Wednesday Writs for 1/9

Em Carpenter

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 Responses

  1. Oscar Gordon says:

    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?”Report

    • 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:

      • Oscar Gordon in reply to Michael Cain says:

        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.Report

        • But no, there’s Daubert to contend with. In the case of a new, innovative thing, Daubert is going to be a tough obstacle to getting that testimony in front of the jury, even if that new innovative thing is ultimately vindicated.Report

  2. Aaron David says:

    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.Report

    • 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.Report

      • Aaron David in reply to Will Truman says:

        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.Report

        • dragonfrog in reply to Aaron David says:

          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.Report

          • Aaron David in reply to dragonfrog says:

            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.Report

            • dragonfrog in reply to Aaron David says:

              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.Report

              • Aaron David in reply to dragonfrog says:

                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.Report

              • dragonfrog in reply to Aaron David says:

                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.Report

              • dragonfrog in reply to dragonfrog says:

                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.Report

              • Aaron David in reply to dragonfrog says:

                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.Report

              • 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?Report

              • Aaron David in reply to Will Truman says:

                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.Report

              • dragonfrog in reply to Aaron David says:

                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.Report

              • Aaron David in reply to dragonfrog says:

                And my claim is that little bit of A-holery (or a lot, makes no difference) is preferable to the silencing effect that even claims of CA engenders.Report

              • dragonfrog in reply to Aaron David says:

                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…Report

              • Aaron David in reply to dragonfrog says:

                Only if we wear onions on our belts, as was the style.Report

              • Will Truman in reply to dragonfrog says:

                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


              • Oscar Gordon in reply to dragonfrog says:

                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.Report

              • North in reply to Oscar Gordon says:

                Here here!Report

  3. PD Shaw says:

    [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).Report

    • Em Carpenter in reply to PD Shaw says:

      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.Report

      • PD Shaw in reply to Em Carpenter says:

        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.Report

  4. Dark Matter says:

    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.Report

  5. Burt Likko says:

    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.Report

    • Saul Degraw in reply to Burt Likko says:

      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.Report

      • LeeEsq in reply to Saul Degraw says:

        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.Report