulation as to the humane handling, treatment and transportation of animals by dealers and researchers.[19] This Act has been amended over the past 40 years struggling to define “animal,” recognizing further protections for animals, and creating specific guidelines for animal researchers on aspects of research including the use of anesthetics and how many operations a single animal could undergo.[20] The Animal Welfare Act is the broadest animal protection law in the United States and is the primary federal law covering the humane treatment of animals in research and exhibition. Despite the significance of this act, it has enforcement problems and does not cover animals in the food or agriculture industry.

What Should We Do?

Improving regulation in the United States means additional funding, the AWA should be expanded to cover animals in food production, and Congress can create a private cause of action so that private citizens may sue to enforce the AWA. Yet, creating regulation faces challenges. Regulation in Europe of chicken cages is widely viewed as unsuccessful. Twelve years following the date marked to eliminate battery cages in Europe, half of the 27 European Union nations have failed to fully comply.[21] This has created problems for those farmers who have spent a lot of money to comply and face competition from those farmers who still operate factory farms.[22] Dealing with the cost to farmers would be difficult and in that area CSR seems to be the better option because McDonald’s and the like can agree to pay more for a humanely treated production process. Regulation can’t do the same to modify the contract between the farmers and the food industry, but perhaps adequate subsidies would reduce the costs to farmers.

Another way to affect change for animals in food production in the United States is the use of creative litigation. Creative suits have been based on false advertising under the Federal Trade Commission Act (FTC Act) and plaintiffs have filed suit under the Federal Anti- Trust Laws, environmental protection and nuisance claims. Consumers depend on the producers to be accurate in their labeling practices, but because there is not regulation concerning the meanings and verification of these labels, there is a lot of room for misleading claims on animal products.[23] For example, in 2009 the Humane Society of the U.S. (HSUS) accused the International House of Pancakes (IHOP) of putting false claims concerning their serving “cruelty free food” on their website. HSUS filed claims with the FTC and the Securities and Exchange Commission seeking for IHOP to stop making this claim.[24] IHOP acquiesced, removing the claims from their website and the company began using cage free eggs.[25] In addition, antitrust litigation has played a role. In 2010 plaintiffs filed a class action anti- trust suit against certain shell egg producers including Land O’ Lakes and Rose Acre Farms alleging they fixed prices using a classic supply restriction scheme.[26] Two defendants decided to settle for large amounts[27] but the publicity put the egg industry on watch and gave many consumers a look into production practices. Environmental protection laws, nuisance laws, and some state laws have also been a part of litigation against factory farming. Litigation is limited by the fact that several animal protection laws do not have private rights of action for citizen suits against big food, but creative litigation has been able to take other laws and use them to create positive outcomes for animals in food production.

Corporate social responsibility has developed over the last 60 years into a necessary practice for modern business. It is an exciting opportunity for corporations who want to be involved in their communities and to make real and positive changes for society. In the context of animal welfare there have been several examples of large corporations leading the way to better treatment of animals in food production. CSR is a great way for companies to give back, and despite some reservations about its genuineness, it should not be discouraged.

Supporting CSR though, does not mean that other options for protecting animal welfare should be disregarded. CSR has at times, in the United States, been at the forefront of animal treatment requirements, but because corporations have competing motivations concerning their profits and their shareholders, CSR cannot be the only measure of protection for animal welfare. In addition, the lack of enforcement in CSR is a concern that means other checks on the industry like government regulation or private rights of action should be in place.

It is a bad idea to rely on CSR, but it is a great idea to promote it. The positives are real in that corporations can make sweeping changes and spend their own money to do right by animal welfare, but the limitations on enforcement and the problems of self- regulation mean that corporate social responsibility can’t be the only mechanism for improving animal treatment Mark Bittman said, we can pat them on the back but we must “keep reminding them that there’s a long way to go.[28]

-Grace

 

[2] Caroll, Archie B. “Corporate Social Responsibility.” Business & Society, 38. 3 (Sept. 1999): 268- 295.

[3] Id.

[4] Martin, Andrew. “Burger King Shifts Policy on Animals.” New York Times 28 March 2007. Available online at: http://www.nytimes.com/2007/03/28/business/28burger.html?pagewanted=all

[5] Wal- Mart: Private Label Eggs All Cage Free. The Humane Society of the United States, Feb. 18, 2010. Available on the internet at: http://www.humanesociety.org/news/press_releases/2010/02/wal-mart_021810.html

[6] Id.

[7] Id.

[8] Id.

[9] Fox, Nicole. “ The Inadequate Protection of Animals Against Cruel Animal Husbandry Practices Under United States Law.” 17 Whittier Law Review 145. (1995): 145-181.

[10] 9 C.F.R. § 89.3

[11] Fox, Nicole. “ The Inadequate Protection of Animals Against Cruel Animal Husbandry Practices Under United States Law.” 17 Whittier Law Review 145. (1995): 145-181.

