hindsight bias

Ethics Dunce: University of Illinois Chicago John Marshall Law School

/ Jack Marshall / 4 Comments

Marshall

You knew I couldn’t let this one pass.

The UIC John Marshall Law School is officially changing its name to the University of Illinois Chicago School of Law. The decision, a capitulation to the unethical mentality of the cancel culture and historical air-brushing strategy embraced by the political Left, comes after months of review by a task force. The resulting report noted, “that despite Chief Justice Marshall’s legacy as one of the nation’s most significant U.S. Supreme Court justices, the newly discovered research regarding his role as a slave trader, slave owner of hundreds of slaves, pro-slavery jurisprudence, and racist views render him a highly inappropriate namesake for the Law School.”

The most influential and important jurist in U.S, history is a highly inappropriate namesake for a law school. Got it.

John Marshall was the fourth chief justice of the Supreme Court, (1801 – 1835), and the only essential one. He authored the majority opinion in Marbury v. Madison (1803) that established judicial review, giving the Court power to declare legislative acts and executive actions unconstitutional. Without Marshall, the Constitution wouldn’t work. He took a bold and controversial step to ensure that basic rights and principles would not be wiped out by a rogue Congress or a dictatorial President. How many landmark SCOTUS decisions does the nation owe to Marshall as a result? How different would our lives be without his deft adjustment to the balance of the Branches? Would the United States of America even exist at all?

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Observations On The U.S. Supreme Court “Final Four” For “Greatest Justice Ever”

/ Jack Marshall / 13 Comments

The indispensible and, as far as I can discern, scrupulously non-partisan and objective Supreme Court analysis site SCOTUSBLOG, has, in a rare display of frivolousness, created a “bracket” quest for its readers to decide on the “the greatest Supreme Court justice” of all time.

The contest is now down to the “Final Four,” as a parody of the NCAA tournament that I somehow manage to miss every years because of my sock drawer emergencies. Writes James Rosomer:

This tenacious tetrad of justices (just enough to grant cert!) is an apt representation of 220 years of American jurisprudence. In their ideologies, their sensibilities and their historical eras, these four semifinalists are diverse in many ways – though the lack of racial and gender diversity also stands out as a sad reflection of the court’s history.

What matters is the intellectual diversity on the Court, not color or genes, but even SCOTUSBLOG apparently feels the need to pander to the woke mob. I’ll forgive Rosomer, and the readers who voted in the competition have mostly shown an admirable lack of ideological bias and substantial historical perspective. “A liberal icon, a conservative icon, an early 19th-century pioneer, an early 20th-century luminary” is how the blog correctly describes the finalists.

My favorite Supreme Court Justice was among the 16 entered, but didn’t make it to the finals. No, not John Marshall: my favorite is Hugo Black. That the best writer and the keenest legal mind of all (in my opinion) would lose to Earl Warren demonstrates the unavoidable vagaries of the term “greatest.” Is that intended to mean most important? Marshall has to win in that category. Most influential? Warren, perhaps, but that was as an administrator and leader, not as a judge.

Black was a First Amendment absolutist, and we could use his eloquence now. The black mark against Black is that he wrote the court’s majority opinion in Korematsu v. United States, which upheld Roosevelt’s decision to intern Japanese Americans during World War II. Black believed the judiciary should stay in its lane, and thus believed that the Court should not interfere with  legislative and executive actions during wartime. It is fair to say that everyone was wrong in the decision to take away the rights of Japanese Americans. Calling Black a racist, however is unsupportable. He joined the majority in Shelley v. Kraemer (1948), which invalidated the judicial enforcement of racially restrictive covenants.He joined the unanimous Brown v. Board of Education (1954)decision that struck down segregation in public schools.

Black, however, staunchly opposed bending the law and law enforcement to accommodate civil rights activism. He opposed the Warren Court’s penchant for  reversing convictions of sit-in protesters, saying In 1968,, “Unfortunately there are some who think that Negroes should have special privileges under the law.” Unfortunately, there are more who think that now.

Black argued that waiving legal consequences for laws broken for  “good causes” could eventually lead to support for evil causes later. Black said he was “vigorously opposed to efforts to extend the First Amendment’s freedom of speech” to conduct. Ah, well, I’m a Red Sox fan; I’m used to losing.

