Becoming a Student of American Values for Developing Informed Consent

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As often is the case following one of our 90-minute Brownbag teleconferences, additional points we could have discussed come to mind. Right after the January 2011 session which covered the topic of “The Tactic of Focusing on Higher Values… When Your Proposal is Really Bad News for Some of Your Stakeholders,” I sat down with a cup of coffee to get caught up on my stack of newspapers.

Because the Brownbag was still very much on my mind, three little articles jumped out at me as examples of how we — as a society — explore, debate, and eventually settle on the finer points of what is “fair,” and what is “unfair” . . . What “rights” and “limitations of rights” apply in certain specific situations.

Case #1

In the article “Pay Sale Rewards Good Looks” Amelia Rayno reported that researchers found that “thin women are paid significantly more than their average-size counterparts” (Monterey County Herald, January 11, 2011). The article went on to note that “skinnier-than-average men, on the other hand, cash smaller paychecks than their average-weight peers.” According to Rayno’s report, although these pay differences are unintentional, they nevertheless bear significant impacts on individuals: Thinner women make — on average — $16,000 more than their less-thin counterparts, while thin men earn on average $8,000 less than their stouter colleagues.

What Does This Have to Do with Me and My Work???

Perhaps you’re asking yourself “what’s the reason for the research that led to these findings?” And” why did journalist Rayno write an article about it?” More pointedly, “what does this have to do with my work as a public-sector professional or even with the January 2011 Brownbag session on legitimate projects that have (unintended) and unavoidable negative impacts for some stakeholders…?”

Glad you asked because while it is obvious to me, you might dismiss it without even a modicum of interest. But there is a lesson within it that is worthy of your attention…

Although it is never directly mentioned in the article, the entire point is that it calls into question our feelings of “fairness.” Americans, — that includes you, me, ALL of us — have the need to “be fair.” When we catch ourselves NOT being fair, our behavior violates our values, which — in turn — bothers us. Even though the article delineates the likely reasons why this discrimination happens, you can’t read it without thinking what the article never actually says “This just isn’t fair.”

Case #2

Another article that caught my eye was in the Wall Street Journal “Judge Rules that NY City Can Release Teacher Ratings” from January 10, 2011. According to the article, a judge ruled that the Department of Education in New York City must release the ratings and names of some 12,000 public school teachers. (How well — or poorly — students perform on standardized tests determines an individual teacher’s rating.) Part of the justice’s basis for the decision and a rejection of a petition by the United Federation of Teachers to keep the names private was that by releasing the names along with the ratings, “would not be arbitrary or capricious under the law.” A teachers’ union lawyer argued that “releasing the data would unfairly subject teacher to possible ridicule.”

What is “Fair?” What is a “Right?”

You see, when we can’t settle what’s “fair,” or what defines a “right” (i.e. higher level of values I discussed in this Brownbag — the meta-values), and what the limitations to those rights (i.e. meta-meta-values) then we turn to a court to settle the issue. That’s what has happened here. . .

While this judicial ruling probably DOES settle this particular “fairness-values” issue, courts don’t always have the last word. When the public feels that the court is too far removed from its interpretation and application of society’s values, the public — through its elected representatives — changes the law. In other words, the public usually has the last word on values-related issues. In fact, the next case I bring to your attention, makes reference to just such an instance. . .

Case #3

Following the recent attempted assassination of Arizona Rep. Gabrielle Giffords (where she and 13 others were seriously wounded, and another six were killed), was an article focusing on the alleged shooter’s likely “insanity” defense. In the Monterey County Herald piece dated January 11, 2011, reporter Mark Sherman’s “Insanity Defense Difficult in Tucson Case” lays out the history of the insanity defense, and how a previous case changed the standards and outcomes of such a defense.

Here are the most values-pertinent parts of the article:

