Lately, Ethics Alarms has been pretty much all about the Kavanaugh confirmation shit show, and I’m just sick of writing about it, so as a change of pace, I’d like to revisit one of Jack Marshall’s posts from January of 2016, and especially one of his responses to a comment that has stuck with me as an example of Jack at his worst.

In the post itself, Jack took on Univision anchor Jorge Ramos, who argued that Latino candidates Marco Rubio and Ted Cruz should do more to support “undocumented immigrants.” That’s a phrase that always sets Jack off:

Those who engage in illegal immigration are immigrants, and because their manner of immigration is illegal, they are illegal immigrants. Those who insist on calling them merely immigrants are lying; those who favor euphemisms like “undocumented workers” are engaging in intentional deceit.

Aside from the logical incoherence of accusing people of lying for calling them “immigrants” right after Jack himself calls them “immigrants” — which we can probably put down to hasty writing — there are plenty of legitimate things you can say about immigrants which are true for legal and illegal immigrants alike. Furthermore, it’s entirely accurate to refer to these people as “undocumented” immigrants because, in fact, it is precisely their lack of documents that sets them apart from other immigrants and makes them illegal. And it’s hardly deceitful, because everybody understands this.

I think Jack doesn’t like “undocumented” because it doesn’t carry the same stigma that “illegal” does. Jack is on team “What part of illegal don’t you understand?” and he regards coming here illegally as the one unforgivable sin.

This is a convenient rhetorical crutch for Jack — arguing that once some conduct is outlawed it becomes irredeemably unethical — which he uses it to avoid having to argue for the law itself. I don’t understand how anyone who is familiar with history and seen our elections could possibly believe that our legislatures consist of people who produce only ethical laws deserving obedience — slavery being the canonical counterexample — but it’s an assumption Jack relies on all the time.

In the comments, Pieter van Megchelen challenges Jack on this point:

[…] I fail to understand how ‘illegal’ means the same as ‘unethical’ or ‘immoral’. I can imagine many morally valid reasons to break the law of a country, especially if you perceive that law as unjust or even unethical. […]

Breaking the law has many (other) ethical aspects, I might endangers others, etcetera, but I have always been taught that legality and morality are essentially different categories. What is illegal may be morally right, and what is legal may be morally abject (I know you agree with the last part of this sentence).

Of course, the ultimate ‘proof’ of the first half of this thesis is in historical extremes: there were laws against homosexuality in most countries, there have been laws against Jews and other groups, laws against abortion have endangered women’s lives, etc. Rumour has it that in Iran, it’s even forbidden to smile outside. If that is true, is it immoral to smile in the streets?

Jack’s response is alternately authoritarian and idiotic.

A citizen is ethically obligated to follow a nation’s laws as part of the social contract with that country. If he violates a law on principle, he is ethically obligated to voluntarily accept the consequences.

Jack is thinking of civil disobedience, where the goal is to protest an unjust law by flagrantly breaking it in a highly visible manner. But that only works when the punishment is not too severe. It makes no sense to break the law to make a statement, and then allow yourself to be silenced by a long prison sentence. The demonstrators who staged the Boston Tea Party wore disguises because they did not want to get caught.

Furthermore, protest is not the only reason good people break laws. Sometimes obedience to the law is harmful to society. The “conductors” who ran the Underground Railroad that helped slaves escape to the North didn’t “voluntarily accept the consequences” by turning themselves in to the authorities. Instead they operated in secret for many years, freeing thousands of people from misery.

Moreover, from a utilitarian standpoint, it is the consequences of a bad law that make it bad. Years ago, many states had laws against sodomy which were enforced mostly against gay people. The harm from such laws did not come from their mere existence in the criminal code. The harm came from the fact that police enforced these laws by dragging gay people away in handcuffs and locking them in cages. By Jack’s argument, people who engaged in sodomy should have “accepted the consequences,” presumably by turning themselves in at the nearest police station.

Just violating laws when it’s convenient or beneficial fails the Kantian test: if that were a universal standards, civilization would collapse.

Any idea will fail the “What if everybody did that?” test if you generalize it in the most stupid way possible. “Dance parties are unethical because if everyone danced all the time, no one would harvest the crops, and we would all starve to death!”

Jack is attacking a straw man by supposing that opponents of current immigration laws are arguing in favor of violating all laws. The appropriate generalization is that they think everybody should be allowed to violate immigration laws, which is a very different proposition.

(As a libertarian, I would consider an even wider generalization. Foreigners coming here to live normal lives — working, making friends, raising families — aren’t hurting anyone, so undocumented immigration is a crime without a victim, and it’s far from the only one. Applying the Kantian test, we should then imagine what would happen to our civilization if everyone was willing to break all laws against victimless crimes. Personally, I think it would be wonderful.)