Of the remaining four, I would think Marshall is the easy choice.

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Morning Ethics Warm-Up, 8/5/2020: Words, Spin, And Millard Fillmore

/ Jack Marshall / 16 Comments

Because “Glibby-glop-gloopy” or whatever the hell Oliver is singing here makes about as much sense as anything else I’m hearing…

1. Today in The Great Stupid’s cancellation orgy:

  • The ABA Journal reports that the Massachusetts Appeals Court  wants the word “grandfathering” to be “canceled.” Ruling in a zoning dispute, the court said a structure built before the enactment of zoning regulations had a certain level of protection, but the court  didn’t have a good word to describe that protection because  it wouldn’t use  “grandfathering.”  “Because we acknowledge that it has racist origins,” the woke and silly judges declared.

Apparently the phrase “grandfather clause” originally referred to laws adopted by some states after the Civil War to create barriers to voting by African Americans, explained Justice James Milkey in footnote 11 to the August 3 opinion. Interesting! And completely irrelevant to how the word is used now. Now, if I were Ann Althouse, who is word-obsessed, I might spend hours looking for other words used routinely today that have unsavory origins. I don’t care what words originally meant or when  they were first used. The objective with all words is communication. “Grandfathered” is a useful word. I used it in my baseball lecture for the Smithsonian to describe how spitball pitchers were allowed to keep throwing the unsanitary pitch after it was banned for everyone else in 1920. The court’s kind of virtue-signalling makes people stupid and communication difficult, and shame on the court for indulging in it.

  • The University of Buffalo will remove any reference to President Millard Fillmore on its campus,though he helped found the school and served as its first chancellor from 1846 until his death in 1874. School officials said in a news release that its decision to erase the memory of an individual the university owes its existence to “aligns with the university’s commitment to fight systemic racism and create a welcoming environment for all.”

No, it aligns with craven cowering to Black Lives Matter intimidation  and statue-toppling mobs.  Millard Fillmore—-great name, crummy President—signed The Compromise of 1850, which included the Fugitive Slave Act. Since it was a compromise, the school’s logic would require “canceling” all the anti-slavery crusaders who were part of it, as everyone at the time was desperately trying to keep the United States from ripping apart. When that effort failed, we got the Civil War, and more American casualties than any war before or since. How dare Fillmore try to stop that?

I think the Fillmore-cancelers should be obligated to explain how they would have handled the growing tensions over slavery and the cultural divide between North and South. I’m sure they have a brilliant answer ready.

As the suddenly “In” Fred Rogers would  say, “Can you say ‘hindsight bias’? Sure you can!” Continue reading →

The Big Lies Of The “Resistance”: #9 “Trump’s Mishandling Of The Pandemic Killed People”

/ Jack Marshall / 19 Comments

 

Instapundit has a running “Jaws”-evoking gag, jointly favored by contributors Stephen Green and Ed Driscoll,  when they are introducing posts that highlight certain outrages. For example, the link to an article titled “Five Times Obama Abused His Power and Democrats Didn’t Care”  was introduced with their catch phrase,“You’re gonna need a bigger blog.” That would be an appropriate introduction for the latest addition to the Ethics Alarms list of the Big Lies launched in the ongoing effort to undermine Donald Trump.

[The Big Lies Of The “Resistance”: A Directory has been updated, and can be found here.]

This one, the ninth (it replaces the previous #9, which is now subsumed in this one), is made up of hundreds, maybe thousands of smaller lies, fake news and deliberate misinformation, along with the now familiar sneering innuendos in virtually every report on the Administration’s efforts to respond to an ongoing health crisis.

The Democratic Party/”resistance”/mainstream media collective got overambitious with this one. It is simultaneously attempting to blame Trump for the Wuhan virus and the economic collapse that was the direct result of measures they claim he undertook too late. Meanwhile, they are advocating continuing damage to the economy in response to the virus now, while fearmongering about its risks. The internal hypocrisy and contradictions inherent in this is too obvious even for dimmer citizens to miss.

