Saturday Ethics Pick-Me–Up, 6/15/2019: The “Oh, Fine, It’s Afternoon Already And I’m Barely Awake” Edition

Bvuh.

Travel hangover today: I’ll do the best I can…

1. Thank you, loyal commenters, for a yeoman job in yesterday’s Open Forum.

2. Confederate Statuary Ethics Train Wreck update. Now the historical airbrushers (all from Progressiveland, just in case you couldn’t guess) are going after Civil War recreations and commemorative events. The head of the Lake County Forest Preserve in Illinois declared that there would be no more annual Civil War Days event after next  month’s edition, if he gets his way. He doesn’t think Confederate flags should ever be displayed, even in battle recreations. Besides, he wants the event to be retooled so that instead of commemorating the single most important period and struggle in U.S. history, it advances an understanding of climate change.

(Who are these people? How did they get this way? What do we do about them so the cultural damage they inflict is contained?)

The home-grown historical censor also said,

“This has nothing we want, nor should celebrate, nor re-enact. When southern states are being made to tear down every statute representing this racist, murdering chapter of our history, I can’t believe here in Lake County our own forest preserve is preserving and celebrating it every year, and with our tax dollars.”

This deliberately brain-dead approach to U.S. history is working (aided greatly by the atrocious neglect of American history in our schools), and by working I mean promoting ignorance so citizens can be more easily misled. The Wall Street Journal reported that visits to Civil War national battlefields are falling off. Over 10 million Americans visited  Gettysburg, Antietam, Shiloh, Chickamauga/Chattanooga, and Vicksburg  in 1970. They only had 3.1 million visitors last year.

That’s about as many tourists as visited the “Cheers” bar in Boston.

3. Oberlin race-baiting update: in case you missed it, the jury in the Gibson’s Bakery case  hit the college with the maximum punitive damages, capped by law at 22 million dollars.  Continue reading

Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

Good Morning from Virginia Beach, VA…

…where I am giving a legal ethics seminar to a law firm this morning!

1. Count the ethics issues in Travel Hell…This story is true, and I’m not changing any names, because nobody is innocent.

Last night I had to drive to Virginia Beach after another seminar in D.C., and after yet another road trip on family business. It turned out to be a three and a half hour drive in a pouring rain. Arriving at 2:20 am at the Virginia Beach Westin, where I was supposed to have a room, I was immediately informed by the graveyard shift desk clerk that we could not stay there…because the previous occupants of the room reserved for us (my wife and business partner also made the trip) had “left fecal matter” all over the room, creating a HAZMAT situation. Not to worry, though! The beachfront Hilton would put us up, at the Westin’s expense!

Since I wasn’t paying for the room, this was small consolation.

Of course, we had unloaded the car, and the Hilton was 20 minutes away, and the desk clerk had neither an address nor a phone number, which I pointed out to her was essential. (The point of staying at the Westin was that it was convenient to the location of the law firm.) So we loaded up the car and set out to the new destination, arriving just before 3 am. There, the Hilton desk clerk told us that the hotel had just begun an audit, and we could not be put in a room for at least 20 minutes. I was literally afraid to tell my wife this, as she was in the car alternately fuming and wincing in pain because the endless trip had revived her sciatica.

I was not nice to the Hilton desk clerk, who swore that she told the Westin about the problem, and that they should have told us. I said that I didn’t care whose fault it was, they were now responsible for two weary travelers, and that it was her responsibility to fix the problem. She found a very nice man who got a big tip from me for taking charge of our vehicle and taking our stuff up to our room when the “audit” was over.

Once in the room, we discovered that two of the lamps didn’t work, the desk lamp was missing, and the clock was blinking. I told the clerk to send someone up and have the room in the shape I expect hotel rooms to be in before I walk in the door—including having the clock set and functioning.

On the plus side, no fecal matter was in evidence….

2. Why people hate lawyers…Branson Duck Vehicles and Ripley Entertainment are facing multiple lawsuits in the horrific duck boat accident that killed 17 people in Missouri , including nine members of a single family. In court papers filed this week, the companies’ lawyer cited an 1851 maritime law to limit or eliminate liability for the July tragedy.

In a filing in federal court in Missouri, the defendants denied negligence in the sinking of the boat, and argues that if a court does find negligence, they have no liability because, under that law, “the Vessel was a total loss and has no current value. No freight was pending on the Vessel.”

The reaction was predictable. Human beings have no value? This was a Hail Mary defense tactic to be sure, but if that’s the clients’ best option, it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury.

Governor Greitens And The Unethical Release-Dismissal Tactic

(The gun being held to the signer’s head is out of the frame…)

The resignation of Missouri Governor Eric Greitens (R), a result that appears to have been over-due, deserved, and necessary, also involved a common form of unethical prosecution. The device is called Release-Dismiss, and it looks, smells and feels unethical. Nevertheless, the Supreme Court and most of the states continue to allow it. They shouldn’t.

