The Scourge Of Technologically Ignorant Judges

The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either.  There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.

Judges, however, often make lawyers look like  cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files.  The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk. Continue reading

What I Do For Ethics, Or Misadventures In Travel Hell

Am I imagining this, or was air travel once efficient, comfortable, and enjoyable? I can’t be sure now; it seems impossible. Of course, as bad as it is, things would be a lot better if basic standards of competence and professionalism were observed, or even attempted.

I just arrived at my hotel in Providence approximately 2 and a half hours after I was supposed to. The delay isn’t the issue; I’m used to that, and if there’s weather, there’s weather. (There was weather.) This trip, however was special.

  • My flight took off from infamous Gate 35X, which is portal gate from which passengers board buses that take them to smallish jets scattered around the tarmac. It is always crowded, and you are tasked with listening for the announcement telling you to go down the stairs to the sub-gates and line up for your bus. That is more tricky than it sounds, because the area is pure cacophony: people talking,  announcements from nearby gates, a recorded announcement on a loop telling you not to go down the stairs until you’re told, and as a special bonus, not one but three American gate employees making announcements in various heavily accented forms of pseudo-English, spoken at auctioneer  speed. All three were intermittently incomprehensible; people were constantly turning to companions and asking, “What did she say?”

Continue reading

A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee. Continue reading

A Jumbo! One More Time: If You Trust PolitiFact, You Are As Biased As They Are

“Airplanes? I don’t see any airplanes!”

There are no good political factchecking organizations. Some are more ethical than others. Snopes is terrible, biased, and unreliable unless it is really checking urban legends. The Washington Post’s Glenn Kessler tries, but he works in the progressive bubble of Democrats who run the place, and he is corrupted. The Annenberg Foundation’s Fact-Check.org claims to be non-partisan and often succeeds, but of late it too has entered political advocacy into a category that is supposed to be only about objective facts.

As a general proposition, it is fair to call the  exercise of “factchecking” inherently misleading and so ripe for abuse that any fact check by a media organization should be viewed with extreme skepticism.

This goes double for PolitiFact; indeed, someone saying that this is their favorite fact checker has triggered signature significance. Nobody who is properly sensitive to partisan bias and committed to objectivity can possibly trust PolitiFact, a feature launched by a Democrat newspaper, the Tampa Bay Times, and recently taken over by the Poynter Institute, which I once respected as a voice for ethical journalism. Like its industry, however, it is corrupt. Either that, or Poynter isn’t providing oversight for PolitiFact.

This is res ipsa loquitur. PolitiFact, like many other media hacks from the Left, meaning almost all of them, is trying to provide cover for the “Green New Deal” that the Democratic Party has foolishly embraced, by throwing up dust, word-salads and lies. The current approach is pure Jumbo, the Ethics Alarms category for a lie in the style and scale of Jimmy Durante’s classic, trying to steal an elephant and upon being stopped by a constable and asked what he was doing with a pachyderm on a rope, exclaiming, “Elephant? WHAT elephant?”

Here’s Politifact, lying: Continue reading

Ethics Warm-Up, 2/28/2019: No Birthday For Frederick Edition [UPDATED]

Good Morning!

Back last night from a whirlwind day of ethics in NYC, and leaving today on an auto safari to Washington County, Pennsylvania, where I will address bar members to kick off their annual meeting. See Facebook? THEY don’t think I should be muzzled! Meanwhile, I will be celebrating the non-birthday of the pirate apprentice hero of Gilbert and Sullivan’s “The Pirates of Penzance,” who was, you recall, indentured to a pirate band until his 2ist birthday, and since he was born on Leap Year, legally committed to a life of crime until he was 84 years old.

1. Nah, Democrats don’t automatically default to race-baiting… Well this was certainly ugly and embarrassing. During  House Oversight Committee hearing with Michael Cohen, the fallen Trump fixer accused the President of making racist comments about African Americans. Let me interject here that this was obvious pandering to Cohen’s new pals in “the resistance.” It would have no probative value as hearsay even if the speaker wasn’t testifying with his pants on fire. Thus there was no need for Rep. Mark Meadows to try to rebut Cohen by asking Housing and Urban Development staffer Lynne Patton, who is black, to silently stand before the committee to (somehow) disprove that Trump is racist. Meadows (R-N.C.) said that Patton had told him there was “no way that she would work for an individual who was racist.”

Then Rep. Rashida Tlaib (D-Mich.) characterized Meadow’s stunt as racist, saying, “Just because someone has a person of color, a black person working for them does not mean they aren’t racist,” Tlaib said. “And it is insensitive that some would even say — the fact that some would actually use a prop, a black woman in this chamber in this committee is alone racist in itself.”

“You’re one of my best friends,” Cummings said to Meadows. “And I can see and I feel your pain, and I don’t think Ms. Tlaib intended to cause you that, that kind of pain.”

Tlaib then apologized to Meadows, saying it wasn’t her intention to call him racist. She just said that what he did was racist.

Oh.

2. Stop making me defend the Northam family! Gotcha! Just as Virginia Governor Northam was beginning to extract himself from the embarrassment of having to confess to being a Michael Jackson imitator via shoe polish, an enterprising black legislative page decided to nab her 15 minutes of fame by accusing Mrs. Northam of the dreaded “racial insensitivity.” It appears that Virginia’s First Lady, while narrating a tour of the Governor, triggered her my alluding to slavery.

