Month: August 2021

Comment Of The Day: “Ethics Flea Market, 8/28/21: An Atheist Chaplain And Other Exotica”

/ Jack Marshall / 2 Comments

triple facepalm

In this potpourri piece, I linked to a Salon rant by a regular contributor named Chauncy DeVega, who, I summarized, “believes conservatives have been programmed by Fox News to believe in an ‘alternate reality’ based on anger and outrage while he proves that he exists in an alternate reality based on anger and outrage.” DeVega’s perspective is genuinely frightening (but then so is “Salon,”) as it is literally what he accuses conservatives of creating, a mad, counter-factual delusion fueled by hate. I consider the piece self-indicting, but I also didn’t have the energy to fisk it. Thus I am grateful to veteran commenter Michael Ejercito for accepting the challenge to a significant extent.

I hope Michael forgives me for injecting a few editorial notes as we proceed. They will be bracketed in italics. I couldn’t resist.

Here is Michael Ejercito’s Comment of the Day on the Chauncy DeVega head-explosion hazard linked to in “Ethics Flea Market, 8/28/21: An Atheist Chaplain And Other Exotica.”

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I will reply to some of this article….

“In my public warnings about the Age of Trump and America’s descent into fascism, I have often been far ahead of the hope-peddlers, stenographers and professional centrists of the mainstream news media. But I am no Cassandra or otherwise possess any preternatural gifts. I simply pay close attention to what the Jim Crow Republicans, Trumpists and other neofascists say and do — and I take them at their word. As a black working-class person in America I do not have the privilege and luxury that many white folks do — especially those with money — of pretending that everything is going to magically be fine, that “the institutions are strong,” that the “norms” of democracy will hold, or that “we are a good people.” I know for certain that the Trumpists and other neofascists are not “exaggerating” or engaging in “hyperbole” in their threats to create a new American apartheid.”

Government executive officials (not legislatures) have taken unprecedented coercive actions purportedly to combat the spread of COVID-19. This recently includes vaccination requirements to go to bars and restaurants, even though no such requirements existed with respect to polio, measles, or mumps.

So he has a point there.

[ME is being arch. That wasn’t DeVega’s point, but that “Trumpists” are trying to create an “apartheid” nation where only whites are protected. I also have to note that this is a great example of DeVega accusing the Right of advocating what the Left is doing. See today’s post on segregated classes at American University.]

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Now I’m REALLY Sorry American University Dropped Me As An Adjunct Legal Ethics Professor, Because I Can’t Resign In Protest Now

/ Jack Marshall / 14 Comments

1943_Colored_Waiting_Room_Sign

American University in Washington, D.C. has a course called AUx2 which freshmen must take. Students will learn about “race, social identity, and structures of power.” In the course, students “evaluate how racism intersects with other systems of oppression.”

The campus paper, “The Eagle” reports that the university has all-Black sections in the course, and has since last year. “We’ve definitely heard from Black students and other students of color that the material can be a lot for them because it is part of their lived experiences,” Izzi Stern, the AUx program manager told the student newspaper. “And we wanted to create a space where they could be together in community and have an overall positive experience with the course.”

On the university’s webpage, a former AUx2 student says, “The AUx Program is fundamentally shifting the culture, and students, of American University, while simultaneously fulfilling the institutions’ commitment to social justice and equity. I could not be more enthusiastic about my support for the transformative impact of the AUx2 course.” A sophomore at American University told the paper that “having an all-Black space truly changes the way you interact in that space and the level of comfort you feel.”

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Morning Ethics Warm-Up, 8/31/2021: Good Morning, Even Though It’s Not Really Such A Good Morning…

/ Jack Marshall / 10 Comments

Turner Classic Movies will be running “Singin’ in the Rain” again this coming Saturday at 6 pm E.S.T. It always cheers me up. Incredibly, the film now generally regarded as the best original Hollywood musical ever made (I’d rank “Mary Poppins” and “Swingtime” next) didn’t even warrant an Academy Award nomination in 1952, and the other all-time classic in that year’s Oscar race, “High Noon,” was nominated but didn’t win. The Best Picture winner was Cecil B. DeMille’s “The Greatest Show on Earth,” which has been mocked by film critics ever since. I just watched that film again: it must have been stunning on the big screen. TV doesn’t do it justice, and with the demise of big circuses, it’s also an amazing historical artifact. The movie isn’t art, like “High Noon,” and it’s not as entertaining a Gene, Donald and Debbie, but we will never see the like of “The Greatest Show on Earth,” the movie or the Ringling Bros. Barnum and Bailey Circus again. I’m grateful to C.B. for making it. (And that train wreck is amazing!)