Greiten’s resignation came as a result of a plea deal after St. Louis Circuit Attorney Kim Gardner agreed to dismiss charges that Greitens tampered with a computer donor list of a veterans’ charity he founded. The deal also included Grietens’ promise not to sue Gardner or her office.

Greitens’  legal fees were over $2 million, he said,  and he could not afford to go to trial on the charges.  Gardner  said  she was confident she had  the evidence required to convict  Greitens. (That’s what they all say.) But the fact remains that the threat of criminal prosecution was used to pressure Greitens into giving up his civil rights.

In a scholarly paper on this maneuver, one authority writes,

A phenomenon exists in the criminal justice world which allows a prosecutor to strike a bargain with a criminal defendant, permitting them both to cut their losses and walk away from a mutually bad situation. On occasions where arrested individuals may have been wronged by public officials in the course of their arrests, prosecutors may legally agree to dismiss defendants’ criminal charges in exchange for releases by the defendants of any civil claims arising from the arrests. The release-dismissal agreement, and variations upon its theme,’ have been the subject of controversy for several years.

Its supporters rely on the obvious efficiency embodied in the situation. Despite this efficiency, such agreements are dangerous, detrimental to the criminal justice system, and against the better interests of society.

I agree. So does Professor Turley, who wrote, Continue reading

Dinnertime Ethics Leftovers, 5/30/18: Whatthehellism, Greiten’s Resignation Gets Spun, And The Cubs Manager Demonstrates Rationalization #30 For The Class

(This post was all set to go up before noon. I just had the last item to finish..and then all hell broke loose here. I’m sorry. Now the meal is cold…)

1. Not whataboutism, but rather whatthehellism…It’s a trap, of course. A blatant racist tweet like Roseanne’s yesterday would get CEO fired, a Cabinet member fired, and I suspect, a tenured professor fired, though equally racist tweets have been survived by profs as long as they denigrated whites. Still, the media’s double standard is palpable, as well as undeniable. Thus I was amused when a sudden surge in visits to a post from last September led me to rediscover this, authored then by Keith Olbermann:

and these…

Can we assume, therefore, since it was recently announced that ESPN, like ABC owned by Disney, is bringing back Olbermann for a prominent role in its sports broadcasting, that the company does want to be associated with his kind of vulgarity, incivility and hate? Continue reading

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

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

Ethics Review: “Three Billboards Outside Ebbing, Missouri”

I watched last year’s “Three Billboards Outside Ebbing, Missouri,” twice, just to make sure it was the profound ethics movie I thought it was. It is. None of the reviews described it that way, of course. Here is the New York Times:

“The movie opens on low boil with Mildred behind the wheel of her station wagon near three derelict billboards…she uses the billboards to announce her crusade … a way to get things jumping (the investigators, the tale) and splash some foreboding on an outwardly pacific scene. Much of the story involves the ripples of outrage, confusion and buffoonery that the billboards inspire and that soon envelop almost everyone Mildred knows. Months after her daughter’s death, grief has walled her in; isolating and seemingly impenetrable, it is inscribed in the hardness of her gaze and in her grim new identity as a mother of a dead girl. The billboards turn that grief into a weapon, a means of taking on the law and assorted men — a threatening stranger, a vigilante dentist and an abusive ex (John Hawkes) — who collectively suggest another wall that has closed Mildred in….”

None of which addresses what is remarkable about the film, which is that it shows what causes our ethics alarms not to ring—Frances McDormand as Mildred and Sam Rockwell as Dixon, a racist and vicious deputy, in particular demonstrate  what it is like to be driven by non-ethical considerations of the darkest and most passionate sort—and more important, what causes them to start ringing again. Most reviewers described this as a dark and depressing film. The ethics alarms are mostly off again as the film ends, and that is ominous, but its main ethics message is uplifting in many ways. “Three Billboards” teaches us that even broken, ignorant, alienated human beings have the capacity to access their innate instincts for compassion, justice, forgiveness, selflessness and kindness, and even when our ethical selves seem permanently overcome and decisively defeated, they can burst out again, in control, salvaging what’s best about the species.

There is a moment early in “Three Billboards” that signals that it is not only going to show us what monsters anger and grief can transform us into, but also that what George Washington’s list of 110 Rules called “that little spark of celestial fire called conscience” is remarkably resilient.  A sheriff—the ethics compass of the story, played by Woody Harrelson— visits Mildred after her billboard messages embarrass him and roil the town. She is hard and cold as marble as he tries to explain his failure to find her daughter’s rapist/killer, even after he reminds her that he is dying of cancer. Suddenly the sheriff has a violent  spasm: he coughs up blood on himself and Mildred. And we see her fury evaporate in an instant. The compassionate and caring mother she once was emerges, if only for a few moments. ( McDormand is such a superb actress that she pulls off the sudden transition convincingly and movingly: you believe it, though it is like watching Mr. Hyde turn into Dr. Jekyll in the snap of a finger.) Later, when again her fury has been aroused, we see the same woman firebomb the police station and watch implacably as her nemesis deputy burns. A warning: just because the ethics alarms can ring doesn’t mean they are working well enough.

