Abstract
TRICK: “a crafty or underhanded device, maneuver, stratagem, or the like, intended to deceive or cheat.” Tricks are designed to outwit others in a cunning and skillful manner. Despite well-written, philosophically sound codes of ethics and core values, businesses are not above employing tricky tactics to suit their pecuniary interests. These strategies often involve the legal system as the outwitted ask courts to vindicate their rights. However, the most successful tricks are skillfully crafted to survive legal scrutiny. This article evaluates three tricky business tactics found lawful by United States Supreme Court during its most recent term. The story begins with a legal analysis designed to appraise how and why the justices upheld each tactic in near unanimous fashion. An ethical analysis then scrutinizes each tactic under the prominent ethical frameworks of Utilitarianism, Deontology and Virtue Ethics. The goal is to compare and contrast legal outcomes with the ethical consequences and draw important conclusions for law and business. Legally, each of the tricky tactics prevailed. Each was blessed by a series of courts, including the highest court in the land, and now abides under the strong protection of precedent. This article evaluates the cases as well as their legal and ethical implications in five parts. Part II introduces and synthesizes the three prominent ethical frameworks of Utilitarianism, Deontology and Virtue Ethics. These frameworks are typically used in evaluating business ethics scenarios but are also appropriate to also evaluate cases at the intersection of business, law and ethics. Part III evaluates the three tricky tactics from a legal standpoint by analyzing how these companies were able to outwit (or trick) the system. This sets up Part IV where each tactic is evaluated under the ethical frameworks and determined to be ethically suspect. Part V concludes with an argument that this inconsistency between law and ethics is not the fault of judges stuck with precedent that has not anticipated these tricky tactics. In fact, the American Bar Association’s Model Code of Judicial Conduct implies that judges should “uphold and apply the law” and not intersperse ethical frameworks into legal decision-making. Instead, the task of considering ethical implications is for legislators (and the citizens who elect them), lawyers, and (most importantly) business professionals who confront the business ethics dilemmas on a regular basis. These groups must consider the moral implications of their actions and do so more consistently. The old adage, “just because something is legal does not make it ethical” rang true in each of these cases. It is likely that the managers responsible for these three tricky practices would have (and should have) acted differently upon deeper ethical introspection. This article provides a framework to guide this more ethically focused decision-making process.
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