U.S. Society

Here Is Why Baseball Fans, And Almost Everyone Else, Are Ignorant Of How The Law Works…

/ Jack Marshall / 16 Comments

Last night, while I was watching a lousy Red Sox loss to the Oakland A’s, the Boston broadcasters announced their mid-game poll: “Do you agree with the Supreme Court decision on sports betting?” Viewers were supposed to text one number for yes, another for no. It was quite clear that the Sox announcers themselves had no clue what the decision was, however, as Jerry Remy and Dave O’Brien began debating the pros and cons of legalizing sports betting. The debate was edifying, but had nothing to do with the Court’s decision in Murphy v. National Collegiate Athletic Association whatsoever.

They and thousands of Red Sox fans had no clue what the decision was, and their ignorance didn’t stop them from voting on what they thought it was. What they thought it was came from second and third hand social media posts, and misleading headlines (“Supreme Court Strikes Down Anti-Sports Betting Law”) as well as brain-dead reports on the meaning of the majority ruling. (“Today the Supreme Court opened the door to legalized sports betting by declaring the federal law banning it unconstitutional…”). On a local news channel in the D.C. area, a reporter was dispatched to “investigate” if the reporting on the decision was accurate. “We began by reading the decision itself,” he said,

Wow! What a concept! Read the opinion rather than depend on ignorant reporters who don’t know the Constitution from “Hiawatha” to explain it based on what they think they know, which is not remotely like knowing anything!

Quoting again from ScotusBlog, here’s what “the decision on sports betting” was…

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

Later on, Alito makes it clear that the decision isn’t pro-sports betting or anti-sports betting. The decision is anti-the federal government telling the states that they can’t pass certain kinds of laws, and the subject matter of those laws are irrelevant to that principle. The decision in Murphy v. National Collegiate Athletic Association  no more approves legalized sports betting than it approves speed limits over 90 or letting felons vote in state elections. The decision says that while the federal government can pass its own laws, it can’t order the states not to pass laws.

Never mind! Thousands of Red Sox fans had opinions based on misunderstanding the decision, just as many bloggers and online commenters worked themselves into a frenzy about the evils or benefits of sports betting, aided by journalists who literally, not figuratively, didn’t know what they were writing about, and didn’t have the integrity or common sense to find out.

Good job, everybody!

 

Morning Ethics Warm-Up, 5/16/ 2018: The Fake Moussaka Edition

/ Jack Marshall / 64 Comments

Gooood morning Pyongyang!

…and everyone else too, of course.

1. ” Winning.” How many in “the resistance” and the news media are rooting, secretly or openly, for the North Korean talks to fail? Based on the tone of some premature gloating on social media and news reports after North Korea threatened to pull out of talks, I think “many” is the fair answer. Other recent headlines and news stories also point in this direction, like “Improving Economy A Problem For Democrats.” (No, an improving economy is not a problem for any Americans, unless they care about their own power more than their country.)

This is especially revolting ( and hypocritical) from the same people who 1)  falsely attributed Rush Limbaugh’s indefensible statement in 2008 that he wanted Obama to fail to the entire Republican Party (I condemned Limbaugh’s statement at the time) and 2) used it to feed the narrative that conservatives who opposed that Presidents left-ward policies were doing so out of personal and racial antipathy.

A President’s success–as in “being proved correct” or “getting lucky,” it doesn’t matter which— makes it more likely that policies you don’t like will be continued? Suck it up and cheer like the good citizen you are. His accomplishments make it less likely that your favorite politician will get elected? Cry me a river: your duty is to care about your nation and fellow citizens first. That you are on record that—okay, still think that—this Presdent has crap for brains and you wouldn’t shake his hand without gloves makes you look less wise and prescient than you would have if he fell flat on his face? Cue the world’s smallest violin, have some integrity, and grow the hell up.

