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I'm familiar with the so-called ethics/law divide, where some acts may be lawful but unethical and other acts ethical but unlawful. This question is not about this.

I'm also familiar with professional Codes of Ethics that gain "legal" force by virtue of contract law and/or incorporation into professional regulatory statutes, but generally only apply to certified or licensed professionals (e.g. non-physicians do not incur liability by behaving in ways that are inconsistent with contemporary medical ethics but are otherwise lawful). This question is not about this either.

Has US law ever imposed a general duty on the general public to behave ethically? Restated, has a court ever imposed liability on a private citizen (holding no professional licensure or certification, holding no public office, etc.) for behavior that did not violate any specific provision of criminal or civil law, but rather transgressed either normative community ethics or the court's view as to what such ethics ought to be?

I used to think that it would be absurd for there to be "purely ethical" liability, but I found this article by an attorney in Arizona, who seems to be primarily talking about professional ethics (not general citizen ethics), but states that a court could theoretically punish on the basis of transgressing an ethical rule that has broad community acceptance but that had not been formally accepted by or imposed on the defendant by specific legal process.

If asking about the United States in general is too broad, we can limit it to the state of New York.

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    Whats your definition of ethics here. Can you give an example of unethical behaviour which is not illegal? – Shazamo Morebucks Aug 20 at 4:10
  • Other than "reasonable standard of care" in the context of the tort of negligence, I do not see anything that even hints at "ethical rule that has broad community acceptance" in the linked article. – George White Aug 20 at 4:41
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    Define "pure unethical". Because in the third paragraph you seem to be asking about "laws punishing unethical acts that are not unlawful". But if there are laws punishing such acts, then the act becomes unlawful and it no longer is "purely unethical". Your question sounds like a contradiction. – SJuan76 Aug 20 at 7:17
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A general obligation to behave ethically would quickly be struck down as unconstitutional deprivation of due process under the void-for-vagueness doctrine.

[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. ... Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine "is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement." ... Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections."

Kolender v. Lawson, 461 U.S. 352 (1983).

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Negligence

Where a person has a duty of care, the law imposes an obligation to "exercise the care that a reasonably prudent person would exercise in like circumstances" (Merriam Webster). Compare this with ethical - "conforming to accepted standards of conduct".

This obligation applies civilly but the standard can also be imposed in criminal law with such crimes as negligent driving, a directors duty to exercise due diligence in the management of a company etc.

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The Supreme Court's famous rule on Obscenities is that it is ethically based on ethical standards (or more to the point, no redeeming ethical standards whatsoever... and in U.S. speech law that bar is set extremely low.) and famously summed up in Justice Potter Stewart's famous concurrence in Jacobellis v. Ohio:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of "hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Bold portion is the most often quoted part, but the line is often used. It's important to note that ethical standards used for something obscene is determined by the most local laws and traditional standards possible (Because what is obscene is different from Hollywood as it is in the Bible Belt).

Since Jacobellis, only one form of speech has been found to meet this obscenity test on a national level (child pornography) and beyond that, it really is something managed at the lowest possible levels at best. Jacobellis proved that the porn being sold by the defendant was not obscene because they showed that local hotels carried similar porn titles on pay-per-view and several local customers consumed this product while staying at the hotel.

There are specific writings by the founding fathers who, while defending freedom of religion, held that it was not the job of the United States government to legislate ethics to the people and allows for the private citizen to hold their own ethics, so long as it does not conflict with the law. Because ethics is tied to religion in that both are "sincerely held beliefs" in the eyes of the law and thus, the government needs to show a compelling interest before it can restrict the law.

As a common example, the idea of burning the U.S. flags is generally a legal action that is ethically abhorrent to Americans. While the government cannot stop a person from burning the flag specifically as an act of speech, it can arrest someone for burning a flag if they have a compelling reason too. For example, if it is the dry season in a local area that is prone to wild fires, then the police could arrest a protester who burns a flag (be it the U.S. or the Chinese Flag or the flag of the Rebel Alliance from Star Wars) because they have a compelling interest in not burning down the town that overrides whatever the protestor is symbolically demonstrating in the flag burning. Similarly, you can't steal someone else's flag and burn it as theft and arson are crimes.

