Sunday Ethics Reflections, 11/7/2021: An Ethics Hero Passes (#5), The “Otter Defense,” And A Slippery Slope At Wounded Knee…


1. [Insert boring double standard comment here] This was already mentioned in another comment thread today, but attention must be paid: on MSNBC, “The Cross Connection’s” host Tiffany Cross brought on African-American lawyer and pundit Ellie Mystal, who has one of the more disturbing Ethics Alarms rap sheets. Mystal finally got too extreme for “Above the Law,” as difficult as that is, and now hangs his web shingle out at the far, far Left “The Nation.”

Cross asked Ellie about the gun-rights case currently before the Supreme Court [Item#2], where the question is whether a state (New York) can forbid citizens from carrying guns outside the home. Somehow, he used the question to justify stating that white people primarily care about “using their guns on black people and getting away with it. That’s what they want. That’s what they actually are in it for.” Cross, who had the same responsibility as any TV host whose guest makes a flat-out racist statement about any race or group, didn’t object to Mystal’s despicable assertion or question it. As Sir Thomas More reminded his jurors during his trial for treason, the maxim of the law is that silence denotes consent.

Anti-white racism is more or less routine on MSNBC, but this was more flagrant than usual, especially after Cross introduced Mystal as “our audience favorite,” and her “pal.” Remember, Mystal is a graduate of Harvard College and Harvard Law School, They sure did him a lot of good.

2. Speaking of that gun rights case, the questioning from the justices last week had all listeners convinced that New York’s law requiring those seeking a license to carry a handgun in public to show a “proper cause” would be struck down, as a majority of justices felt that it imposes an unreasonable restriction on the rights guaranteed by the Second Amendment.

Essentially, Barbara D. Underwood, New York’s solicitor general, was unable to make a convincing argument that the right of a citizen to arm himself or herself for self-defense was more pressing in the home than out of it. “If the purpose of the Second Amendment is to allow people to protect themselves,” Chief Justice Roberts said, “that’s implicated when you’re in a high-crime area. It’s not implicated when you’re out in the woods.” This exchange was part of the discussion over whether a permissible law could limit gun possession in “sensitive areas.” But what’s a sensitive area? And, as Justice Roberts summarized the question, “You don’t have to say, when you’re looking for a permit to speak on a street corner or whatever, that, you know, your speech is particularly important, so why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”

That also addresses one of the standard arguments of those who would ban semi-automatic weapons: a citizen doesn’t “need” such a powerful firearm. Yet the essence of liberty is that the citizen gets to decide what is needed in an individual case.

The guess here is that the Court will try to craft some narrow exceptions where a state can legitimately allow a gun ban, like sports stadiums. That, however, will not be an easy line to draw…

3. A perfect example of hindsight bias, and a slippery slope. As is so often the case, this unethical idea flows from Sen. Elizabeth Warren, and she’s playing Native American again. Sixteen members of Congress joined her in asking President Biden to use his executive authority to revoke Medals of Honor awarded to U.S. soldiers for the killings of members of the Lakota Sioux tribe, including unarmed women and children, during the infamous massacre at Wounded Knee, South Dakota, in 1890. This is cheap grandstanding and a terrible precedent if Biden agrees. The soldiers involved were following orders, and presumably did so with courage if the medals were awarded. Though this was an especially terrible military campaign, I see nothing stopping retroactive dishonoring of deceased veterans of other wars and battles, if public opinion or historical consensus changes. All medals for valor in the Vietnam war, for example, might be the targets of future rescinding efforts. (I’m surprised John Kerry didn’t think of it.)

Unless it is definitively determined that a medal of valor was awarded in error or as a result of fraud, the original judgment of the authorities making the determination should stand forever.

4. I wondered if her defense would try this approach...since her lawyers are desperate. Elizabeth Holmes faces a dozen counts of wire fraud and conspiracy to commit wire fraud, and she has pleaded not guilty, because that’s what high level scamsters do. She and her company Theranos saw their investors’ money vanish with the company going belly-up in 2018 once her claims about its innovative blood-testing technology were shown to be false. The trial has shown that Theranos added pharmaceutical company logos to validation reports indicating the pharmaceutical firms had endorsed its technology. They had not. Theranos also claimed that it would bring in $140 million in revenue in 2014 when it had none. It presented faked demos of its blood-testing machines to potential investors. Nevertheless, Holmes’ lawyers are using the “Otter Defense”…

Yes, they really are. It’s a true “blame the victim” strategy, literally “How could you have been so stupid as to trust my client?” They think they might convince the jury that the investors were the ones at fault for not sufficiently investigating Holmes’ claims. Lance Wade, a lawyer for Holmes, sarcastically asked one investment professional if she was familiar with the concept of due diligence. “You understand that’s a typical thing to do in investing?” he said. Defense lawyers similarly pushed Wade Miquelon, the former chief financial officer of Walgreens, to admit that he didn’t know if his company had ever tested one of Theranos’s devices before entering into a partnership with Holmes. Another major investor was made to concede that he never directly asked Holmes whether a pharmaceutical company had written the validation report.

