Wednesday Writs for 1/9

Wednesday Writs for 1/9[L1]: Most of the well-informed readers of this blog are familiar with Buck v. Bell, a travesty of a Supreme Court decision in which Virginia’s eugenics law, allowing the forced sterilization of the intellectually disabled and other “unfit” persons, was deemed acceptable, from a constitutional standpoint. The case has never been overturned, though the threat of litigation caused the number of physicians willing to perform the procedure without patient consent to decline over the next fifty years. But in 1971, the mother of a 15 year-old girl named Ida submitted a petition to an Indiana Judge, seeking permission to have her daughter, whom she described as  “slightly retarded”, sterilized without the girl’s knowledge.

Without a hearing, the appointment of a guardian ad litem for the girl, or any further inquiry, Judge Stump signed the petition the same day. Under the guise of an appendectomy, the girl was sterilized the following week. She found out two years later, after she married and tried to conceive. When Ida learned what happened to her, she filed a lawsuit against her mother, her mother’s lawyer, the doctor, the hospital, and the judge, giving rise to our case of the week. The suit was a “1983 action”, which alleges deprivation of rights under color of law. The District Court dismissed the case in its entirety, finding that the only defendant subject to the 1983 action was the judge, who, the Court ruled, enjoyed judicial immunity from the suit.

The Court of Appeals reversed, finding that the judge had acted outside of his authority and could not rely on immunity to shield him from his “failure to comply with elementary principles of procedural due process.” The judge appealed to the US Supreme Court. The case, Stump v. Sparkman, would be a landmark case–not for reproductive rights, but for judicial immunity. The Court ruled 5-3 in a 1978 decision that the judge was within his jurisdictional authority to rule on the petition, and thus could not be held liable for his ruling, even if it was in error, even if the consequences were tragic. In fact, said Justice White writing for the Court, the more controversial the issue before a judge, the more important it was for the judge to be immune from liability for the consequences of his or her decision.

[L2]: An assistant district attorney showed up for court drunk and unprepared to go forward in a hearing. As a result, the defendant, a confessed child molester, had all charges dropped, with prejudice, on speedy trial grounds.

[L3]: In a symbolic victory, the parents of Otto Warmbier are awarded a half-billion dollars in their lawsuit against North Korea for the torture of their son, which resulted in his death. While chances are nil that North Korea, who did not respond to the suit, will honor the default judgment, the result is nonetheless a powerful statement.

[L4]: A sentence that would have been a head-scratcher a few years ago: lawyers for the Russian troll farm, Concord Management, quoted Animal House in its latest pleading to the court presiding over special counsel Robert Mueller’s indictment of the company for conspiracy against the United States. “You f***** up,” writes counsel Eric Doubelier, quoting Otter, the ladies’ man of Delta Tau Chi.

[L5]: On the heels of a year in which law enforcement broke new ground in the use of familial DNA to solve cold cases, Bloomberg advises the public to think twice about privacy concerns before submitting their samples to commercial DNA and genealogy companies.

[L6]: Disney, creator of Mulan, Aladdin, Moana, and Cocoa fights allegations of cultural appropriation for its trademark registration of “Hakuna Matata”.

[L7]: A federal judge in Oregon confirms that a man with a degree in engineering is allowed to call himself an engineer, even if the Oregon Board of Examiners for Engineering and Land Surveying has not given him a license to do so. (H/T to Oscar Gordon for the link.)

[L8]: In case you missed it, Cyntoia Brown, the woman sentenced to life in prison at age 16 for shooting the man who bought her for sex, was granted full clemency by the governor of Tennessee. Prior to the shooting, the young woman reportedly lived a life of sexual slavery and abuse, prompting the campaign for her freedom.

[L9]: A middle school teacher who made headlines for feeding a live puppy to a snapping turtle in front of his students was acquitted of animal cruelty charges.

[L10]:How about a gutsy criminal of the week, instead of a stupid one? This burglar asked his victim for a ride, and got it.

