Character

Scenes From The Ethics Apocalypse

/ Jack Marshall / 48 Comments

In this morning’s warm-up, I refereed to the anti-Kavanaugh tantrum.  I’m watching the extended tantrum on TV right now.Look! Here are furious CNN Democratic operatives (that is, CNN’s reporters) proclaiming the collapse of civilization because a completely standard issue judicial conservative with strong credentials was nominated by the elected President and confirmed as the Constitution directs is intolerable because the Democratic Party’s unconscionable tactics of personal destruction didn’t work, and because the new cultural standard that a man is guilty if accused of sexual assault by a woman though she has no supporting evidence whatsoever, and that high school misconduct is more important than adult rectitude. (That’s not how they describe it, of course, but the reality of what was “going on here”) And there are angry protesters who haven’t read a single Kavanaugh opinion, but who are equally convinced that he is unqualified to be Supreme Court Justice and a “sexual predator.”

Boy, am I sick of writing about this stuff, and boy, am I depressed that so many people have had their minds and ethics reduced to a vile, smelly, infectious goo. I can’t compose any more essays right now without snapping and running amuck in the streets wielding a deadly frozen pork roll  and clubbing people to death. (I can’t find my Hank Aaron baseball bat.) So with your leave, I’m going to note some more recent points in this nightmare Seurat painting, occasionally commenting, sometimes leaving it to my readers’ abundant intelligence to figure out what’s wrong on their own. Here we go…I’ll stop either when my head explodes, or the Red Sox start playing the Yankees: Continue reading →

OK, Facebook Friends, Let’s Pretend It Isn’t Kavanaugh…Let’s Pretend It’s ME.

/ Jack Marshall / 91 Comments

I’ve had this post composed in my head for some time, and have hesitated to complete it. I really don’t like upsetting people I care about, much as some might think otherwise.

However, there has been such escalating fanaticism on Facebook (and elsewhere, of course), ringing through the echo chamber, about how Dr. Ford must be “believed” and how the judge is a “serial rapist,” I have to ask: would you all treat me this way? Would you react to seeing my career and reputation derailed by the sudden appearance of a high school acquaintance who announces that she has only recently come to realize that I had sexually assaulted her at a party? After hearing my denials, would you decided to determine that her account, with no verification by any witnesses, with the large amount of time past and with absolutely nothing in my record, professional or private life, to suggest any such proclivities, should be sufficient to have me labelled as untrustworthy?

Don’t resort to the “but he’s going to sit on the Supreme Court” trick. I’m a professional ethicist: an accusation that is widely metastasized into doubts about my character, including using it to tar me a liar, would be just as ruinous to me as the late hit on Kavanaugh is disastrous to him. There is no “well, this is wrong UNLESS its a Supreme Court nominee” principle: that’s a pure rationalization. No, if the Ford accusation, with all of its flaws, its basis in fading and rediscovered memories, the fact that it involved juveniles, all of that, and the objective professional observations by Rachel Mitchell that found several reasons why Ford’s testimony was incredible, is still enough to allow you to condemn Judge Kavanaugh, then it must be enough for you to condemn me too.

But I’ll make it easier for you: let’s say its me that is the current Supreme Court nominee, and me that your favorite party has condemned as a threat to civilization. (And lets assume that you haven’t read any of my judicial decisions either.) Continue reading →

Look! An Ethics Dunce Mob: 2,400+ Law Professors

/ Jack Marshall / 73 Comments

“My mind may be mush, but I can get 2400 colleagues to agree with me anyway!”

In the New York Times: The Senate Should Not Confirm Kavanaugh Signed, 2,400+ Law Professors

One of the most disillusioning aspects of the epic 2016 Post Election Ethics Train Wreck, the worst and most damaging of them all, has been the serial disgrace of one profession after another as they abused their public trust, ethics codes, core values, and expertise. Psychiatrists, physicians, lawyers, journalists, academics, educators, judges, elected officials, pundits, journalists, law enforcement officials and more: so many have sided with partisan mobs when the nature and mission of what makes them valuable society demand that the professionals  remain neutral and objective. Law professors have been particularly fond of disgracing themselves since President Trump’s election, and almost all of them are Democrats,  so seeing over 2400 of them sign a statement that can stand as a warning to all against taking pronouncements from this particular group of  legal academics seriously is hardly a shock.  It’s still discouraging.