Big Lie #9 can stand as one of the most flagrant examples of unrestrained hindsight bias in world history. Leaders often have to act without perfect or even adequate information ; this was–is— especially the case with the pandemic. Even now, not enough is known about the virus, which may also have multiple strains and mutations. Whether any measures put in place by decision-makers are “good” decisions can only be judged by what is known at the time they are made;  to do otherwise is consequentialism, which is unfortunatley how most people think, but which is, upon reflection, moronic. Stupid decisions that work, they reason, are smart; well-considered decisions that don’t are incompetent. President Trump’s enemies are counting on this non-logic to carry the Democrats  to victory in November. It is a cynical and dangerous strategy, because it relies on undermining trust in the nation’s leadership.

The fact is that there may have been nothing President Trump could have done to make the effects of the virus any less devastating than they have been. Health organizations have been wrong; his experts have been wrong, China engaged in a deadly cover-up. One particularly hypocritical theme, which has also been employed as criticism in the wake of the George Floyd riots, is that President Trump has failed the test of leadership, that unlike President Roosevelt in his eloquent messages about the Depression and after Pearl Harbor, this President was unable to rally the nation through a crisis.

This criticism makes me particularly angry. Trump is no FDR, but the entire effort by the “resistance” and the news media since the President’s election has been to destroy his ability to be a bipartisan leader. They have withheld the respect for the office that all Presidents need to function effectively, and that all elected Presidents before this one were accorded as a matter of institutional tradition. They removed that crucial tool in their relentless efforts to destroy him, and now they denigrate him for not using it. The hypocrisy is loathsome.

One mistake Trump made, a typical one for him, was to say, early on, that he was not “responsible” for the outbreak. This is yet another example of how the President’s clumsiness in his rhetoric undermines his effectiveness and hands his foes metaphorical clubs to beat him with. He apparently thinks responsibility is synonymous with blame. It is not. Leaders are responsible for what occurs while they are in power. They are not, however, necessarily at fault. Continue reading →

From The Ethics Alarms Archives: Two Ethics Takes On Columbus Day

/ Jack Marshall / 20 Comments

In 2011, I wrote an Ethics Alarm post extolling Christopher Columbus, and urging readers to celebrate this day named in his honor. Two years later, I wrote a post arguing that the holiday was a mistake. Which is how I really feel? Which is correct? I have no idea. I just read both, and found each persuasive. You know the famous observation in thethe essay “Self-Reliance” by Ralph Waldo Emerson, “A foolish consistency is the hobgoblin of small minds”? Today I like that line. Sometimes I don’t.

I certainly don’t like the current movement to cancel Columbus Day, and Columbus, out of the culture and historical record because he was not appropriately sensitive to indigenous people by 21st Century standards. That is no better than tearing down statues of Robert E. Lee, airbrushing history to avoid the inherent conflicts and dilemmas that make it invaluable to us going forward into the unknown…like Columbus did.

Here are the two posts. You decide. Meanwhile, I’m thrilled I could find the great Stan Freberg’s version of Columbus’s quest (above). More of my sensibilities about life, humor and history were effected by Freberg’s satire than I like to admit…

I. Celebrate Columbus Day, Honor Columbus

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Travel Notes…[UPDATED]

/ Jack Marshall / 37 Comments

Every trip I take seems to require some ethical clarification…

  • Lose-lose. At our hotel in Ft. Lauderdale, a convention of either transvestites, transgender individuals, or some combination of the two dominated the hotel. The organization was “Himmaher”…I think I’m spelling it right. [Correction: I wasn’t. And that wasn’t the organization; it was the name that was listed for the gathering, and the name was HIMMERSHE. Thanks to Zanshin in the Comments below for the correction.]

I had several illuminating encounters. I don’t know that this is true of all such people, but the members of this association or club all seemed to want to make any non-club member they saw as uncomfortable as possible. Yes, that’s unethical. How you choose to dress, what you choose to have lopped off, and who you want to sleep with could not interest me less, and that is the  attitude a society like ours should strive to encourage. (None of those things should engender and advantages, either.) But what these people seemed to be seeking was imposed ethics zugswang. If you looked directly at them, the response was a chip-on-the-shoulder, “Go ahead and stare, honey: neverf seen a freak before?” If you appeared to be avoiding staring—I regard a six-foot ex-male standing in the middle of a hotel lobby in a  wig, skimpy bathing suit, 6 inch heels and speaking loudly in a base voice as parading a psychological problem or ten, and deserving the same social courtesy I would offer to a Tourette’s victim or a hebephrenic—then the individual decided to make it a project to get you to stare, as if your failure to provide the attention they craved was an insult.