[L11]: Finally this week, my number one choice for favorite scene from a lawyer movie: this one from A Time to Kill (bet you thought it would be To Kill a Mockingbird, huh?). The twist at the end here caught my breath the first time I saw it. But not only does it make a devastating point, it also depicts a masterful closing argument, which, in real life, would undoubtedly reach a jury in a way most lawyers dream of:

Best Closing statement ever (A Time to kill 1996)


Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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39 thoughts on “Wednesday Writs for 1/9

  1. L7: I have been following this one for a while now, because of the ridiculous overreach of the board. I really have to wonder if anyone in that office stood up and asked, “Is this really a hill we want to die on?”


    • This always gets so weird. In a previous life, it appeared I might be called to testify as an expert in a court case because I was the supervisor of the group who had developed and applied some specialized test equipment. In particular, the test gear was the first box in the world that did a full set of telecom analog tests working in the digital domain. My degrees were in math and computer science, not electrical engineering. My published papers/conference presentations were related to a variety of systems analysis problems, not telecom testing. Even worse, we obtained some of our results using techniques from mathematical disciplines other than classic signal processing. In effect, at that moment in time, I was the only expert in the world in everything that we were doing. But establishing my qualifications, in court, would have been hard. As one of the lawyers struggling with it said, “If you had a NJ professional electrical engineer license we would just say that, and the judge and the opposing lawyers would just accept that, and we’d go on.”

      Didn’t have to testify — the case was settled out of court. The process would have been much more painful than this classic, though:


      • That’s one of the few situations were a PE would be helpful, and if time allowed, getting the license would be worth the effort (it’s pretty damn easy, actually, if you have a PhD).

        But still, a Resume/CV should be sufficient to establish qualifications.

        ETA: That said, what the Oregon Board was doing was (IMHO) a straight up abuse of power and the lot of them should be looking for new jobs.


  2. L6- As little of a fan I am of Disney, not least of all for their practice of copywrite extension, the idea of cultural appropriation is such a joke that I hope this goes down in flames.


    • It’s… an interesting question from my non-lawyerly perspective.. Can you trademark “No worries” in a foreign language? Seems like it would be pretty hard to trademark that phrase in English here. So how does it being not-English affect things? I’m a skeptic of Cultural Appropriation, but I think they might have a point when they’re taking exclusive ownership over their words (which is what Trademark is).

      On the other hand, if Disney is enforcing it narrowly, that’s definitely a point in their favor.


      • I am with you on trademarking “No Worries” in any language, but when the idea of cultural appropriation gets thrown in the mix, I generally feel that the mere idea of it needs to be stamped down quickly and thoroughly to help prevent other nonsensical and undemocratic ideas from gaining traction.


        • So, to make sure Aaron David lets you throw the baby of reasonable copyright limitations out the window with the bathwater, make sure your unreasonably broad copyrights are also culturally appropriative?

          Seriously though, cultural appropriation discourse, as I’ve understood it, was never about making the appropriation illegal, but rather about making clear that the appropriation is a rude and unclassy thing to do. I can legally wear a war bonnet to a music festival and call my neighbour a flaming dog turd in public. Both of those are probably legal. But until recently there was only widespread recognition that I was being an asshole with the latter.

          Trying to change the boundaries of behaviour that’s acceptable in polite company isn’t an assault on freedom of speech. It’s freedom of speech in action.


          • Well, you would have to start with the idea that cultural appropriation is bad when what you really have in this case is hucksterism and cultural blackmail. Now, to be sure such a thing is legal, but that is what should be talked about as “rude and unclassy.”

            Cultural “appropriation” is an unqualified good. It is Korean tacos and Bo Derecks hair. It is the adoption of good ideas when cultures meet. It is the best ideas winning out.


            • If you’re defining fusion cuisine as an instance cultural appropriation, that’s a rather unusual definition. I also like fusion cuisine. I just don’t think it’s culturally appropriative, and I don’t think I’ve ever heard any serious minded person who opposes cultural appropriation, use anything like your definition.


              • Well, I am not the only one to note the supposed “cultural appropriation” in the food world, but extrapolating on and expanding things is nothing new. And what is fusion other than a cook appropriating many cultural touchstones in their food?

                And what is Bo’s hair, but a fusion? Appropriating a style, a blending so to speak? Or if you aren’t familiar with her, we could look at Cardi B’s hair, often styled in red or blond. These are all good things, this blending, and mixing of cultures. But that isn’t what you seem to have in mind.


