law vs ethics

Comment Of The Day: “Thank God It’s Friday” Ethics Warm-Up, 8/2/2019: “Non-Reciprocal Loyalty, Woke Virtue-Signaling, Reasonable Vigilantes, And Pseudo-Plagiarism.” #4

/ Jack Marshall / 12 Comments

I held out this terrific Comment of the Day by Isaac for almost a week, waiting for just the right moment. The right moment occurred when I decided that having to write one more word about mass shootings, “the resistance” losing its mind, or the news media finally giving up any pretense of competence and objectivity would turn ME into a mass shooter. The topic here is hip-hop and “beat-jacking,” of which I previously knew nothing.

Here is Isaac’s Comment of the Day on #4 in “Thank God It’s Friday” Ethics Warm-Up, 8/2/2019: Non-Reciprocal Loyalty, Woke Virtue-Signaling, Reasonable Vigilantes, And Pseudo-Plagiarism“:

Intentionally appropriating someone else’s song and adapting it, without permission from the original artist, I think would be considered unethical. In hip hop parlance this is “jacking,” “beat jacking” or “biting” and is considered okay by no one, even though it happens all the time. Hip hop history is filled with drama and fighting over stolen beats and songs. But where, if anywhere, the law needs to come in on this is a mystery. It’s near impossible to prove what’s intentional and what isn’t.

The line between “beat jacking” and just “sampling” (the foundation of hip hop and a few other genres) can be blurry but there is a difference. Here’s a quick and dirty guide:

-If you pull an MC Hammer or Vanilla Ice and basically perform karaoke over someone else’s music, that is obvious beat-jacking and you face cultural rejection and/or retribution. It’s also FIRMLY illegal to do this now, and it was toeing the line when Hammer and Ice did it (Vanilla Ice was forced to pay up despite having slightly changed the famous bass line of “under pressure” for his lousy song.) The more well-known the original, stolen song is, the less likely your peers will tolerate this, legal or not. Continue reading →

The Constitution, Law, Rationalizations And Ethics—One Of These Things Is Not Like The Other, II: Double Jeopardy Get A SCOTUS Pass

/ Jack Marshall / 23 Comments

The first time I recall being made aware that a state and the U.S. could both charge a citizen based on the same act was during the Rodney King Ethics Train Wreck, when after the jury acquitted the LA cops involved and the riots ensued, the Justice Department charged them with violating King’s civil rights. They were convicted, and sent to prison. That sure seemed like double jeopardy to me [See: the Fifth Amendment to the United States Constitution, which provides in part: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb….]  and I wondered why the Supreme Court allowed it.

Why has remained a good question, but when is clear: in 1876, the Court ruled in United States v. Cruikshank that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

Thus the bizarre construct known as the dual sovereignty rule was born. It means that double jeopardy doesn’t apply when a state and the nation try the same individual for the same criminal act. It seems unfair, because it is unfair. It is, however, old. Continue reading →

Morning Ethics Warm-Up, 6/13/2019: Rhode Island On My Mind Edition

/ Jack Marshall / 21 Comments

 

Providence, Rhode Island

Good morning!

I’m heading up to Little Rhodey in a few hours to once again collaborate with my brilliant Ethics Rock musician Mike Messer before the Rhode Island Bar, as well as to try to back about 7 hours of legal ethics and technology commentary into a 75 minute break-out session.

1. Once again, law vs ethics.The Wisconsin Supreme Court upheld those lame duck laws the GOP legislature passed to hamstring the new Democratic Governor. It is the correct decision. The measures were unethical, but legal, just like Mitch McConnell’s gambit to refuse giving Merrick Garland a hearing, just like Harry Reid’s “reconciliation” maneuver to get the amended Affordable Care Act passed without having to send it  back to the House.

2. Correct, but futile.  From the Washington Post: Continue reading →

Comment Of The Day: “Ethics Quiz: The Paintball Attack”

/ Jack Marshall / 19 Comments

This is a record for Ethics Alarms; johnburger 2013’s Comment of the Day on the paintball shooting ethics quiz is being honored before it has gotten out of moderation. (Too many links will do that.) It’s also jumping ahead of several other COTD’s on the runway, and the reason is—in addition to the fact that I’ve been feeling lousy recently and catching up requires more time and energy than I’ve had left after trying to keep up with paying work and the daily personal catastrophes—that I find the story of the paintball siege and resulting death raises fascinating and perplexing issues that transcend easy answers in ethics and law.