What is unethical, as well as dumb, about this stunt, for stunt it is? Let us count the ways.

1. It is grandstanding and virtue signaling designed to mislead the public, and seed further division, if that’s possible. Every one of these professors can have their own individual opinion about the Kavanaugh nomination, but it is no better, or more influential, nor should it be, than yours or mine. They seek to increase their influence by amassing thousands of personal and biased opinions into a single loud one masquerading as a professional opinion, which it is not.

2. The number 2400 is inherently misleading. This isn’t close to a majority of the law professors in the country. It’s not close to a majority of the Democrats and progressives in the profession. Most of the public, however, doesn’t have continuing relationships at law schools, haven’t worked for them, haven’t graduated from one, or taught at one, like, say, me. The petition is designed to deceive. There are more than 20,000 law professors in US Law schools. Now we know at least 10% appear to be unfit to teach law.

3. The letter is completely irrelevant. Nobody in the Senate cares what a group of liberal law professors want. No Senator is going to read this opinion and say, “Oh, no! I guess I better vote against Kavanaugh: a boatload of professors I’ve never heard of think I should!” Continue reading →

Morning Ethics Warm-Up, 10/4/18: On Baseball, Mocking Ford, Apologies, and “Tax Schemes”

/ Jack Marshall / 48 Comments

Good Morning!

[BOY its been hard keeping up on ethics blogging between air travel, a balky laptop, seminars, the new firm and, most of all, ushering the Red Sox to a World Championship. Yesterday was classic: I had multiple posts composed in my head, and literally was never able to find time to work on them. I’m sorry. I’ll figure it out…]

1 Baseball ethics: The exciting Cubs-Rockies Wild Card elimination game was set up by the Colorado 12-0 win over the Washington Nationals on the final day of the season. Thus the Rockies ended the season in a tie with the Dodgers on top of the NL West, requiring one of the two tie-breaking games on Monday. These were ratings bonanzas for baseball and the networks showing them, leading to conspiracy theories regarding that last Rockies victory.  Max Scherzer, arguably the best pitcher in the league, was supposed to start the game fr Washington, and if he had, its safe to say that the Rockies would not have won 12-0, if at all. Reportedly he wanted to start the game, but the Nationals decided late to start the immortal Eric Fedde. Were they trying to give the game to the Rockies? Did orders come down from MLB to tank?

The theory makes no sense, because the suits and networks are always rooting for the big media centers and their teams to make it to the World Series. The Dodgers, Red Sox, Yankees and Cubs mean big ratings, and the Rockies posed a threat to the Dodgers and ended up eliminating the Cubs. Nonetheless, a team like the Nats, out of the race, running out the string, should have the professional integrity to go all out to win when a game is important to its opponent.

2. I’m not going to demand an apology, but they still owe me an apology. The Hill is reporting that…

Congressional investigators have confirmed that a top FBI official met with Democratic Party lawyers to talk about allegations of Donald Trump-Russia collusion weeks before the 2016 election, and before the bureau secured a search warrant targeting Trump’s campaign.

Former FBI general counsel James Baker met during the 2016 season with at least one attorney from Perkins Coie, the Democratic National Committee’s private law firm.

That’s the firm used by the DNC and Hillary Clinton’s campaign to secretly pay research firm Fusion GPS and Christopher Steele, a former British intelligence operative, to compile a dossier of uncorroborated raw intelligence alleging Trump and Moscow were colluding to hijack the presidential election.

The dossier, though mostly unverified, was then used by the FBI as the main evidence seeking a Foreign Intelligence Surveillance Act (FISA) warrant targeting the Trump campaign in the final days of the campaign.

