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.

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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.)

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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

The Arbery Video: Alan Tucker Chose Poorly

After the video of the murder of Ahmaud Arbery went viral, the arrests of the two men in the video seemed certain.

The men, Gregory McMichael, 64, and his son Travis McMichael, 34, were each charged with murder and aggravated assault and booked into a jail in coastal Glynn County, Ga., where the killing took place, the Georgia Bureau of Investigation said.

Of course, it’s not that the video wasn’t available to the police, prosecutors and GBI before it went viral, but there was no national outcry for action. While the person in the car who recorded the video cooperated with police, readily gave the video to anyone who wanted it, no one thought to make it public until Brunswick, Georgia, lawyer Alan Tucker. Continue reading

The Wrongful Conviction Of The Not That Innocent

I’d known my client since he was a little kid, when his father was my client. His father was what cops call a “skell,” running low-rent smarmy scams without any shame, being a small cog in a bigger crime whenever he could make a buck out of it. On a personal level, he was one of those guys who pretended to be your best friend, waiting for the opportunity to shove a knife in your back.

But his son wasn’t a bad kid. He just never had a chance given the way he was raised. So when he got busted for drugs, he was one of the rare clients who just told me what happened without the usual story, the string of obvious lies that would make me the stupidest guy in the room. Instead, he gave me the information that I needed to defend him, so I knew what they knew, less whatever they wrongly thought they knew and what they made up. Not everybody lies, but most people do, at least to some extent.

We should have won the suppression hearing. We had the goods. The hearing went exactly as planned. The agent who testified admitted under cross that he lied in his report. Why? Continue reading

Seaton: People You Meet In A Pandemic

It’s Friday, and I’m in a mood to take the piss out of a few people. Your humble humorist held his tongue far too long as everyone turned into miserable assholes in a global pandemic. Now I’m going to have a laugh at the expense of a few guilty parties and I hope you’ll join me.

The wishful among us thought this virus would unite humanity as one [Ed. Note: Just @ me next time, coward], make us all realize we were #InThisTogether, and see us emerge as a better species. The pragmatists watched as people reverted to comical stereotypes of their former selves. Continue reading

Did DoE Forget Why Title IX Exists?

Teresa Manning, who heads the Title IX Project for the National Association of Scholars, was troubled, and gave me a call to ask if she missed something. What caught her attention was the third prong of the new Title IX regs definition of sexual harassment. To understand its significance, the path by which anything that happens on campus flows into a Title IX violation has to go through sexual harassment.

Despite all the claims otherwise, it’s the only “ill” giving rise to a Title IX violation, and all the other ills, from dirty jokes to rape, have to be funneled through it. Don’t blame me. That’s what the Supreme Court says. Continue reading