1. Now he tells us? In her review of a new book about President Andrew Johnson, the New York Times’ Jennifer Szalai concludes,

“But when Johnson was eventually impeached, it wasn’t for his subversion of Reconstruction; it was for failing to obtain Congressional approval before he fired his secretary of war. The articles of impeachment were “dryly legalistic,” almost all of them focused on violations of the Tenure of Office Act, passed by Congress just the year before. Republicans were trying to portray Johnson as a lawbreaker while studiously avoiding the matter of race. This fixation on technicalities, Levine says, “allowed Congress to impeach Johnson not for doing harm to hundreds of thousands of Black people in the South but for firing a white man….The impeachers may have been trying to be pragmatic, but playing it safe didn’t work; Johnson prevailed by a single vote. As one of his biographers, Hans Trefousse, once put it: ‘If you impeach for reasons that are not the real reasons, you really can’t win.’”

Yesterday I wrote about how the Times and others continue to reference Donald Trump in every negative context imaginable. What does it tell us that when the topic screams out for a Trump analogy that reflects poorly on his attackers, he isn’t mentioned at all?

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Comment Of The Day:”Ethics Hero: Prof. Jonathan Turley (And The Indefensible Whitewash Of The Shooting Of Ashli Babbitt), Part 1″

/ Jack Marshall / 21 Comments

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As usual when we discuss policing ethics here, the commentary of Jim Hodgson, who actually knows what he is talking about in that field is especially welcome and enlightening. Here is his Comment of the Day on the post, “Ethics Hero: Prof. Jonathan Turley (And The Indefensible Whitewash Of The Shooting Of Ashli Babbitt), Part 1″…

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Three things:

First, I have worked in a crowd-control team facing rioters, and while I had no doubt there were people in the crowds who wanted to harm us, regardless of the the fact that they were unarmed, we used the less-lethal force options at our disposal (riot shields, 36″ riot batons, tear gas) and the crowd control tactics we had learned, to move and disperse the rioters without using deadly force. For me, the January 6th riot seems to be a colossal failure to anticipate and plan for events which were, at the very least foreseeable, and according to some reports, fully expected to occur. With all the demonstrations and protests that occur in DC, I would expect every law enforcement agency in the area to be well-trained in crowd control, and well-equipped to deal with rioters, with comprehensive plans in place.

It remains to be seen what less-lethal force options were available to Capitol Police officers inside the building, but the fact remains that the officer in question was photographed while poised with gun drawn and finger on the trigger, apparently well before the nature of the threat from the rioters was known to any degree of certainty. If rioters had violently fought their way through a variety of defenses including less-lethal force options effectively deployed against them, it would be easier to conclude that a serious threat was posed. But since the rioters gained entry with relatively minimal resistance, no deployment of less-lethal force, and in some cases it seems were even invited into sensitive areas, the “lethal threat” conclusion seems strained. But, if your only tool is a hammer, everything looks like a nail.

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I Trusted The Science, And All I Got Was This Lousy T-Shirt!

/ Jack Marshall / 10 Comments

Idiot T-Shirt

For more than a decade, I told incoming members of the D.C. Bar as part of their mandatory ethics training that such sessions as mine were essential to making their ethics alarms ring. To support that thesis, I related the finding of research performed by behavioral economist Dan Ariely when he was at M.I.T. Ariely created an experiment that was the most publicized part of his best-selling book “Predictably Irrational,” giving Harvard Business School students a test that had an obvious way to cheat built into it and offering a cash reward for the students who got the highest scores. He tracked how many students, with that incentive to be unethical, cheated. He also varied the experiment by asking some students to do simple tasks before they took the test: name five baseball teams, or state capitals, or U.S. Presidents.

None of these pre-test questions had any effect on the students’ likelihood of cheating, except for one question, which had a dramatic effect.  He discovered that students who were asked to recite a few of the Ten Commandments, unlike any of the other groups, never cheated at all. Never. None of them. Ariely told an NPR interviewer that he had periodically repeated the experiment elsewhere, with the same results. No individual who was asked to search his memory for a few of the Ten Commandments has ever cheated on Ariely’s test, though the percentage of cheaters among the rest of the testees is consistently in double figures. This result has held true, he said, regardless of the individual’s faith, ethnic background, or even whether they could name one Commandment correctly.

The classic moral rules, he concluded, reminded the students to consider right and wrong. It wasn’t the content of the Commandments that affected them, but what they represent: being good, or one culture’s formula for doing good. The phenomenon is called priming, and Ariely’s research eventually made me decide to start “The Ethics Scoreboard” and later this ethics blog.

