Wednesday Writs for 1/30

Wednesday Writs for 1/30

Wong Kim Ark

[L1]: There really is nothing new under the sun. Nearly every societal debate can be found in some iteration in the annals of history. In today’s Case of the Week, we learn that one of today’s hot topic political issues has been controversial since at least 1898: birthright citizenship. In 1873, a Chinese woman in San Francisco gave birth to a son, Wong Kim Ark. Though his parents returned to China in 1890, Wong remained in the country. In 1895, he took a trip to China to visit his parents. When he returned on a steamship later that same year, he was refused entry at the port and taken into custody by the “customs collector”. At that time, the Chinese Exclusion Act was in effect, which placed a moratorium on the immigration of Chinese laborers. It was under this Act that Wong Kim Ark was refused entry and detained.

When brought before a court, he was discharged from custody on the grounds that, having been born in America and never having renounced or otherwise forfeited his citizenship, he was a citizen under the 14th Amendment, rendering the Chinese Exclusion Act inapplicable. The United States appealed to the the Supreme Court, giving rise to United States v. Wong Kim Ark, in which the Court wrestled with the question of birthright citizenship.

Wong Kim Ark argued that he was a U.S. citizen based upon the first clause of the Fourteenth Amendment, which reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The government argued that the second part of that clause, “and subject to the jurisdiction thereof”, was in question because his parents were still Chinese citizens and “subjects of the Emperor” when he was born, and he was therefore subject to the emperor’s jurisdiction and not that of the United States. The Court, as it is wont to do, turned to the English common law to interpret the clause. Under English common law, all persons born within the King’s realm were subjects of the King, except for the children of  “foreign ambassadors” or the children of “alien enemies” born on English soil but during “a hostile occupation of the king’s dominions.” Substituting the jurisdiction of the U.S. government for that of the king, the Supreme Court in 1898 (pictured in this week’s featured image) ruled in favor of Wong Kim Ark and enshrined birthright citizenship, although anyone who has paid attention knows that this ruling is far from accepted; efforts to overturn the Wong Kim Ark decision via judicial or legislative means have persisted through the current day, though none successfully, yet.

[L2]: Some convicted criminal defendants in Tennessee are suing over the practice of allowing reduced sentences for men who agree to get vasectomies. While one would think the issue was with the practice itself, which has since been rescinded, these particular plaintiffs are angry they were not given the same option.

[L3]: Some New Orleans Saints season ticket holders are not taking their loss to the Los Angeles Rams sitting down: a lawsuit has been filed seeking to replay the end of the NFC Championship game in the wake of an unbelievably bad missed pass interference call.

[L4]: The Supreme Court denied cert last week to a football coach suing over being prohibited from praying on the field after games. Justice Alito agreed with the denial based on undeveloped facts at the lower court, but in a statement joined by Justices Thomas, Gorsuch and Kavanaugh, expressed dismay over some of the 9th Circuit’s views on the matter.

[L5]: According to the 7th Circuit, the protection against disparate impact by age discrimination only applies to the employed, not to those seeking employment. There is a circuit split, so we may see this at SCOTUS sometime soon.

[L6]: After mistakenly placing a Stanford researcher on the no-fly list, the U.S. government adds insult to injury by “playing discovery games” in the resulting court case- much to the dismay of the 9th Circuit panel hearing the case.

[L7]: A feel good story too great not to share: from a neglected and homeless foster kid, to a single mother of five, to a law school graduate.

[L8]: Any parent of a pre-teen boy can tell you that Fortnite is evil, but some enterprising criminals are using the game’s “V bucks” currency system to launder ill-gotten cash.

[L9]: Many people have grown to detest the rentable scooters taking over in cities like DC and San Diego, but according to a lawsuit against Bird and Lime, the two biggest companies behind the scooters, errant scooters left on sidewalks present a real impediment to people with disabilities and limited mobility.

[L10]: Television ads for law firms are notoriously cheesy, but some lawyers have the video thing figured out. Here’s one of them in which an attorney breaks down the criminality of the Dark Knight:

Ed V. The Dark Knight | Brown & Crouppen


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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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22 thoughts on “Wednesday Writs for 1/30

  1. L5: The Boomers will never retire. That said, if you make age discrimination a thing, it’s going to be a thing all the way.