                • Indeed, I have in mind things like the aforementioned wearing of war bonnets by drunk white people at music festivals – dressing up as a racial caricature, desecrating a culturally sacred thing for a stupid party costume.

                  Nobody objects to those same people wearing e.g. beaded moccasins, because beadwork and moccasins are a shareable thing in the culture from which they come. If you see people of the culture offering the things for public sale, then they’re pretty clearly things that are publicly shareable.

                  In the Portland burrito restaurant case, I will note that
                  1) Portland, and
                  2) The controversial thing in my reading of that article seems to be largely about how they obtained the recipes and techniques – wheedling them out of reluctant food vendors. If they’d paid up for a cooking class from a person or culinary college that was glad to teach cooking techniques for an agreed-upon fee, or studied from cookbooks by people who published it with the intent that people should buy it and learn from it, that would be somewhat different.

                  Even given item (2) above, it does sound like there was some overreaction there. Item (1) probably has something to do with that.


                  • Taking artifacts of a religion that was within living memory the object of eradication attempts (residential schools where children were incarcerated, sexually abused, beaten for speaking their own language or praying within their own religion, resulting in horrifying ongoing multigenerational trauma), that are still used in racist caricatures of “lazy drunken indians” and whatnot, and also deciding that when I wear it to a music festival to sit around in flip flops and board shorts and drink a case of beer in the sun, it’s cool – that’s the kind of thing for which, yes, it is entirely appropriate that I should find myself unwelcome in polite company until there is serious indication I’ve changed my attitudes.

                    And it’s cultural appropriation. Nobody’s going to convince me otherwise. I am certainly open to changing my mind about whether or how badly some individual thing is appropriative. But not that appropriation is an unalloyed good, or that all cultural fusion is inherently appropriative.


                    • Yeah… No.

                      Those things, while some might find them offensive, aren’t illegal. At least not in the united states. 1st amendment, thank god.

                      Being an asshole is not illegal. Why you might ask? Because one person’s asshole is another’s cultural hero. And yes, this includes racists, Nazis, and hippies. I most certainly don’t want anyone telling me what is “hate speech” when that is entirely subjective. So we don’t allow this at all. Now, if said A-holes are assaulting, battering or arsoning with that bag of dog feces, that is another situation. But the words, headdresses or other accouterments are covered. So, yes, I am against using the power of the gov’t to police subjects such as this.


                      • Okay, but that doesn’t really contradict what Dragonfrog is saying here. This isn’t really about bringing the police into it. Dragonfrog is talking about social disapproval. The legal issues are civil and not criminal (and seem tangential to the cultural appropriation issue).

                        I’m sure you can find someone somewhere that would line this up with hate speech law or something, but no one here is really making that argument?


                        • I may have put the cart in front of the horse there, but this is an issue I care deeply about. You are right that this is civil rather than criminal, but I am of the opinion that it shouldn’t even push that button, hence the need to stamp it out.

                          For me, the concept of freedom of speech is so vital to an ideologically diverse country such as the US that the norm should always be that it is more important than any other issue. And yes, I am someone who can be directly affected by hate, but I grew up ensconced in the free speech movement and the ACLU supporting such for odious groups like the KKK.

                          I see items such as this as a firm example of the camel’s nose.


                      • That is literally my entire point.

                        Cultural appropriation is not illegal, is not about illegality at all, The only people I’ve ever heard suggest that “the powers of the government to police subjects such as this” was in any way relevant to anything were either willful disinformers like Jordan Peterson, or their victims.

                        It’s about the what constitutes assholism. It’s about the evolution of manners. A changing definition of what is rude is not an infringement of freedom of speech, and that’s ALL this has ever been about.


                          • As long as we’re in agreement that nobody is endorsing using the power of the state to enforce either the rule “don’t be an asshole” or the rule “don’t talk about whether something constitutes being an asshole.” Then I guess we’re in territory where we’re just going to go on disagreeing even though we’re maybe not entirely sure why.

                            Like I read what you’re saying as “certain kinds of speech about whether other kinds of speech constitute being an asshole (but should not be banned with the force of the state), are so dangerous that they should be shut down (but should not be banned with the force of the state).”

