Ethics Quiz: The Insensitive Exam Question

This ethics quiz is designed to balance my own biases.

Above the Law’s Ellie Mystal claimed that a Georgetown University Law Center professor gave his class an insensitive hypothetical in an exam. I am almost as disgusted with GULC as I am with my other alma mater; Above the Law is a hack website; Mystal has proven himself to be a left-wing hysteric, a racist, a biased journalist, a self-evident jerk and a lawyer whose ethics are so warped that he should never be allowed within 50 yards of a potential client. As a result, I can’t be sure that my conclusion that his analysis in this case is as wrong as I think it is, since all of these biases, however justified, may be rusting my ethics alarms solid. Maybe.

You probably recall that Ethiopian Airlines Flight 302 crashed earlier this year, killing 157 people. This part of the ongoing Boeing 737 MAX jet controversy that has resulted  in the aircraft being pulled out of service.Cedric Asiavugwa, a third-year student at the Law Center, was one of the victims of the crash.

Georgetown Law Professor M. Gregg Bloche  devised a final for his “The Mind And The Law” class that included a question that asked students to evaluate the legal issues surrounding the FAA’s emergency grounding of Boeing 737s. Mystal is outraged:

Does any of this sound like appropriate grounds for a law school exam hypo? Does any of this sound like appropriate grounds for a law school exam hypo at Georgetown?….I generally dislike it when law professors try to pull this “ripped from the headlines” crap like their name is Dick Wolf. It’s not creative and exciting to draw a hypo from “current events,” it’s lazy writing….Yes, I get that “real” lawyers often have to deal with emotional issues of tragedy and loss. I get that dispassionate analysis is a hallmark of the legal profession. But the point of a law school exam is not to test a student’s emotional preparedness. It’s certainly not to test a student’s grief management. It’s not even like the professor kept the question in the realm of “purely” hypothetical. He attaches articles ABOUT the crash to the exam, asking students to read them and address them in their answers.

A student, classmate, and friend of some of these people died. He died a mere month and a half before the exam was published. There was a memorial, on-campus, honoring his life. Could we maybe NOT turn his death into a freaking exam hypo? Would it be too much of an impingement on academic freedom to show some human empathy? This exam question was tasteless.

My reactions the second I read this:

  • Any law student who is emotionally wounded by an exam reference with a connection to a real and recent tragedy is heading into the wrong profession, and the sooner the student realizes it, the better he or she, their potential future clients and employers, and the legal profession is,
  • Mystal, in the kind of dishonesty that fuels my lack of respect for him, says the exam is about the student’s death. No, it isn’t. It isn’t even about the crash.
  • Since I write legal ethics hypotheticals for a living (among other things), I believe I am qualified to judge Mystal’s objections to basing them on real events as “lazy” to be ignorant. Any teacher who does not regard the myriad fascinating and difficult real life legal dilemmas that arise from the chaos of life as an invaluable resource for challenging students is incompetent, to be blunt.
  • I used 9-11 as the basis for a legal ethics hypothetical within weeks of the tragedy. I’m sure some of my students knew victims; heck, I knew some victims. Nobody complained, because it’s a non sequitur. Any hypothetical has the potential of reminding someone of an unpleasant experience. I expect adults–law students are not children–to deal with it. It’s not my problem.
  • Part of the destructive progressive cultural brainwashing being attempted now is  to establish the cultural norm that all words, conduct and actions must be filtered, calibrated, censored, bowdlerized and  sanitized to avoid any potential or theoretical offense or “triggering”  for any potential listener or reader. It’s a core aspect of the effort to constrain thought and expression. I detest the term “snowflakes,” but Mystal’s indignation over a theoretical psychic wound over a  dry law school exam question almost compels resorting to it.
  • Stop making our rising generations weenies, eager victims and emotional weaklings. I know that makes them better victim-mongering leftists, anti-capitalists,  political correctness bullies, foes of personal responsibility and accountability, pacifists,  statue-topplers, hate-speech censors, and deriders of “toxic masculinity,” among other things., so the temptation is almost irresistible.

But I could be wrong, so the Ethics Alarms Ethics Quiz of the Day is…

Was the professor’s exam question unethical, as in irresponsible and uncaring?

16 thoughts on “Ethics Quiz: The Insensitive Exam Question

  1. I assume this guy thinks kids should be excused from taking Torts given they’ll have to read about people suffering personal injury, in at least one or two cases? Or Crim Law? They’ll have to read about crime and punishment? But wait. Of course. Torts is all about bad corporate behavior oppressing people of color and Crim Law is all about police misconduct and removing men of color from their communities! What was I thinking?

