fairness

KABOOM! Just…KABOOM!

/ Jack Marshall / 42 Comments

atom-bomb-cloud

Now I think understand why Ann Althouse, an intelligent, rational lawyer and law professor, has begun holding a “Most Loved Rat” contest on her blog to see which of her rat doodles are most popular. I’m less creative, I guess (though I also draw good rat cartoons!)—my head just explodes. It exploded last night.

It’s hard to explain exactly what did it.  Here I was, watching a series of baseball play-off games (since the Red Sox had been eliminated by the Cleveland Indians the day before), and Neil Patrick Harris appeared yet again to tell me that “Heineken Light makes it OK to flip another man’s meat.” (I wrote about the gratuitous vulgarity of this ad here. Apparently this makes me a homophobe.)

Wait…isn’t flipping another man’s meat sexual assault? What is the difference, in lack of respect and sexual assault ethics, between grabbing a woman by the pussy, as Donald Trump so eloquently put it, because you’re a rich celebrity, and flipping another man’s meat because…of beer? 
Continue reading →

Nobody Cares, But NBC Has Been Wildly Unethical In The Trump-Bush Video Affair

/ Jack Marshall / 15 Comments

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NBC deserves to be condemned for its conduct in many ways in reference to the Trump Pussy Tape episode, going back eleven years.

1. NBC technicians allowed Trump to continue talking without his realizing that his microphone was on. Unethical, and unprofessional, as well as a pure Golden Rule violation. Basic decency, fairness and professionalism requires that when a guest is doing this, his mistake must be  made known to him at the earliest possible time. This is the rule when someone continues to speak on a conference call believing the call has ended. It is the ethical thing to do  when you are in a bathroom stall and your opponents in a law suit start discussing strategy while they are washing their hands. I have several times, at taped seminars, begun to answer questions during a break and realized that I was still being recorded. Sometimes a technician has reminded me. Worse (but funnier) I have done a full “Naked Gun”, using the Men’s Room while wearing a live mic…and the technician dashed in to get me to turn it off, just in time. (Well, almost.) Allowing a guest to embarrass himself on tape as Trump did is despicable and unprofessional in every way.

2. NBC betrayed its own employee, Billy Bush, by not alerting him, either.  Disloyal, unfair, and uncaring.

3. Once the recording was made, it should have been destroyed as soon as anyone in authority realized the participants were speaking without knowing the mics were on.

4. Attorney Robert Barnes makes a compelling argument that NBC’s conduct violated California Penal Code 632, which criminalizes the act of any person who “without the consent of all parties” records their conversations. Of course, violating the law is also unethical. Trump might  have a just lawsuit, though the damage can’t be undone: the pussy’s out of the bag, so to speak.

5. Bush, as an NBC employee, should have been told about the recording and its contents long, long before it was made public. NBC was obligated to inform him as a basic courtesy. Continue reading →

Ethics Dunce: Libertarian VP Nominee William Weld

/ Jack Marshall / 5 Comments
And by the way, nice hair color, very natural, Bill. I believe it like I believe you're a libertarian.

And by the way, nice hair color…very natural, Bill. I believe it like I believe you’re a libertarian.

The Boston Globe reported that former GOP Massachusetts governor turned Libertarian Party vice presidential nominee William Weld told its reporters that he would be focusing his campaigning against Donald Trump because  he did not want his Libertarian ticket to undermine efforts by Clinton to defeat Trump.  This follows Weld’s earlier statement that  “I’m not sure anybody is more qualified than Hillary Clinton to be president of the United States.”

Has anyone told Bill that the objective of a presidential ticket is to win the Presidency, and that when a party nominates candidates for the two top leadership jobs in the nation, it is supposed to represent an assertion that they are the best people for those jobs? Apparently not.

How about loyalty? Has anyone explained the ethical value of loyalty to Weld? See, that means that when a Presidential nominee asks you to run with him, by accepting his invitation you agree to assert that he should be President, not a candidate he’s running against. If a candidate’s running mate doesn’t unequivocally support him as the best candidate, why should anyone else? If Weld thinks Hillary is the most qualified individual to be President (Nonsense: WELD is more qualified), then he should endorse her and drop off the ticket.  Indeed, many reporters, including Carl Bernstein of Watergate fame, have reported that Weld has considered doing just that. Continue reading →