Some will find jb2013’s (that’s my nickname for him; I hope it’s not presumptuous of me) post provocative. He was reacting to commenter Alizia’s speculation that such episodes are inevitably populated by citizens who are not, shall we say, the sharpest knives in the drawer. It is a topic that Americans are not supposed to talk about of think about: democracy means letting a lot of really, really, dumb, ignorant people having power over your life and influence over your culture and society. As in the short story : “The March of the Morons,” it is the duty of the minority that is not semi-literate, crude, ruled by passions and emotions and lacking the critical thinking and problem solving skills of my Jack Russell Terrier to keep the rest from hurting themselves and lousing up the country beyond repair, but to do so without infringing on their rights and liberty. In today’s dangerously polarized public, both sides regard the other as over-stocked with dolts, and both are, sadly, correct. A majority of Republicans think Barack Obama is a  Muslim. A majority of Democrats think we have just 12 years to address climate change or we are all doomed.  A majority of both believe in ghosts.Most can’t name ten Presidents, or identify half of the Bill of Rights, or tell you the significance of today and tomorrow to world history. No, I don’t think such people are qualified to vote, and the fewer of them who do, the better off we are. Sill, the Founders articulated principles that ensure them the right, and we have to respect that and do the best we can, relying on the “wisdom of crowds,” the phenomenon, unknown to George, James, Ben, Tom and the rest, that seems to make group decisions wiser that the composition of the groups would predict.

Contrary to all the Democratic Presidential candidates, Michelle Obama and others who maintain that America was never great, this has worked out rather well so far.

Watching cable TV is both educational and terrifying—just binge on true crime shows and listen to the interviews with family members and friends of the victims and perps. Observe the cretinous plots and actions of the adulterers, sociopaths, psychopaths,  and petty thieves, thugs, pugs, mugs and Methodists. I literally don’t know people like these, and never have; I’ve never had a relationship of any kind with someone who regularly uses “ain’t no..,”  or who mixes up statue and statute. That’s my bubble: I have to constantly remind myself that my mini-world is the outlier, and my responsibilities lie in the real one.

Here is johnburger2013’s comment on Ethics Quiz: The Paintball Attack:

You raise an interesting point. I live in Houston – where it is frickin’ hot and humid (PLEASE MAKE IT STOP!!!) – and I saw this story on the news. It happened in South Houston. A little bit about South Houston: Stay the hell out of there. At all costs. It is as close to a Hell Hole as one can get without actually being in a Hell Hole. It is an unincorporated area of Harris County, Texas, at the southern edge of the City of Houston. It is politically independent of the City of Houston and is a major petrochemical center in the region, with atmospherics to show for it. It is about 78% Hispanic, where Spanish is the primary language spoken. The median income is $42,615 (as of 2016). It is above the state and national averages in property and violent crimes.* Gang activity is a problem. Just for grins, read through this report from the Texas Department of Public Safety from 2018 to see what gangs operate in here. It’s a fun read. Continue reading →

Saturday Ethics Notables. 5/18/2019: More Social Media Partisan Censorship, A-Rod’s Potty And Ian’s Potty Mouth…

/ Jack Marshall / 6 Comments

Why, I asked, on such a beautiful May day, am I inside writing about ethics? And my wife turned into Hymen Roth…

1. PLEASE stop making me defend Alex Rodriguez, who is one of my least favorite human beings, never mind former athletes, on the planet, and yet…this is a strict Golden Rule issue. The ex-Yankees (also Texas and Seattle) slugger  was photographed sitting on his toilet in his luxury apartment’s bathroom. The shot was apparently taken by a rogue photographer in a high rise office building next to the apartment building where A-Rod shares a  $17.5 million apartment with Jennifer Lopez, whose movies are now beneath those of Adam Sandler and Tom Arnold on my playlist.

Legal precedent in New York suggests than  Rodriquez has no case, because in 2015, an appeals court ruled that a gallery show of images snapped through less famous New Yorkers’ windows by an “artist” was not a privacy violation. (I wrote about that photographer here; perhaps the title gives you a sense of where I came out on my analysis: “Why Photographer Arne Svensen Is An Unethical Creep”]

Fine, I see the legal point. If you don’t want people taking photos of you, then keep your window blinds down. However,just because you can do something crappy to another human being doesn’t make it right.

Even if it’s a crappy human being. Continue reading →

Ethics Quiz: The Dog-Poisoners [UPDATED]

/ Jack Marshall / 50 Comments

This is, I know, a poor topic for Christmas, but it just came down the chimney.

While shopping yesterday, we encountered a man who lived in the neighborhood. Rugby had enjoyed conversing with the two dogs owned by the man and his wife, two friendly, lively min-pins. As shoppers bustled around us, our neighbor announced that he was more our neighbor than ever: he and his wife had moved from where I had met them to a home less than a block away from ours, on the long street that our cul de sac opens onto. The reason for the move: their next-door neighbor had poisoned their dogs. One had survived.

Our neighbor said that they had called the police, who investigated. Based on motive (the there had been a property dispute, and the resulting law suit had gone our friends’ way), opportunity, and the demeanor and comments the police got while questioning the suspects as well as accounts about their threats and general sociopathic tendencies from others on the street, the police reported that they were pretty sure my neighbors’ neighbor were the culprits, but that they did not have sufficient evidence to make an arrest.

