Law & Law Enforcement

Spain Demonstrates Why We Have The First Amendment, And Why The US Must Protect It

/ Jack Marshall / 3 Comments

Spain’s Parliament, in its wisdom, has declared dwarf bullfighting illegal. Not because the bulls are treated cruelly, mind you: oh no, that part is fine. It’s the small bullfighters the legislators find intolerable. (That’s a group of them rehearsing above.)

Comic bullfighting shows in which individuals with achondroplasia, a form of dwarfism, fight with juvenile bulls are now illegal. A new law bans “shows or leisure activities” employing a disability “to provoke public mockery, ridicule or derision.” As a result, the performers who earned their living putting on such shows are now forbidden from plying their craft, and citizens willing to pay to watch them can no longer do so. This is also embarrassing: the same law directs that “people with disabilities will participate in public shows and recreational activities, including bullfighting, without discrimination.”

Spain’s law arises from a failure to distinguish “Ick” from ethics, the same problem that has led some states to try to ban drag shows. There is no question that the First Amendment in the Bill of Rights would absolutely prohibit a law such as the Spanish dwarf bullfighting ban, and we should be grateful for that. The ethical principles embodied in freedom of expression include autonomy as well as intrinsic fairness and the Golden Rule validity of allowing others to have the same right to make their living as they choose without others deciding that because they wouldn’t make the same choices, those choices shouldn’t be available to anyone.

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In Which Your Host Loses His Oldest CLE Organization Client For Telling The Truth

/ Jack Marshall / 26 Comments

I and my ethics training company just got cancelled by the Continuing Legal Education organization that was my very first client when we started ProEthics over 20 years ago. Our seminars have always received top evaluations from lawyer attendees; nos small achievement in the legal ethics field. They also have made our long-time partners a lot of money. We had never needed to re-negotiate our arrangement, and my state tour with a new legal ethics program was a yearly occurrence every fall. This year, however, we had heard nothing about future dates or requests for possible program ideas (I have introduced most of my musical legal ethics seminars with Mike Messer with this group), and it was getting a little late. Grace sent an inquiry to the long-time contact who has handled our programs, and got back a stunning, “We have decided not to use you this year” letter. One shocking realization was that it was clear from the letter that the decision had been made long ago. After two decades, the organization did not have the courtesy to let us know about their decision, or to discuss their concerns with me before making it.

Even more shocking was the reason given for our dismissal. Last year, as I faced very small in-person groups with most of the attendees watching via Zoom, I made a point of thanking and congratulating those who made the effort to come in person, and urging those who had not to remember that remote training is not as effective as in-person training, and that ethics in particular was a topic in which interaction and engagement were crucial, features that are difficult to impossible using Zoom. This, we were told in the letter, did “not respect those who work diligently within our own Distance Education Department to provide remote options for attorneys.”

I did not denigrate the staff at all; I didn’t even know the organization had a Distance Education Department. What my comments did do, and appropriately so, was to alert lawyers to something they need to know. CLE isn’t just for getting mandatory credits. It is supposed to make lawyers better. Most data indicates that remote training with Zoom or similar methods don’t do the job: they are convenient, and lawyers like them because they can rack up billable hours and write emails while turning off their video and pretending to pay attention. But just as with children whose learning crashed with the substitution of distance learning for live instruction, lawyers are cheating themselves, their clients and the profession by undergoing CLE Lite when they should be challenged in a classroom.

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Ethics Dunces, Sociology Dunces, Law Enforcement Dunces…Whatever: The California Reparations Task Force

/ Jack Marshall / 18 Comments

Try a mind experiment: if California’s ridiculous and racist Reparations Task Force wanted to exacerbate racial tensions as much as humanly possible while also making African-Americans seem as toxic to society as a KKK Grand Dragon could imagine in a fever dream, what would it be doing differently that it is doing right now? We know that the group is already recommending that millions of dollars in taxpayer reparations for slavery be handed out to the state’s blacks, even though slavery never existed in the Golden State. But wait, there’s more!

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Falsely Describing Bad Research To Advocate Irresponsible Policies Is No Way To Serve On The Supreme Court, Justice Jackson…[Corrected And Expanded]

/ Jack Marshall / 23 Comments

UPDATE: A critical Ethics Alarms reader informed me that in his view the text of this post was too similar to that of its main source, The Daily Signal, in an article by Jay Greene. Although I linked to the piece and also credited Greene with a quote, upon reviewing the post I agree that it included too many substantially similar sentences and phrasings. I apologize to the Daily Signal, Jay, and Ethics Alarms readers. I was using several articles in preparing the piece (including one from another source that was also extremely close to the Signal article), and for whatever reason, did not notice that I had leaned so heavily on Green’s phrasing. It has happened before over the past 13 years, though not often, and never with the intention to deceive. Thus I have revised the post; in the future, if anyone feels that an Ethics Alarms article does not properly credit sources or seems insufficiently original, the favored response is to alert me, rather than to accuse me in obnoxious terms of “plagiarism.”