Well, it worked for Delta House…

5. I’m also wondering if I should designate the late Aaron Feuerstein as an Ethics Hero Emeritus. Feuerstein, a Massachusetts industrialist who became a national hero briefly in 1995, died last week in Boston. He was 95.

Feuerstein’s company, Malden Mills, was one of the last large textile companies in Massachusetts. Most other companies in the field, faced with competition from lower-wage states and cheap imports, had either closed or moved production out of the state, leaving unemployment and ruined communities in their wake.

Malden Mills, located just outside the one-time mill center of Lawrence, refused to abandon the state. Feuerstein stubbornly wouldn’t move, and his company even prospered thanks to its proprietary fabric Polartec, which it sold to clothing brands like L.L. Bean. 1995 was the best year for the company, with sales of more than $400 million. But as the year neared its end, on the night of December 11, a boiler in one of the factory’s five plants exploded, knocking out the state-of-the-art sprinkler system Feuerstein had just installed. 45-mile-an-hour winds blew the raging fire to three other buildings, and the inferno burned for 16 hours. All but one of the plants were devastated.

Three days later, most of the company’s 1,400 workers arrived at the smoldering ruins to receive when they assumed would be their final paychecks from Malden Mills. Aaron Feuerstein shocked them by handing out holiday bonuses. Then he really stunned them, pledging to immediately reopen as much of the plant as he could, replace the buildings destroyed and continue to pay the idled workers for a month. He extended that pledge once, then did so again. He and his inspired workers got the surviving building, the finishing plant, back in operation in a week. Feuerstein bought an empty factory nearby to hold new equipment, and by early January, hundreds of his employees were back at work. Twenty months late,r he opened a new $130 million complex.

Feuerstein’s response to the disaster made him a celebrity. He received many civic awards and honorary degrees, and he used his new-found fame to condemn companies that refused to prioritize their workers’ interests. Eventually, however, the old-style capitalists prevailed. Feuerstein’s courageous rebuilding efforts left Malden Mills with too much debt. In 2001 the company went into bankrupt. Its restructuring plan two years later forced Feuerstein out of management roles. His attempt to buy his company back failed, and he left in 2004. Malden Mills did not survive for long after that. The new owners moved Polartec production to New Hampshire and Tennessee, and in December 2015, on the eve of the 20th anniversary of the fire, Malden Mills announced it was shutting down for good.

8 thoughts on “Sunday Ethics Reflections, 11/7/2021: An Ethics Hero Passes (#5), The “Otter Defense,” And A Slippery Slope At Wounded Knee…

  1. The Feuerstein story is sort of echoed in “Other People’s Money” (, only the play and the film came first (“life imitates art”, attributed to Oscar Wilde). You can actually find transcripts of Gregory Peck’s and Danny DeVito’s arguments against and for closure. Interestingly, those are both (a.) true reflections of understandings that were around, and (b.) both wrong through serious omissions. Textile industries of that sort only ever sprang up in Massachusetts and Lancashire because of market distortions, and they were only ever closed because of other market distortions – all allowed or even pushed by vested interests, interests which changed over time. (The sound decision approach would have treated the costs of earlier decisions as sunk costs and kept the results.)

  2. 1. As you point out, anti-white racism is par for the course on MSNBC. This guy is no different than any other racist of any other stripe that you’d run into at some gathering of like-minded people. However, because of what happened in Minneapolis last year, he gets a pass, for now. I don’t buy that the George Floyd thing has irrevocably changed American society. At some point white people are going to get fed up with the shame and blame, and no one except other racists is going to tolerate this naked hatred anymore, any more than you would tolerate someone coming on the air and saying it was time to send the black people back to Africa.

    2. The New York of the Cuomos and Spitzer and Patterson is about to get a very powerful jolt from the Supreme Court. I say good. I am sick and tired of the Empire State being an imperial state of liberal fascism in the name of satisfying the egos of a few politicians who are, at their base, just school bullies who never got the crap beaten out of them. That goes especially for Spitzer, and his bullying talk of being a f****** steamroller rolling right over anyone who will get in his way. Except now he’s the one who got pressed flat.