2. Ken Burns ethics, and FDR. In this post earlier this year, I scored documentary whiz Ken Burns for the hagiography of Franklin Roosevelt that marred his otherwise superb “The Roosevelts.”  “The smoking gun for me,” I wrote, “is that despite ten and half hours, Burns somehow never found time to highlight FDR’s internment of American citizens solely because they were of Japanese ancestry. The civil rights outrage is only alluded to in passing, as part of a list from a biographer preceding the nostrum, ‘All great leaders make mistakes.’” That critique stands, but it is slightly unfair, I subsequently discovered. Burns covered the internment of Japanese Americans extensively in an earlier, also excellent, PBS series, 2007′ s “The War.”  Even that section, however, avoided laying proper accountability for the debacle at President Roosevelt’s feet.  I watched the documentary over the past two days, and the deceit is really extraordinary.  The narration keeps referring to Executive Order 9066, without specifically saying whose order it was, like the thing appeared on its own. Here, Ken, let me fix this for you:

‘President Franklin D. Roosevelt ordered the imprisonment of tens of thousands of American citizens of Japanese ancestry and resident aliens from Japan in concentration camps (“internment” is a euphemism and a cover word, like “pro-choice”) with towers and guards with loaded rifles. Though some German-Americans and Italian-Americans were imprisoned as well, far fewer were taken. The risk they posed was not considered as great, because they were white.’

Executive Order 9066 wasn’t rescinded, incredibly, until February 19, 1976, by President Ford. The Supreme Court decision upholding the order, Korematsu v. United States, 323 U.S. 214 (1944),has never been overturned. In that case’s 6–3 decision approving the abrogation of American citizen rights with fear as the justification, six of FDR’s eight appointees—you know, the liberals—  sided with Roosevelt, and against the Bill of Rights. Continue reading →

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

/ Jack Marshall / 24 Comments

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading →

Morning Ethics Warm-Up, 5/14/2018: Another Rushing Around In A Hotel Room Getting Ready For A Seminar Edition…

/ Jack Marshall / 71 Comments

Good morning from Boston...

…where I always feel at home! I’m here for the morning, talking to young, newly minted Massachusetts lawyers about ethics.

1. This is a big deal, though only lawyers will care. Finally, California has ditched its confusing, multi-source (some ethics rules were laws, some were regulations), antiquated legal ethics rules, and became the last of the jurisdictions, including D.C., to adopt the American Bar Association’s template for legal ethics guidance. Yes, in one area, if not the most important ones, California is moving closer to the rest of the country! There is hope!

2. Ally’s lament. Ally Sheedy, whom you might recall from “War Games” and “The Breakfast Club,” is one of Hollywood’s more articulate and thoughtful performers. She recently penned a post condemning Hollywood sexism, and its effect on her career. Essentially the essay amounts to a complaint that Hollywood is obsessed with appearances and, with women, sex appeal.

I like Sheedy, and I was pre-inclined to respect her observations (which are certainly accurate), but I have to admit that unsympathetic blogger Amy Alkon has a point. She writes,

“..professional actress Ally Sheedy takes it upon herself to lament the looks-driven reality of Hollywood — which is kind of like lamenting how in professional baseball, somebody’s always throwing a ball your way. …This is the movies, dear, not the genetics lab. Her entire essay is an example of intrasexual competition — criticizing and trying to change the standards of female competition by one who falls a bit short of them.Because so many people are so ignorant of our evolved psychology and in denial of biological sex differences (and the psychological sex differences that come out of them), they don’t get that there is pressure on men, too, to meet women’s differing mating priorities.As for those differing priorities, well…you don’t see men writing essays about how rotten it is that you can’t get a hot girlfriend (or probably any girlfriend) while unemployed and sleeping on a couch in your grandma’s basement.”

Yikes. And they say I’m tough… Continue reading →

Althouse’s Commenters Delineate A Trend

/ Jack Marshall / 15 Comments

Is something in the etho-cultural air? I wonder. Suddenly hints that patience with the resistance/progressive/Democratic/mainstream media assault on the Presidency, democracy, fairness, honesty, civic discourse and the rule of law is running out even with typically left-leaning citizens are turning up in multiple venues all at once. This is, of course, gratifying here at Ethics Alarms, since I have regarded this as an ethics crisis since 2016.