[12] “Farmed Animals and the Law.” Animal Legal Defense Fund. n.p., n.d. 22 April, 2012.

[13] 7 U.S.C.A. § 1902

[14] Id. See also Levine v. Conner. 540 F.Supp.2d 1113, 1121 (N.D.Cal. 2008).

[15] “Farmed Animals and the Law.” Animal Legal Defense Fund. n.p., n.d. 22 April, 2012.

[16] Jones v. Butz. 374 F.Supp. 1284, 1290 (S.D.N.Y 1974).

[17] Gardner, Joshua E. “At the Intersection of Constitutional Standing, Congressional Citizen Suits, and the Humane Treatment of Animals: Proposals to Strengthen the Animal Welfare Act.” George Washington Law Review. 68. (February 2000): 330-360. See also, 7 U.S.C. §§ 2131- 59.

[18] Gardner, Joshua E. “At the Intersection of Constitutional Standing, Congressional Citizen Suits, and the Humane Treatment of Animals: Proposals to Strengthen the Animal Welfare Act.” George Washington Law Review. 68. (February 2000): 330-360.

[19] Id.

[20] Id.

[21] Casert, Raf. “Illegal Chicken Cages: Lack of Enforcement Indicates Larger European Union Policy Issues.” Huffington Post. 11 Jan. 2012. Web. 22 April 2012.

[22] Id.

[23] Cranston, Sarah. “So Sue Me: How Consumer Fraud, Antitrust Litigatio, and other Kinds of Litigation Can Effect Change in The Treatment of Egg Laying Hens Where Legislation Fails.” Rutgers Journal of Law & Public Policy, 9 (2012): 72- 105.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Bittman, Mark. “OMG: McDonald’s Does the Right Thing.” The New York Times. 13 Feb. 2012.

Automatic weapons and manual transmissions

With the horrifying mass shooting of 103 innocent people in Orlando still very fresh in our minds, gun violence and the rights of gun ownership are virtually all anyone with an opinion can talk about right now. While obviously salient at this juncture (especially given the legislative actions/inaction and epic Congressional sit-in that just took place), I predict that in the coming decades, it’s very possible we will be having a parallel conversation about driving cars.

Let’s look at this way: We are currently at roughly the same place with cars that we were 80 years ago with guns. They are both dangerous, lethal, and a leading cause of death. Yet, they are also a part of everyday life for commuters in the same way farmers, ranchers and sportsmen relied on them heavily (and to some extent still do) for their livelihood. Many have managed to do without either of them, but over time they have both become a part of the American pastime, whether that’s cruising through a windy road on a Sunday afternoon or making a trip to the firing range to hone skills and perhaps let off some steam.

But technology changes the utility of these contrivances. Where guns have become efficient to a point that their killing capacity can no longer be justified for civilian distribution, the development of safer and more efficient driverless cars will likely yield the same challenge for justifying human operation.

Right now we’re still basically in the “pre-driverless car” era. They exist in a nascent state, but problems abound. The New York Times reports engineers are still vexed with teaching driverless cars nuances of the road like potholes and speedbumps. So the vast majority of us are still better drivers than a computer system in a car. Chances are this will change, and the ability for cars to calculate conditions, speed, stopping times, and a host of other quantifiable relevant details combined with mechanical precision will mean a road full of driverless cars will be far safer than the human error that leads to tens of thousands of traffic fatalities each year. Less car accidents sounds great, right?

Given America’s love affair with driving automobiles, it’s going to be a rocky transition to that automated traffic flow if we even ever get there. You see, in the same way Americans believe it’s their right to own and operate killing machines like the AR-15 responsible for most of the deadliest mass shootings of the last five years, the liberty of driving a car is equally ingrained in the American psyche. Even though car accidents from human error amount to over 30,000 unnecessary deaths every year, there are still large segments of the population who enjoy driving far too much to give up the pastime without major pushback. Not unlike those who enjoy a pastime of shooting guns.

What this will mean is hard to say. It’s unclear at this time to what extent technology will advance and perhaps meet in the middle between safety and liberty. Can guns have an electronic killswitch that prevents them from being used for malicious purposes? Can cars assume control of driving only when it’s a real and present threat to the safety of others on the road? Will we need a driver’s lobby for those of us who still like the idea of pleasure driving just like the NRA for those who want to keep shooting their guns?

Perhaps we can reserve manually functioning cars and firearms for controlled environments and ban them in civilian life. Want to drive a car fast and recklessly? Go to a track and use theirs. Want to fire out a couple rounds of an automatic rifle? Go to the range and use theirs. Oh, you want the right to own and operate a deadly machine whenever you want? I guess that’s where the lawyers come in.

-Tyler