Illegal aliens are violating the obligation to obey the laws of other countries, and worse, won’t accept the consequences. There is no ethical argument that supports this, just emotional ones.

I’ve never understood what Jack means by calling these arguments “emotional.” I think maybe he’s just tired of hearing sad stories about immigrants dragged away from their lives by the authorities, and he regards these as emotional appeals. And I guess that’s what they are. But they are also evidence of the enormous harm caused by these laws. Take any of those sad stores and multiply it by a few tens of thousands, and you have some idea of the scale of harm caused by immigration enforcement.

What I rarely ever hear from Jack is the argument in favor of these laws, other than the fact that they are laws, which is the rhetorical equivalent of might makes right. Winning the legislative battle doesn’t mean your side is right, only that your side is powerful.

Not to niggle, but saying breaking laws isn’t immoral is absurd, because morality is established by rules and laws. Breaking laws is by definition immoral.

Not to nitpick, but this is completely backward. Morality is not established by law. If law is the ultimate determinant of right and wrong, then by what principles should we determine what the law should be? If law is the ultimate determinant of right and wrong, how could we ever advocate changing the law? Ideally, the law must be crafted to serve morality. And here in the real world, where laws are created by imperfect people following imperfect processes, the law and morality are often at odds, sometimes in ways that justify defiance of the law.

Yes, in Iran, it’s immoral to smile in the street.

God, Jack is such an authoritarian bootlicker.

First of all, to use one of Jack’s favorite phrases, res ipsa loquitur, “the thing speaks for itself.” A law against smiling is too fucking stupid to be taken seriously. Everybody should just ignore it.

Second, you can’t talk about the immorality of disobeying Iranian law without taking into account what kind of government Iran has. It’s one thing to argue for a norm of obedience to the laws of a republican democracy like we have in the U.S., but it’s crazy to expect that of people in a country like Iran, which is at least partially under the control of a theocratic dictatorship. It is not a free country. By the American standard — “of the people, by the people, for the people” — it doesn’t even have a legitimate government. It’s absurd to think there is any ethical duty to obey these laws just because autocrats with guns say you should.

(Note: I’m pretty sure that the the Iranian law against smiling is a myth. On the other hand, the Gasht-e Ershad really do try to enforce equally vile and stupid rules on how women can dress in public.)

I really don’t understand what’s going through Jack’s mind when he writes stuff like this. Maybe it’s a hazard of his day job as a professional ethics trainer. In that role, he can’t very well advise his clients to break the rules. He has to take things like laws and professional ethics codes as given. He can’t tell someone, “That law uses a bogus public safety justification to protect politically powerful business interests, so there’s nothing wrong with disobeying it.” Not even when, in a case such as Louisiana’s florist licensing law, there’s nothing wrong with disobeying it.

But that’s the wrong approach to ethical thinking when discussing issues of public policy. In fact, saying “the authorities have ruled and it’s unethical to disobey them” isn’t ethics at all. It’s the abdication of ethics in favor of power.

Time to round up a few of the things Jack Marshall has been talking about this past week or so.

Authoritarianism

On Wednesday, Jack started out with what he considers to be a mock definition of authoritarianism as he imagine’s it’s defined by Andrew Sullivan, or maybe the “New York Book Review” (whatever that is) or maybe the New York Times or the liberals or…I don’t know, the paragraph is a total muddle and doesn’t have any links… Anyway, he writes this:

The definition: Authoritarianism is when a President you don’t like exerts strong leadership within his powers to accomplish policy goals you disagree with. When a President you do like stretches and exceeds his Constitutional powers to achieve policy goals you approve of, that’s not authoritarianism. That’s great leadership.

Jack’s mocking definition implies that a President who “exerts strong leadership within his powers” somehow can’t be authoritarian, as if legal authority can’t be used to suppress freedom.

It’s Really About Ethics In Supreme Court Nominations

Later, Jack wrote about the woman who accused Supreme Court nominee Brett Kavanaugh of assaulting her in high school. As I write this, the story is a horrible mess that keeps getting worse, and I have no way of knowing who, if anyone, is telling the actual truth. Jack, to his credit, also recognizes that he doesn’t know who’s telling the truth, so he assumes for the sake of argument that she’s not lying. And then he continues his habit of attacking #MeToo victims by attacking her for complaining now:

I had pretty much concluded that Christine Blasey Ford was contemptible based on her willingness to impugn a public servant’s integrity, derail what should be an orderly and fair political process, and manipulate the U.S. Supreme Court’s membership using a three decades old allegation that involved, at worst, teenage misconduct.