This is not exactly surprising, but it ticks me off for personal reasons. Several left-leaning commenters here who I respected and gave a lot of attention, abandoned Ethics Alarms in high dudgeon because I continued to question the growing evidence that the entire Russian collusion investigation was rigged, partisan, illegal, and an effort to bring down an elected President using a corrupt and politicized FBI and Justice Department. Here was one exit speech, and from a friend:

“But I can’t allow my own tiny voice to be associated with this nonsense any longer. Being the “left” voice is one thing; being way out on the fringe is quite another, and I don’t think it’s me that has moved. I see far too many shades in our times now of McCarthyism (not Gene), George Wallace-ism, and autocracy. I’m deeply concerned about the continued health and well-being of our democratic institutions. I suspect Rod Rosenstein will soon have no recourse but to resign, and I’m doing something similar. I don’t want to be party to this hysterical of a dialogue (in my humble opinion).”

Continue reading →

Morning Ethics Warm-Up, 10/2/2018: Bigotry In, “Jeopardy” Out

/ Jack Marshall / 33 Comments

Good Morning.

I always play that clip when I need cheering up. It works, too.

1. How did we get to this sick, unethical and un-American place? The New York Times had an interview with America Ferrera in its book section. “Ugly Betty” was a long time ago, and I have no idea why Ferrera, a completely ordinary talent at best, has a career or is deemed important enough to warrant a profile, except that she is a professional Hispanic-American. The very fact that there are such celebrities and activists whose source of income is group advocacy is troubling, and she flagged an unethical quote that “inspires her” that is more unsettling still. She says,

“Brittney Cooper’s “Eloquent Rage: A Black Feminist Discovers Her Superpower.” It’s razor sharp and hilarious. There is so much about her analysis that I relate to and grapple with on a daily basis as a Latina feminist, particularly this point she makes: “When I talk about owning eloquent rage as your superpower, it comes with the clear caveat that Everyone is not worth your time or your rage. Black feminism taught me that. My job as a black feminist is to love black women and girls. Period.” I say hear, hear!”

“Hear, hear” WHAT? Cooper is essentially saying that only her tribes—women, race, nation of origin—are worth her time or care. This is an unethical point of view that feeds division, distrust and hate. Caring is a core ethical value that includes sympathy, empathy and beneficence. “I only care about people like me” is a selfish, ugly sentiment, and Ferrera is extolling it.

Until people like Ferrera and Cooper stop proclaiming sentiments that would be properly regarded as racist or sexist with a change of color or gender, the nation’s society will continue to be roiled by division.

2. From the “What were they thinking?” files: Now this sounds like a Saturday Night Live skit: Somebody had the brilliant idea of hiring Alex Trebek, the “Jeopardy!” host (after Art Fleming), to moderate the televised debate between Pennsylvania Gov. Tom Wolf (D) and his Republican challenger, Scott Wagner. Trebek is a smart guy and quick on his feet, but the problem is one of appearances rather than competence. Reducing a political debate to the status of a game show is the kind of foolish dumbing down and public misinformation that leads to distortions like a Senate confirmation hearing being called a “job interview.” The theory was that more people would watch the debate with a slick MC involved. Heck, why not go all the way? Use the cast of “Modern Family” or zombies from “The Walking Dead” to ask questions. Better yet, how about Kanye West?

To make things worse, Trebek seemed to think the debate was now about him, which isn’t too much of a leap, since the organizers didn’t hire him to do a Martha Raddatz impression presumably. After joking that the only thing with a lower approval rating than the Pennsylvania legislature was the Catholic Church, he decided to inform the audience about his own views, saying,  “I was born and raised in the Catholic Church and I’m just as ticked off as everybody else is over what has happened with the church.When I was a young teenager I attended a Catholic boarding school run by the Oblates of Mary Immaculate. Two-hundred and fifty students, other boys and I, spent three years sharing the same accommodations 24/7 with 44 priests and not once in those three years was there any sexual misbehavior. Now boys are pretty sharp, we talk, we would have known. So I believe that there are Catholic priests out there who are able to minister to their congregations without preying — that’s P-R-E-Y — on the young people.”