  • “In an earlier time, the emerging portrait of a deeply troubled man might have given Jared Loughner’s lawyers the basis of an insanity defense. But John Hinckley’s successful insanity claim after shooting President Ronald Reagan led Congress to raise the bar, making the task harder.”
  • “The Justice Department has not said wither it will seek the death penalty against Loughner. . . But federal prosecutors already are moving forward with charges, and veteran lawyers anticipate they will ask for him to be executed.”
  • “Yet comments from friends and former classmates bolstered by Loughner’s on Internet postings also have painted a picture of a social outcast with almost indecipherable beliefs steeped in mistrust and paranoia.”
  • “On Monday, Loughner made a brief appearance in court, where he acknowledged the charges against him and was ordered held without bail.”
  • “Public outrage over the jury’s verdict in Hinckley’s trial — not guilty by reason of insanity — prompted Congress to make it much more difficult to establish that claim in federal criminal trials.
  • According to Harvard Law Professor Alan Dershowitz, prior to the Hinckley case Loughner’s “would be a clear case of insanity because the pre-meditation would not be seen as undercutting insanity, it would be part of demonstrating insanity.” However, under the current rules, which were created because of the Hinckley case Loughner’s lawyers will have a “very uphill battle.”
  • “‘Arizona also has modified the insanity defense so that a defendant in a state trial no longer can be found not guilty by reason of insanity. Instead, the jury can deliver a verdict of guilty but insane,’ said Pima County Attorney Barbara LaWall. ‘So the person is held at a state mental hospital, and if sanity somehow comes back, he’s transferred to prison, not just let go,’ LaWall said.”
  • “The case against Loughner is at an early stage, as is his defense.”
  • “Among arguments that could be made is that, if not insane, Loughner was ‘mentally impaired’. That argument concedes that a defendant bears some responsibility for what he has done, but lacks the guilt necessary to face the death penalty. The compromised state of mind sometimes is referred to as ‘diminished capacity.'”
  • “Dershowitz predicted that federal officials will seek death for Loughner no matter what his lawyers argue. ‘The prosecution will seek the maximum punishment in a case like this,’ he said.”
  • “A veteran of death cases, San Diego attorney Judy Clarke, led the team that represented Loughner at his court appearance Monday. Clarke succeeded in negotiating a guilty plea and a life sentence for the Unabomber, Theodore Kaczynski. She also helped spare the life of serial bomber Eric Rudolph and Susan Smith, convicted of drowning her little boys.”

Understanding Meta-Values

Note: We — as a society — feel it would not be fair to subject an insane murderer to the death penalty, but we DO consider it fair to a mentally stable person. But when John Hinckley was found “not guilty by reason of insanity,” people felt that was going too far. They corrected it by making it more difficult to use the insanity defense, and Arizona came up with a very practical correction. Since the concern with Hinckley was that, if and when he could convince mental health professionals that he no longer was insane, he would be free, Arizona got rid of the “not guilty by reason of insanity” finding and replaced it with the “guilty, but insane” finding.

This responds to our society’s sense that it isn’t fair to treat an accused killer who is mentally impaired as we would an accused person with full mental capacity. And yet, they managed to fix the problem of murderers who might claim insanity to take advantage of our society’s sense of “fairness.”

By the way, what kind of value — in the Bleiker Hierarchy of Values (you have the diagram of what I call the “squashed wedding cake” in the handouts from the January 2011 Brownbag session) — is this value? This value that says “While it is OK to execute a murderer, it is not OK if he/she is mentally impaired”. . . .?

Deciphering Between Higher and Object-Related Values

Let’s explore the levels of values . . .

  • “Life” . . . is actually an Object-Related value (as I mentioned in relation to one person’s question during the Brownbag session)
  • “The Right to Life” . . . is a Meta-Value (i.e. a value about a value) — because it is ABOUT another value: Life.
  • “The Death Penalty” . . . is a Meta-Meta-Value (i.e. a value about a meta-value) — because it is about a Limitation to a Right.
  • “The Death Penalty is ruled out for mentally impaired killers” . . . is a Meta-Meta-Meta-Value — because it is a Limitation on the Meta-Meta-Value of the Death Penalty being OK.

Become a Student of American Values

Well, it’s this kind of stuff that I delve into as a “Student of American Values,” and strongly encourage you to do the same in order to better understand your PAIs, and even yourself.

Next time you read your own newspaper, find instances on your own that offer insight into what we as a society debate when there is a collision of values . . . Because that’s when it gets interesting, when — for example — we DO want to dish out severe punishment to a murderer, but we also want to be “fair.” We are then, in such an instance, forced to figure out just what we MEAN by “fair.”

There are many reasons you need to become a “Student of American Values.” One major reason is that if you insist on earning a living by working in the public-sector; you BETTER understand your public’s values . . . ESPECIALLY what I call their “higher values.” And, the reason you really need to become a lifelong “Student-of-Values” is that understanding Americans’ Higher Values is a real challenge. They are MUCH more complicated than you’d think. That’s why I feel obligated to help you gain insights into them as best I can. . .

Using the Stagelights Tactic

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What Can I Do When Some Stakeholders Play Dirty?

In discussing how the Stagelights Tactic gets stakeholders who play dirty to clean up their act, I wanted to add a subtle – but very important – point.