Yeah, I know this is a stage, similar to the early stages of the gay rights movement. Continue reading →

The Carson Smith Fallacy

/ Jack Marshall / 14 Comments

Reading the comments on sports blogs is a great way to lose faith one’s fellow occupants of the planet.

Take, for example, the saga of Carson Smith, erstwhile relief pitcher for the Boston Red Sox. Smith was nigh unhittable in the National League in 2015, and Sox General Manager Dave Dombrowski was widely regarded as having pulled off a heist when he acquired the young right-hander in a trade. Smith then promptly hurt his arm and required “Tommy John surgery,” a procedure that requires a full year or more to recover from. Naturally, Dombrowski was blamed for the injury, which nobody could have predicted, and was routinely mocked online by Red Sox fans for making it.

Carson Smith missed most of 2016 but returned to the mound in 2017, showing enough of his former skill to raise the hopes of  fans. In 2018 he looked even better. Then, after a bad outing in which he lost a lead and the game, Smith, disgusted with himself, hurled his glove to the dugout floors. Somehow, the angry gesture dislocated his shoulder, tore a muscle, and required surgery, ending his season, and possibly his career.

Ever since, Red Sox fans in droves have been posting comments online like this one, which I saw today:

“I’m so glad we waited a year or two for Carson Smith. He’s the greatest thing since sliced bread when he’s not accidentally blowing out his own pitching arm. Good grief.  Maybe the bullpen guys should have a new motto: “Try not to do anything stupid”. I guess this works for GM’s, too.”

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Comment Of The Day: “A Particularly Sad Ethics Dunce: Senator John McCain”

/ Jack Marshall / 30 Comments

I am bumping Steve-O-in-NJ’s reaction to the depressing drama of Senator John McCain spending his last days in anger and bitterness up in the queue of  pending Comments of the Day, which is long right now. The reason is that his analysis fits neatly into a post I was about to write, but will summarize here as a preface.

The impulse to defend McCain’s recent conduct, notably disinviting President Trump from his funeral in advance, is one more in a long line of signature significance moments, definitively identifying late stage sufferers of anti Trump hysteria. (Trump Derangement Syndrome just isn’t an accurate diagnosis, because it suggests equivalence with the more unhinged critics of Presidents Clinton, Bush and Obama. There is no comparison. It is like comparing a bad cold to the bubonic plague.) The grotesque theater of a public figure choosing, rather than to end his life with grace, forgiveness and unifying good will, choosing to emulate the mad Ahab, screaming,

“To the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee!”

He has gone full-Ahab. You never go full Ahab. But because the equally mad haters of the elected President relish the thought of any insult, attack or indignity hurled Trump’s way, the can’t perceive the obvious. Defending McCain’s prospective snub is as clear a symptom of anti-Trump hysteria as a dog recoiling from water signals rabies.

My usual course is to make an ethics analysis and then check the opinions of analysts who I trust as generally fair and perceptive. Here was Ann Althouse’s take, in part:

It’s very strange — these statements coming from a dying man about what he wants at his funeral. I can’t remember ever hearing anyone talking about his own funeral with the assumption the President of the United States wants to attend and then taking a shot at the President saying don’t attend. I mean, how do you get to be the sort of person who, facing death, imagines everyone clamoring to attend your funeral and then telling some of them you don’t want them there? It’s similar to a Bridezilla, thinking everyone’s so interested in attending her wedding and then being dictatorial toward these people.

I don’t understand it…good Lord! What would possess you to think your funeral is going to be such a hot ticket people will be put out if they can’t attend and then letting it be known who you want on the outs?

I’d like to see more dignity and privacy around McCain as he plays his final scene. It’s his brain that is wrecking him. Shouldn’t his family enclose him and protect him?