  2. Let’s have a close look at all the charges Mystal lays at the feet of this question: that it’s not in good taste, that it’s unexciting, it lacks creativity and empathy.

    I find that all these are arguably true. However, the question is whether that makes it wrong to include such a question on a law school exam. I find that it does not.

    Taste? De gustibus non disputandum est. He’s allowed to find it not to his liking, but that’s neither here nor there.

    Unexciting and uncreative? Are we talking about law school or a creative writing program?

    Lacking in empathy? There’s a reason they say “the law is an ass.”

    In short, no. While Mr. Mystal is amply entitled to his opinion and aesthetic judgements, none of these add up to wrongdoing on the part of the professor.

    • As a non lawyer I don’t see tackling real life issues lazy. Real life is radically different from hypotheticals because the latter are obviously developed to arrive at a specific line of thinking. Real life questions pose real life problems to be addressed.

      Any hypothetical could be uncomfortable for some because of personal experience.

  3. Was the professor’s exam question unethical, as in irresponsible and uncaring?

    Based on what I read in the two pages (page 3 and page 5) of the exam that were provided in the link, I have to answer no. It doesn’t appear to be unethical, irresponsible, or uncaring in any way.

    Elie Mystal appears to be a “snowflake snowflaking hard” (#Michael West).

  4. My gut reactions are: no, no, and no. In general, it is a relevant fact pattern with lots of thorny issues. If law students can’t deal with it, then they need help.

    However, I would want to know what the focus of the class is. It is “The Mind and The Law.” What relevance is the plane crash and the resulting investigation to the class?

  5. If any law student is not prepared to deal with tragedy of any kind, he/she shouldn’t be a lawyer. Many ‘hypotheticals’ are based on fact, and if a student can’t deal with this particular fact/tragedy, he is too sensitive to be an attorney. This is not about how you FEEL, but what is the LAW? Aside from cold corporate law (which in fact can have very emotional consequences), what exactly does this student intend to practice? Send him to The Innocence Project, where he can indulge his emotions.

  6. No, not unethical, with caveats.

    I don’t know what this Mind and the Law Class is so I don’t know why this question was asked.

    It probably provide an excellent basis for an Admin law class.

    Even so, hypotheticals are typically dummied up a bit to make them a tangle of different issues (wanted to say, “cluster-fuck,” but that seems a bit crude here, though apt), However, this seemed to be about this case, if he included articles about the crash. If you are talking about a real event, it’s less of a hypothetical.

    It may have been insensitive. The death of a colleague (and I would consider law students and professors to be colleagues in a professional sense) did not ring the professor’s Ethics Alarms that this may not be the best topic for this exam (again don’t know what this class is about). Give it a year and ask the question next year. Tone deaf and lacking empathy? Yes. But, does not rise to the level of unethical.

    It’s not lazy to use current events to come up with hypotheticals. They are all around us. I understand that, in law school, every contract is based on a peppercorn and every piece of land is named Blackacre, but, in all my years of practicing, I have not been involved in such transactions. But, I have seen lots of goofy contracts and lots of fights over land; if I were to write a hypothetical, I would probably sell Blackacre for a peppercorn (actually dealing with that sort of case right now).

    There are valid criticisms to be made about both the form and the substance of the question. But, that does not, by itself, make the question unethical.

    I just wish I knew what kind of class Mind and the Law is.


  7. Was the professor’s exam question unethical, as in irresponsible and uncaring?

    Hell, no!

    Color me surprised that a progressive hack found something to be offended by.

    What, President Trump not taken to Twitter lately? Was this a slow news day in Mystal’s neck of the woods? Weren’t there pygmies in Africa with acne to write about? No pictures of swimming polar bears denoting some perceived deficiency with their habitat, undoubtedly caused by evil man?

    ‘Snowflake’ is an apt term for what academia and progressives are indoctrinating students into becoming.

