Wisconsin Supreme Court Badgers Andrea Palm

As I was drifting off to sleep last night, I heard the dulcet tones of Wisconsin governor Tony Evers opine that the conservative majority of the state Supreme Court was forcing the state to reopen by overruling him. I didn’t stay awake long enough to learn whether that meant everyone in Wisconsin was going to die. I hope not. I have some friends there, and always enjoyed the Friday night fish fry and polkafest.

But it struck me as curious that the governor would say that, given the first paragraph of the court’s opinion.

This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not “essential” in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.

Continue reading →

Free Dana Bazelon

In the age of bubble-wrapped babies, many have assumed with absolute certainty that leaving a child in a car is inherently deadly. We’ve all heard the tragic stories of children baked to death when a parent goes off to party or a day in the office, while the back seat reaches killer temperatures. Yes, it can happen, just as it can happen that a child gets run down crossing the street. No, it isn’t inherently dangerous, or even an unduly reckless. The devil is in the details. And the intent.

But I’m here to tell you, literally, that it’s neither inherently deadly nor dangerous at all if handled thoughtfully. I say that because it was common practice when I was a kid, and my mother did not serve life plus cancer many times over.

That didn’t stop Philly police from arresting Dana Bazelon, sister to legal pundit Emily and my dear friend and criminal defense warrior, Lara. Continue reading →

Short Take: Gaming The Prison COVID Problem

When a tragic story comes up about a prisoner who dies after being denied medical care after complaining to a guard, the flip side of the story rarely gets told. Some guards don’t care and see prisoners are subhuman. But most guards see something different in the tragic story, a never-ending stream of complaining and lies by prisoners trying to get something over on the system. When that one in a hundred complaints is real, the failure to address it has terrible consequences.

But the impact of the 99 other complaints on the legit one muddies the waters about how the story reflects how bad guards are to prisoners. They may well be, but you can’t pretend the lies and scams never happen. Continue reading →

Schrödinger’s Tax Returns

The two Trump tax return cases were argued before the Supreme Court yesterday. The first involved three subpoenas from House of Representative committees. The second a subpoena from New York County District Attorney, Cyrus Vance Jr. While both involve tax returns and Trump, they are very different cases with very different issues.

That said, both have an overlapping problem. What limits, if any, should there be on such actions that involve, indirectly, the person who holds the presidency? At the moment, that person is Trump, who raises a great many problems because of who he is, what he’s done, and how much he’s despised. But whatever rule is handed down, it will apply not just to Trump, but to every president who follows. Continue reading →

Tuesday Talk*: Judge Chatigny’s Choice of Words

Introducing new concepts into society means that they will soon enough find their way into a lawsuit. And as they do, the onus will shift to the court to decide how to deal with not only the concepts, but the language used to address them. Orwell wasn’t stupid, you know. Some judges have handled it in a needlessly overbearing manner, taking a bludgeon to the problem because they chose to. Other judges have attempted to address these issues with a scalpel, no deeper a cut than absolutely necessary to provide clarity without pointless offense.

Connecticut District Court Judge Robert Chatigny caught the case of three high school girls suing their sports conference for allowing transgender athletes to compete. The problem was the girls, all exceptional athletes, went from being at the top of their game to the second team when boy athletes became girl athletes and seized the lead.

In other words, two positions, both of which have their vehement supporters, had a spectacular crash. In order to accommodate transgender athletes, one had to sacrifice biological female athletes. In the hierarchy of intersectionality, the transgender girls emerged the victors, much as they did on the track. Continue reading →

The Title IX Pendulum That Wasn’t

It’s surprising when an editorial reaction to anything coming out of the DeVos Department of Education, or the Trump administration in general, isn’t shredded for no better reason than Orange Man Bad. After all, even a blind squirrel finds the occasional nut, and while the new Title IX regs raise more questions than answers, they are certainly a step in the right direction. And the LA Times agrees, their Trumpian roots notwithstanding.

When Education Secretary Betsy DeVos decided to revisit the rules governing sexual assault accusations at colleges, some victims’ advocates feared she would make it too difficult to hold assailants responsible. But the rules released this week make reasonable changes for the most part, curbing some of the excesses of the previous system.

Continue reading →

Short Take: Essential or What? Alvarado’s Constitution

There are easy answers. Health care workers are essential, right? But what about health care workers like a chiropractor or dental hygienist? Truck drivers are essential as they bring food across a hungry nation, but some trucks carry china tea cups. And then there are the bunny toenail problems. Yes, I’m not making this up.

A rabbit-rescue shelter is hosting a nail-trimming event for bunnies. Is that really essential?

Ms. Alvarado hates having to decide whether rabbit lovers can gather to trim bunny nails. (She said maybe.) She hates having to rule on whether people can play tennis or take flying lessons. (She said no, and no.) She can’t believe how many hours she has spent tangling with a local BMW dealer over the question of whether test drives are legal right now. (She has held firm on no.)

Continue reading →

Can We Do It Like South Korea?

Perhaps the most pressing question of the moment is whether, and how, we can “reopen” America. Not that it’s closed, really, for much of the country remains at work, exposing them to whatever the rest of us fear as we cower in our homes. We call them “heroes” to make us feel better about free-riding off their willingness to be infected so we won’t, ignoring that they’re not necessarily doing it for us as much as doing it to keep their jobs or feed their kids.

But much of the mantra about “testing, testing, testing,” fails to connect up the nuts and bolts to what it will actually accomplish. We have no treatment, cure or vaccine at this point, which means the most it will tell us is who has it (if diagnostic tests) or had it (if antibody tests), and who was within their reach and might get it. Fair enough, but then what?