    L6: This is infuriating. The worst part is that even if (when) the fines are paid, nobody involved will feel a pinch in the slightest. (Maybe to their pride, but that’ll be forgotten after a weekend or two.)

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    • L6: Mostly, litigation costs are being awarded because of a fee-shifting statute intended to encourage lawsuits. The plaintiff missed a flight, and even if that violated her rights, the monetary damages were going be very slight compared to the cost of litigating those rights. Some of what they are talking about is wrongdoing, but a lot of those legal fees would have been awarded anyway. The fact that it was a case of first impression, necessitating two appeals, just reinforces the importance of fee-shifting. And of course, the fee-shifting statue’s purpose is also to make these types of cases easier the next time they come up.

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    • L5: The question as to why Boomers won’t retire is interesting from an anthropological prospective rather than a legal one. Plenty of boomers do retire or quasi-retire but others either can’t afford to and/or don’t want to. I suspect that the Boomers have very different views of retirement than their parents because they did not have their formative years during the Great Depression and WWII. Many of them could have been the first in their families to get white-collar work thanks to the New Deal/Great Society. The Boomers who had good white-collar jobs were in their prime during the live-to-work 1980s, not the Great Depression.

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      • Yeah, the Boomers as a class are more educated than their past cohorts, and have made more money than past and future cohorts. They also took on more debt and are entering retirement with mortgages that previous generations lacked.

        All of that means is that they started working life later, more frequently at desk jobs that are not as physically debilitating and possibly interesting. They earned good money, were future optimistic about taking on debt, and are used to a higher level of spending. They are entering retirement with one of the three tent posts (home ownership) impaired, and probably weren’t eligible for a pension.

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        • It would be interesting to study past generations and see if people in white-collar professions retired later (or not at all) compared to someone who worked in construction. There are lots of doctors and lawyers from older generations who kept on into their 60s and older.

          Now this is not always good, I think every city has a story about a lawyer who stayed working too long and ended up committing malpractice out of sheet memory problems.

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          • I think one of the changes over the last 50 years has been an increase in leisure time, which has unequally been shared.

            In 1965, the average work week for nonsupervisory workers was 38.8 hours and today it is 33.7 hours. For goods producing jobs, the average is 40.9 hours, while for private services it is 33.3 hours. How one feels about the increased leisure is probably going to depend on your pay. After 20 years at a job, the average employee receives 23 vacation days. 43% of employees report working at least some from home.

            My thesis is that for a lot of workers, the work/leisure divide is more porous than 50 years ago, so the difference between work and retirement is not as stark.

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        • I also expect that retirement lost a lot of its allure by the time the earliest boomers reached retirement age. The Silent and Greatest Generation were really the first groups that could really benefit from social security, Medicare, pensions, etc. in full. Health care was good enough that many of them were healthy enough to enjoy retirement while previous generations lacked the ability to do so unless they were very wealthy.

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      • One shouldn’t forget also that there are a lot of Boomers, and quantity is a quality all its own.

        i.e. I’m not sure how much of things are ‘different’ and how much is that there are just so many more 65 year olds than there’s ever been in US history. And how much their passage though time, in previous unseen quantities, through the economy and social systems, in turn makes current 65 year olds ‘different.’

        (another interesting thing is going to happen as the ‘year entered workforce’ for those retiring gets further to the right on this graph.

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  2. L6: So wrong. The government should not be permitted to take action against persons on ‘secret’ lists. If homeland wants to keep a list of people to watch, fine. But the moment they take some action against a person on that list, be it getting a warrant or preventing them from doing something (like flying), they need to be willing to lay it all out on the table to a judge, and be prepared for their rationales to come out in discovery.

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  3. L4: In a rare moment, I think the courts got this one wrong. The coach (IIRC) was not asking, explicitly or implicitly, for anyone under his authority to pray with him, so it seems like it falls pretty squarely in protected territory.