                            Which, well, speech is gonna speech. People are gonna behave in ways that other people think are rude. And people are gonna talk about what behaviours are rude and what ones aren’t. And some people are gonna change their behaviours in reponse to the general consensus about what’s rude and what isn’t, and other people are not. And people who continue to behave in ways that are generally thought to be rude, are generally gonna be thought of as rude.

                            We could keep discussing this, but we’d just be a couple of old men yelling at clouds…


                    • I do agree that it’s cultural appropriation. But it’s not wrong because it’s cultural appropriation. It’s wrong because it’s an extremely disrespectful variation of it, and a disrespectful response is warranted.

                      At least, according to the definitions I am more familiar with. Which are not all that different from Aaron David’s. Here’s Wikipedia:

                      Cultural appropriation, at times also phrased cultural misappropriation,[2][3][4] is the adoption of elements of a minority culture by members of the dominant culture.[5][2][3] Because of the presence of power imbalances that are a byproduct of colonialism and oppression, cultural appropriation is distinct from equal cultural exchange


                  • In the Portland burrito restaurant case, I will note that
                    1) Portland, and

                    It’s one thing to excuse college kids* for being overzealous and stupid. We really should not be excusing entire communities of arguably mature adults for that, regardless of the political persuasion.

                    *College faculty & staff who encourage such youthful idiocy are, however, inexcusable.


  3. [L2] I suspect we haven’t heard the last of this — either the prosecutors will challenge the decision or refile other charges, or the legislature amends the statute. The thing that stood out to me was that the prosecutor was arrested in the courthouse prior to hearing. Under the common law, attorneys were privileged from arrest when attending the courthouse on business. The example I’ve heard of is the attorney speeding to court, cannot be detained, but the police can follow the attorney to the courthouse and wait outside until he is done to give him the ticket.

    [L5]: Most Americans reading this probably have a third cousin that has uploaded their raw DNA data onto the internet. A lot of the privacy concerns are just about too late, and are not even being made by the individual (as opposed to family).


    • Re L2: I am confident the dismissal will not be overturned. Regardless of the reason, the state was not prepared to go forward and the time was up to try the defendant (in my state, it must be within three terms of court unless defense requests or agrees to continuance). No change of statute will be retroactively applied to affect due process rights.
      And because the dismissal was on constitutional grounds, refiling charges is not an option.


      • I did leave that ambiguous because I think the legislature will probably deliberate changing the speedy trial statute, regardless of whether it can be applied retroactively. In my state the speedy trial statute is separate and distinct from the Constitutional right to a speedy trial, so I don’t know what, if any, avenues are available, but I’m pretty sure given the situation something will be tried. If not, maybe they’ll just remove the judge.


  4. [L2]
    Ouch. Sounds like the ADA has dropped this ball a lot more than once.

    Much to do about nothing. The puppy was so ill it was blind, dying, and clearly suffering. Death by snapping turtle is unusual but counts as a mercy in this situation.

    I saw this roughly when it came out. Personally I thought the last line of his close was a dud… although admittedly the rest of it was moving (and horrific). I’d already been thinking of the little girl as a person before he suggested we think of her as a person.


  5. L4 – the head-scratcher for me is that this is work product from Reed Smith, a prestigious BigLaw firm. And this isn’t the weirdest or least respectful thing that they’ve turned in on behalf of their client, either. Well, maybe it is, but there’s competition for that claim, is what I’m saying. There was a bit they turned in just Wednesday whining about the judge siding with the Special Counsel on an issue, and when I say “whining,” I mean…. well, read it for yourself and tell me it isn’t whining.


    • What do lawyers do when they know they are probably going to lose but need to do something anyway? Or maybe Reed Smith but all their QANON lawyers on the case and they have been compromised.

      I’ve seen this done when I was making an application for a JCCP (the judge basically told me to file the application at a CMC). I’ve also wondered how much lawyer conduct is client driven. In FELA litigation, I have one opposing counsel who does the Southern California cases for two different law firms. His demeanor changes depending on what rail line he represents. One Defendant has a reputation for being “fight fight fight” and considering all cases “no pay.” The other is rather pleasant to deal with as these things go.


      • I consider not digging your client into a bigger a hole is part of lawyering. I agree that there are times when you need to respond and I’ve written some really weak stuff that amounts to “this is bad but it shouldn’t matter because reasons” Still, you shouldn’t say anything that will make a bad thing worse.


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