Priming is a superb way to make sure your ethics alarms are turned on and in working order. All of us go through life focused on what ethicist call “non-ethical considerations,” the human motivations, emotions, needs and desires that drive us in everything they do—love, lust, greed, ambition, fear, ego, anger, passion…wanting that promotion, the new car, the compliment, fame, power. Good people do bad things because at the moment they are unethical, they aren’t thinking about ethics. If they were, they wouldn’t engage in the misconduct, because they would be “primed” and their ethics alarms would sound in time to stop them.

I still believe that the priming theory is sound, but it looks like Ariely’s alleged proof of the phenomenon can’t be trusted, because he can’t be trusted. Last week, an in-depth statistical analysis showed that a data set from one of the professor’s 2012 papers was fraudulent. That study had apparently demonstrated that people were more honest about how much mileage on their car if they had to sign a statement pledging that the number was accurate before they reported the mileage, rather than signing at the bottom of the page. Oops! No such study had ever been done,, and the “data” was produced using a random number generator.

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The Big Lies Continue

/ Jack Marshall / 10 Comments

I was going to retire the post collecting the Big Lies used to undermine the Trump Presidency, and now I’m considering updating them. In addition to still flogging old ones (Trump is a racist; Trump is a threat to democracy) at least three newer Big Lies are being weaponized by “the resistance”/Democratic Party/ mainstream media (The Axis of Unethical Conduct), because they think Trump Derangement can save them from accountability for putting Joe Biden in the White House. It had to be done, you see, because Trump is EVIL! EVIL!!!

The three Big Lies are the last one added, #9 “Trump’s Mishandling Of The Pandemic Killed People” and two not on the current list: “Trump incited an insurrection” and “Trump is responsible for the disaster in Afghanistan.” In order to bolster these lies, all useful to try to impugn Republicans and conservatives who still support Trump and to try to poison public opinion sufficiently that even Kamala Harris might defeat Trump if he runs in 2024, the Democrats and their allies routinely drag his name into every negative context imaginable. It is like subliminal brain-washing or hypnotism: Trump is dangerous! Trump is racist! Trump is the cause of all that is going wrong now! Everything is his fault, and the fault of all those fascist conservatives and racist deplorable who supported him!”

This mantra turns up everywhere. Tamsin Shaw, a professor of European and Mediterranean studies and philosophy at N.Y.U recenly reviewed “Dirty Work,” a non-fiction book about the unpleasant and ethically-troubling jobs in America. He includes this at the end of his review:

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New Category! “Most Innocent And Fair Quote Of The Month That Gets Used To Tar The Speaker As A Racist And Destroy Her Career”: Former ESPN Rachel Nichols

/ Jack Marshall / 19 Comments

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“I wish Maria Taylor all the success in the world — she covers football, she covers basketball. If you need to give her more things to do because you are feeling pressure about your crappy longtime record on diversity — which, by the way, I know personally from the female side of it — like, go for it. Just find it somewhere else. You are not going to find it from me or taking my thing away.”

—-ESPN sideline reporter Rachel Nichols in a phone conversation nearly a year ago after learning that she would not host coverage during the 2020 N.B.A. finals, as she had been expecting.

The phone call, unbeknownst to her, was being recorded, and someone leaked it to the ESPN brass and the public. The ethical issues raised by that conduct are clear and have been discussed here often: it is a dastardly thing to do, a breach of basic Golden Rule ethics, and indefensible because it creates harm to all involved. But that’s not the issue at hand.

After the video was leaked, many black ESPN employees told one another that it confirmed their suspicions that outwardly supportive white people talk differently behind closed doors. Nichols, seeing the ominous handwriting on the wall, tried to apologize to Taylor with texts and phone calls. Taylor did not respond. Meanwhile, ESPN employees turned against Nichols, whom they perceived as indulging in a “common criticism used by white workers in many workplaces to disparage nonwhite colleagues” when she suggested that “Taylor was offered the hosting job only because of her race, not because she was the best person for the job.”

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Sunday Ethics Notes, 9/29/2021, And Does Ethics Analysis That Nobody Reads In The Forest Make Any Difference?

/ Jack Marshall / 25 Comments

Tree falls no sound

Don’t mind me, it’s just that I’ve been feeling like I’m wasting my time lately….

1. Please stop sending me links to whatever perpetually disgusting and hypocritical HBO comic Bill Maher has said because he appears to be courageously buck woke cant and the boring partisan spin of almost every other TV comedian. Now he’s criticizing progressives because he’s smart enough to figure out (though they haven’t) that they completely beclowned themselves by hitching their credibility to Joe Biden and Kamala Harris. The King of Smug isn’t nearly as smart as he thinks he is, but he’s smart enough to see that the smarter rats will soon be fleeing the sinking ship. It doesn’t matter: Maher was one of the most vicious hate-mongers against President Trump and Republicans; he also advocated wrecking the economy to get rid of a President he didn’t like. Maher isn’t really a brave iconoclast, he just plays one on TV. I doubt that he has any principles that he wouldn’t discard without blinking, if it brought him some publicity and lengthened his already inexplicably long career as a public asshole.