    If you cannot stand up to the adversity of life, cannot even hear a point of view not dictated by your progressive masters;

    If you cannot stand to be reminded that the thing you are outraged about TODAY was the thing you endorsed YESTERDAY;

    If the mere presence of a designated ‘deplorable’ on campus sends you fleeing to a room with coloring books and puppies;

    If the term ‘safe’ implies a space and not a condition of a runner in Baseball;

    If you believe in violence against those who disagree with progressive cant, yet self defense by those attacked is not a natural and correct response;

    If you believe that everyone should pay ‘their fair share’ yet complain when YOU have to pony up;

    If you believe that Roe-v-Wade is written in stone, yet Heller-v-District of Columbia should be reversed upon a whim;

    If you presume to speak upon the behalf of minorities, even when they ask you not to, because of an misguided ‘woke’ guilt that amounts to ‘white man’s burden;’

    If you believe that society should be destroyed so that those ‘on the right side of history’ can rebuilt a utopia where they make all the decisions for the ignorant deplorables (ie ‘Americans’);

    If you think you would be one of those making the decisions after societal collapse;

    If you think all money belongs to the Government, and whatever you think people should be allowed to keep of their hard earned livelihood ought to be the tax code;

    If you believe that a tax incentive should instead be spent on ANY program instead (note: tax incentive=revenue that does not exist and will never exist);

    If you think that people in fly over country driving pickup trucks are having ANY impact on global climate, much less global warming;

    If you believe that America is the only country on earth that enforces their borders, and therefore should not;

    If you think ‘climate change’ is anything other than a normal, natural process for a planet;

    If you are ‘triggered’ by mere words, and sometimes take them out of context to become so;

    If you are perpetually upset about whatever your progressive masters say you should care about, or get angry over trivial matters someone somewhere may have said or done more than twice a week;

    If any sort of adversity is some sort of conspiracy against you due to your special designated personal genetics or social status;

    If it is somehow unfair when tactics you approve of, or use on others, are used against you;

    If you believe that those who disagree with you are some form of -ist or -aphobe simply because they disagree with you, not because of the content of their assertions;

    If you think you are literally fighting Nazis;

    If you are a part of ‘antifa’ while acting like a fascist;

    Then the term ‘snowflake’ might apply to you.

    A snowflake is unique, yet melts at the smallest temperature change. Likewise, someone who cannot understand the Golden Rule, let alone apply it in their behavior, and cannot persevere under the slightest of headwinds, could fairly be called a snowflake. Like the old saying goes, if the shoe fits, wear it.

    Life is tough, and anyone telling you different is trying to sell you something.

    Fortunately, there is a cure for this condition. It involves personal responsibility and possible sacrifice, integrity, a personal, ethical code of conduct, and the ability to delay gratification in the attainment of a larger goal. Believing in something and learning to defend your opinion (as well as changing it when evidence suggests you need to) contribute to the cure. Contribute to society instead of continually criticizing those who contribute.

    In short, this is not a 23 year old college drop out ‘adulting’ in his mother’s basement, but having the courage to stand on your own feet, and become an adult in the manner of societies the world over for thousands of years.

    Gee, that cure sounds a lot like traditional and conservative principles. Must be a mistake.

  8. For the most part, I agree with you, but I think this has some merit. There are many situations where you don’t involve yourself, because of objectivity and emotionalibiliy. Unlike the exam, if you are faced with a situation like this, you can choose to step back or not take the case. In the particular case, students, maybe even close students, were caught off guard.

    In your example of 9/11, I’m assuming it was optional for people to discuss, be silent, or even leave the room, most likely without repercussions? There was no option here.

  9. Hmm, it’s been a while since I had anything as abstract as an exam question, ‘real life’ is full of repetitive events and tragedies. They don’t go away while you wail in the corner: you still have to make dinner and change diapers. You’d better be able to handle these stresses if you want to be a functional adult, let alone a lawyer. Controlling your emotions to act well in an emergency or stressful situation should be admired (unlike the snowflakes who get het up on Jedi self-discipline because of the great power paired with great responsibility)

    1)Not in good taste? Unless the test question was written in a sleazy ambulance chasing way, some other specifically exploitative way, this isn’t relevant or true. Would it be any less exploitative if it was five years later, or twenty? And how is a teacher to know? Study topics have more relevance and weight if they are linked to the students. I thought that was basic teaching skill.
    2)Unexciting? That is possible, banning something isn’t exciting if it doesn’t affect you. I personally don’t have a lot of interest in safety regulations for Formula One racing, so a test question on that would be boring. I’d believe the test question phrasing would talk about costs and reputations on the line for grounding. Travelers would prefer an unexciting journey. I doubt any of my professors ever thought about how exciting my exam questions were, nor should they.
    3)Creativity of the professor cannot be judged on one exam question. Learning the basics is not usually exciting, and the purpose of exams is to ensure the boring basics and procedures are down. The counter of this is even stupider if an exam question on contract law was a ‘fun exciting’ question about a toy poodle, a hooter, and an antivirus program. Exciting test questions are either an incompetent teacher or panicking student. This objection is bogus.
    4)Lacking empathy is another puzzler. A discussion about steps to prevent future tragedy is hurtful? I would think that comforting, even if there was some resentment it wasn’t discovered sooner. The question was about grounding not some macabre and gruesome details about the tragedy. You cannot prevent tragedies or adapt reactions if you cannot talk about events.

