Law & Law Enforcement

Ethics Pre-Daylight Losing Time Fallback, 11/6/202: So?…Go!…Oops! And More

/ Jack Marshall / 26 Comments

Fall back

At this point in U.S. history, there is no justification whatsoever for not having daylight savings time year-round. The failure of Congress to kill Ben Franklin’s anachronistic brainstorm is pure cowardice and incompetence.

1. So? The NRA Foundation has twice paid attorney David Kopel, a Second Amendment activist, to write pro-gun rights amicus briefs in Supreme Court cases, according to a hacked document released last week. Since 2019, Kopel has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York’s ban on carrying licensed guns in public. The briefs did not disclose the source of funding, which is being condemned as unethical by the news media and the usual NRA bashers. “Attorneys who author these briefs must disclose whether they’ve taken money from either side to deliver a filing,” one source says.

Well, first of all, an amicus brief succeeds or fails based on its arguments, and who writes it or funds it should be irrelevant. This would be, at worst, a technical violation. However, the applicable rule in the SCOTUS amicus brief memo does not support the description above. “Rule 37.6 Disclosures” states,

“The first footnote on the first page of text of an amicus brief must include certain disclosures concerning contributions to the brief….It should indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief. It should also identify every person other than the amicus, its members or counsel, who made such a monetary contribution; the Clerk’s Office views it as better practice to state explicitly that no such contributions were made if this is in fact true.”

This is astoundingly sloppy drafting, especially for the Supreme Court. “Must” and “should” are terms of art. “Must,” like “shall,” means some action is mandatory; “should” means that something is best practice, but not absolutely required. When two “shoulds” follow a “must,” it is impossible to determine what’s mandatory and what isn’t.

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My Neighbor Indicates That He Embraces The Golden Rule. I’m Keeping My Fingers Crossed…

/ Jack Marshall / 9 Comments

Spuds head small

Spuds is keeping his toes crossed.

After sunset, four neighbors with puppies of varying ages and sizes have been gathering in the field near my house to let the adorable little dears run free. They are all inordinately fond of Spuds, who isn’t a puppy but acts like one, and I often let him run around and wrestle with the younger dogs on his leash. (Spuds is a constant risk to gallop off to meet any child, dog or human who appears in the distance, so I let him run free rarely.) This week, two of the puppies ran up to greet him as I tried to sneak past the pack on our evening walk, and after Spuds started crying pitifully, I gave in and allowed him to join the group.

It was cold and dark, and the likelihood of anyone tempting Spuds by showing up on the horizon was minimal, so I relented and let him run with his pals, off the leash. They were a sight to see, tearing around the field. One puppy, a hound named Vinnie, was a particularly lively instigator: earlier, while eluding a puppy he had incited, Vinnie ran full speed into my knee, causing him (not me) to yelp. You have to be wary when a pack of pups is having fun.

Suddenly I saw that Vinnie was coming at us again at mach speed, with Spuds galloping right behind. They veered a bit away from me and at one of the owners of the lively Belgian Shepherd puppy. I shouted to her, “Watch out!” but in vain: she stepped aside to avoid Vinnie, but right into Spuds. He tried to avoid her, but his 70 pound-pus body slammed into her leg, and she went down writhing in pain. We had to call the EMT’s to get her off the field and to a hospital.

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Joke And Jury Ethics At The Kyle Rittenhouse Trial

/ Jack Marshall / 7 Comments

chicken_ft-scaled

Weird, man.

In Kenosha, Wissonsin, where Kyle Rittenhouse is standing trial for murder after he shot and killed two protesters during the riots following the shooting of Jacob Blake, an alternate juror was dismissed for making a joke. The juror, a retired white man, said to a court police officer as the officer escorted him to his car, “Why did the Kenosha police shoot Jacob Blake seven times? Because they ran out of bullets!”

HAR! That’s being called a bad joke in the news media: actually, it’s a classic formula joke in the tradition of “Why does a fireman wear red suspenders?,” “Why did the chicken cross the road”? and “How do you know a politician is lying?” (because his/her lips are moving!). Nonetheless, the officer reported the joke to Judge Bruce Schroeder, who called on the juror to explain to him and the lawyers what the joke was and what he meant by it. The juror confirmed that he made a joke but wouldn’t repeat it. That got him kicked off the jury.

