High Noon Ethics Warm-Up, 9/5/2019: Arggh!…Yay!…Yechhh!…Hmmm…and Good!

Mornin’!

1. More historical ignorance to make you suicidal: Here’s Anna L.’s review of her visit to the Gettysburg Battlefield on the park’s Yelp page:

Boooorrrringggg. First off, it was nothing like the movie. All I saw were a bunch of fields and rocks. All the tourist shops, bars, and hotels in the area kept saying how I should check this place out. I kept getting confused with all of the plaques and monuments. Who was fighting who, I have no idea. The abandoned cannons looked tacky. I give this one star for the overweight character actor in the square, but that’s about it. Yaaawnnn.

I don’t even want to think about the political positions and favored candidates of an American this…this…I can’t even think of a good description. “It was nothing like the movie”????? And how many people like her are out there, rotting our culture and values from within?

Arrgh.

2. It’s about time. wouldn’t you agree? I’m amazed this took so long. Starting next year, BMC Toys in Scranton will begin adding  little green  Army women to the little green Army men that are such a standard kids’ toy. Since they debuted in 1950s, none of the iconic toy’s  manufacturers  have crossed the gender line. BMC is one of the  ew producers of plastic soldiers left in his country, and will soon be offering these:

Yay! Continue reading

“Immoral And Ineffective”

Hmmm. I have now, in a single day, heard two Congressional Democrats, in the course of discussing the so-called government shut down, describe the Trump border wall as “immoral and ineffective.” Does this mean that the phrase is an official, focus group tested Democratic talking point now, issued to the troops to be relentlessly repeated over and over again to end debates rather than illuminate them? I assume so, and thus it joins “comprehensive immigration reform,” “sensible gun laws,” and others. If I am right, it is a remarkably dishonest catch phrase. It’s also internally hypocritical.

Simply put, if the wall is ineffective, why is it immoral? And if the wall is immoral, why is being ineffective an indictment of it?

Arguing in the alternative like this is a red flag that signals that the advocate just wants to defeat the proposition, and doesn’t care how he or she does it.  The device originated in the legal profession, as a strategy to advance several competing and often mutually exclusive arguments with the goal of showing that regardless of interpretation there is no viable conclusion other than the advocate’s. Most often, the trick is used in criminal law: My client didn’t know the victim, and if he did, he was too far away that night to kill him, and even if he was the last one to see the victim alive, the evidence against him is circumstantial. In criminal law, the approach is justifiable, for the accused must be convicted beyond a reasonable doubt, and any doubt will do. The criminal defense lawyer isn’t seeking justice, or the best result for the community, just the best result for his client, as his (or her) clients defines it. It’s a better device to use in court briefs to other lawyers and judges than to a jury, who are likely to think, “Wait, does this lawyer care what the truth is?” The answer to that question is, of course, “no,” as long as the end result serves the interests of the lawyer’s client. If the client is Jack the Ripper, and the lawyer  arguing in the alternative allows him to escape conviction to kill again, the lawyer did the job required by his or her profession. The consequences of freeing the client literally is not the lawyer’s concern: if it is, then he or she is in the wrong profession. Continue reading

Ethics Alarms Mailbag: Is Arguing In The Alternative Unethical?

No, it isn’t, but I understand why it might  seem that way.

 “I didn’t do it, no one saw me do it, and you can’t prove anything!”

“I didn’t do it, no one saw me do it, and you can’t prove anything!”

An email from ethics issue scout Fred calls my attention to the case of  transgendered female Leyth O. Jamal, 23, who filed a sexual discrimination suit in September claiming that managers at a Saks store in Houston  referred to her as a man, made her to use the men’s restroom and pressured her to dress as a man despite being aware of her transgender identity. She also claimed a male colleague repeatedly asked her whether she was a prostitute in front of customers and colleagues, and threatened her. Saks fired Jamal after she brought a complaint to the Equal Employment Opportunity Commission.

In federal court this week, Saks withdrew its Dec. 29, 2014, court filing asserting that transgender workers are not covered by the gender discrimination ban in Title VII of the Civil Rights Act of 1964. The company  still denies that it discriminated, and has made statements about how it “believes that all persons are protected against sex discrimination under Title VII” of the Civil Rights Act of 1964, which prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. It had argued, however that the plaintiff had based her case not on sex discrimination but on the issue of gender identity and transgender status, which Saks believed fell outside of Title VII’s mandate.

Now Saks is only disputing that there was any discrimination, not that such discrimination was legal. The question posed to me: does this U-turn this look bad for Saks? Is it cynical and unethical? How can you simultaneously argue that what the client alleges isn’t actionable because there’s no law against discriminating against someone for gender identity, and that you didn’t discriminate on that basis, or any basis, anyway? Continue reading