Morning Ethics Warm-Up, December 19, 2018: Facebook’s Lies, Hillary’s Letter, Harvard’s Defenders, And Kavanaugh’s Victory

/ Jack Marshall / 13 Comments

Good Morning!

1. Open Forum today! As soon as this post is up, I’ll open a forum for readers here to raise their own suggestions for ethics topics and to offer their commentary without me getting in the way. The last one was a spectacular success, attracting over a hundred comments, generating many fascinating threads, and producing three Comments of the Day so far. Just keep the topics on ethics, don’t get distracted by tangents and bickering, and keep it civil.

The immediate motivation for today’s forum is that I have to prepare for and deliver an annual end of year ethics CLE seminar at the D.C. bar. If you’re in the vicinity and need the credits, or just want a lively ethics workout, come on by and say hello. Here are the details:

Date: December 19, 2018

Event start time :1:30 PMEvent end time:4:45 PM

Venue:D.C. Bar: 901 4th ST NW, Washington, DC 20001-2776

Credit: 3.0 Ethics Credit Hours, including 3 hours of professionalism for those states with such requirement.

Description: Widespread discord in our current culture places unusual stress on professional ethics, and unfortunately, the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.

Topics include:

• Direct adversity vs. “general adversity,” and whether it matters
• Sexual harassment as a legal ethics problem, and the profession’s vulnerability to “The King’s Pass”
• Defying a client for the client’s own good
• Fees, referrals and gaming the rules for fun and profit
• Professional responsibility vs. legal ethics
• The increasing threat to law firm independence and integrity
• The technology ethics earthquake

..and more!

Faculty: Jack Marshall, Pro Ethics Ltd.
Fee: $89 D.C. Bar Communities Members; $99 D.C. Bar Members; $109 Government Attorneys; $129 Others

2. Meanwhile, here are Facebook’s “standards”… As Ethics Alarms posts continue to be blocked on Facebook in various ways, including by “community standards” that for some reason reject the ethics of “Miracle on 34th Street,” the social media behemoth’s own standards are coming into focus: From CNBC: Continue reading →

Popehat Nails Dershowitz For Misrepresenting The Law

/ Jack Marshall / 41 Comments

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Continue reading →

“Miracle On 34th Street”…An Ethics Companion, Chapter One: “Meet Kris Kringle!”

/ Jack Marshall / 24 Comments

The Introduction is here.

The movie tells us right at the start that 1) the charming old man in the white beard can’t possibly be Santa Claus, and 2) that he’s nuts. That is, he tells adults who are paying attention this as soon as he starts complaining to a New York City storekeeper that his window display has the reindeer mixed up: “You’ve got Cupid where Blitzen should be. And Dasher should be on my right-hand side. And another thing…Donner’s antlers have got four points instead of three!”

Let’s see:

  • No Christmas display has ever distinguished between Santa’s reindeer (except for Rudolph), because the individual reindeer have never had any identifying characteristics in reality or myth. Are we to assume that there are name-tags on the models? If so, why wouldn’t Kris be complaining about the features of all of them, not just “Donner’s” antlers?
  • The names of the reindeer, even if there are flying reindeer, were 100% the invention of the poem “A Visit from St. Nicholas,” or “The Night Before Christmas,” originally published in 1823.  No one has ever claimed that the author had some kind of special info on the actual names of the reindeer when he wrote,

    More rapid than eagles his coursers they came,
    And he whistled, and shouted, and called them by name;

    “Now, DASHER! now, DANCER! now, PRANCER and VIXEN!
    On, COMET! on CUPID! on, DUNDER and BLIXEN!

    …and anyway, if he did, those were their names 120 years before the movie takes place. Nobody has ever claimed the reindeer were immortal, either. I suppose Santa Claus, in a nod to the poem’s popularity (it has been called the most famous poem of all time), could have adopted the practice of always having the reindeer named after the poem’s versions, and when one Vixen dropped of old age, the young reindeer that took her place became the new Vixen.