Ethics Quiz Of The Day: Backing Into A Batting Championship

/ Jack Marshall / 13 Comments

Milwaukee Brewers v Colorado Rockies

On the final day of the 2016 regular season yesterday, Rockies second baseman D.J. LeMahieu had a one point lead on Washington Nationals second baseman Daniel Murphy for the National League batting championship, .348 to.347. Murphy was nursing a pulled muscle, and hadn’t played for several games as the NL East winning Nationals rested him so he could be healthy for the play-offs. Murphy wasn’t going to be in the final game either, which meant that the only way LeMahieu could lose his lead was by making outs. Thus, with the consent of his manager, Walt Weiss, the player sat out the last game to protect his average. Realizing that the Rocky player was attempting to “back in” to the batting title, regarded in baseball ethics as dishonorable, or, in technical terms, “the conduct of a weenie,”  Nats  manager Dusty Baker sent Murphy limping up to the plate to pinch-hit for Jose Lobaton in the fifth inning. A hit by Murphy would have given him the lead, and required LeMahieu to bat in the Rockies game to pass him. Murphy, however, flied out.

Your End of Baseball’s Regular Season Ethics Alarms Ethics Quiz of the Day:

Was it fair, sportsmanlike and ethical for LeMahieu to win the batting title by not playing?

Continue reading →

The Wrenching Problem Of David Ortiz, The Human Slippery Slope

/ Jack Marshall / 34 Comments

papi_fame

Ethics conflicts force us to choose when multiple ethical principles and values point to diametrically opposed resolutions.  Often, a solution can be found where the unethical aspects of the resolution can be mitigated, but not this one. It is a tale of an ethics conflict without a satisfactory resolution.

I didn’t want to write this post. I considered waiting five years to write it, when the issue will be unavoidable and a decision mandatory. Today, however, is the day on which all of Boston, New England, and most of baseball will be honoring Red Sox designated hitter David Ortiz, who will be playing his finale regular season game after a 20 years career.  His 2016 season is quite possibly the best year any professional baseball player has had as his final one; it is definitely the best season any batter has had at the age of 40 or more. Ortiz is an icon and a hero in Boston, for good reason. Ortiz was instrumental in breaking his team’s infamous 86-year long “curse” that saw it come close to winning the World Series again and again, only to fail in various dramatic or humiliating ways. He was a leader and an offensive centerpiece of three World Champion teams in 2004, 2007, and 2013. Most notably, his record as a clutch hitter, both in the regular season and the post season is unmatched. You can bring yourself up to speed on Ortiz’s career and his importance to the Red Sox, which means his importance to the city and its culture, for nowhere in America takes baseball as seriously as Beantown, here.

That’s only half the story for Ortiz. Much of his impact on the team, the town and the game has come from his remarkable personality, a unique mixture of intensity, charm, intelligence, generosity, pride and charisma. After the 2013 terrorist bombing of the Boston Marathon, which shook the city as much as any event since the Boston Massacre, Ortiz made himself the symbol of Boston’s anger and defiance with an emotional speech at Fenway Park. Then he put an exclamation point on his defiance by leading the Red Sox, a last place team the year before, to another World Series title.

Performance-based arguments against electing Ortiz to baseball’s Hall of Fame are, at this point, untenable. Entering his final game, Ortiz had 541 home runs, (17th all-time), 1,768 RBI, (22nd), and 632 doubles, (10th).  He is only the third player in history to have more than 500 home runs and 600 doubles.  He ranks among the greatest post season hitters in baseball history with 17 home runs, 60 RBI and 21 doubles. His postseason average is .295 with an on base percentage of .409, a slugging percentage of .553 and a .962 OPS (the sum of the two.) Most great players did worse in the post season than during the regular season, for the obvious reason: the competition was better. Ortiz was better, which informs regarding his character and dedication.

The one lingering argument against admitting Ortiz to the ranks of Ruth, Williams, Aaron, Mays, Cobb, Hornsby, Griffey and the rest is that he has spent most of his career as a designated hitter, the American League’s 1973 invention, much reviled by National League fans and baseball traditionalists, designed to allow real batters relive fans from watching pitchers make fools of themselves at the plate. This makes him “half a player,” the argument goes. No designated hitter has ever been elected to the Hall, so that argument has prevailed so far. It was always a weak one—how did being lousy fielders like so many Hall of Fame sluggers make them greater players than one who never hurt his team at all with his glove? Now that a designated hitter has shown himself to be in the elite ranks of all the greatest batters, the argument sounds more like hysterical anti-DH bias than ever.

I should also note, before getting to the main point of this post, that I love Ortiz. I am a lifetime Red Sox fan, Boston born, bred and marinated, and Big Papi is special. He is one of the most interesting and admirable sports figures of my lifetime, and what he has meant to my city and my favorite sport is beyond quantifying. Few great athletes demonstrate persuasively that they are also great and admirable human beings. Ortiz is one of them.