2. Now, that doesn’t mean that Bill’s assessment isn’t correct for once, just that he aided and abetted those who stuck the country with Joe and Kamala and is therefore ethically estopped from flip-flopping now. Every single institution and individual who was part of this reckless, cynical and transparently irresponsible fiasco should be mocked, shamed, harangued and humiliated until death, especially the voters. Charles Cooke, a conservative NeverTrumper with the similarly Trump-bashing National Review, has written a very accurate essay on exactly what Democrats did, “that, in a desperate attempt to remove President Trump from office, the Democrats tailored themselves a straitjacket from which they will struggle mightily to escape.” They also stuck the United States and its citizens with a President and a Vice-President they knew were unfit for office so the party could gain power, placing the nation and its welfare at risk. Just like Bill Maher stating that wrecking the economy and putting Americans out of work was “worth it” if it resulted in Trump’s defeat, the Democrats (and the news media, but I repeat myself) decided it was worth it to place the nation’s fate for four years in the hands of what Cooke calls, in an understatement, “a pair of losers.” And they knew that was what they were doing. It is one of the worst betrayals of trust any American political party has ever engaged in.

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Ethics Hero: Prof. Jonathan Turley (And The Indefensible Whitewash Of The Shooting Of Ashli Babbitt)

/ Jack Marshall / 57 Comments

michael-byrd-ashli-babbitt

Ethics Alarms already noted Jonathan Turley’s accurate and searing condemnation of the outrageous and sinister double standard applied to Lt. Michael Byrd, the Capitol Police officer who shot and killed Ashli Babbitt on January 6. Incredibly, the blatantly partisan wound on the illusion of our justice system’s integrity got worse after Turley’s first post on the topic. The investigation of the mind-meltingly stupid riot concluded that it was not coordinated, was not incited by Donald Trump, and was not an “insurrection,” just as any objective and reasonably informed citizen could have figured out by themselves. Then Byrd, whose identity had been shielded from the public (and oddly unrevealed by the mainstream media, who could have discovered and published it if they were still practicing journalism), gave a nauseating NBC interview in which he pronounced himself a hero, made the absurd claim that he had saved untold lives by shooting an unarmed woman, and, most significantly, revealed that he had no legal basis to use deadly force. (He also revealed himself to be unfit to be trusted with a weapon.)

This prompted Turley to write his second attack on the politicized cover-up. Turley, despite the names he is called by the aspiring totalitarians of the Far Left and the Trump-Deranged, is a Democrat and a lifetime liberal. Because of what can only be an abundance of character, he has not had his values warped by being marinated in the campus culture of his typically uber-woke institution, George Washington University. Not had he shied away from disparaging the illiberal and anit-Democratic antics of the Axis of Unethical Conduct (“the resistance,” Democrats and the mainstream media) during their four-plus year effort to destroy Donald Trump. He has been remarkably consistent, legally accurate, fair, and right in this, and has paid the price.

In the Virtues, Values and Duties page here (Have you ever visited? You should you know…) I list what I call “The Seven Enabling Virtues.” These are character traits that often are necessary to allow us to be ethical:

  1. COURAGE
  2. FORTITUDE
  3. VALOR
  4. SACRIFICE
  5. HONOR
  6. HUMILITY
  7. FORGIVENESS

Turley annoys me sometimes with his professorial reserve (developments that should send American screaming into the streets are just “troubling” or “problematical” in his typical lexicon), but he is well-girded in all of the seven. Every time he goes against the prevailing progressive narrative, he is called a Trumpist, a phony, a Nazi, and worse. His integrity and dedication to truth-telling has undoubtedly cost him speaking gigs, book sales and TV interviews on any network but Fox. Yet Turley has not backed down.

Turley’s recent article in The Hill regarding the Babbitt shooting is superb.

Highlights:

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Ethics Flea Market, 8/28/21: An Atheist Chaplain And Other Exotica [With Missing Link!]

/ Jack Marshall / 9 Comments

flea market

1. As with the Giuliani suspension, I have grave doubts whether this ruling is apolitical. Judge Parker, a Michigan federal district judge, issued a 110-page order sanctioning Trump lawyers Lin Wood, Sidney Powell, and others for their filing and advocacy of a federal lawsuit that was one of several law suits alleging fraud and illegality in the handling of the 2020 election. The full opinion here, but lawyer Bruce Faughan has done a neat cut and paste job to produce a Reader’s Digest condensed version:

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a pleading, written motion, or other paper “expressly authorize[d] the signing, filing, submitting or later advocating of the offending paper” and “shares responsibility with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

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