Fans of affirmative action reacted to Justice Ketanji Brown Jackson’s depressing defense of racial discrimination by praising her remarkably hypocritical dissent in the recent 6-3 decision by the Supreme Court declaring Harvard’s and the University of North Carolina’s admission policies unconstitutional. Those who believe that Justices should base their analyses on law rather than group loyalties were appropriately critical. Both, however missed some really ugly trees for the metaphorical forest, as Jackson injected false statistics into her dissent. They were, of course—we’re used to this phenomenon—uncritically accepted and used in subsequent media propaganda condemning the decision.

Justice Ketanji Brown Jackson wrote in part,

“Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”

Wow! Racial discrimination saves lives! The problem, or rather problems, are that as Jay Greene of the Daily Signal points out, 1) the claim that survival rates for black newborns double when they have black physicians attending is based on a misleading analysis 2) Even if the results of the Proceedings of the National Academy of Sciences study were as Justice Jackson claimed, they are unbelievable and 3) even if Jackson had described the results of the study accurately, and even if those results were credible, they still wouldn’t justify the use of racial preferences in medical school admissions.

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Comment Of The Day: “Flagrant Virtue-Signaling Of The Century: Ben & Jerry’s”

/ Jack Marshall / 11 Comments

There are more than the usual reasons to publish JutGory’s overview of the absurdity riddling Ben & Jerry’s fatuous July 4th Tweet exhorting the U.S. to “return” “stolen indigenous land” to the Native American tribes. The most unusual one is that WordPress has temporarily (I hope!) lost its damn mind, and has replaced all commenter names on the recent posts with the Borg-like “[1].” As a result, readers are unable to tell who wrote Jut’s comment, for which we should all be grateful.

The main one is that the oft-heard demand that the United States should return the nation to “the Indians” is historically, legally, ethically and realistically batty and ignorant, and drives me nuts every time I hear or read it. Jut concisely explains why it’s nuts historically and legally. He does not go into the aspect of the matter than is usually ignored by shallow thinkers like whoever wrote the Ben & Jerry tweet, which is that if the U.S. hadn’t been in possession of its current mainland North American territory in the 1940s, Nazi Germany would have overrun it and probably the world, and reduced the happy, innocent hunter-gatherers there to either slaves or ashes. Tragic as the current status of the tribes is today, it is a lot better than that. Similarly Hawaii, where there is no question that the residents were robbed of their islands, would have been conquered by the Japanese. If Secretary Seward had not bought Alaska from the Russians, all of us, including the Native Americans, might have been blasted into the Stone Age (where, admittedly, the tribes would have been more confortable than the Europeans) by the Soviets.

I am not exactly saying that Native Americans should be grateful they were over-run, but rather that, as JutGory correctly points out, you can’t turn back the clock.

Here is [1]’s…sorry, JutGory’s Comment of the Day on the post, “Flagrant Virtue-Signaling Of The Century: Ben & Jerry’s”:

***

Just another example of Twitter’s inability to facilitate an exploration of subtle thoughts.

Does the US exist on “stolen land”?

Sort of.

Apparently, Manhattan was purchased from indigenous people, just not the ones who “owned” the land. That would make the US a good faith purchaser for value.

But, really, that was a fraud perpetrated on the Dutch, or maybe the English. But, we got it from England fair and square in the Treaty of Paris. All of the original states were stolen from England.

We bought the Louisiana Territory from Napoleon. That was another big portion of the US.

And, the Mexican-American War, contrived as it may have been, was settled legally.

Then, there was Texas.

A huge portion of the US was obtained legally from other thieves.

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The “Axis Of Unethical Conduct” Really And Truly Does Want The Government To Block Speech, And Can No Longer Credibly Claim That It Doesn’t

/ Jack Marshall / 9 Comments

The “Axis” is, in Ethics Alarms parlance, “the resistance,” or those who believe that the existential threat of Donald Trump justifies suspending laws, traditions, fairness, standards and the Constitution; Democrats, who believe that their path to permanent power must be achieved by any means necessary, and the news media, which has become the propaganda arm of both entities and an active participant in the restriction and control of political speech.

All three groups were horrified yesterday when Judge Terry Doughty, Chief U.S. district judge of the United States District Court for the Western District of Louisiana, delivered a sweeping ruling in Missouri v. Biden in which he issued an against what he called “the most massive attack against free speech in United States’ history.”

Doughty declared that “in their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.” He restricted the Biden administration from communicating with social media platforms regarding their decisions on which content should appear online, explaining that “Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, and other forms of direct communication, regarding what Defendants described as ‘disinformation,’ ‘misinformation,’ and ‘malinformation,’ have colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content on social-media platforms.”

