Ethics Dunce, Halloween Division: South Carolina U.S. Rep. Mark Sanford

/ Jack Marshall / 9 Comments

As we all know, do we not, Mark Sanford is weird. He is the former rising star in the GOP firmament who seemingly threw away his career and reputation to unite with his South American “soul mate,” going AWOL while governor as he went south of the border for an adulterous  tryst (using state funds) while his aides told the news media, “Governor? Governor? I’m sure he’s around here somewhere!” He had to leave office, of course, but the forgiving (comatose?) South Carolina voters actually trusted him again and elected him to Congress, only to turn on him in the recent primary for being an outspoken NeverTrumper.

Now we learn that for Halloween, he left a basket of yummy holiday Constitutions outside his office, complete with a witch’s hat, tweeting,

Happy Halloween. Accordingly, Pocket Constitutions are at the ready for today’s trick-or-treaters.

Ugh.

1. The U.S. Constitution is not a Hershey Bar.

2. People who co-opt the tradition of Halloween to exploit their own interests and hobbyhorses, be it dentists who give out dental floss to the kids at their door, religious zealots who hand out Bibles, or  those who guilt children into ringing bells for UNICEF or other charities instead of letting them have fun, really have an ethics screw loose somewhere. It’s the kind of thing Ebenezer Scrooge would have done, and maybe he did, except that Chuck never got around to writing, “A Halloween Carol.”

A special ethics demerit goes to every member of the lame duck’s staff, none of whom were able to talk their boss out of this stunt.

Appreciation is due to Jonathan Turley, who flagged this crime against little goblins.

Welcome To Grandstanding And Virtue-Signaling Creep!

/ Jack Marshall / 7 Comments

A San Francisco 49ers cheerleader “took a knee” during the National Anthem ahead of the team’s Thursday night game against the Oakland Raiders yesterday.

She should be fired. She isn’t employed to indulge her personal political leanings in public, and this is no more appropriate than raising a sign advertising a candidate for office or one extolling the value of Cheetos. There is no right to appropriate one’s workplace on the job for an expression of personal social or political views.

How can the 49ers fire her, though? They haven’t punished any football players for taking the same, arrogant, intrusive liberty. The team would be called sexist. Other cheerleaders would kneel in solidarity. The players would also rally to her support. Next the team will have vendors and ushers kneeling. President Trump will probably tweet some offensive comment, like “Fire the bitch!”

All of this, because the 49ers didn’t have the guts, foresight, commons sense and respect for their paying customers to discipline Colin Kaepernick the first time his knee hit the field, and lay out the basic conditions of his employment in case he was under some delusion that he had a right to do such a thing.

 

Morning Ethics Warm-Up, 11/2/18: Democratic Dinners, TV Weatherman Edicts, Truth As Racism, And More

/ Jack Marshall / 24 Comments

Good Morning!

I see that the October jobs report this morning is spectacularly good, with 250,000 jobs added. It is amazing that so many Americans are going to vote against Republicans in the midst of such a strong economic surge following the end of Obama’s recovery-strangling policies. The lesson for future leaders, perhaps, is that the public cares more about a President constantly acting like an asshole than they do about what he accomplishes. From an ethics point of view, I would see that as a positive development, if I didn’t strongly suspect that the real reasons for apparent votes against self-interest are 1) that the news media isn’t reporting the economic news with anything like the enthusiasm it would if this were a Democratic administration, 2) that people really believe the ridiculous spin that this is somehow an Obama recovery, and 3) that so many young Americans have been indoctrinated into socialism that even as Venezuela crumbles, they are still buying the fantasy.

1. Next try: The Oprah-Jennifer Lawrence Dinner. This is pretty funny. Following the lead of other Democratic state organizations, The New Hampshire Democrats insulted the party’s two founders, Presidents Thomas Jefferson and Andrew Jackson, also two of the nation’s greatest leaders, by removing their names from the annual party dinner.  For 2017, the event was renamed…wait for it!…the Kennedy-Clinton Dinner! Yup, two serial sexual assaulting misogynists, assuming it’s Jack and not Teddy being honored, in which case it’s a negligent killer, for the Party of Women. What a brilliant choice! How can anyone not vote for a party capable of a decision like that? But for some reason, as the Harvey Weinstein Train Wreck rolled along, the new name came under criticism. Who could have foreseen that? So the dinner has been renamed again; now it’s called the Eleanor Roosevelt Dinner, after the cruelly-treated wife of another Democratic icon.