I suppose. Continue reading →

Ethics Hero: Artist Shepard Fairey

/ Jack Marshall / 26 Comments

Wait a minute…doesn’t Ava look a bit like Tojo?

I’m so tempted to post this story as a late response to my virtue-signaling Facebook friend who fatuously argued that political correctness was just about “not being an asshole.” this is, of course, another example of partisans using denial to avoid facing inconvenient facts.

Because some delicate flowers complained that the mural above, by artist Beau Stanton, offended them and made them feel unsafe because the rays emanating from the head—of actress Ava Gardner, for God’s sake— reminded them of the Japanese imperial battle flag, the L.A. school district agreed to paint over it. The mural is located at the Robert F. Kennedy Community Schools in Koreatown, which is part of the Los Angeles Unified School District. Koreans have not forgiven Japan for its atrocities during World War II, which is understandable. Projecting that on a mural portraying Ava Garder is not.

The school district’s senior regional administrator, Roberto Martinez, compared the Stanton mural to Confederate statues and argues that the value of the art doesn’t outweigh the “offense” to people. Pssst…Facebook friend! He’s the asshole! He’s also too dumb and biased to be a trustworthy educator!

Now artist Shepard Fairey, who painted THIS mural… Continue reading →

Ethics Hero: The New York Yankees

/ Jack Marshall / 12 Comments

(Boy, do I hate having to post this.)

Aging Yankee starting pitcher CC Sabathia was ejected from his final start of the 2018 season for intentionally throwing at and hitting an opposing batter. This meant Sabathia would fall a couple of innings short of  pitching his 155th inning for the year, which would have triggered a half-million dollar bonus bonus. Not the CC needs the money: the not-quite-Hall of Fame caliber hurler has already earned about a quarter of a billion dollars plying his trade, and he’s still in his thirties.

Nonetheless, the Yankees decided that CC has been a loyal and exemplary employee, so they decided not to be technical about the bonus provision, and gave him the $500,000 anyway.

This is pure gratitude and generosity, and much as I detest the New York Yankees, attention must be paid. The Yankees have no reason to try to suck up to CC, who is already signed for next season and who is probably going to retire after it. They are simply signaling that they appreciate what Sabathia has done for them, the city and Yankee fans, and acknowledging that he lost those last few innings “protecting his team mates,” according to the ancient, often stupid, unwritten rules of baseball.

Still, a half-million bucks is one hell of a Christmas bonus.

 

Morning Ethics Warm-Up, 12/18/2018: One Week To Christmas Edition (Including Nothing About Christmas, Almost)

/ Jack Marshall / 17 Comments

Good Morning.

A beautiful, naked Frasier Fir is standing in my living room like an unpaid debt.

1. Speaking of Christmas...The first installment on the Ethics Alarms ethics guide to “Miracle on 34th Street” went up late yesterday, and was immediately blocked on Facebook for violating community standards. Nice. It appears my Facebook “friends” took revenge for my chiding their juvenile and unending “Orange Man Bad” posts.

2. Speaking of being ticked off… Professor Turley:

In a surprising admission, the author if the controversial dossier used to secure the secret surveillance on Trump officials admitted that it was paid for by Clinton campaign as a type of insurance to challenge the election.  At the same time, the reporter who helped break the story, Michael Isikoff now says that many of the specific allegations remain unproven and are likely false. 

The Washington Times reported that Steele stated in a declaration in a defamation case that the law firm Perkins Coie wanted to be able to challenge the results of the election based on the dossier.  In an answer to interrogatories, Mr. Steele wrote: “Fusion’s immediate client was law firm Perkins Coie. It engaged Fusion to obtain information necessary for Perkins Coie LLP to provide legal advice on the potential impact of Russian involvement on the legal validity of the outcome of the 2016 US Presidential election. Based on that advice, parties such as the Democratic National Committee and HFACC Inc. (also known as ‘Hillary for America’) could consider steps they would be legally entitled to take to challenge the validity of the outcome of that election.”