The next level of response tends to go one of two ways. The first is the “be like Sweden” path of grain herd immunity and let the weak die. The second is “be like South Korea,” which has the twin benefits of not relying on the as yet known unknown of herd immunity and, well, not so much dying. But is it possible? Michael Kim, an American in South Korea, laid it out.

As an American currently in South Korea, it’s very interesting to me the stark contrast of how different the two countries’ response to coronavirus is. I don’t think most Americans fully understand the lengths that South Korea has undergone, so I’ll try my best to explain.

1) Upon arrival, they take your temperature at the airport and ask if you’ve experienced any symptoms. If you have, they move you to a separate area and give you a coronavirus test. If you haven’t, they take you to another area and interview you. They also install ankle bracelets.

2) You are required to install an app on your phone and enable location tracking all the time. You are required to self-report symptoms in the app twice a day. If you don’t have symptoms, you need to report that too. This goes on for a period of 14 days.

If you break quarantine, you are fined $10,000 USD and face jail time. Also, they check your location on your phone frequently. My wife had her location checked 37 times in a 3 day span. And they’ve caught enterprising folks who leave their phone at home and go out.

You are assigned to a case worker who is responsible for making sure you are following all the orders. They will call you and text you to make sure you are OK. They also will send you care packages that contains a lot of food, gloves and masks, sanitary pads for women, etc.

3) If there’s a new coronavirus case in your general area (same city or district), you get a Public Safety Alert on your phone that tell you about the person (age, male/female, city) and provides updates as they receive them.

I forgot to mention that Korea also has mobilized their army to provide more operations and logistics support at the airport.

We were required to get a COVID-19 test within 3 days of arriving, which is the only activity that’s allowed to break quarantine. You have to do this in coordination with the case worker. As a family of 4, we were done testing in about 10 minutes. Test results came in 7 hours.

In response to recent public safety alerts, my family changed our plans for the next several weeks to avoid certain areas. Places with lots of traffic like Korea’s version of Walmart have temperature monitors installed so you can see everyone’s temperature.

There’s absolutely no protests or demonstrations about the anti-freedom measures or invasion of privacy. I’m not an expert in Korean politics but it seems like everyone accepts these measures as required to address this pandemic.

While we still take precautions like wearing masks in public, washing hands frequently, using hand sanitizer, etc., I feel pretty confident that the government knows everyone who has coronavirus and is tracking things very closely, which means I don’t have to worry as much.

And like some of the articles have mentioned, if you’ve been to a place where someone who has coronavirus has also visited, someone will contact you to get tested and undergo self-isolation for another 14-day period.

Will Americans acquiesce to this? Is it feasible, scalable (we’re a bit bigger and more diverse than South Korea), legal (constitutional rights implicated?) and practical? Will people who test negative be willing to accept forced quarantine for being in the proximity of some random person who tested positive for 14 days? Will they be willing to do so a second or third time? Who feeds their kids when this happens? Who does their job, runs their business, appears in court to defend their clients?

The unduly passionate seem split on the issue. There’s the unicorn take:

Why wouldn’t it be voluntary? The morally right thing to do is isolate until you’re clear after 14 days.

And then there’s the deplorable take.

Plenty of Americans who have tested positive wouldn’t do a quarantine willingly because our country churns out selfish assholes like nobody else.

On the flip side, what would happen if we adopted the South Korea $10,000 fine and a short stay in the hoosegow as an incentive for morality? Would it be acceptable to impose it on the marginalized as well as the privileged?

Once people return to the streets, and run across 100 people per day, each of whom run across 100 people per day, and so on, until a person shows symptoms, since the asymptomatic won’t attract attention, will it not have as much potential to spiral out of control as before? It’s not happening now because we’re in lockdown, masked and distanced. Can we test 330,000 people a day, week or month? Even if we can, is that the answer or does it just raise the next level of questions?

Presumed Innocent, Not Accurate

As has been noted before, the presumption of innocence, both as a legal rule as well as a principle, has been under sustained  attack for a while. It’s now in the direct line of fire following the new Title IX regulations by those who somehow connect it to their contention that it silences victims. This, in itself, is unsurprising, both because the activists have had a tendency to resort to hyperbolic exclamations of disaster with no rational relation to any substantive facts, a fairly normal approach these days, and because they lack a firm grasp of what legal principles mean.

This isn’t a new phenomenon. It’s been a bone of contention for a very long time, Even people who should, one would hope, know better seem at best to be fair-weather friends to the presumption of innocence, picking and choosing where this “technical rule” deserves to be honored and rejecting it whenever one chooses to.

So it should come as no surprise that the attacks on the presumption of innocence have escalated, now that the sacred cow of the “campus rape epidemic,” based on the notion that rape is whatever anyone says it is, before, during or years afterward, is under discussion. Continue reading →

San Antonio’s Kung Fu Fighting

On its surface, it can be dismissed as little more than another performative effort by some overly self-important local politicians to show their neighbors that they won’t tolerate the nastiness, racism, the words that are wrong. After all, they could stir up feelings of anger in others and cause them to act out and harm people. But it’s happening in San Antonio, of all places, and if someone calls the cops, and the cops respond because someone called COVID-19 the Chinese Virus or Kung Fu flu, someone could very easily get hurt.

WHEREAS, COVID-19 is a public health issue, not a racial, religious or ethnic one, and the deliberate use of terms such as “Chinese virus” or “Kung Fu virus” to describe COVID-19 only encourages hate crimes and incidents against Asians and further spreads misinformation at a time when communities should be working together to get through this crisis; and Continue reading →