Fascinating evidence can be found in the comments to a recent post by Ann Althouse, in which she pointed to a res ipsa loquitur piece in Politico, “‘What Happened to Alan Dershowitz?’,  which I would summarize as “Whatever could have possessed Alan Dershowitz to make him opt for objectivity, principles and integrity at a time like this?” Ann, as she frequently does, didn’t comment substantively on the essay, deciding instead to make an arch observation while pointing the way for her readers. She flagged what she called “the most obvious quote” in the essay: “Maybe the question isn’t what happened to Alan Dershowitz. Maybe it’s what happened to everyone else.” Of course, nothing happened to Dershowitz. He’s doing what a lawyer, an analyst and a trustworthy pundit is supposed to do: apply the same standards to everybody; not let emotion rule reason, and when all around him are losing their heads and blaming it on him, keeping his own despite temptations to follow the mob.

Ann’s readers distinguished themselves in their reactions. I wonder if the Democrats are paying attention. They are fools if they don’t.

Read as many as you can. Here’s a representative sample: Continue reading →

An Ethics Riddle: What Do Starbucks And The University Of Virginia Have In Common?

/ Jack Marshall / 9 Comments

They both called the cops on someone who was violating a policy. Only one of them, however, was accused of racism.

Bruce Kothmann, a University of Virginia alumnus, read aloud from his Bible on the steps of the school’s Rotunda this week, so university police came make him stop. He did stop, because he didn’t want to be arrested. For such public speech is no longer allowed at the public university. The Rotunda is not one of the places the university has designated for public speech by outsiders. Kothmann was on to campus because his daughter had just finished her sophomore year, but was reading from his  Bible with him to challenge the school’s  policy limiting speech on campus.

A terse reader comment on the story said, “This is basically what happened at Starbucks.” The comment is correct.

Would UVA have sent the police to silence a black parent? My guess: no, and if it had, the school would be grovelling in the dust right now, begging for forgiveness. Unless the school could quickly point to a white transgressor who got the cops called on him, a charge of race bias would be devastating, and, of course, effective.

You recall the Starbucks episode: I covered it here. Two African Americans were informed of a Starbucks policy that required those using the facilities to be customers. The men refused, the manager called the police claiming trespass, and the rest is ugly, race-baiting history. The two men could have left just as Mr. Kothmann agreed to stop reading, but that’s just moral luck. The reader was right: the episodes were the same….except for the race of the violator involved.

The Ethics Alarms position is that both policies, that of the university and the old Starbucks policy, are reasonable, with the Starbucks policy being the more  defensible, since UVA is a public university and has the First Amendment to contend with. Never mind: the news media and the social justice social media mob have little interest in a white man being stopped by police from reading that old rag, The Bible, but if two black men violating a private business’s reasonable policy have that policy enforced against them, that’s intolerable.

We have the birth of a new racial privilege, now extending beyond police shootings (a white cop can safety shoot a threatening white suspect, but not a black one) to other forms of previously justifiable conduct. Continue reading →

Sunday Morning Ethics Warm-Up, 5/13/2018: A Strange Philanthropist, A Redeeming Cadet, A Good Idea, And An Obvious Observation

/ Jack Marshall / 41 Comments

Good Morning!

(This was definitely the oddest LP in my Dad’s Jimmy Durante collection….And good night, Mrs. Calabash, wherever you are…)

1. Ethics Hero, I guess. A sad one…The Henry Street Settlement , a community charity, was shocked to receive $6.24 million donation, the largest single gift from an individual in its 125-year history, from the estate of the late Sylvia Bloom, a legal secretary from Brooklyn worked for the same law firm for 67 years until she retired at age 96 and died  in 2016. When one of the wealthy lawyers she worked for bought a stock as she made the transaction for him (or her; I don’t know), she bought the same stock for herself, in a smaller amount. The woman amassed all this money, which she could have used while she was still breathing to assert some beneficial influence over society, help others, or just to expand her own experiences and life opportunities, but instead delegated the responsibility to a non-profit organization to handle after her death. She spent a lifetime in thrall to a law firm, and never could take the initiative to be free.