2. Who makes these rules? Why, Al Roker, that’s who! After he was called a hypocrite on social media for dressing up as “Doc Brown,” the Christopher Lloyd character in the “Back to the Future” films—Al, you will recall, helped get Megyn Kelly fired for saying that a white person could impersonate a black character using dark make-up without engaging in racially offensive conduct—tweeted,

“I’m going to say this one last time, but the folks who get it, understand and the ones who DON’T, won’t. I can be Doc Brown, and I wear the outfit and wig and not change my skin color if you’re white , you can be President Obama if you want. Just don’t color your skin!”

Wait: what about hair, Al? I’ve read that it’s racially offensive for a white person to wear a black-hair wig, like an Afro or Bob Marley hair. But it’s okay for you to wear a crazy old white guy wig?

Why, Al? For that matter, why isn’t wearing make-up that allows someone to actually look like the person or character he or she is portraying acceptable? Who makes these rules? Oh! Right! You do!

When I first saw that picture, I didn’t know who the hell Al was playing. I thought it might be Michael Jackson if he had lived, let himself go, and grew his nose back. Continue reading →

Is Continuing Legal Education A “Farce”?

/ Jack Marshall / 17 Comments

Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.

AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all,  charge for.

Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.

Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.

Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):

Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.

To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!

Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.

This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!

Continue reading →

Morning Ethics Warm-Up, 11/1/2018: Battling Toddlers, Racist Lemons, And Justices In Love

/ Jack Marshall / 83 Comments

Welcome November!

1. Warm-Up musings…I suspect that the Warm-Up format costs the blog traffic, potentially a lot of traffic. If each was broken into components and posted individually, there would be a lot more clicks. Of course, I wouldn’t have time to post each separately—I estimate that a single post adds 15 to 20 minutes to the process—and there would be fewer issues covered. Capturing more of the events and issues that get into my files is one of the main reasons I started this. A better blog but less appreciated? Nah, I’m not going to measure success by traffic, as tempting as it is. I resist click-bait—there are topics that guarantee flood of comments—and don’t resist posting analysis that I know will cost me followers: I literally watch the numbers go down. And, of course, there are once regular readers who have fled because I have been consistent in my approach to the Trump Presidency, and regard his treatment by the “resistance,” Democrats, progressives and the news media as a national ethics catastrophe, irrespective of his own neon flaws. They fled, in part, though they will not admit it, because they simply could not muster valid arguments for why this President did not deserve the same presumptions of good will, good effort and public loyalty as every other President, traditional benefits that are essential to the office working and the nation thriving. What they represented as arguments were really presumptions of guilt and the byproduct of hateful group-think magnified by confirmation bias. I hope they eventually get well, and that when they do they aren’t too remorseful for being appropriated by an angry mob.

In the subsequent items, I’ll briefly explain why they are here rather than in a full post.

2. Unethical quote of the week: Don Lemon. Again. Earlier, Lemon said on his CNN platform,

“We have to stop demonizing people and realize the biggest terror threat in this country is white men, most of them radicalized to the right, and we have to start doing something about them. There is no travel ban on them. There is no ban — you know, they had the Muslim ban. There is no white-guy ban. So what do we do about that?”

Like so much Lemon says, this was incoherent, biased, and intellectually lazy. He said to stop demonizing people, and demonized a gender and race in the same sentence. “Start doing something” is typical political humming: do what, exactly? Lock them up? What? Any fool can say “Do something!”, and Lemon is just the fool to say it.  The travel restrictions are a non-sequitur, the kind of lame-brained argument that social media advances in memes and “likes.” Those restrictions involve non-citizens and their ability to immigrate. It was not based on race or ethnicity, but nation of origin. It’s an ignorant and misleading statement. “There is no white-guy ban. So what do we do about that?” is flat out racist, and intended to be—unless Lemon can’t speak clearly, which you would assume is a job requirement. A responsible news organization would have fired him, but he’s black and gay, so that’s not going to happen.