The pearl clutching about impugning “a public servant’s integrity” is just weird. And for the record, Ford is not the one derailing the process. The Senate Judiciary Committee is doing that. Senator Feinstein, in particular, has a lot to answer for in her bungling and manipulative use of Ford’s accusations.

That doesn’t stop Jack from turning the insanity up to eleven:

In fact, it seems clear that she chose her course of action knowing that she could harm Brett Kavanaugh the same way. If the allegation was politically motivated, as I strongly suspect it was, she is unethical and despicable. If the motive was late vengeance for a teenager’s indiscretion, she is unethical and despicable.

Imagine someone you may have harmed when you were an immature teen. That individual never calls you to account, privately or officially. She never urges you to apologize, accept responsibility, or make amends, or gives you an opportunity to do so.

Hey ladies, Jack the Professional Ethicist says: If a man sexually assaults you, you owe him the courtesy of explaining what he did wrong, so that he can apologize and try to make amends. If you fail to do that in a timely manner, then aren’t you the one who’s really the problem? Shouldn’t you be asking yourself, “Have I done everything I can to help my attempted rapist become the best version of himself?”

First Ford attempted to harm Kavanaugh anonymously. Then, when that wasn’t going to work, she announced her accusation in the news media.

That’s a disingenuous account of what happened. Ford told her story in a letter to the Judiciary committee weeks ago, requesting that it be kept confidential. When Feinstein blabbed and the story began to leak to the media, she took responsibility for it under her real name.

What is being ignored by all those rationalizing Ford’s actions is that that the harm to alleged wrongdoers is magnified and multiplied the longer a victim delays calling for accountability.

That’s demonstrably false in this case, given that no one has charged Kavanaugh with a crime. The passage of time almost always works in favor of the accused, as evidence is destroyed, memories fade, and statutes of limitations run out. If this had come out when they were both students, it could have done a lot more damage. Of course, we’d never have heard about it, since people with criminal records don’t usually get to be federal judges.

It also creates the equivalent of ethics toxic waste. In a just society, nobody is pronounced guilty until guilt is proven, and nobody is publicly accused unless the offense is provable. A prosecutor who knows that there isn’t evidence to convict someone of an offense is violating prosecutoral ethics to bring charges.

No charges have been filed against anyone, and there are no prosecutors involved in this mess. Jack is trying so make some kind of analogy to criminal procedure, but he’s getting it wrong: Even by analogy, Christine Ford is not acting as a prosecutor. She’s a witness. She has no obligation to prove anything to anyone. She just has to testify to the truth as she understands and remembers it.

If Kavanaugh did what he is alleged to have done, he should still have the right to deal with the consequences, accept punishment if any, and be able to get on with his life, set a straight course, and prove his character and values as an adult. Wouldn’t anyone want that opportunity? Shouldn’t any 17-year-old miscreant have that opportunity? As I have already noted, Ford’s conduct is an anti-Golden Rule monstrosity.

This situation is not primarily about Kavanaugh’s rights or Kavanaugh’s due process. It’s about filling a vacancy on the Supreme Court with someone who will do a good job. The Senators who will make the decision have the right to hear from anybody they think will have something to say that could inform their decision.

In any case, Jack had a lot more to say about some of the other women involved:

Today competition arose for Ford in the “Most Unethical Non-Senator To Board The Brett Kavanaugh Nomination Ethics Train Wreck” pageant. Cristina Miranda King, a former classmate of Ford’s, decided to grab 15 minutes of undeserved fame by recalling that she “heard” about the incident.

[…]

Stuff you hear about in high school when you don’t know the participants or details is called gossip. It isn’t even hearsay.

It was just a comment she was sharing with friends on facebook. When the story went wide in the media, she clarified that she didn’t have any reliable information about the alleged incident.

Now 900 more unethical women, all alumnae of the Holton-Arms School, the private school for girls in Bethesda, Maryland Where Christine Met Brett, signed an open letter, voicing their support for Ford even though they don’t know her. She’s a woman, you see, and of course one who is impugning a man 30 years late, so she must be telling the truth. “Dr. Blasey Ford’s experience is all too consistent with stories we heard and lived while attending Holton,” they write. This convinces me that Holton Arms graduates a lot of bigoted idiots incapable of critical thought. These women have no valid reason to believe or disbelieve Ford with such certainty. Because they know that students have been assaulted at Holton Arms, this means that Ford must have been assaulted by Brett Kavanaugh? I dare anyone to support this “reasoning.” X must be guilty of conduct Y, because other people like X have been guilty of the same conduct.