This story had unpleasant resonations for me. My Dad, when he was a 10 year-old only child being raised by a single mother during the depression and having to move to new neighborhoods constantly, owned a large, loyal Airedale named Bumbo. One day someone put ground glass in his beloved dog’s food dish, and my father had to see his best friend die in agony in his arms. It was one of the great tragedies of his life. His mother was certain who had killed the dog, but again, there was insufficient proof.

Your Ethics Alarms Ethics Quiz of the Day:

Is my neighbor obligated to tell anyone who is interested in renting or buying his now-abandoned property that the neighbor poisoned his dogs?

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 →

A Jumbo, And It WORKS! Double Standards, “Beyond A Reasonable Doubt” And The Judge’s “Toy”

/ Jack Marshall / 12 Comments

Here is a rare case where a Jumbo (as in Jimmy Durante’s desperate “Elephant? What elephant?” defense when caught stealing the biggest pachyderm alive in the Broadway show “Jumbo”) actually worked.

Judge Joseph Claps of Cook County, Illinois, was acquitted this week on a charge of carrying a concealed weapon into a prohibited area, reports the Chicago Tribune. 

You see, a gun, or what looked like a gun and sounded like a gun when it hit the floor appeared to fall out of Claps’ jacket when he was entering the courthouse. The judge was licensed to carry, but it is still illegal to bring a firearm into the building. Sheriff’s deputies testified they believed the object was a gun, but they didn’t intervene because they weren’t sure whether the judge was allowed to have the weapon, and because, well, he was a judge.

Did Judge Claps admit he screwed up and accept the consequences like a trustworthy, honest public servant? No! He went to trial, and allowed his lawyer to argue that prosecutors couldn’t prove the “object” was a gun. ( “Gun? What gun?”) Claps’ lawyer argued that the dropped object could have been a replica or a toy. “It could have been a cap gun,” Breen said. “It could have been a water pistol. It could have been a lighter, a cigar lighter. It could have been anything.” Anything that looked like a gun sufficiently to convince the security personnel that it was a gun. And really, we all know how judges sometimes carry water pistols and cap guns into court! Continue reading →

Saturday Ethics Warm-Up, 7/21/18: Seven Questions For A Rainy Day: UPDATED!

/ Jack Marshall / 20 Comments

Good afternoon!

1. What did you expect? Following close on the heels of Scott Pruitt’s firing from the EPA as a result of blatant ethics violations, Commerce Secretary Wilbur Ross said last week that he would sell all of his stock holdings to “maintain the public trust” after the Office of Government and Ethics pointed out that his financial transactions could get him into legal trouble.

“I have made inadvertent errors in completing the divestitures required by my ethics agreement,” Ross said in a statement. “To maintain the public trust, I have directed that all of my equity holdings be sold and the proceeds placed in U.S. Treasury securities.”

To maintain that public trust. Right.

The culture of CEOs and business executives is so alien to ethics that this kind of thing was assured as soon as Donald Trump was elected President. I wouldn’t say the business culture is necessarily more unethical than the political culture, it is juts unethical different ways. However, President Trump brought this brand of malfunctioning ethics alarms with him, and we shouldn’t expect it to abate until he leaves the White House.

Then we will get back to the good old-fashioned political versions of unethical conduct we’re become numb to. Ah, those were the days!

2. A question of degree. Professor Brian McNaughton, a former professor at Colorado State University, is facing a felony charge for fabricating an outside job offer to get a higher salary. This meets the technical definition of fraud. Apparently he presented the school with fabricated offer letter from the University of Minnesota. McNaughton resigned his position and apologized, and returned the fruits of the ill-gotten  raise,  about $4,000 per year over four years.

He also says that he was urged to use the tactic by other faculty members, who said it was a standard ploy. When does the “I have other job offers” gambit cross the ethics line into fraud? Clearly when you use a forged letter, but short of that, it’s just lying—unethical, but not criminal.

Writes one idealistic commentator:

…if an employee is performing a job and is good at it, that person should be compensated for it accordingly and in line with individuals within the same organization at an equivalent level professionally (ideally pay should be bench-marked against similar-sized institutions in states or parts of the country with comparable income ranges). Does a job offer and the suggestion that the employee is desirable to another organization change how well that person is performing? Promotions and rewards should be directly related to performance and an individual’s contribution to the organization and to science.

Well, yes, but competition and reality interferes with this nice, fair but overly simplistic and impractical theory. In fields where employees are not fungible, basic economic theory comes into play: you can’t deny the influence supply and demand. The fact that there is competition for an individual’s services does increase that individual’s value. Just saying “it shouldn’t be that way” doesn’t change reality. That’s what makes McNaughton’s lie fraudulent: he’s misrepresenting his value, and using false means to do it.

3. Would you fire Dan Coats for this?

Naturally the anti-Trump mob loved it, and that was the director of national intelligence’s intent: he was playing to the mob and virtue signaling to the detriment of his boss. Either than, or he’s thoroughly unprofessional and can’t be trusted to be on TV. Washington Post reporter Dan Baltz is either foolish, naive or dishonest when he writes: Continue reading →

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

/ Jack Marshall / 24 Comments

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading →