Month: September 2011

The Deceitful, Illogical, Unethical Disclaimer

/ Jack Marshall / 5 Comments

Don't be fooled by Voldemort's disclaimer!

I once worked for a company that was specifically targeted by an industry group for coordinated attacks and anti-competitive tactics. We obtained a copy of the agenda for the planning meeting for this onslaught, and the bullet points looked like part of a hypothetical in an anti-trust class law school exam. This was the most blatant collusion in restraint of trade imaginable. But the  lawyers for the group apparently thought all could be made benign and legal by a disclaimer on every agenda copy that  said, in effect, “Don’t pay any attention to what this agenda says—trust us, it’s all fair and legal.” The disclaimer stated that the organization fully supported and followed all provisions of U.S. anti-trust statutes, and would never, ever do anything to violate them. This is roughly the equivalent of a mugger telling his victim that he is non-violent while he’s punching him in the face.

I am reminded of that agenda when I see commercials for new drugs, which show healthy, happy, beautiful models frolicking with their families or lovers in idyllic settings while the announcer, usually at breakneck speed, warns that the drug may cause violent flatulence, boils, locusts, insanity, cannibalism and excruciating death. I was reminded of the agenda again when I learned of the latest gambit by PublishAmerica, which earlier this year got in trouble with “Harry Potter” author J.K. Rowling by soliciting money from authors by promising to bring their works to her attention: Continue reading →

Ethics Quiz: Which Musical Comedy Censor is More Unethical?

/ Jack Marshall / 18 Comments

How could anyone predict that this show would be risque?

Rick Jones brought these sorry tales to my attention, and they are perfectly suited to an Ethics Quiz.

Your challenge: Explain which of the censors in these two incidents was more unethical.

Censor A: The mayor of Carrollton, Georgia, Wayne Garner, who ruled last week that a city-funded professional production of The Rocky Horror Picture Show was not suited for a community production. The city council had contracted with a theater group of actors, singers, dancers, musicians and crew, and had committed $2,500 of taxpayer funds in up-front production costs to prepare for four performances in October. The mayor’s spokesperson said that the production was going to contain racy choreography,despite the fact that it was supposed to be a “PG show.”

How a counter-culture musical specifically about gender bending, kinky sex and transvestites was supposed to be “PG” is anybody’s guess.

Censor B: Thomas Fleming, Superintendent of Schools in the Richland School District in western Pennsylvania.   He prompted District officials to veto the high school’s choice of the classic 1950s Broadway musical Kismet as a 2012 production, because it suddenly occurred to him that the characters in the play, which takes place in old Baghdad, are Muslims. Continue reading →

Ethics Quote of the Month: Clarence Darrow’s Closing Argument in the Trial of Nathan Leopold and Richard Loeb (1924)

/ Jack Marshall / 3 Comments

When capital punishment is in the news, it's time to listen to Clarence Darrow.

I know I have previously quoted portions of Clarence Darrow’s famous courtroom plea for mercy in the “thrill killing” murder trial of teenagers Nathan Leopold and Richard Loeb. It can never be read too many times, however, and is an essential backdrop to any discussion of capital punishment. Darrow, who hated the death penalty and defended over a hundred clients facing it, never lost a capital punishment case. This, however, was the only time he articulated why he believed that capital punishment was wrong. 

Nathan Leopold and Richard Loeb were charged with the murder of fourteen year-old Bobby Franks. Both defendants were brilliant students (Leopold, the youngest graduate in the history of the University of Chicago; Loeb, the youngest graduate of the University of Michigan), Jewish and the sons of wealthy and successful Chicago businessmen. Neither showed any remorse for their act, which had been coldly undertaken as a demonstration of their superior intellects. Darrow was hired by the Leopold and Loeb families to keep their sons from dying on the gallows, and he decided to plead their case directly to the judge.