    3. This isn’t a new idea. Even Glenn Beck floated this idea in one of his books. The fact is that the Battle of Wounded Knee was incredibly lopsided, didn’t need to happen, and inflicted some horrifying casualties on non-combatants. It was just one more extremely brutal battle during the winning of the West, when there were a lot of brutal battles which could only go one way. It’s simply a fact that when a less developed society runs into a more developed society the lesser developed society’s days are numbered. However, you are absolutely right in your assessment of the precedent this would set. It would not stop with Vietnam either. You would have liberal or anti-military politicians combing the records of every conflict this nation has ever been in seeking honors that don’t come up to today’s standards to strip. After all, or so goes the reasoning, every American soldier, from the unknown minute man who fired the shot heard ’round the world to the last American soldier to leave Afghanistan, should have been able to look ahead 200 plus years and see that one day the death of a lifetime petty criminal, who was resisting arrest and drugged up, at the hands of a heavy handed police officer would open this nation’s eyes to just how bad it was. But hey, why stop with medals? Why not start seriously taking down every monument or plaque that honors anyone or anything that the woke don’t agree with? This nation is dotted with battlefields where the woke might have an issue with what happened there, and I don’t just mean the Civil War battlefields, although everything there has to go, starting with Fredericksburg and Chancellorsville. Everything, from the monument at Bushy Run south of Pittsburgh, where the Black Watch and the Royal Americans crushed Pontiac’s rebellion, through Horseshoe Bend where Andrew Jackson defeated the Creeks, through the Alamo, which was all about a land grab, on up to that mounted special forces soldier near ground zero who owns the American response to 9/11, it’s all got to go. The next generation of children will not grow up honoring men who did nothing but kill and abuse people of color, whether it was in the Eastern woodlands of the United States or the desert of Iraq. They will grow up honoring their victims and saying they are sorry for what happened. Then maybe somehow, someday, somewhere, that generation will settle with those this nation has abused and make appropriate restitution. It’s just more about having a monopoly on honor.

    4. Don’t be so gullible, McFly!

    5. It’s great that this guy was able to save a lot of people’s livelihoods. However, in the end, he was really just fighting a rear guard action against the forces of capitalism going the way they always go. The business of business is business, not charity. Businesses do owe their workers a fair wage and competitive benefits (otherwise they won’t have good workers for very long), however, they also owe their customers reasonable service and their investors a reasonable profit (otherwise they won’t have either of those for very long either). Frankly, I’m surprised either survives very well in the current climate, where one party hates the workers (got to keep those lazy weasels on task) and wants to boost the business owners as wealth generators, and the other party hates the business owners (capitalist dogs) and wants to boost the workers, but not so far that they become independent.

  3. 1. Remember, Mystal is a graduate of Harvard College and Harvard Law School, They sure did him a lot of good.

    Remember how racist Harvard insists that it is? Perhaps that explains it.

    2. The guess here is that the Court will try to craft some narrow exceptions where a state can legitimately allow a gun ban, like sports stadiums.

    There is good news and bad news here. The questioning suggests the Court may do what is long overdue — place the Second Amendment in the same class as the First, and subject it to strict scrutiny. We should look for “compelling interest” in the decision, which arguably could be used to justify the exception(s) you describe.

    But believe me, that would be a good thing, and should not go unnoticed. If the court applies strict scrutiny, it will telegraph to the circuit and appeals courts that “legitimate interests” need no longer apply. That would be a HUGE win for the Constitution and the 2A’s status as a right. Even the 1A has some narrow exceptions.

    3. Unless it is definitively determined that a medal of valor was awarded in error or as a result of fraud, the original judgment of the authorities making the determination should stand forever.

    Unfortunately, if we can tear down statues and rename buildings, taking away medals and honors is the next logical step, isn’t it?

    5. Great story. I vote yes.

  4. #5 If I remember correctly, he also gave interest free loans to employees in need knowing that some of those loans would never be paid back.

  5. Somehow, he used the question to justify stating that white people primarily care about “using their guns on black people and getting away with it. That’s what they want. That’s what they actually are in it for.”

    Here is more from the article that he wrote on the Nation.

    Ammosexuals may argue that lethal phallic symbols are the only things that compensate for their feelings of fear, but I know who these people will be shooting at. It’ll be me. It’ll be my kids. I have the right to ride home from a Mets game without worrying that a hysterical white man is going to shoot me for breathing on him with my broad West Indian nose.