    This was a very good question. It got right into the messy parts of mediating relations between people, agencies, government, and the law. If they cannot handle a mild logistic action in an exam, how in the world do they think they will be able to advocate for clients and causes out in the real world where it will be far messier and it may not be clear or they don’t love the cause? The legal field is littered with disrupting passions, often passions of people who should have known better. (drug charges, murder, fraud, breaking contracts, etc) Passions are a rotten way to run your life. Everyone is passionate for their own goals, how do they propose solving issues when passions go against each other? Whose tears look better on camera? We cannot use thumbs up on social media as that was how lynch mobs worked- why are they repeating KKK tactics? Passion for the law is not passionate, emotional behavior. Justice is blind, but justice doesn’t have a hickey.

  10. There are already multiple excellent comments on your side Jack, and I agree. It will be interesting if anyone has the guts to take the opposing position, and the pummeling they’re going to receive in response.

    This is another example of the rainbow and unicorns isolation bubble that progressive live in that lets them hold the ridiculous positions they do. It is now possible to live in this bubble and never confront so many realities of life. They’re indoctrinated and surrounded with a singular message that they never have to be confronted with any alternate view.

    I’ve been on a grand jury, and I can say that you’re not ready to work in the legal system if this bothers you. I have nothing but respect for all those involved, police, the lawyers on both sides, their legal aid workers, the judges, the clerks and so on. Rape, molestation and murder are regular things to deal with. If you can’t handle this, how do you deal with a rape and murder case with all the evidence laid out?

    A friend is a manager at our state child protection agency. She’s dealing with it becoming harder and harder with the new college graduates to deal with what they deal with. Here you have young bright eyed individuals who have never crossed paths with want or neglect, let alone actual abuse. They get into this as a SJW who wants to save the world. They don’t know what that means on the other side of the tracks. It has become so foreign to them that many burn out and drop out because they can’t handle the reality of what their job is.

    College is supposed to be preparing people for real life. What’s happened is the complete progressive takeover of college and the suppression of anything “icky” through speech codes, trigger warning and every other free speech suppressing activity of the progressive crowd has turn that on its ear.

  11. The question is perfectly fine:

    >But the point of a law school exam is not to test a student’s emotional preparedness.

    Sorry, but yes. Even as an engineer I was expected to make professional decisions under all sorts of pressure during my preparation. I expect someone in a more “social” profession would be dealing with these issues without batting an eye. The underlying premise is false, and given that, the rest of the argument is wrong.

  12. No it wasn’t.

    Would changing the facts, say to a cruise ship crash, allegations of a faulty simulator, costly safety upgrades and grounding of vessels, etc., make it more palatable? If so, that’s just stupid.

    Under ATL’s analysis, it would seem that making law students read any challenging case could trigger their sensitive selves. Reading Roe v. Wade must be akin to torture. I can’t imagine what reading Miranda v. Arizona would be like for them. Or maybe they skip the office alleged (a kidnapping and rape) and the later conviction? Like a condensed Reader’s Digest version of the law.

    Count me out of that law school.

  13. I agree with other commenters in their assessment of the exam question as both ethical and appropriate. Although I am not an attorney, have never played one on TV, and haven’t stayed in a Holiday Inn Express lately, I think that had I been a student in the class and known the deceased student in question, I might have been even more motivated to a thorough and complete analysis of the legal issues involved in the aircraft grounding.
    The continual tests of real life are frequently insensitive and uncaring. Lest I be accused of prescribing where I am not affected, I would point out two “testing” instances from early in my police career: 1. I was the second officer arriving at the scene of a single-vehicle fatality in the wee hours of the morning on a remote country road. The deceased driver was a fine young man I knew well. The first officer on the scene who arrived seconds before me was my friend -and the father of the deceased. As soon as my sergeant and I got the dad away from the scene, we conducted the crash investigation. We cried later. 2. Responding to a late night crash of a semi truck on a rural road, I found that the crashing semi (a stolen vehicle) had overturned onto a compact pickup, killing an entire family (Dad, Mom, two sons) who attended my church. The semi truck thief was uninjured. I conducted the on-scene investigation of this incident as well. My experiences are not unique; similar situations happen to officers (and firemen and paramedics) on a regular basis, especially in small communities where “everybody knows everybody.” Life is tough and some vocations require us to be tougher and step up. As the bull rider says, “You’re never really ready, it’s just your turn.”

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