“When in the cottage house you were speaking about cotton, and how the slaves had to pick it,” the teenaged page’s letter says. “There are only three Black pages in the page class of 2019. When you went to hand out the cotton you handed it straight to another African American page, then you proceeded to hand it to me, I did not take it. The other page took the cotton, but it made her very uncomfortable. I will give you the benefit of the doubt, because you gave it to some other pages. But you followed this up by asking: ‘Can you imagine being an enslaved person, and having to pick this all day?'”

“The comments and just the way you carried yourself during this time was beyond inappropriate, especially considering recent events with the Governor. From the time we walked into the mansion to the time in the cottage house, I did not receive a welcoming vibe.”

Ah. Now we see why Bernie Sanders was attacked by Democrats for saying that race shouldn’t matter. Mrs. Northam treated the black pages like she treated the rest, and that made this page feel unwelcome. And if Virginia’s First Lady had only given the cotton to the white pages? That would have been insensitive too, I’m sure.

To her credit, the Governor’s wife has not apologized. She responded that she has given “the same educational tour to Executive Mansion visitors over the last few months and used a variety of artifacts and agricultural crops.” Her intent is to illustrate “a painful period of Virginia history.” She said that she began last year to tell the “full story” of the governor’s mansion, including the Historic Kitchen. “I believe it does a disservice to Virginians to omit the stories of the enslaved people who lived and worked there — that’s why I have been engaged in an effort to thoughtfully and honestly share this important story since I arrived in Richmond. I regret that I have upset anyone,” she wrote, but she reiterated that she is  still committed to chronicling the history of the Historic Kitchen, and “will continue to engage historians and experts on the best way to do so in the future.”

Now, if she had given the tour made up as Janet Jackson, that would have been inappropriate.

3. My own private boycott: I will not buy products that continue the coarsening of our culture by employing juvenile references to gutter language to sell their wares. Now Mr. Clean joins the list, with the ad for “his” Clean Freak Mist. Today’s TV ad screamed out “Big freaking news!” As with Booking.com’s evocation of “fucking” its ads, this is neither clever nor novel. Shrug it off if you like. Continue reading

Ethics Observations On “The Green New Deal,” Part II : What’s Going On Here?

In retrospect, waiting a couple of days before completing the Ethics Alarms analysis of the “Green New Deal” was a propitious decision. The results of the ethics, integrity and IQ tests that this fiasco represents can clarified considerably. The key question to begin most ethical analysis is “What’s going on here?” Well..what is?

1. Incompetence. The Ethics Alarms reader poll asking which of the provisions of the GND would, by themselves, mandate rejecting the leadership and judgment of any public figure endorsing them showed about 58% choosing “all of them,” with the infamous “providing economic security for all who are unwilling to work” coming in a distant second. I erred terribly in not providing a positive option for readers who see nothing wrong with Rep. Ocasio-Cortez’s batty manifesto. Ethics Alarms gets 3000-4000 visits a day, and surely some readers must have flunked this test. After all, Democrats are counting on a large segment of the population being similarly obtuse. This is my own bias at work. There are some episodes involving ethics where I really cannot comprehend how anyone with all their faculties and raised a U.S. culture can possibly reach a different ethics verdict that I have. Ethics is hard, but it isn’t THAT hard. The fact that there are, apparently, progressives and useful idiots who can read the screed without giggling is itself ethics alarms-worthy. The culture, including crucial components like education, journalism, and the world of politics, is failing our society by allowing warped perceptions and unethical values to take root. If this were not true, no elected official would dare propose a document like the Green New Deal.

2. Dishonesty and deception. It sounds like a mad conspiracy theory, but it is difficult for an objective observer not to conclude that the GND is part of a long-term plan of propaganda and indoctrination to replace American democracy with a leftist totalitarian regime. The kinds of measures being promoted in the GND—forget for a moment that most of them are literally impossible—cannot be achieved through democratic means, except in the broad sense of the public voting to give dictatorial powers to the government. The process flows from eco-fascism, which employs fear-mongering about an inevitable environmental catastrophe to provide justification for sacrificing individual liberty in the pursuit of “safety.” This is, as readers of world history knows, the traditional trade-off sold by totalitarian regimes. Yes, it is true that the quality of life and personal freedoms of the American public would both be severely constrained by the car-less, plane-less, nuclear energy-less, combustion engine-less, money-less and cow-less future that the socialist Democrats propose, but the alternative, we are told, is death and destruction. Academy Award-winning actress Ellen Page ranted on Stephen Colbert’s alleged late night comedy show (It is a partisan propaganda program with jokes) that “We have been told…that, by 2030, the world as we know it, that’s it. That’s it!” Colbert, who has the undeserved reputation as a truth-teller and sage, nodded sympathetically, saying that “until the water started swamping Manhattan, or just washes away Mar-a-Lago,” the public and media wouldn’t take the existential threat seriously. “You don’t want to think such terrible things are going to happen!”

Oh sure you do, if it will give you leverage to gain power over the nation. Continue reading