Then he came back and said this:

“Earlier this week, I made some comments about that in a conversation with Chris [Cuomo]. I said that the biggest terror threat in this country comes from radicals on the far right, primarily white men. That angered some people. But let’s put emotion aside and look at the cold hard facts. The evidence is overwhelming.”

Continue reading →

The Astounding, Clueless, Unethical And Doomed Hiring Of Brodie Van Wagenen

/ Jack Marshall / 15 Comments

‘Conflicts of interest? I have no idea what you mean…’

Disclaimer: This is NOT a baseball ethics post. This is a business ethics post about a major ethics issue,  and the business happens to be a major league baseball team.

This week the New York Mets stunned the baseball world by hiring Brodie Van Wagenen—that’s him on the left—as its new general manager.

He is not only being hired to manage the business of a major league baseball team without having ever worked for a baseball organization in any capacity. That would be strange enough. He is also a player agent who has been the representative of several key players currently under contract to the Mets, meaning that he acted for them in negotiating against the team he now heads.Van Wagenen made $25 million in commissions last year on player contracts.

Anyone whose ethics alarms weren’t set ringing like the bells during the Great Chicago Fire by the Mets decision doesn’t understand what a conflict of interest is. Guess who this category includes. Yup: Van Wagenen and the New York Mets.

In a press conference at Citi Field, Mets executives were asked about the conflicts issue, which should have been predictable, mandating a careful, thorough answer.  As a player agent for Creative Artists Agency (Van Wagenen has divested himself of all shares in the company and future commissions…at least he figured out that much) Van Wageman’s responsibility was to negotiate the most lucrative contracts for his clients. As the a general manager for the New York Mets, his responsibility is to build a successful team within its resources, regardless of the best interests of his former clients, the players he worked with over the past 18 years. When the “C” word was raised bu reporters,  Mets President Fred Wilpon interrupted before Van Wagenen could answer  and said that he had spoken with the commissioner’s office and Major League Players Association chief Tony Clark, adding, “We have provisions in Brodie’s contract to deal with any conflicts of interest.”

Oh! Well never mind then! The contract deals with it, and the Mets have spoken to people! All taken care of!

Neither Wilpon nor Van Wagenen would say what those provisions were, but I guarantee this as an ethics specialist: the only provision that could effectively deal with Van Wagenen’s conflicts would be “Van Wagenen can’t be the Mets general manager.” Continue reading →

Unfinished World Series Ethics Business

/ Jack Marshall / 5 Comments

Today the victorious Boston Red Sox took their now traditional duck boat parade through Boston and down the Charles River, so even for the Sox, the 2018 season is officially done.  My job isn’t however, because there were two striking examples of moral luck and consequentialism during the World Series, and apparently I was the only one who noticed.

I. The “Bad News Bears” moment.

When Red Sox Game 4 starter Eduardo Rodriguez surrendered what seemed at the time to be a decisive three-run homer to Yasiel Puig, putting the Sox behind in the 6th inning 4-0, he angrily hurled his glove to the mound. Commentators joked about how he resembled the Bad New Bears’ combative, potty-mouthed shortstop Tanner in the Little League classic, but other than the ribbing, nobody criticized “E-Rod.” Indeed, his manager, Alex Cora, exonerated him for the home run, saying that he, the manager, screwed up by letting his tiring pitcher face the dangerous Puig.