By the way, if you want to see a good reason why burning the U.S. Flag should not be a crime in the United States, pop over to youtube and do a search for "Penn and Teller Burn the Flag". It does a good job at showing the difference of ethical speech vs. legal speech by burning the flag in a way that would make the loudest U.S. patriot give a standing ovation.

  • This is a completely incorrect interpretation of Jacobellis. – bdb484 Aug 21 at 4:53
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Your question is about the US and specifically New York State and the answer appears to be "no". However it is worth pointing out that other jurisdictions have different rules. The question was:

Has a court ever imposed liability on a private citizen ... for behavior that did not violate any specific provision of criminal or civil law but rather transgressed either normative community ethics ...

And in England and Wales, the answer is a most definite "Yes"; that is pretty much the definition of Common Law. Historically in England almost everything was just "transgression of normative community ethics".

These days, I think the most obvious example is that you will not find any specific provision of criminal law that makes it illegal to kill people; but people are sent to jail for murder every year. There are many other offences which are "contrary to common law" too.

Judges are now less willing to introduce new offences under what Lord Denning called "judge made law" - they now regard that as the role of the legislature.

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The Model Rules of Professional Conduct for lawyers that are adopted in some modified form in every U.S. state, expressly provide that they are not a basis for liability in and of themselves and do not create a private cause of action, but some conduct described therein is actionable on other theories, such as negligence or breach of fiduciary duty.

Lots of conduct that isn't expressly banned in a statute is actionable on some common law theory in a claim that can award money damages and ethics can enter into whether such a claim exists.

For example, aa common law fraudulent concealment claim can be brought if information that should have been disclosed between merchants "in good conscience" is not disclosed, and other elements of the claim are met.

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The article linked in the question seems to be dealing entirely with professional codes of ethics. That is, codes for doctors, lawyers, engineers, and similar professions. In those cases the court may take the code promulgated by a professional association or similar body, and treat it as a rule defining or at least illuminating a general legal standard such as "duty of professional care". In short it will treat a violation of the professional coed as evidence of negligence.

In contract law the "custom of the trade" for a specific type of business or industry is often treated as a set of implied terms of the contract, except where explicit provisions are different. This might include a published "code of ethics" for a particular industry. But this is still an occupation-specific or industry-specific code, not one of general applicability.

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In some civil cases in the US, the plaintiff can ask for treble damages. Caselaw shows that they are often awarded when the defendant's behavior is determined to be egregious enough so that it should be criminal, but is not.

In addition to treble damages, there are also punitive damages. For example, in Gore vs BMW, there was a matter of a damaged car, which was repainted, and not disclosed to the buyer. The actual damages were $4,000, but the punitive damages were $4,000,000.

  • triple damages are not alloweds in general civil cases. They are permitted by statute in some specific civil actions, including anti-trust actions IIRC, and in some states fraud when specific conditions are met. – David Siegel Aug 20 at 18:39
  • @DavidSiegel it is true that treble damages are not provided for in all general civil cases. I didn't look up each state, but I know that there are 62 provisions for treble damages in NY. – mongo Aug 20 at 21:43
  • The entire point of Gore v. BMW was that awarding punitive damages like that is illegal. – bdb484 Aug 21 at 4:49
  • @bdb484, even on appeal, the punitive damages were upheld at $50,000, well beyond even the value of the automobile. – mongo Aug 21 at 12:51
  • Punitive damages are more properly targeted to deprive the defendant of its profits, which in this case were $56,000. Subtract the actual damages, and you're pretty much right at the final award. Of course, whatever the number is, this answer still does nothing to answer the OP's question. – bdb484 Aug 21 at 18:55

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