The Stagelights shame the player into better behavior; that much is observable. Psychologically, however, what I believe REALLY happens is this: the misbehaving stakeholders discover – because the bright Stagelights don’t allow them to ignore it – that their misbehavior is violating THEIR OWN values.

Why Most People Will Choose to Stop Playing Dirty

Remember from the previous Brownbag session on American Values (January 2011), what happens when something (such as our own misbehavior) violates our values: our Quality-of-Life suffers. Well, we don’t like that. So, we may choose to do ourselves a favor: often times, we choose to change our behavior so that it aligns with our personal values.

Notice, we do this for the SELFISH reason of not doing any further damage to our own Quality-of-Life.

Looking at the Values Hierarchy (page 18 of the February 2011 Brownbag handout), the values that most likely are involved in this 2nd, 3rd, and 4th levels of that hierarchy:

  • Level 2: Process-Related Values, i.e. issues of Fairness
  • Level 3: Meta-Values, which are issues of Rights, Freedoms, and Liberties
  • Level 4: Meta-Meta-Values, are issues of Responsibilities . . . which is the same as Limitations of Rights, Freedoms, and Liberties

What’s going on psychologically with the Stagelights Tactic is yet another reason for you to become a “Student of Values.” And, with that, of course, we’re talking about American Values. Americans have amazingly similar 2nd, 3rd, and 4th – level Higher Values.

That’s why in the Stagelights examples that I gave (the US Forest Service’s overhaul of its Electronic Site Leasing Fees in New Mexico and in Arizona, the Land-Use Planning incident in Laramie, WY where the Mayor talked out of both sides of his mouth, and the Los Angeles planning case where an LA City Councilor did the same thing) we could predict that – once the misbehaving stakeholders HAD TO look at their behavior – because the public-at-large was looking at that behavior – they would choose to change it.

But, as I warned you during the Brownbag session: Don’t rush into the Stagelights Tactic. It DOES constitute a form of hardball. Be sure you’ve thought it through. Be sure to “get license” to use it (which is NOT the same as asking for permission to use it.) BEFORE you go very far with it.

Remember the key phrase in getting the public’s and the stakeholders’ license: “We owe it to you . . . We owe it to you to tell you who we’re talking to, what we’re hearing, what we’re thinking . . .“

Of equal importance, be sure the light you shine is directed at the person’s behavior, not the person directly. This is the underpinning of providing constructive criticism, rather than destructive criticism.

How Meaningful are Liability Disclaimers As Informed Consent?

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Question #2 from March 2011 Brownbag

A listener asked “How meaningful are the many liability disclaimers we all wind up signing? Do they qualify as ‘Consent’?”

In other words, are we truly giving our “Informed Consent” when we’re handed a piece of paper with several paragraphs of fine print on them, and we’re told

  • “Sign here, and so we can proceed with xyz…?”

The fine print, if we DO read it, usually stipulates – in one way or another — that we accept all responsibility if anything goes wrong.

The same goes for all the “I Accept” buttons we push on our computers when we download new software . . . Software to which we DO entrust our work and the fruits of our creativity.

Do ANY of you ever READ those long, paragraph-after-paragraph fine print of liability disclaimers? (We have a few times . . . but, have concluded, what are we going to do? . . . NOT use the software we just paid several hundred dollars for…?)

Does it Qualify as “Informed Consent?”

This IS a great question, and relates back to what the nurse’s article that Hans talked about in the (March 2011) Brownbag. It may, for the moment, prevent frivolous lawsuits.

But, if something REALLY serious goes wrong . . . It probably will turn out NOT to have been complete “Informed Consent.”

It’s NOT Informed Consent unless the person signing the document – or pushing the button – says to him/herself AFTER things have gone wrong:

  • I UNDERSTOOD the risk I was taking
  • I UNDERSTOOD that this could happen
  • I went into this with OPEN eyes
  • I was fully informed, ahead of time, that THIS could happen
  • I have no one to blame . . .

The point for you, me, and anyone working in the public arena is that this kind of disclaimer may make sense in many business situations; but, they are NOT appropriate for the work we are engaged in.

Like the nurse in the referenced article, for us there are no shortcuts.

We have to develop honest-to-goodness Informed Consent!

We don’t really blame people who, in a great many business situations – such as selling software – use these kinds of “sign here” or “push this button if you accept our conditions” liability disclaimers.

There are so many people who sue for the most trivial reasons . . . Just to have the business in question settle out of court to get rid of the harassing suit.

For some people it IS a way of earning a living; call it “modern highway robbery.” Though these liability disclaimers ARE rather superficial “Consent” statements, they probably eliminate 99% of the potential frivolous lawsuits.