Yet earlier this season, Boston reliever Carson Smith, regarded as an important member of the Red Sox relief squad, threw his glove in the dugout after giving up a home run, and partially dislocated his shoulder. He was lost for the season, and both team officials and Boston sportswriters blamed Smith for his injury. He injured himself you see. It was stupid and selfish, and showed him to be unprofessional and untrustworthy. Many thought Smith should be fined, or even released. Yet it was a completely freak injury. It wasn’t as if Smith had punched a wall or a water cooler. Baseball players throw their gloves all the time, and I’ve never seen it injure anyone. So why was Carson Smith treated as a pariah for throwing his glove, but Eddie Rodriguez doing the same thing shrugged off? The only reason is that Smith’s angry gesture happened to injure him , which nobody, including Smith, could have predicted. In fact, Rodriquez was more, much more, irresponsible than Smith, because he knew throwing a glove could cause an injury. He knew, because it happened to Smith. Continue reading →

Halloween Ethics Warm-Up, 2018: Problematical Communications Edition

/ Jack Marshall / 28 Comments

Boo!

1. How can CNN, or anybody, continue to justify employing Don Lemon as a “journalist”?

He defaults to emotion regularly. He is incapable of objectivity. His partisan and ideological bias is palpable. ( He gets drunk on the air every New Years…) And he says idiotic things like this. Good for Scalise, the perfect individual to flag Lemon’s incompetence. His Twitter followers have also noted many other cases of Democrats “killing people.” Or is Lemon and CNN going to stand on the fact that nobody was killed by the Bernie Sanders-supporting sniper who seriously wounded Scalise? I wouldn’t be surprised.

2. Stop making me defend Hillary Clinton! During an interview with Recode executive editor Kara Swisher (full disclosure: I had some unpleasant experiences dealing with Swisher in her Washington Post days, and wouldn’t trust her to walk my dog around the block.)  in New York City over the weekend. Swisher asked Clinton a question regarding a quip that was previously made by Holder, but mistakenly attributed it to Senator Spartacus, Cory Booker. “What do you think of Corey Booker … what do you think about him saying ‘Kick them in the shins,’ essentially?” “Well, that was Eric Holder,” Clinton said. “Yeah, I know they all look alike.” “No, they don’t,” Swisher responded.

Now Clinton is being called “insensitive” by her party’s political correctness posse. It was a joke, and also a rebuke of Swisher. The former was absolutely fine (and funny); the latter was a mean-spirited “gotcha!” suggesting unfairly that Swisher thinks of all blacks as fungible, a bigoted attitude, when she just made a mistake. (I get Cory Booker confused with Kirk Douglas sometimes.) Then Swisher turned the finger-pointing back on Hillary, implying that Clinton meant her remark literally rather than sarcastically. Continue reading →

Jake Tapper, Julia Ioffe And The Anatomy Of An Ethics Train Wreck

/ Jack Marshall / 35 Comments

I can’t even keep track of the subordinate ethics train wrecks and sub-train wrecks emanating from the Biggest Ethics Train Wreck of  Them All, the 2016 Post Election Ethics Train Wreck, wherein the furious defeated Democratic Party/progressive/NeverTrump/news media collective set out to undermine the new Presidency, and to overthrow the Presidency if possible. This forms the backdrop, wrote Liz Shield yesterday, for

“every aspect of public discourse on Trump and Trump-related matters..the news on the Pittsburgh synagogue slaughter falls into this category and the strongest narrative on the tragedy is that Trump inspired this/is responsible because he hates Jews/is antisemitic/didn’t condemn the white supremacists or whatever flimsy excuses the resistance needs to blame Trump. In reality, Trump is probably the most pro-Israel president the U.S. has ever had…Those of us who are not in the #resistance are getting lectured on toning down our rhetoric from left-wing hysterics shouting all kinds of slanderous and intemperate accusations…So I am supposed to believe that calling Trump supporters Nazis, white supremacists, sexists, and homophobes is just the right thing to do but Trump’s rhetoric is pouring gasoline on a burning fire of crazy activists? Or perhaps violence in the name of the leftist agenda is just fine? I think that’s it.”

I agree. That’s it indeed. The same is obviously true of the level of rhetoric. Violent, hateful, extreme rhetoric has been coming from the anti-Trump news media for two years, and there are a lot more of them than there are of him, which is one. It takes an immense amount of journalism gall and the assumption of public  gullibility for the news media to argue that the President has created a culture of hate. Says Fox’s Lone Conservative Comic Greg Guttfield, “You want hate? You spend two years calling a guy Hitler, a racist, a traitor, and insane — then you blame him for violence cuz of nicknames?”