Nonetheless, it is crucial that David Ortiz not be elected to the Hall of Fame when he becomes eligible five years from now, and that he never be admitted. On the matter of assessing the fitness for baseball honors of those who defiled the game by inflating their statistics, changing the outcome of games and harming players who abided by the rules, David Ortiz is a human slippery slope. Ortiz deserves to be in the Hall based on all admission criteria, including character and sportsmanship, but his admission will open the doors wide for players who are unfit, polluting the Hall of Fame and baseball’s values forever.

It’s not worth the trade off. This is the ethics conflict: one cannot be fair and just to “Big Papi” without doing widespread harm to the sport, and I would argue, the entire culture. Continue reading →

Unethical Tweet Of The Month: The Despicable Howard Dean

/ Jack Marshall / 16 Comments

howarddean-tweet

What can you say about this kind of slimy, unethical innuendo from a former Democratic Party chair? How hateful and uncivil the brand of politics and partisan nastiness that it symbolizes and advances? That it represents gutter political smearing at its worst and most unforgivable? That a party with any dignity and sense of decency would demand an apology and a retraction or cut ties with such a shameless creep? That someone who would do this has never heard of the Golden Rule, much less follows it?

The only remaining question is whether this ugly tweet allows Dean to surpass  or merely  Harry Reid as the most loathsome individual on the political scene, edging past the disgraced Debbie Wasserman Schultz.

I’m trying to think of a similarly ethically irredeemable Republican. Chris Christie hasn’t sunk to this level; Newt Gingrich is close, but he wouldn’t do this. Ironically, the only one I can think of is…Donald Trump.

Presidential Debate Ethics: The “Have Your One Of Your Adversary’s Husband’s Former Mistresses Sit In The Front Row” Tactic [UPDATED]

/ Jack Marshall / 30 Comments
"Hi, Hillary! I'm back! Where's Bill sitting?"

“Hi, Hillary! I’m back! Where’s Bill sitting?”

It is being reported that Donald Trump has arranged to have Gennifer Flowers, Bill Clinton’s paramour from the years before his election, sit in the front row of the audience for Monday’s Presidential debate. If true, the objective is obviously to unnerve Hillary.

I hope it is just pre-debate psychological warfare, and that even Donald Trump has more class and couth than to actually do it. What am I saying? The man  has neither, nor any respect for basic decency or fairness, either.  Trump’s capacity to fall below even my low expectations regarding decent and professional conduct continues to amaze.

What adjectives describe this vile tactic of a Master Troll? Let’s see: Continue reading →

Comment of the Day: “A Daughter Sues Her Parents For Being Assholes. Good.”

/ Jack Marshall / 18 Comments

growth-sequence

Having just returned from an eight-day (and partially laptop-less) speaking tour  that has me about ten posts behind, it was nice to have Steve-O-in-NJ deliver a textbook Comment of the Day, expanding on the original post with relevant and useful observations about photography -obsessed parents and photography ethics.

I do object from an ethical standpoint to his tit-for-tat endorsing last line.

Here is his good and thoughtful work in response to the post, “A Daughter Sues Her Parents For Being Assholes. Good.”

What are the ethics of taking 500 pictures of your child? I wish that I could say that the ethics of taking large numbers of pictures are always the same but they are not. I am in the middle of a two-week vacation and I have been taking a large number of pictures. I see absolutely nothing wrong with shooting a large number of pictures during an air show, particularly where the opportunity to get a particular shot is very limited. I see absolutely nothing wrong with taking a large number of pictures at a place like Colonial Williamsburg, where the actors are deliberately dressed up in costumes designed to attract attention. The same ethics generally applies to any event where there are costumed individuals who are seeking attention. The same ethics probably apply to sporting events. Of course the shooting of inanimate objects like in a museum is perfectly all right, subject to whatever policies the institution puts in place and makes known. Continue reading →

A Daughter Sues Her Parents For Being Assholes. Good.

/ Jack Marshall / 18 Comments

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An 18-year-old Austrian woman is suing her parents for continually posting embarrassing childhood photos of her on Facebook without her consent. Since 2009, she alleges, they have willfully humiliated her by constantly posting intimate images from her childhood—about 500 to date. Among them are potty training photos and pictures of her having her diapers changed.

The abused daughter told reporters, “They knew no shame and no limit – and didn’t care whether it was a picture of me sitting on the toilet or lying naked in my cot – every stage was photographed and then made public.” Her parents have  700 Facebook friends.

The technical term for them is “cruel and merciless assholes.”

They have refused to delete the photos, with her father arguing that since he took the photos he has the right to publish them to the world.