Unethical women, as far as the eye can see…

That’s just one post. Jack has gone on and on all week about this. I’m just too tired to write it up.

Kaepernick Kunundrum

Almost anybody who bothers to learn about Colin Kaepernick kneeling during the national anthem knows that he’s doing to protest racism and especially police mistreatment of people of color. Except Jack, who makes a tiresome pretense of not understanding:

Kaepernick, distinguished for his incoherent on field protest during the national anthem, instantly setting off the NFL’s version of #MeToo, as in “I want make my own pointless, annoying protest that I can’t adequately explain!,”

Sibling Quiz

Apparently, all six of Republican Congressman Paul Gosar’s brothers and sisters have spoken out in favor of his opponent, Democrat David Brill. Jack offers this item up as an ethics quiz about the siblings. When you see his list of possible responses, it’s not hard to figure out which way Jack is leaning:

Unethical. Family disagreements should not be exploited for political agendas.

Unethical. This is a pure Golden Rule breach.

Unethical. It’s an appeal to authority, as if they have any special expertise or credibility.

Unethical. It’s a cruel thing to do to a family member, and indefensible.

Ethical. They care more about liberal policy items than they do about him, and that’s OK.

Jack makes his position clear in the comments.

The vast, vast majority of ethical humanity would regard turning on a family members and trying to lose him his job absent any criminal activity but based purely on political disagreements as obviously wrong. The only possible counter argument is that their policy agenda is so crucial and ineffably right that it justifies the conduct.

Jack has often shown that he has very little respect for policy analysis. For example, he says it’s wrong to support politicians who make unethical choices in their personal lives (e.g. Bill Clinton) just because you like their policies. That’s kind of a weird ethics calculation, because their personal lives only affect a few people but their policies can affect millions.

That last response on the quiz is also a bit of a tell, because Jack specifically refers to “liberal” policy. Jack takes this attitude when the polices in question are liberal. He’s been much more tolerant of Trump’s personal choices, probably because Jack likes his policies. I can’t prove it, but I doubt that Jack would have written this same quiz if it was about a Democratic candidate being attacked by his pro-life siblings. I think he would be arguing that they were fulfilling their civic responsibilities. 

Finally, there’s some context:

In an interview earlier this month with Vice News Tonight , Gosar floated the theory, propagated previously by fringe personalities like Alex Jones, that billionaire George Soros somehow instigated or bankrolled the white supremacists and neo-Nazis who converged on Charlottesville.

Gosar also raised the false accusation that Soros, an 87-year-old investor and Holocaust survivor, “turned in his own people to the Nazis” in Hungary.

Gosar’s brother David told Phoenix New Times on Friday, “At what point do you draw the line in your family?”

Exactly. When someone around you is saying or doing things you profoundly disagree with, at some point you have to distance yourself from them to avoid appearing complicit. Even if they’re family.

Word Salad

Finally, on Monday, in a nearly incoherent post, Jack lets rip:

I have been criticized, and this blog has been attacked, for taking the position that the “resistance’s” effort to undermine democracy, weaken or national institutions, and move U.S. society toward increasingly totalitarian values and methods as a radical response to the election of Donald Trump is by far the most important and threatening ethics development in the culture. To paraphrase William Saroyan, I’m right and everyone else is wrong. The Kavanaugh fiasco proves it, and the latest smear tactic proves it further.

“Totalitarian values and methods.” Sure. We all remember that one time Stalin publicized a woman’s accusations of attempted rape against a powerful judge, who consequently endured the terrifying prospect of having to remain a powerful judge. The horror. The horror. The horror.

Jack had a lot to say last week about the Serena Williams incident at the U.S. Open, but since I’m not interested in Serena Williams, the U.S. Open, or sports ethics in general, I have nothing to say. I also have nothing to say about Mark Knight’s editorial cartoon about the incident. Or any of Jack’s other posts about Serena Williams. Nor will I make more than a passing mention of Jack’s tiresome pretense of not understanding why players are kneeling during the Anthem at football games.

Later in the week, Jack touched on some science-related issues, starting on Wednesday, when he wrote about a report put out by something called the Center for WorkLife Law that examines bias in the legal workplace. Jack’s not impressed by the study.

At least the New York Times headline, for once, was accurate., at least the online version: “Lawyers Say They Face Persistent Racial and Gender Bias at Work.” Yup, that’s what the survey showed. What it didn’t show is that there really is such discrimination, how much there is, or how it manifests itself. Here’s part of the executive summary:

Prove-It-Again. Women of color, white women, and men of color reported that they have to go “above and beyond” to get the same recognition and respect as their colleagues.