    Look, I’m not naive. I’ve been a Black man in America all my life. I was only 6 years old when [Bernhard] Goetz shot those Black people, but I don’t remember not knowing what he did, because my parents made sure I was aware of what white men are allowed to do to me in this country. The Supreme Court wants to make it even easier for them to do it, without so much as an illegal weapons charge, and there’s nothing I can do about that. But if New York can pass a bill to reinstate through a back door what minimal protections the Supreme Court is poised to take away, it has to do it.

    Conservatives control the Supreme Court, and with that power they intend to keep us living in the most violent wealthy country on Earth. The few states Democrats control must rage, rage against the dying of the light.

    Maybe Mystal should look at statistics at who is committing the most murders of Black people in New York City.

    His fear is not that of the street thug or the gangbanger, but of those who want to protect themselves from the street thug or the gangbanger.

    Conservative argued that New York should change its laws to say the state “shall” issue conceal carry permits to any “ordinary” citizen (so, not ex-felons), instead of making them show “cause” to get one. It would take the discretion out of the system and basically mean that anybody can get a permit if they fill out a form. The conservative justices noted that many other states already do this, and that New York gives out hunting licenses on a “shall” issue basis.

    Mystal has a history of accusing “the system” of being racist, and yet, trusts discretion to this same “system”.

    I have been getting the impression that these woke people pretend, or even believe, that cops magically transform from Klansmen with Badges to Freedom Riders when they enforce gun control laws.

    • In close to 90% of crimes committed by blacks, the victims are black too. However, those don’t make the evening news, except maybe as a quick mention, or if a child was involved. It’s generally not considered that big of a deal when one banger kills another over money or over a woman. It’s not that big of a deal if a black guy robs another black guy’s store. Heck, maybe even the locals say the storeowner brought it on himself that time he told the robber, now 18-19, “Hey, kid! You’re loitering. Either buy something or get out!” when he was 12ish and couldn’t do much about it. No one really even cares that much if some honest black guy going home from work gets caught in the crossfire between bangers. There’s no political capital to be made from it, and the left and the race hucksters can’t do anything with it- there’s really no one other than black people to blame in that circumstance.

      However, change the color of the shooter, and suddenly it’s a VERY big deal. Even if it’s something relatively prosaic, like a white gangster (i.e. the West Side Boys) shooting a black gangster who’s entered an area that’s understood to be West Side Boys’ territory, or over a personal, non-racial insult, it’s automatically assumed to be racist. If a white store owner fires upon gangsters trying to rob him, it suddenly becomes “why did he do that? A day’s receipts aren’t worth taking a young black man’s life.” And of course no white police officer is ever allowed to use force on a black man without being accused of racism. BTW, cops don’t transform into Freedom Riders when they enforce gun control laws. They only become temporary allies when they enforce them against white people, or business owners trying to fend off black criminals.

      Try this scenario out: Say there’s a robbery by three armed black men during which two people are wounded. The local detective squad gets a tip that the same three men (identified through camera footage) are hiding out in a certain house in the precinct. So they go there, and of course the lights go out as soon as whoever is in there figures out the cops are coming. Two white detectives go in from the front, and, as they search around, maybe try to get the lights on (the use of flashlights could make them targets), one black suspect books out the back door. One detective pursues him into the dark back yard, gun drawn. He yells to the fleeing suspect to stop, but before he can catch up, he stumbles and bangs his knee on some junk he can’t see. He shouts in pain and reflexively fires his service weapon. Other officers covering the back door hear the yell and the shot, and, thinking their guy has been shot by the fleeing suspect, they open fire, fatally wounding the suspect. Subsequently, once the lights are on, the other suspects are cornered and arrested. However, neither the slain suspect nor the others are armed, and a search of the house turns up no weapons or ammo. Who’s going to get the blame? Who SHOULD get the blame?

  6. On 5… I’m not sure.

    Intentions matter, but so does competence, and while it’s certainly a feel good story, and I wish that more employers treated their employees like that, I’m struggling on this story because competence matters too. It’s one thing if you act empathetically when you can afford it, it’s another if it ends up bankrupting you. Feuerstein managed to stave off the closure of his factory by 25 years, which is nothing to scoff at, that was probably long enough for most of the employee cohort to retire… But the factory still closed, and I wonder if it could have been more of a going concern if he’d been a little more traditional in his business practices.

  7. I wish Elie Mystal didn’t look like a dead ringer for Eddie Murphy dressed up in a fat suit in the remake of “The Nutty Professor.”

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