Who cares what you think, Alex? The debate is supposed to inform us about the candidates. Continue reading →

Morning Ethics Warm-Up, 10/1/2018: Of Boies, Drunks And Maryland…

/ Jack Marshall / 7 Comments

Welcome, October!

In vaudeville terms, ethically speaking, this is like following a dog act…

1.  More on the strange legal ethics of David Boies. I am currently teaching the David Boies-Harvey Weinstein-New York Times fiasco as a main feature of all of my legal ethics seminars. (You can read the original post here) To its credit, the Times recently did a feature on Boies including his side of the story, which is, I found, not very mitigating. It also had this passage:

For his part, Mr. Weinstein showered Mr. Boies with invitations for opening-night parties and celebrity-studded charity events. The Weinstein Company put one of Mr. Boies’s daughters in the hit 2012 film “Silver Linings Playbook,” and also distributed a movie she produced, “Jane Got a Gun.” Along with the son of one of his law partners, Mr. Boies formed a film production company, which invested $5 million each in two Weinstein films, “Gold” and “The Upside,” both flops.

These entanglements may have colored Mr. Boies’s objectivity and judgment about Mr. Weinstein. But they weren’t, in the legal sense, a conflict of interest. They more closely aligned Mr. Boies’s interest with his client’s, which as far as the bar is concerned is a good thing.

I don’t know what bar the Times is talking about, because a lawyer “aligning” aclient’s interests with a client is not “a good thing,” but a condition that interferes with a lawyer’s independence and objectivity. It creates a personal conflict of interest that not only has to be waived by the client, but which the lawyer must reasonably believe will not affect his representation.

This comments to ABA Model Rule 1.8 make it very clear that significant gifts to clients (in this I would include gifts and benefits to family members) are ethically perilous at best:

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except where the lawyer is related to the client as set forth in paragraph (c).

Why don’t bars just declare lawyers accepting significant gifts and favors from clients as inherent conflicts of interest that reek of the appearance of impropriety?

The answer is that lawyers like getting gifts from rich clients, and lawyer associations tend not to interfere with things lawyers like to do. Continue reading →

Sunday Morning Ethics Warm-Up, 9/30/18: Gay Bashing, A Stupid Social Experiment, And The Brett Kavanaugh Nomination Ethics Train Wreck Keeps Rolling Along…

/ Jack Marshall / 21 Comments

Good Morning!

It’s the last day of the regular season for baseball, or should be: there could be two tie-breakers tomorrow, and they are officially considered part of the season. There were more baseball ethics posts this year than ever before. You can review them here.

1. And now for something completely stupid. I was temped to make this a free-standing post, but it triggered my stupid alarm, and doesn’t deserve it.

In Los Angeles, Boguslaw Matlak  and Laura Quijano decided to stage a “social experiment” to determine whether bystanders would act to protect an  endangered child. As their hidden cameras ran, they stuffed their 3-year-old son Leo into the trunk of their car. In truth, the back of the trunk had been rigged so Leo could climb into the back seat. He was in no danger.

“I was thinking maybe I should do a video to show people that they should do something about it when they see something wrong, to get involved,” Matlak said.  They got involved, all right. Witnesses called the cops, who arrested the couple and took Leo into protective custody.  The Illinois Department of Children and Family Services  placed the child with a relative. For the last three weeks, the couple has been trying to get him back.

“They are hurting my son emotionally at this point,” Quijano told reporters. “He’s not home with his parents who love him very much and what else do they want from us? I just don’t understand at this point.”

The agency recently informed the parents that it would would be returning Leo to their custody. Matlak  now faces one count of misdemeanor child endangerment.