In his typical fashion when he is in mealy-mouth mood, Turley says this is “concerning,” since this document was used to get judicial leave to spy on the Trump campaign. The news is only surprising if you had your fingers in your ears and were shouting “Nanananana” for the past year. This issue, you will recall, is what led a previously well-regarded commenter from the Left here to noisily withdraw as a participant because I was, he said, obviously in the throes of irrational Right Wing conspiracy mania because I posted this.

Certain exiles, if they have any integrity at all, owe me a large, effusive, groveling apology—and I still might not accept it.

Concludes the Professor: “The Steele admission only magnifies the concerns over the purpose and the use of this dossier, but has received little media attention.”

Gee, I wonder why THAT is!

3. “And now for something completely stupid” Department. I guess former “Fresh Prince of Bel Air” star Alfonso Ribeiro’s  career isn’t going so well. He is suing the makers of the video game Fortnite for allegedly stealing his “Carlton dance.” You know, this…

It was a big deal at the time because Ribeiro’s character was a geek, and ignorant viewers didn’t know that the actor was professional dancer who had starred in “The Tap-Dance Kid” on Broadway as a child. The fact that a video character does similar moves…

…is no basis for a lawsuit. Choreography copyrighting is a murky intellectual property area, and suing because of an animated figure’s moves is pathetic, as well as an abuse of the civil justice system. The has-been star is angling for a nuisance suit settlement. He should try “GoFundMe” instead. Continue reading →

Unethical Quote Of The Week: Tweeter @perpetualTJ

/ Jack Marshall / 23 Comments

“I am going to unfollow and block anyone that spouts the “age” shit. Ageism is NO different from sexism – or racism, or homophobia. A person is either competent – or they fucking aren’t. It has NOTHING to do with their fucking age. Go ask Pelosi – and RBG”

—-Joe Biden fan and defender @perpetualTJ on Twitter, piling up bad logic, faulty reasoning and political correctness like there’s no tomorrow.

Well, I don’t know who this idiot is, and it doesn’t matter. You usually don’t see such emphatic, self-righteous, and veriegated nonsense in a single tweet. It is truly a treasure trove:

  • As  is increasingly common on the left side of the political spectrum, perpetualTJ’s response to an opinion or position that he/she/it disagrees with is to stifle it, and punish the cur who dared utter such blasphemy.

This reinforces a closed mind, and guarantees perpetual ignorance.

  • As Ethics Alarms has written here before, denial and delusion are increasingly  indispensable  means whereby many advocates can continue to hold opinions and argue for policies that are factually indefensible. You can make your own list; I’m tired. Of course, age is materially different from gender or race, because age, unlike either of those states, has measurable deleterious effects that, while they vary in onset and intensity, are nonetheless real, unavoidable, and factors that must be taken seriously.

Generally denigrating someone’s words or actions for their age alone is bigotry and a form of ad hominem attack. Acknowledging that increasing age eventually makes diminished performance, illness and mortality more likely is simple biology.  Continue reading →

“Miracle On 34th Street”…An Ethics Companion: Introduction

/ Jack Marshall / 9 Comments

As with most holiday movies, but perhaps more than most, the entire concept of digging into the ethics of the plot of “Miracle on 34th Street”  can be criticized as beside the point. The movie, at least the 1947 original, is a classic; it works dramatically and emotionally, it makes people feel good, and it has held up over time. That’s all a Christmas movie is supposed to do, and if it does it without really making sense or avoiding ethics potholes along the way, so what?

I sympathize with this view. However, our ethical standards and ethics alarms are affected by what we see, hear, like and respond to. If popular holiday movies inject bad ethics habits and rationalizations into our character, especially at a young age, that is something we should at least be aware of by the tenth or eleventh time we watch one of them.