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Ethics Observations On The Left’s Unethical Three Freakout Day

/ Jack Marshall / 16 Comments

Yesterday’s clean and persuasive Supreme Court decision finally striking down racial discrimination in university admissions after decades of pretending it wasn’t the Consitutional offense it was was followed by two more sound Constitution-based decisions that were as important as they were necessary. All three were quickly attacked as “partisan” and “extreme” when they were neither, except to those who find the boundaries imposed by our nation’s traditional democratic principles overly obstructive to their schemes.

Finally ruling on a lawsuit brought by six state governments, the Supreme Court rejected President Biden’s insane $430 billion student loan forgiveness plan as illegal because it was never authorized by Congress. In a cynical, Harry Reid-ish strategem to buy the 2022 mid-term elections, Biden had announced a $430 billion gift to mostly middle-class and wealthy citizens who were unable or unwilling to do what millions of Americans in their exact situation had done: paying back money they owed for a benefit they had received. In many ways it was progressive irresponsible government at its worst. The Constitution gives Congress, not the the White House,the power to determine how federal funds are spent. As Illya Somin wrote yesterday, “If the administration had won, Biden and future presidents would have been empowered to use vague statutes to usurp Congress’ constitutional control over the federal budget. Moreover, because of the context for this case, it also would have allowed the president to abuse emergency powers for partisan ends.”

The “partisan” accusation was especially dishonest (Vox: “The Supreme Court’s lawless, completely partisan student loans decision, explained”) since that famous right-wing partisan Nancy Pelosi had endorsed the position of the SCOTUS majority just two years ago, saying, “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” Chief Justice Roberts included her statement in his opinion for the majority, but facts don’t matter. The increasingly unhinged progressive mob, aided and abetted by the mainstream media, pronounced the decision the product of an “extreme” conservative majority running amuck.

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This Is How The Dean Of Berkeley Law School Teaches Ethics To His Students…

/ Jack Marshall / 4 Comments

Nice. Violate the law, ignore basic fairness, and honesty, but as long as you don’t tell anyone and can’t be caught, it’s okay.

Chemerinsky is a well-established partisan hack whose legal commentary is almost always polluted by his leftist agenda, but this was low even for him. Do you ever wonder where unethical lawyers come from?

Classes like his.

And professors like him. Yale Law School’s Dean, Georgetown Law Center’s Dean, and others supposedly overseeing the training of tomorrow’s legal professionals have similarly made it clear with their actions and words that ethics are secondary to their political and social agendas. None have done so quite as flagrantly and smugly as Chemerinsky, however.

SCOTUS Strikes Down Harvard’s Affirmative Action Admissions Policy

/ Jack Marshall / 28 Comments

Good.

Much about this was predicted and predictable: the split, 6-3, in which the diversity trio (A wise Latina, the historic black woman, and a lesbian) took their required stand, and the decision’s spokesjustice, Roberts, who had signaled this result by famously saying, last time around this controversy, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, many thought the opinion would ultimately provide wiggle room for colleges, and it does not. From the opinion, here, by Chief Justice Roberts, who reflected on Justice Sandra Day O’Connor’s observation in a previous affirmative action case that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (which signaled that the Court was allowing an exception to Constitutional requirements continue for a limited period):

Twenty years later, no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for Respondent in No. 20–1199, p. 52. Neither does UNC’s. 567 F. Supp. 3d, at 612. Yet both insist that the use of race in their admissions programs must continue.

But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment….

It is true that our cases have recognized a “tradition of giving a degree of deference to a university’s academic decisions.” Grutter, 539 U. S., at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” ibid., and that “deference does not imply abandonment or abdication of judicial review,” Miller–El v. Cockrell, 537 U. S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.

I particularly want to applaud Roberts’ clear statement that the use of “diversity” by colleges to justify discrimination is undefined, pie-in-the-sky hooey, if not outright flim-flammery:

Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The interests that respondents seek, though plainly worthy, are inescapably imponderable.

Later, the Chief chides Harvard et al. for the obvious phoniness and arbitrary nature of their categories:

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A Student Wrongly Accused Of Rape Can Seek Damages From His Accuser, And Rightly So

/ Jack Marshall / 15 Comments

Maybe this case helped convince Donald Trump that he should sue E. Jean Carroll, the victorious plaintiff in the sexual assault case against him, for defamation.

The Connecticut Supreme Court ruled 7-0 that a former Yale student is not immune from being sued for defamation by the male student she accused of raping her. Saifullah Khan was found not guilty in a criminal trial of raping “Jane Doe” in her dorm room in October 2015 in what Khan insisted, and a jury agreed, was an incident of consensual sex. Yale had expelled Khan using the “preponderance of the evidence” standard forced on educational institutions by the Obama Department of Education.

The court determined that because Khan had fewer rights to defend himself in university proceedings, which, again prompted by the Obama administration, provided limited due process protections, his accuser should not benefit from the civil immunity granted to witnesses in criminal proceedings. “Statements made in sexual misconduct disciplinary proceedings that are offered and accepted without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes,” the unanimous opinion held.

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