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    • If I understand the facts correctly, he was not merely praying, he was using the school facility for a conspicuous display of piety. (Not legally relevant, but as an aside it is worth noting that Jesus explicitly instructed his followers not to do that. Matthew 6:5. This is one of many parts of the Bible that Evangelicals pretend doesn’t exist.) Banning discreet prayer (i.e. the sort that Jesus explicitly commends to his followers; Matthew 6:6) would be more problematic legally, and impossible as a matter of practicality. (Come to think of it, pretty much all of Matthew 6 is in the invisible-to-Evangelicals part of the Bible. See also: Matthew 5.)

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      • I think a large part of the issue was the trial judge failed to provide written findings of fact, he made a non-detailed verbal ruling from the bench. The Court of Appeals made its own findings based upon information in the record, including details about the coach’s private religious speech.

        According to the idiom, the Devil is in the details, I expect the coach’s attorneys to refile a motion with the trial court, addressing the factual distinctions identified by the four justices (which seems more focused on the specific nature of the coach’s duties at the time he prayed).

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      • Intended to be linked to PD Shaw’s, whose comment appears in State of the Discussion but not on this page. Even moreso, the subject of this appeal is that the district court judge denied a request for a preliminary injunction that would have given the coach everything he was asking for: reinstatement, back pay, and explicit permission to pray on the 50 yard line. The district judge said the coach was sufficiently unlikely to prevail to grant him the whole ball of wax in the form an injunction. Now that the SCOTUS has denied cert on the injunction, this presumably goes all the way back to the District Court and there will be a trial.

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      • “Matthew 6:5. This is one of many parts of the Bible that Evangelicals pretend doesn’t exist.”

        It’s always funny when people treat religion like it’s a splatbook and you’ll get an XP penalty if you don’t play your character right.

        Matthew 6:5 doesn’t say anything about witnessing to others. I kind of doubt that Jesus would have preached against that. In context, it’s more about virtue-signaling.

        Now, if you want to say “well he wasn’t trying to convince anyone of anything, he was just signaling his virtue”, sure, I’ll always listen to arguments that performative displays of moral correctness are a bad idea and should be discouraged, and I’ll be amused to hear your reasoning as to why this isn’t generally applicable.

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  4. L10: My housemate, a retired prosecutor, public defender, etc., really likes superhero movies. So sometimes I point out the wildly illegal nature of their activities, or tally up collateral damages (I’m looking out you, Iron Man, aka “Deep Pockets”). He admonishes me that I should not cross the streams. “There is reality, and then there are movies.”

    So it’s good to see that other attorneys are well aware of the flagrant violations of the law being committed by people like Bruce Wayne. Putting on a cape may grant special powers, but it certainly doesn’t grant special privileges. Superman only gets by with flattening half of Metropolis because Krypton was destroyed, otherwise the Metropolitans and their injury attorneys would own Krypton by now. At least Wonder Woman and Aquaman, so far, seem to obey the law for the most part, although their close association with Wayne and Kent could land them in serious legal trouble down the road.

    About the only super hero with any legal cover is Black Panther, who has sovereign immunity as head of a nation recognized by the UN, and one not under any UN sanctions.

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    • Increase the legal realism to “Wearing the Cape” level where all superheros are subject to sanction by the gov. I think Superman is still legally fine and the city still ends up half leveled due to the whole “invading genocidal army” thing.

      Batman is obviously a problem for multiple reasons… but increased legal realism means anti-heroes are hunted by heroes. We tend to handwave just how nasty anti-heroes would actually be. The Punisher going out and killing a hundred people would tend to attract attention and probably cause lots of problems.

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        • In comics Punisher is protected from killing uninvolved civilians by plot armor. Absent that, he doesn’t have the resources to do a great job in separating the guilty and innocent. Worse, increase realism and he’s in a universe with super powers common enough that Organized Crime can hire super powered mercs.

          But if we’re opening the door to anti-heroes, the Punisher isn’t even close to the bottom as far as how nasty this can be. People with powers can have families. Successfully target them and we can create a mix of Superman and the Punisher, targeting normal criminals. As you pointed out, the powers that be probably has better things to do with their time than to bodyguard criminals.

          Even in a realistic universe where maintaining a full secret id is impossible, I can see Organized Crime deciding they really don’t want to go down that path and policing their own internally.

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