Observations:

  • Ethics lesson #1: Don’t use human beings as props.
  • Ethics lesson #2: Three-year-olds can’t consent to such treatment.
  • Ethics lesson #3: Police have enough to do dealing with real crimes. Staging fake ones to see what will happen should be illegal, if it isn’t already.
  • What’s there to complain about? The social experiment was a success!
  • Is proof that parents of a small child are idiots sufficient to remove him? No, I suppose not.
  • The problem with this episode is that the child, who was innocent of wrong doing, is the primary one being punished.

Continue reading →

My Confession, Just In Case The FBI Investigates…

/ Jack Marshall / 22 Comments

The scene of the crime…

In an earlier post about the Kavanaugh debacle, I introduced a poll with this:

Memory I: As a junior, I engineered an elaborate prank to steal a sofa from two classmates and friends who had swiped a sofa from two other students in their dorm. It almost worked, too: the pay-off was going to be when they visited our suite and saw their sofa there. The plan fell apart, and the original owners even got their sofa back.

Question: Should this episode, which technically involved attempted theft, disqualify me for some positions as an adult and professional?

The polls results:

Several commenters have admitted that their votes were tongue in cheek, so I don’t believe for a minute that there were really 13% of voters who believe that the episode when I was 20 should bar me from being an ethicist, a lawyer, or a SCOTUS judge, and needed to be investigated by the FBI. Just in case, however, I feel I should tell the whole, sordid story about what came to be called “The Great Sofa Caper,” and which is a tale told and retold at every reunion of my room mates.

It was the end of winter, and spring cleaning of sorts at the Harvard dorms. I lived in a suite at Lowell House with five other juniors, and was visiting friends and fellow classmates “Oscar” and “Felix” across the campus in the high rise dorms, Leverett Towers. “Oscar” was a theater friend who looked like a dissipated cross between Omar Shariff and Teddy Roosevelt; “Felix” looked like a pint-size Rodney Dangerfield. Shortly after I entered their abode, Felix said, “Hey, what do you think about the new sofa we swiped?” Indeed, prominently displayed in the main room was what appeared to be a very new, very nice, fully upholstered  sofa.

“You swiped it?” I said, and Felix laughed. “No, I was just kidding. Some upperclassmen were changing rooms, and this was left out in the hall for anyone to take. Nice, eh?”

“You swiped it! That’s brand new! Nobody would throw that out. Come on!” I said. Indeed, furniture and other junk was often being left out for communal expropriating in such moves, but this seemed like wilful, contrived ignorance by my friends to me. Nonetheless, Felix and Oscar swore that they would never steal anything, and that the brand new sofa was abandoned property.

Right.

I went back to Lowell House deep in thought and ethics conflict, wondering what the right thing to do was. I couldn’t report my friends for what was, even if it was theft in the real world, pretty standard college silliness. Still, I felt this was excessive. Then I hit on my plan. It would be both a good practical joke and a lesson for Felix and Oscar. Continue reading →

Saturday Morning Ethics Warm-Up: The Bad Guys, Continued.

/ Jack Marshall / 70 Comments

“Good morning,”

…he said through grimly clenched teeth…

1 My pledge. That’s it. I’ve had it. Every single time I read or hear a reference to how women accusing men of sexual assault or harassment have a “right to be believed,” and anytime I read or hear someone quoting such a reference with approval, I’m going to point out in the strongest possible terms how sinister, unethical, and certifiably stupid this is. If you want to believe Dr. Ford’s dredged up memories of a party—somewhere—where she was jumped and groped by two drunk teens, go ahead. You do have a right to believe anything, including in the Hindu elephant god,  the brilliance of Sean Hannity, and the virtue of Bill Clinton: I don’t care. Be gullible. Asserting that women have some special chromosome-based right to be judged 100% reliable when they make damning and destructive accusations against men violates all standards of logic, ethics, equal protection, fairness , justice and common sense, and threatens tangible harm to innocent citizens and society. It needs to be condemned, and those making it must be condemned until this insidious, ideologically-spawned Big Lie is killed, squashed, burned and vaporized for all time.