His summation on August 22, 1924, remains perhaps the most persuasive and eloquent argument against capital punishment ever made in court or anywhere else. And it worked: Judge Caverly spared Leopold and Loeb, and they were sentenced to life imprisonment. This is a somewhat shortened version, edited for The Essential Words and Writings of Clarence Darrow, a 2007 paperback compiled by historian Ed Larson with some help from me. Here is one of the great orators of the 20th Century, one of the great progressive thinkers in our history, and the greatest trial lawyer who ever lived, arguing for the life of two murderers and for the soul of our civilization. I do not share Darrow’s absolute rejection of the death penalty, but I wouldn’t want to have to argue against him either. Continue reading →

Troy Davis, Lawrence Brewer and the Capital Punishment Ethics Train Wreck

/ Jack Marshall / 28 Comments

At this point, nothing about the death penalty  in the United States makes any sense, logically or ethically, and that is true for all sides of the capital punishment debate. September 20 should be designated Capital Punishment Day in memory of the contradictions, absolutist pronouncements, convenient rationalizations and everything else that occurred in the years, days and hours before Troy Davis’s execution in Georgia. Then perhaps America as a society will devote one day a year to considering rationally and unemotionally how the death penalty should fit into its criminal justice system without having the discussion warped by the peculiarities of  individual cases. As it stands now, not only is capital punishment an ethics train wreck, the policy debate about it is an ethics train wreck. Everyone who even dips his toe into either becomes irresponsible, conflicted or intellectually dishonest.

Did you know that another inmate was executed yesterday? I didn’t, until this morning. In Texas, white supremacist gang member Lawrence Russell Brewer was executed Wednesday night for the horrific 1998 dragging death slaying of James Byrd Jr., a man from East Texas who had his head pulled off by a chain attached to a truck for the offense of being black. If death penalty opponents are serious and have any integrity, they needed to show it by protesting the execution of Brewer exactly as intensely as they opposed the death of Davis, but of course they did not. Continue reading →

Comment the Day: “Exposing America’s Dungeons…”

/ Jack Marshall / 1 Comment

Maybe Tom Cruise knows how they stored the prisoners in "Minority Report"---that seemed to be a quiet and pleasent prison environment...

Dwayne N. Zechman makes trenchant observations and raises difficult questions in his comment to the post, “Exposing America’s Dungeons: The New York City Bar Report on Supermax Prisons.” The report to some extent answers Dwayne’s primary point by stating that the need for special high-security prisons to prevent violence to inmates and guards cannot justify an unconstitutional solution. If the conditions in the supermax prisons are as described in the report, there can be no doubt that it violates the prohibition against “cruel and unusual punishment.” That is an absolutist position like the prohibition against torture: ethically, arguing that “it works” or “there’s no other way” or “oh yeah? What would YOU do?” won’t and cannot prevail…unless we conclude that when we have to choose the lesser of two evils, forcing violent and otherwise uncontrollable criminals to live in dungeon-like condition is preferable to having them kill people might be the winner. Continue reading →

More S.E.C. Ethics Blindness

/ Jack Marshall / 1 Comment

What good is a blind watchdog?

Back in February, I told the tale of David Becker, former S.E.C. General Counsel, who had inherited money from his mother that was really the fruits of the Bernie Madoff investment scandal after he had served in the post while Madoff was merrily swindling people as the S.E.C. twiddled its thumbs. Becker apparently wasn’t in the information chain that should have led the S.E.C. to stop Madoff , and the scandal was uncovered after he left the agency. In 2009, after the Madoff mess had exploded, he rejoined the agency in his old job, but when it came to light that he and his brothers had inherited $2 million Madoff-manufactured profits from their mother, he quickly stepped down. My view was that Becker was a victim of circumstance: he had the appearance of impropriety, but hadn’t done anything wrong.

I should have known better: after all, this is the Securities and Exchange Commission, where they illegally shred files and the regulators look at porn all day. Now it is revealed that… Continue reading →

Shameless Oglers, Ethics Chess, and the Duty to Confront

/ Jack Marshall / 7 Comments

Men who openly ogle the body parts of women in public make me want to turn in my Man Card and start dating Chaz Bono. I don’t know how people get like that, but no male should survive into his twenties with the idea that it is socially acceptable to stare at a woman’s breasts, legs, derriere or comely visage without an express invitation—and yes, some clothing choices can constitute such invitations. Absent that, however, a woman has the right not to be made to feel like a pole dancer, meat on the hoof, or a Sports illustrated swimsuit model simply because she is in public and in the presence of Y chromosomes.