One ethical aspect of “Miracle on 34th Street” that must be flagged at the outset is competence. The film is so effortlessly engrossing and convincing that it is easy to forget how easily it could have failed miserably. Actually, it is also easy to remind oneself: just watch any of the attempts to remake the film. There have been four of these, starring, as Kris Kringle, Thomas Mitchell, Ed Wynn, Sebastian Cabot, and Richard Attenborough. That’s a distinguished crew, to be sure. Mitchell was one of the greatest character actors in Hollywood history. Wynn was nominated for an Academy Award (for “The Diary of Ann Frank”) and Attenborough won one, Best Supporting Actor Award in 1967 for “The Sand Pebbles.” Cabot wasn’t quite in their class, but he was a solid pro, and looked more like Santa Clause than Mitchell,  Wynn, or Richard Attenborough. None of them, however, were as convincing as Edmund Gwenn. He made many movies—all without a white beard— and had a distinguished career in films and on stage, but even audience members who knew his work had a hard time reminding themselves that he wasn’t Kris Kringle while they watched the movie. I still have a hard time. Continue reading →

In Gratitude: Fred Greenstein (1930-2018)

/ Jack Marshall / 9 Comments

The New York Times obituary for Dr. Fred Greenstein states early on, “Dr. Greenstein, who taught politics at Princeton University for nearly three decades, first made his mark with a reconsideration of Eisenhower, who was long perceived as disengaged from the job. Dr. Greenstein’s book, “The Hidden-Hand Presidency: Eisenhower as Leader” (1982), upended that view.” Professor Greenstein first “made his mark” with me when I was in college, and discovered some scholarly articles he had written about the psychology of leaders and U.S. Presidents, and later, a thin volume, written in 1969, called “Personality and Politics.” His writings, research and theories gave me the idea for my honors thesis, which set out to determine whether there was an “American Presidency type” which our system tended to guide to the White House. (My conclusion: there was indeed.)

My research on this project informs my opinions and analysis to this day. The thesis was a bear: my thesis advisors told me it was far too ambitious. It required reading all the major biographies and autobiographies of the Presidents to that point,matching them to various psychology studies, and trying to find legitimate and documented similarities in background and character that might have predictive value. I always intended to expand my thesis, which was well-received by the Government Department, into a book, but life, as often happens, got in the way.

Professor Greenstein, however, kept expanding and refining his theories. In addition to showing why Ike was not a weak President, as Kennedy-worshiper Arthur M. Schlesinger Sr., ranked him (infuriating my father, along with other veterans), but a strong one with a unique and confident leadership style, Greenstein continued to analyze this most difficult, complex and personal of leadership roles in later works: “Presidents and the Dissolution of the Union: Leadership Style from Polk to Lincoln” (2013);  “Inventing the Job of President: Leadership Style from George Washington to Andrew Jackson” (2009); “The Presidential Difference: Leadership Style from FDR to Clinton” (1996) and “How Presidents Test Reality: Decisions on Vietnam, 1954 and 1965” (1989). Continue reading →

Morning Ethics Warm-Up, 12/17/2018: The Tragedy Of The Commons Bites Starbucks (Good!) And Other Fiascos

/ Jack Marshall / 35 Comments

Are we having holiday fun yet?

Not yet…

1. ” Madness! Madness!” (Culturally literate readers will be able to name the movie.)

An 11-year-old boy named Joshua Trump has been forced to go by a different name at his Delaware middle school because he has been relentlessly bullied and punched on the a school bus because of his last name.  School officials said that as soon as they learned of the bullying they took action, including disciplining students  involved. The school should be investigating teachers, who may be signalling their biases against the President, and we should be looking at the bullies’ parents and the toxic influence of the media.

This story is just a tiny tip of a very large, very deep, very dangerous cultural iceberg.

President Trump should write the boy and his family, or better yet, call him.