• Women of color reported PIA bias at a higher level than any other group, 35 percentage points higher than white men.
• White women and men of color also reported high levels of PIA bias, 25 percentage points higher than white men.
• Women of color reported that they are held to higher standards than their colleagues at a level 32 percentage points higher than white men.

This demonstrates, at least within the reliability of the survey, that minorities and women perceive that they are being discriminated against more than white males.

Jack is correct about the general nature of the study. It’s not a statistical smoking gun, it is based on self-reports by employees, and it is based on subjective perceptions. However, Jack slightly mischaracterizes the study when he says it is about perceptions of discrimination. From what I can figure out from the executive summary (the main report is hidden behind an expensive ABA paywall), the perceptions are actually about behavior and actions which can reveal discrimination. This is a subtle distinction, and I can’t really blame Jack for missing it.

A survey about perceptions of discrimination might ask lawyers a direct question like “Are women in your firm more likely to be the target of personal insults by their bosses?” The results would then be reported directly from the responses. E.g. “49% of lawyers report that women in their firms are more likely to be the targets of personal insults by their bosses.”

The survey under discussion uses a different approach. It would ask lawyers a question about specific behavior, such as “Have you been the target of personal insults by your boss?” The answers of men and women could then be compared. E.g. “49% of women report being the targets of personal insults by their bosses, verses 28% of men.” That’s a more powerful conclusion, because it compares women’s reported perceptions of their treatment against men’s own reported perceptions of their own treatment.

The quoted example above falls into the latter category, as do other questions mentioned in the executive summary. Obviously, there’s still room for bias in any survey this subjective, but it’s not as bad as Jack claims.

That’s a useless result. We have seen and read, for example, how various African American activists and celebrities like Charles M. Blow and Ta’ nahisi Coates teach their sons that police are racists, and that they must fear them. As a result, they interpret all interactions with police through this prism. One doesn’t have to be a research ethicist to conclude that this warps their perception.

Oh, geez, I can’t even with this… Does Jack really think black people wouldn’t worry about racist cops if they weren’t being deceived by race-baiting activists and celebrities?

In other science news, on Friday Jack attacked the Milken study on the death toll in Puerto Rico from Hurricane María. I addressed the Milken study in detail in an earlier post.

On Sunday, Jack brought up the Kavanaugh hearing and the accusations of sexual misconduct coming from one of his former high-school classmates. Unsurprisingly, Jack thinks her accusation is unethical.

2. The accusation was over 30 years old, meaning that all aspects of it, including the recollections of the alleged participants, would be inherently untrustworthy. This is why we have statutes of limitations. UNFAIR, and IRRESPONSIBLE.

There is no statute of limitations on Senate hearings for Supreme Court nominees. It’s up to the Senators to weigh the value of her testimony

3. The accusation was, and still is, unsubstantiated by anyone else. UNFAIR, and IRRESPONSIBLE.

This isn’t a civil suit. Substantiating her claims is not really her responsibility.

4. The accusation was made against a distinguished public servant and family man with no documented blemishes on his record or character as an adult, stemming from an alleged incident that occurred, if it occurred, while he was a minor. UNFAIR

And? And?

Look, it wasn’t an “alleged” incident to her. She knows what she believes happened. So unless we’re sure she’s lying, there’s nothing unethical about saying things she believes to be true.

5. No complaint had been made against Kavanaugh by the accuser at any time in the intervening years, until his nomination by President Trump became a political rallying point for the Left. IRRESPONSIBLE.

I’m really tired of this argument, from Jack and everyone else who makes it. You say she should have complained earlier? Well then, in what forum should she have made her complaint? In 1982 she was a 15-year-old high-school girl attending a party with boys and drinking and no parents, and she may have been drinking herself. From her point of view, admitting any of that to her parents or school authorities or the police would just get her in trouble, making the whole incident even worse.

And once a few years went by, telling her parents or the school wouldn’t do any good, and telling the police after so long probably wouldn’t help either. There’d be no one she could tell that would be able to do anything about it…until the nation’s political engines presented her with an opportunity to get revenge. Kavanaugh’s nomination is the first time in decades she’s been able to tell her story to someone who could make it matter.

On Monday, Jack again touched on the Kavanaugh hearing, and Jack’s outrageous response deserves note:

Apparently the Trump administration has decided to pander to the worst of #MeToo fanaticism. I just heard Kellyanne Conway say “This woman should not be insulted, and not be ignored.”

Yes, she should be. She should be insulted because she has interjected herself into a Supreme Court confirmation based on a distant memory she cannot prove, denigrating a veteran professional based on alleged conduct that he may have engaged in as a minor

I can’t see any way Jack’s response is ethical.