The great relationship advice columnist Carolyn Hax addresses herself today to the lament of a woman who found herself unable to muster a response to a man in a restaurant who continued to stare at her chest, ruining her dinner. Hax initially disappointed me by suggesting that the woman should have simply switched seats, removing the attractive nuisance from his view. But she redeemed herself as she went on to urge the woman to prepare for her future encounters with ogling pigs, since given her natural endowments these were likely to occur:

“Learn to perform under duress through preparation.Ask yourself, now, what you can realistically hope to do in these situations, then prepare the words, gestures and/or actions. Say your plans out loud in the shower (seriously); repeat them to your friends by telling them the restaurant story and spelling out what you wish you had done. Even when practicing feels stupid, use repetition to teach your brain where the path is. In time, you’ll be able to find it no matter how rattled you get.”

This is what I like to call “ethics chess;” preparing yourself to handle ethical problems and dilemmas when they arise…thinking ahead regarding your tactics when a predictable event occurs, so you do the responsible and ethical thing. Continue reading →

If Fox Will Fake A Headline, What Else Will It Lie About?

/ Jack Marshall / 3 Comments

As part of its coverage of the NFL opener for the Chicago Bears, Fox Sports wanted to use as graphics some news media headlines from last season that questioned Bears quarterback Jay Cutler’s courage and guts in the NFC Championship game, when he left the field with an injury that some felt Cutler should have played through.  It couldn’t find any such headlines, however because there weren’t any. No problem: Fox just had its crack graphics department make some up.

Fox flashed three newspaper headlines across the screen:

Cutler Leaves With Injury
Cutler Lacks Courage
Cutler’s No Leader

Fox announcer Daryl Johnston then told viewers that “these are the actual headlines from the local papers in Chicago.” But one of those local papers, the Tribune, decided to check. There were no “actual headlines” like those, in Chicago, or anywhere else. Caught in an outright misrepresentation, Fox Sports came clean, sort of. Continue reading →

Exposing America’s Dungeons: The New York City Bar Report on Supermax Prisons

/ Jack Marshall / 15 Comments

“…The overriding rationale for supermax confinement is to impose order  and maintain safety in the prison environment.  The unmitigated suffering caused by supermax confinement, however, cannot be justified by the argument that it is an effective means to deal with difficult prisoners. The issue, we believe, is not whether supermax achieves its purposes or is effective at controlling and punishing unruly inmates.
Instead, the question is whether the vast archipelago of American supermax facilities, in which some prisoners are kept isolated indefinitely for years, should be tolerated as consistent with fundamental principles of justice. Even prisoners who have committed horrific crimes and atrocities possess basic rights to humane treatment under national and international law. Although the Constitution “does not mandate comfortable prisons,” it does require humane prisons that comport with the Eighth Amendment’s prohibition against punishments that are “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society” or which “involve the unnecessary and wanton infliction of pain.” More recently, the Supreme Court stated that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”

“Supermax confinement as extensively implemented in the United States falls short of this standard and must be substantially reformed.”

—-The New York City Bar in its just-released report on “supermax” prisons in the United States.  The report declares supermax imprisonment, which currently holds 80,000 prisoners, to be the equivilent of torture and a violation of international human rights standards.

The report is harrowing, horrifying, and a source of shame for all Americans. The lack of concern by the public and its elected representatives in maintaining humane conditions in our prisons is understandable but inexcusable nonetheless. The New York City Bar has performed  a great service by issuing the report; it is up to us to insist that it is acted upon without delay. The United States of America should not be operating dungeons.

You can, and must, read it here.

Ethics Quiz: Does The Golden Rule Ever Make You a Sucker?

/ Jack Marshall / 6 Comments

For Ken Anderson, an alternative tattoo instead of "Mother"

With great trepidation, I visit our friends to the North for the second time in a week…this time, for an Ethics Quiz.

Ken Anderson, 47, of British Columbia, has been fighting a lawsuit by his aged mother, Shirley Anderson, since 2000. Using a rarely used section of B.C.’s Family Relations Act, she is demanding that he pay her $750 per month in “parental support.” The law declares that adult children are responsible for legally supporting parents who are “dependent on a child because of age, illness, infirmity or economic circumstances.”

Anderson isn’t keen on the request, since both his parents abandoned him when he was a mere tyke of 15, leaving him behind as they moved away with two younger siblings. He lived with other families and then quit school to find work. Now he’s married with two kids, and makes his living driving a truck. Continue reading →