I view this story as a strong argument for feminism.

2.  Progress: For the first time in The Citadel’s 175-year history,  the Corps of Cadets command was awarded to a female cadet, Class of 2019 Regimental Commander Sarah Zorn. This was no affirmative action or gratuitous diversity moment, but an honor well-earned. In addition to her academic record and demonstrated leadership abilities, Zorn can do 70 pushups in two minutes (I’ve done 7 push-ups in two decades) and has three martial arts black belts. This triumph finally eradicates the humiliating beginnings of the South Carolina military academy’s gender integration, when Shannon Faulkner won a lawsuit against the school’s strict male-only admissions policy, became the first female cadet admitted, then showed up out of shape and irresolute, washing out after five days, four of which were spent in the infirmary. I have always regarded Faulkner as the anti-Jackie Robinson, the perfect example of how a trailblazer without sufficient character can make the trail worse than it was before.

3. An ethics inspiration from Europe. 15,000 European 18-year-olds will be able to travel free of charge in Europe this summer, using special free travel passes valid for 30 days. The European Parliament initiative was passed “to enhance a sense of European identity and European values.” . The cost will be about $14.2 million dollars in American currency.

Great idea, and better, in fact, for the United States to try than Europe, since the United States actually has a national culture and one that a majority of young people are neither learning about nor understand. The U.S. version should include tickets to a baseball game, of course.

4. Duh. Imagine my surprise when, after opening the Sunday New York Times Sunday Review section, I found leading off the insert that has been dominated by anti-Trump hate and hysteria since last November an essay that dovetails nicely with this Ethics Alarms post from yesterday.  “Liberals, You’re Not as Smart as You Think” by Gerard Alexander, professor of political science at the University of Virginia, was given the front page of the section to make a point, a full year and a half into President Trump’s administration, that has been a theme on Ethics Alarms for all of that time, and should have been screamingly obvious to anyone whose own ethics alarms still had functioning clappers. Alexander writes in part, Continue reading →

Unethical Quote Of The Month: New Mexico Congressional Candidate Pat Davis (Guess What Party!)

/ Jack Marshall / 97 Comments

“Fuck the NRA!

—-Albuquerque City Council member Pat Davis, in a TV ad promoting his candidacy for Congress in the upcoming Democratic Party primary.

Nice.

That’s what we really need more of in the government: more incivility, vulgarity, cretinous rhetoric, and hate-mongering. Go Pat!

I suppose Davis is taking his cues from potty mouth DNC chair Tom Perez and putative Presidential candidate and California Senator Kamala Harris, both of whom have decided to jettison dignity and professionalism in pursuit of the rapidly devolving progressive base. These people are all ethics corrupters. I don’t care who they say to fuck, or what. If this their idea of leadership, they are a disgrace to the nation and whatever office they seek.

Of course Davis’s message is idiotic, regardless of his terminology. He says that the NRA’s ” pro-gun policies have resulted in dead children, dead mothers and dead fathers.”  If politicians like Davis want to repeal the right of citizens to own guns, then let them have the honesty and integrity to say so. Blaming the organization that is an advocate for the Second Amendment for crimes committed by those who abuse the right is intentionally dishonest as well as cowardly,  like blaming the ACLU for the proliferation of lowest common denominator demagogues who think “Fuck the NRA” is responsible political discourse and not merely the equivalent of a primal scream.

A Strange And Disturbing Conversation…

/ Jack Marshall / 27 Comments

It’s baaaack!