Oh, what does the law have to do with this? If the parents had any decency, and sense of fairness, respect and caring, the law wouldn’t have to be involved in any way.  Their daughter feels humiliated, as most of us would be, by having such photos published. There is no ethical principle under which publishing photographs (or videos) of anyone that were taken without consent when the subject objects or one knows or should know that he or should would object can be justified. This controversy, if ethical parents were involved, would be settled with a simple exchange:

Her: “Please don’t put anymore of those photos on Facebook, and take down the ones that are up now. They are embarrassing.”

Them: “OK!”

How hard is that? I know it’s hard for parents to resist posting photos of their adorable infants and toddlers while they are too young to protest, but the protest should be presumed. The Golden Rule rules, and I go further: this is an absolute. Children should not have their lifetime privacy scarred by parents selfishly indulging themselves by treating their children like pets. Children should be able to trust their parents to respect their sensibilities and vulnerabilities, and not to sacrifice them for cheap Facebook “likes.”  Obviously, many of them can’t.

Continue reading →

Ethics Hypothetical: Rules, Compassion, Integrity, Fairness, And A Looming Race Card

/ Jack Marshall / 14 Comments

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[The hypothetical is inspired by two recent events I witnessed in the past week.]

Preface: The state requires new bar admittees to take a one-day course covering the basics of practicing law in the jurisdiction—how the courts work, special procedural rules, unique aspects of local practice, horror stories, the works. They must complete the course or they can’t be certified, and the court-ordered series of lectures and presentations is held only once a month.

A company runs the mandatory curriculum under contract to the state, and is required to confirm in writing to the courts that its requirement have been fulfilled. One key requirement is that every attendee must be present for every minute of the presentations, except for brief emergencies, like using the rest rooms. The course administrators carefully monitor attendance. The published description of the course directs that once the course begins, theoretically at 9 am sharp, no late-comers will be admitted.

As you might imagine, missing the session can be quite a hardship, as participants often live and work in other jurisdictions.

The Event: It is 9:08 am on the day of the program, and the introductory video that begins the orientation is almost finished. It consists of interviews with members of the bar about the benefits of practicing in the state, the importance of ethical practice, etc: to say it is not substantive is an understatement. Literally nothing that is said and shown in the video is anything but boilerplate.

A young man, sweating profusely, bursts in the door, looking unhappy and desperate. “I’m sorry I’m sorry!” he babbles. He says that he had to drive up from a neighboring state and had an accident. “Can I still get in?” he pleads.

The male staffer responsible for the session chats briefly with an associate. The program was late starting, and this late arrival will miss nothing if he goes in now. “All right,” the honcho says as the young man heaves a sigh of relief. “I shouldn’t do this, but you haven’t missed anything.” As he goes into the auditorium, one can here the opening remarks of the first speaker, a judge. It is now 9:12 am, and another young man bursts through the door on a dead run. “My crazy cabbie’s been driving me all over the city for an hour!” he shouts. “I flew in last night from Arizona! Please, please, don’t make me do this again…I barely was able to afford this trip.” The administrator is wondering if he had seen the previous guy go into the auditorium. He’s heard this judge’s spiel many times: all that has been missed, to be honest, are a few (lame) jokes. “All right, all right, get in there quick!” he tells the new supplicant. “I’ll finish your paperwork during the break!” The kid looks like he’s going to cry, he’s so relieved.

I’m there, watching this (I’m on the program) and say to the administrator, “I bet this happens every time.” He says, “It does. I know that nobody misses anything that isn’t in the printed materials until 9:15, so it’s a hard stop after that.”

And another late arrival bursts through the door. It’s a bit after 9:14. The staffer has just told me that the final final deadline is 9:15, and it’s not that yet. This poor guy is bleeding through his pants,  has a big bruise on his face, and is saying something about a bicycle accident. By the time he gets himself settled—he is told that there is no time to clean up—it’s past 9:16. He starts toward the auditorium door as the other staffer says, “OK, that’s IT,” and starts to take the registration materials and lists away….just a very stressed young African-American woman enters, in plenty of time to see the bicycle rider, who is white, enter the auditorium. I can hear the judge through the open door. He’s still telling jokes, longer this time than usual.

Issues and Observations

1. The young woman was not admitted, and told that she had to come back another month. She too was from out of state. She also had a legitimate-sounding excuse.

  • Was that fair to her?
  • Should it have mattered that the program had not yet reached a serious stage?
  • She was told that 15 minutes was the absolute, unwaivable deadline. That was true, but it was not the deadline the company was contracted and pledged to enforce. That deadline was 9:00 am.

2. Should the explanations used by the latecomers play any part in the decision to allow them in? Why? Continue reading →