Those who respect and care about McCain want him to stop. Those who hate Trump so much they are willing to see a war hero and former Presidential candidate embarrass himself to deliver one more divisive insult just regard him as a means to an end.Here is Steve-O-in-NJ’s Comment of the Day on the post, A Particularly Sad Ethics Dunce: Senator John McCain:

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A Particularly Sad Ethics Dunce: Senator John McCain

/ Jack Marshall / 63 Comments

As I already have noted here more than once, Senator John McCain’s ethical course was to resign from the Senate even before he got his brain cancer diagnosis, and definitely afterward.  He is a courageous and admirable man in many ways, but the one of the hardest duties in life is to give up power and influence, and say goodbye when the time comes. The senator is not alone in failing this ethics test, indeed he is in distinguished company: FDR, Babe Ruth, Frank Sinatra, Muhammad Ali, Lawrence Tribe,  Clarence Darrow, too many Supreme Court justices, including a couple current ones, and lots of U.S. Senators. Nonetheless, it is a failing, and in McCain’s case the failing has been compounded by his regrettable decision to use his status as a dying man to exploit the reluctance of critics to address the wrongdoing of the afflicted. He has decided top settle old scores in his final days. The conduct is petty and erodes his legacy, as well as the respect he had earned in his long career of national service. It is too bad.

Much of McCain’s self-indulgence is directed at President Trump, whom he is now insulting with mad abandon, banning him, for example, from the Senator’s funeral in advance. This is vengeance, nothing more ennobling, for Candidate Trump’s outrageous disrespect toward McCain and other prisoners of war when Trump said that he did not regard them as heroes. McCain revenge is thus a display of the kind of non-ethics Donald Trump believes in: tit-for tat, mob ethics, hit ’em back harder. The political theme since November 2016 is that the President’s enemies cannot resist lowering themselves to his level, or in some cases, below it. Strike-backs from beyond the grave are particularly unbecoming, but McCain is seething, and apparently can’t muster the other cheek, graciousness, or statesmanship. Too bad. Continue reading →

From “The Ethics Incompleteness Principle” Files: Memphis, Tennessee’s Confederate Statues

/ Jack Marshall / 93 Comments

A better application of the Ethics Incompleteness Principle would be difficult to find than the decision by Memphis, Tennessee to remove a huge monument to Jefferson Davis, the president of the Confederacy, and an even larger heroic equestrian statue (above) of Nathan Bedford Forrest, swashbuckling Confederate general and (allegedly) the first Grand Wizard of the Ku Klux Klan,  from two public parks.

As we have discussed here in great detail, I am unalterably opposed to the current mania among our Left-leaning friends and neighbors  of tearing down statues, monuments and memorials honoring  past historical figures because their lives, beliefs and character do not comport with current day standards or political norms.  This primitive exercise in historical censorship has been especially focused on famous and notable figures from the Confederacy, although recent efforts have targeted George Washington, Thomas Jefferson, Andrew Jackson and even Theodore Roosevelt. Of the attacks on memorials to Confederate figures, I wrote,

[ Union veterans]  didn’t think of the former Confederates as traitors, or racists, or slavery advocates. They, like the Union veterans, were just men of their times, caught up in a great political and human rights conflict that came too fast and too furiously for any of them to manage. They were caught in the same, violent maelstrom, and knew it even 50 years earlier. Soldiers on both side wrote how they admired the courage of the enemy combatants they were killing, because they knew they were, in all the ways that mattered, just like them. It was the Golden Rule.  After the war, these soldiers who had faced death at the hands of these same generals, officers and troops, did not begrudge them the honor of their statues and memorials, nor their families pride in the bravery of their loved ones.

Yet now,  self-righteous social justice censors who never took up arms for any cause and in many cases never would, employ their pitifully inadequate knowledge of history to proclaim all the Civil War’s combatants on the losing side as racists and traitors, and decree that they should be hidden from future generations in shame. We have honored men and women for the good that they represent, not the mistakes, sins and misconduct that are usually the product of the times and values in which they lived. In doing so, we leave clues, memories, controversies, differing views, and stories for new generations to consider and better understand their own culture and society, and how it came to be what it is.

Those who want to tear down monuments to the imperfect, whether they know it or not, are impeding knowledge, perspective, wisdom, and understanding. They want only one view of history, because they will only tolerate one that advances their ideology and values—just as the Americans of the past believed in their values. Foolishly, I suppose, they trusted future generations to act on their own ethical enlightenment without corrupting the historical record.

I feel strongly about this, as the tone of that post, far from my first on the subject, shows.

But… Continue reading →