2. “My Bloody Valentine” ethics. I am compiling a list of the very best horror movies for a relative who professed ignorance of the genre. I have done the same for Westerns (this became a Smithsonian program) and movie musicals. It is really annoying to hear people say that they don’t like movie musicals when they have never watched “Singin’ in the Rain” or Fred and Ginger at their best, or that they don’t like Westerns when they have never seen “Shane.” What they are really saying is “I don’t know what I’m talking about, but I have strong opinions on it anyway.”

But I digress. I had remembered that the 2008 remake of “My Bloody Valentine” had impressed me with its original and gory special effects, like the maniac mine murderer jamming a shovel into a victim’s face between her nose and mouth, causing the top half of her head to sliiiide down the shovel blade, or the killer yanking another victim’s lower jaw off with a pick- axe. What fun! But when I selected the film on Netflix to see if it was list-worthy, I discovered that those moments and many others had been edited out. This effectively renders the film pointless and scare-free, but it is also a bait-and-switch. If the film isn’t really the film the director made, a notice to that effect is mandatory. I assumed that Netflix only showed the movie, the whole movie, and nothing but the movie. Guess not.

3. Tucker Carlson, boycotts, and virtue signaling. On his Fox New show, Tucker Carlson was discussing the attitude exhibited by some politicians toward illegal immigration and the economic impact it has on the United States:

“Our leaders demand that you shut up and accept this. We have a moral obligation to admit the world’s poor, they tell us, even if it makes our own country poorer, and dirtier, and more divided. Immigration is a form of atonement. Previous leaders of our country committed sins; we must pay for those sins by welcoming an endless chain of migrant caravans. That’s the argument they make. Somehow the immigration-as atonement idea has become the official position of virtually every guilty liberal in the United States. Our tech overlords, the ones always lecturing you, corporate America, Nancy Pelosi and Paul Ryan—they all believe this, and anyone who disagrees with them is denounced as a bigot and fired.”

But how do you really feel, Tucker? I think Tucker would like to take back “dirtier”—how do illegal immigrants make the country dirtier?—but then he’s speaking extemporaneously. His overall point, while a bit inflammatory in the rhetoric used to express it, is valid. However, Pacific Life, which ran an ad on Fox right after Carlson’s rant proclaiming that the company had been “protecting generations of families for 150 years,” decided it was time to grandstand. (Carlson has also been a target of Media Matters efforts to get sponsors to abandon his show, because the best way to win arguments is to muzzle opposition, especially when your own position makes no sense.)

The company released this:

“Pacific Life’s national advertising campaign runs on numerous networks and cable stations on a variety of news, business and sports programs. One of our ads appeared on Tucker Carlson’s show last night following a segment where Mr. Carlson made a number of statements regarding immigration. As a company, we strongly disagree with Mr. Carlson’s statements. Our customer base and our workforce reflect the diversity of our great nation, something we take great pride in. We will not be advertising on Mr. Carlson’s show in the coming weeks as we reevaluate our relationship with his program.”

Carlson made it clear that he was talking about illegal immigration, though he gave those who want to misconstrue him sufficient rope for them to do so. If it is going to say it disagrees with Carlson, Pacific Life is obligated to say how. (I ding comments on posts here that just say “You are wrong,” “I disagree,” or “You’re an idiot.”) They don’t, because they can’t, and don’t have the guts to take a clear position. Do they believe that the U.S. has an obligation to take in all of the world’s poor? Do they not agree that unregulated and unrestrained immigration will make the country poorer and less united? Do they disagree that liberal guilt and race-baiting are primary tools of those pushing for open boarders? They probably haven’t thought about any of these things beyond the thought a puppy gives a biscuit. They just want to signal “Immigrants good!” and, to use Ann Althouse’s phrase, “Orange man bad!”

Are there corporations with integrity? Right now I can’t think of any. Continue reading →