Yesterday I did a pro bono ethics presentation for a local lawyer group. During the lunch, which, as usual in such situations, I never got to eat, I was seated next to a lively, intense, talkative young man, like the rest of my audience, a corporate counsel. The discussion was oddly tentative for a long time, which the lawyer’s body-language suggesting wariness and his verbal choices suggesting unusual care. He was probing for something, and I couldn’t tell what. What was it that they vibe reminded me of? Poker? A job interview? Suddenly I realized what it was: the conversation had the tenor, though not the implied subject matter, of those awkward conversations I recalled from parties and encounters where a new male acquaintance was trying to figure out a) whether I was gay and b) whether, if I wasn’t, he could trust me enough to say that he was.

In this case, however, the young man was probing to see if I hated President Trump. I don’t know which comment of mine put him at ease, but suddenly it all poured out. This lawyer and Haitian-American immigrant was an enthusiastic supporter of the President’s policies and leadership style. Once he was certain that I would not look at him like he was the spawn of Satan for daring to express such a view—which he explained extremely logically and eruditely—we had a fascinating discussion, covering illegal immigration, the news media’s bias, the “resistance,” racism, muscular foreign policy leadership, the 2016 campaign,  and more.

However, the fact that simply expressing support for the elected President of the United States, even limited support, indeed even the absence of affirmative contempt, is considered such a perilous social stance that citizens are afraid to express it among their peers demonstrates the monstrous—I think that’s a fair adjective here—intimidation and speech suppression that has been perpetrated by the Left since the 2016 election. Hate is such a powerful emotion that even when it is unjustified, the threat of it being focused on you now keeps Americans from openly expressing their opinions. This is a thought and attitude control strategy, weaponizing the Cognitive Dissonance scale (above) to achieve power and control. If you have this position, we will hate you. Be warned. The message goes out in a thousand ways, especially on social media, but in face-to-face encounters as well, with family, in the workplace, and in social situations.  Some—I think a surprising number–have the strength to resist it as the unethical compelled political conformity tactic that it is. Still, many capitulate, at least in public.  The tactic is even turned on experts and analysts with integrity as well, as in this Politico essay about Alan Dershowitz, which carries the message that a good liberal should not be making the case that the criminal law is being abused and civil libertarian principles discarded as the Left attempts to undo an election by any means necessary. The effectiveness and intimidating weight of the implied threat of shunning is acknowledged by what one blogger describes as the “Trump Bump”—“that little obligatory hiccup in which the speaker on any given topic must pause to make a pejorative reference to Donald Trump before going on, in order to establish his or her bona fides as a good person. ” Continue reading →

Morning Ethics Warm-Up, 5/10/2018: Co-Starring… Twitter!

/ Jack Marshall / 87 Comments

Good Morning!

(I am grimly soldiering on, despite the horrifying Red Sox loss to the Yankees last night. Duty calls...)

1 From the “Facts don’t matter to Trump, and facts don’t matter to Trump enemies” files:

1) The New York The Times  reported that Secretary of State Pompeo was absent from Washington when Trump announced he was pulling the U.S. out of the nuclear deal with Iran, and framed it as a gaffe, headlining the story, “At a Key Moment, Trump’s Top Diplomat Is Again Thousands of Miles Away.” The paper  knew why Pompeo was absent, though: he was heading to North Korea make sure that three imprisoned Americans got released and returned home without a hitch. The story under the accusatory headline said so.  Pompeo also went to North Korea to arrange a date and venue for Trump’s meeting with Kim Jong Un. And, of course, Pompeo arriving with some of the benefits of Trump’s tough policy toward North Korea was an excellent backdrop for the Iran announcement.

Ethics verdict: bias and misrepresentation.

2) Stormy Daniels attorney Michael Avenatti included transactions by one or more Michael Cohens who have nothing to do with Donald Trump in a report Avenatti released about the President’s personal fixer’s alleged banking transactions. There are already questions being raised about how the lawyer acquired any banking records before legal discovery, but this is just rank incompetence.

3) Yesterday the President tweeted,

“The Fake News is working overtime. Just reported that, despite the tremendous success w”e are having with the economy & all things else, 91% of the Network News about me is negative (Fake). Why do we work so hard in working with the media when it is corrupt? Take away credentials?

Wow. What a mess that tweet is! Continue reading →