No previous President has been attacked using such extreme rhetoric or would have, and no President who was would have survived it without defending himself while calling his critics what they were.

[ A brief digression on “enemy of the people.” President Trump once again described the news media as the enemies of the people. I have, reluctantly, concluded that the label is accurate and justified, and that the President is right in affixing it. This has horrified many here. I agree that calling a crucial democratic institution a public enemy is extreme and dangerous. However,

…More dangerous to a democracy still is a crucial democratic institution perverting its professional and institutional obligations and using its public trust to attack and undermine the democracy it exists to serve;

…That is what the mainstream news media has chosen to do, rejecting objectivity and independence for a hard partisan alliance, depriving the public of a fair and truthful account of events and developing issues;

… The absence of a trustworthy and functioning journalistic establishment will, in the long run and if uncorrected, render our democracy dysfunctional and inoperable, to the detriment of the American public and the world.

…Therefore this deliberate, reckless course threatens the people, and since there is no unbiased Fifth Estate to warn them, it falls to the only remaining democratic institution with the ability to do so to assume the task, the Presidency.

….”Enemy of the people” is a shocking and damning accusation, and its full power is essential if journalists are to realize that they are on a destructive oath.]

This adversary position does place any ethical journalist left standing in peril of perishing in the crossfire, and being run down by the various careering trains despite his or her best efforts. On CNN’s “The Lead With Jake Tapper”this week,  GQ magazine correspondent Julia Ioffe was joined by David Urban, Symone Sanders (who is a documented idiot and bigot) and Mona Charen on a panel to discuss the effects of combative rhetoric, primarily the President’s. CNN’s Don Lemon’s statement that “The president of the United States is racist,” MSNBC’s Joe Scarborough assertion that “Even Albert Einstein may have ended up in a Nazi concentration camp with Donald Trump’s viewpoint on immigration,” and MSNBC’s Donnie Deutsch’s smear that “If you vote for Trump, then you the voter, you – not Donald Trump – are standing at the border like Nazis going ‘you here, you here!,” among others, were not discussed. Ioff, best known perhaps for being fired from Politico for suggesting that the President was having an incestuous relationship was his daughter (or in her words, was “fucking” Ivana), decided to compare the President of the United States to ISIS.
Continue reading →

Morning Ethics Warm-Up, 10/30/18: Scary Ethics Stories!

/ Jack Marshall / 64 Comments

Good Morning!

(And HAPPY BIRTHDAY to my brilliant, talented, always challenging, Trump-hating lawyer little sister, Edith Sophia Marshall!)

1 Quiz results: about 90% of responders found the drag Python sketch about a ladies club re-enactment of Pearl Harbor funny. Whew. As for the one voter who said that it was unfunny because it made light of human tragedy and violence, I’m glad you never attended any of the stage comedies I directed.

2. Ending birthright citizenship for illegal immigrant offspring? President Trump told Axios in an interview that he was preparing to issue an executive order to end birthright citizenship for children of immigrants here illegally. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t…You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”

I have found no authorities who agree with Trump’s lawyers, if indeed they are telling him that. If they are, I don’t blame him for listening to them: if there was ever a President who was legally clueless, it’s this one. Some conservatives are livid about the suggestion (obviously all illegal  immigration-boosting liberals are as well), noting that this proposal is exactly as unconstitutional as Obama’s immigration-related EOs. I tend to agree with them. Ethically, the birthright rule is an incentive to break the law and anachronistic, since it originated when there were no legal restrictions on immigration nor reasons to have any. if the question gets to the Supreme Court, however, it will pose an integrity test for the conservative justices. Their philosophy is that you can’t just re-write or ignore the Constitution when it gets in the way of desirable policy, and this is a perfect example.

It is also very possible—likely?— that the President was using this trial balloon to energize the anti-illegal immigration base as the “caravan” continued its march. Continue reading →