Sam Rockwell’s character also reveals surprisingly that his ethics spark has not been entirely extinguished, again thanks to a catalyst supplied by the sheriff. This transformation caused considerable  criticism of the film among critics and artists in Hollywood, and some attribute the film’s failure to win the Best Picture Oscar to the fact that a racist is redeemed and revealed to have an ethical core. But except for the sociopaths and psychopaths among us, admittedly a disturbingly large group, we all have that ethical core. We have the ethics alarms too, ready to be re-activated, even if they aren’t in perfect working order. Yes, this is  even true of racists. So much of our current political discourse is driven by the false construct that a single belief or a single lapse of reason marks an individual as irredeemable. Its easier to marginalize and demonize them that way. But it isn’t true.

Indeed Ethics Alarms often declares certain conduct and words as signature significance, proving that an individual is unethical because such actions and thoughts are alien to ethical human beings. “Three Billboards Outside Ebbing, Missouri” reminded me that people may be unethical–Mildred and Dixon, the deputy, could never be called ethical, for ethical people don’t set police stations on fire or throw young men out of second story windows, as Dixon does—but that even unethical individuals can find their ethics if you give them a chance.

And if they can find their ethics, so can all of us, and so can society. There is hope.

________________________

Addendum: I cannot leave “Three Billboards” without a salute to one of its most powerful scenes, when Mildred tells a priest why she doesn’t care what he has to say when he comes to her home to admonish her for the messages on the billboards:

Bingo.

Morning Ethics Warm-Up, 1/17/18: Have You Heard About The Adulterous Governor?

Good Morning!

Just one issue to warm-up with today, but a juicy one, with sex, lies, and tape! Two kinds of tape, in fact…

I find it peculiar that the travails of Missouri Governor Eric Greitens have received such light coverage in the news media; after all, this is great chance to embarrass a Republican. If you missed the story, it goes like this:

During his campaign later during his first year in office as Missouri’s Governor (he began his term a year ago), Eric Greitens proclaimed himself a family values guy. During his campaign announcement, he stated: “I’m Eric Greitens, I’m a Navy SEAL, native Missourian and most importantly, a proud husband and father.” Rumors of past extra-marital dalliances surfaced, and the Governor denied them.

An un-named lover’s ex-husband,however, blew the whistle to the news media, providing an incriminating tape in which the woman said she had a single sexual encouter with Grietens  and that he tried to blackmail her to ensure her silence.  “He took a picture of my wife naked as blackmail. There is no worse person,” the ex-husband told reporters. There are also allegation that Grietens slapped her. The woman  has not made an on-the-record comment about the story.

In a recording released by CBS News, the unnamed woman is heard saying,

“I knew he was being sexual and I still let him. And he used some sort of tape, I don’t know what it was and taped my hands to these rings and then put a blindfold on me. He stepped back and I saw a flash through the blindfold and he said you’re never going to mention my name, otherwise, there will be pictures of me everywhere….He tried kissing my stomach and tried to kiss me down there but didn’t quite get there because I flipped out and I said you need to stop.”

Last week, the Governor and his wife released this statement:

“A few years ago, before Eric was elected Governor, there was a time when he was unfaithful in our marriage. This was a deeply personal mistake. Eric took responsibility, and we dealt with this together honestly and privately. While we never would have wished for this pain in our marriage, or the pain that this has caused others, with God’s mercy Sheena has forgiven and we have emerged stronger. We understand that there will be some people who cannot forgive – but for those who can find it in your heart, Eric asks for your forgiveness, and we are grateful for your love, your compassion, and your prayers.” 

Sheena Greitens added:

“We have a loving marriage and an awesome family; anything beyond that is between us and God. I want the media and those who wish to peddle gossip to stay away from me and my children.” 

The allegations of blackmail and now of battery are being investigated. Some lawmakers from both parties are calling on the Governor to resign.

Last week, an attorney for Governor Greitens released the following statement:

“We have been asked repeatedly by reputable news outlets why we believe this nearly three-year-old news story is coming out now. The latest reporting has finally disclosed that the reporting was being driven by a “source” who is the former Democrat state party chairman and who apparently has not spoken to the person in question. This goes a long way to explaining what is going on – this is a political hit piece.

This is and remains an almost three-year-old private matter with no matter of public interest at stake. Eric and Sheena have worked through those issues long ago and I think that Sheena put it best: ‘We have a loving marriage and an awesome family; anything beyond that is between us and God. I want the media and those who wish to peddle gossip to stay away from me and my children.’ Now we know who has been peddling that gossip.”

Thoughts: Continue reading