Observations:

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Good “Misinformation” vs. Bad “Misinformation”

/ Jack Marshall / 24 Comments

AOC tweet deaths

I was hit between the eyes by another example of this hypocrisy this morning, when I read the “Letters to the Editor” section of the Times. A reader named Roger Hirschberg—yes, own it Roger, you shameless propagandist—authored a letter that the Times headlined “Facebook Misinformation.” In the first paragraph, Roger decries Facebook policies that “enable and protect misinformation.” In the very next sentence, he condemns Facebook management for allowing such misinformation “in pursuit of profits,” and cites Facebook’s entries related to “the January 6 insurrection.”

Isn’t that amusing? Roger puffs himself up like a bullfrog in indignation over a communications company pandering to the mob while cashing in, and then gives the Times a chance to do the same, allowing his false characterization of the Capitol riot as an “insurrection,” because that’s the current Big Lie being weaponized by the Left.

Now, I wouldn’t want the Times to censor Roger’s deliberate misinformation—the FBI, if one considers it trustworthy, has definitively debunked that description, as did Merrick Garland in last weeks hearings—because we benefit from revelations with signature significance: if you call the riot an “insurrection,” you’re a lie-spreading jerk or a lazy fool who believes whatever your favorite party tells you. I would expect an ethical publication that respects its readers to acknowledge Roger’s hypocrisy if it chooses to publish his letter, however. If it doesn’t, then the Times is deliberately advancing misinformation….but then it’s the good kind. You know: the kind that can be used to smear Donald Trump and Republicans. Thanks, Roger!

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Vermont Law School’s Craven Art Censorship

/ Jack Marshall / 3 Comments

Slavery mural

In 1993, artist Sam Kerson painted a mural depicting the progression of American slavery from the slave trade through to the Underground railroad. “The Underground Railroad, Vermont and the Fugitive Slave” celebrates “the efforts of black and white Americans in Vermont and throughout the United States to achieve freedom and justice,” as Kerson explains on his website. Here’s the second panel of the artwork…

Kerson Panel two

Funded by a grant from the Puffin Foundation, the mural was mounted at the Chase Community Center at the Vermont Law School in South Royalton, Vermont. African-American students had periodically taken offense at the artist’s style, and that reaction became a substantial movement after a white cop with a history of equal-opportunity bullying in Minneapolis managed to contribute to the death of a criminal resisting arrest who happened to be black. Naturally, this immediately affected what kind of art could be exhibited in public. I’m not being sarcastic: that’s what happened, as bizarre as it is.

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The National School Boards Association’s Apology: When “We’re Sorry” Means “We’re Sorry That Our Unethical Tactic Backfired, So Forgive Us And We’ll Try Something Else”

/ Jack Marshall / 11 Comments

NSBA apology

What’s going on here?

I have a theory.

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Ethics Dunce: U.S. Attorney General Merrick Garland

/ Jack Marshall / 14 Comments

This video, from Garland’s testimony before the House Judiciary Committee, tells you everything you need to know, but I have a bit to add…

Observations:

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Friday Ethics Distractions, 10/22/21: Foot In Mouth Edition

/ Jack Marshall / 31 Comments

foot in mouth Xray

Wow! People sure are saying some stupid things lately!

1. A David Manning Lie of the Month from Joe Biden! The David Manning Liar of the Month was a feature of the old Ethics Scoreboard honoring public figures or corporations that made obviously dishonest statements that they had to assume were harmless because nobody could possibly believe them. Thus Joe Biden really told reporters that he hasn’t gotten around to visiting the illegal immigrant mobs at the southern border because he’s just been too darn busy. All year. And, he added, it’s OK because Dr. Biden has been there. He also implied that he didn’t need to go to the border to see the utter mess his immigration policies have wrought because he’s seen the border

Let’s unpack this, shall we?

  • Joe has had time to go back to Delaware and Camp David, but not where there’s a border crisis of his making because he’s too busy. Does anyone believe that?
  • Let’s be fair: the President shouldn’t have to go to the border if he has competent subordinates to do it and accurately explain what’s going on. However, when President Bush chose not to personally visit the Katrina carnage, he was accused by Biden’s party and its news media of not caring, not doing his job, and, by Kanye West, of being a racist. What’s the standard? Bush felt that all he could do was get in the way. No, said Democrats, he had to go there, see what was happening with his own eyes. If that’s the standard, and I don’t think it needs to be, then why isn’t it also the standard for Biden and the border mess?
  • Talk about the cover-up being worse than the crime: Jen Psaki managed to top herself for mendacity and deflection when Fox’s Peter Doocy asked her why the President felt he had seen enough of the border. Why, she said, because he had been to the border in 2008! She really said that! “And nothing has changed since 2008?” Doocy reasonably asked. No! the President’s paid liar huffed. There’s been no immigration reform since then! And Biden knows President Trump has made everything worse by “separating children from parents” and building a “feckless wall” (whatever that means). So he doesn’t have to re-visit the border to know that, and again, he went there in 2008!