For some reason, the tipping point for me was not the nauseating conduct of the Democratic Senators yesterday, which included a dramatic multi-NO! from perhaps the worst of them—well, after Diane Feinstein—Hawaii Senator Mazie Hirono, the one who told Jake Tapper that the very fact of being a conservative is sufficient to disqualify Brett Kananaugh from any presumption of innocence. Stalin reasoned like that. That Hawaii would elect such an un-American, totalitarian-minded fool—she is more ignorant than evil, I think, but I could be wrong—to represent the state is enough to make me resolve to vacation elsewhere when the tropical breezes beckon. What a disgrace she is, and any voters who would allow someone like that to have access to power.  But no, what made me snapo was a small note in today’s paper about how Rep. Leonard Nance’s race to be re-elected to his New Jersey Congressional seat was seen as threatened because he “seemed to cast doubt on Ms Blasey’s allegations” in remarks to a group of college Republicans.

What the hell? Her allegations are over three decades old, she never spoke of them until a SCOTUS nominee she opposed was about to be confirmed, she has no corroboration or evidence whatsoever, and the man she accused uncategorically denies her story under oath. There is nothing but doubt in this controversy. If you don’t see doubt, then you are a bigot, a hopelessly close-minded ideologue, or incapable of rational thought. Continue reading →

Ethics Quote Of The Week: Andrew Sullivan

/ Jack Marshall / 19 Comments

Which brings me to Kavanaugh’s testimony, which was spellbinding in a different way. He behaved, it seemed to me, exactly as an innocent man would behave if accused of a crime in his teenage years — especially a crime that was unveiled by his political opponents at the very last moment. It was one that he could not possibly refute (no one can prove a negative) and it catalyzed a media frenzy — multiple gang rapes! — that continues to get more extreme every day. There’s a reason we have statutes of limitation. When alleged crimes happened decades ago, proof is very hard, and allegations much easier. And when the alleged perpetrator was also a minor, we’re in a very weird and difficult place….

Of course he was angry. Wouldn’t you be if you were innocent or had no idea where this allegation suddenly came from? He wasn’t being accused of sexual harassment, or sexual abuse as an adult in a way he could have refuted or challenged. His long-lost teenage years as a hard-drinking jock were now under the microscope. Even his yearbook was being dissected. Stupid cruelties and brags from teenage boys were now being used to define his character, dismiss his record as a judge, his sterling references, his respected scholarship, his devoted family, his relationship with women in every capacity. He had to fend off new accusations, ever more grave and ever more vague.

…To the extent that the hearing went beyond the specifics of Ford’s allegations and sought to humiliate and discredit Kavanaugh for who he was as a teenager nearly four decades ago (a dynamic that was quite pronounced in some Democratic questioning of the nominee), it was deeply concerning. When public life means the ransacking of people’s private lives even when they were in high school, we are circling a deeply illiberal drain. A civilized society observes a distinction between public and private, and this distinction is integral to individual freedom. Such a distinction was anathema in old-school monarchies when the king could arbitrarily arrest, jail, or execute you at will, for private behavior or thoughts. These lines are also blurred in authoritarian regimes, where the power of the government knows few limits in monitoring a person’s home or private affairs or correspondence or tax returns or texts. These boundaries definitionally can’t exist in theocracies, where the state is interested as much in punishing and exposing sin, as in preventing crime. The Iranian and Saudi governments — like the early modern monarchies — seek not only to control your body, but also to look into your soul. They know that everyone has a dark side, and this dark side can be exposed in order to destroy people. All you need is an accusation.

—Andrew Sullivan in his essay today, essentially stating the same points we have discussed at Ethics Alarms, but in his own inimitable, erudite style.

He’s 100% right, of course. Andrew is also a gay, Trump-hating liberal, so this is a good essay to send to your friends who are teetering on the brink of madness. They won’t listen to me; maybe he can break through.