2. Shut up, or start a blog. The dim-bulb royals in exile decided that we need to hear their opinions on two issues. Prince Harry pronounced the First Amendment “bonkers”—yes, Harry, that attitude on the part of your relatives is why England doesn’t govern us any more—and his wife, Meghan Markle, received publicity for advocating paid leave for parents. Neither of these two people famous for being famous have done or said anything that should endow their opinions with any more persuasiveness or newsworthiness than the typical dogwalker’s. Harry was born well; Meghan married someone who was born well. It doesn’t matter what they think, or what they say. It’s not news. Continue reading →

Typo Ethics! The Supreme Court Had A Really Bad One, And It Made A Difference

/ Jack Marshall / 6 Comments

Justice_Pierce_Butler

As regular readers here know, there are a lot of typos, too many, on Ethics Alarms, mostly because I have to write posts more quickly than I’d like, I’m often interrupted, I can’t spell and I can’t type. Thankfully readers alert me to the most egregious (two generous readers particularly), and whenever I catch a typo in an old post, which is often, I fix it (and think “One more down, 701, 566, 211 to go!”). Fortunately, very few typos over the years have resulted in a post saying something other than what I intended, though the occasions where I have left off a “not” or an “un-” have been embarrassing. It all weighs heavily on my conscience and self-esteem, which is why this revelation, regarding a consequential typo in a Supreme Court opinion, was a welcome one.

A slip opinion (in other words, a preliminary opinion subject to revision before publication) was issued in 1928 regarding a zoning dispute. The author of the opinion, Justice Pierce Butler (above), had written, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.” But the opinion was misprinted as “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” That was a sweeping statement about the constitutional stature of property rights, and not what the opinion was intended to stand for. But the slip opinion typo slipped under the Court’s radar for a while.

SCOTUS eventually fixed the mistake, so the final version of the opinion published in book form in United States Reports, contains what Butler intended. But the Court negligently and irresponsibly did not draw attention to the change (which was typical at the time), so most judges, lawyers and law professors assumed that the typo version was the law of the land. The mistaken version, which appeared to declare a vastly expanded interpretation of property rights, has appeared in at least 14 court decisions, including one was issued in 2020. It was cited in at least 11 appellate briefs, in a Supreme Court argument, and in countless books and articles.

A new study published in The Washington University Law Review traces the carnage and confusion created by the nearly century-old typo. Michael Allan Wolf, the law professor at the University of Florida who discovered the mistake and wrote the article, believes that while it is impossible to measure how much impact the typo has had in court decisions, there is little doubt that it has served to advance an interpretation of property rights that was never supposed to have Supreme Court support.

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Katie Couric Thinks This Revelation In Her New Book Makes Her Look Good. In Fact It Makes Journalists Look Ignorant, Untrustworthy And Biased, Which Most Of Them Are

/ Jack Marshall / 17 Comments

Ruth Bader Ginsburg

Advance copy from Katie Couric’s soon-to-be-released memoir “Going There” reveals her to be an unethical human being: manipulative, vindictive, mean and disloyal. A section of the book, however, that she doubtless thinks will endear her to readers and her colleagues really shows how unethical the “profession’ of being a mainstream news media has become.

Couric writes that she edited out part of the 2016 interview with U.S. Supreme Court Justice Ruth Bader Ginsburg in which the liberal icon said that football players who were kneeling during the National Anthem were showing “contempt for a government that has made it possible for their parents and grandparents to live a decent life … which they probably could not have lived in the places they came from….And that’s why education is important.” Couric says that she wanted to protect Ginsburg, then 83, who was “elderly and probably didn’t fully understand the question.”

In the portion of the interview that did air, Ginsburg said: “I think it is really dumb of them. Would I arrest them for doing it? No. I think it is dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it is a terrible thing to do. But I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. But it is dangerous to arrest people for conduct that doesn’t jeopardize the health or well-being of other people. It is a symbol they are engaged in….If they want to be stupid, there is no law that should prevent that. If they want to be arrogant, there is no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.”

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