The Brief No. 44: Docketed and Loaded

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June 26, 2019

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40 Acres and a Bar of Soap?: Juneteenth (June 19) aka Freedom Day celebrating the emancipation of slaves in America set the stage for a historic House panel testimony on the topic of reparations. Senator and Presidential hopeful Corey Booker spoke in favor of reparations which are also supported by many other 2020 Democratic hopefuls. Mitch McConnell responded, well, exactly as one might expect. Meanwhile, the United States of America continues its storied history of not getting the whole “human captivity is bad” thing. Treasury Secretary Mnuchin announced an 8-year delaying in putting Harriet Tubman on the $20 bill and government lawyers argued against having to provide access to soap and toothbrushes to migrant children being kept in cages at the border. While journalists and others aren’t permitted access, stories emerging from the camps reveal illnesses spreading rapidly, limited access to toilets and other basic human necessities, and a stench so bad that guards and others working at the facility are wearing masks to protect themselves. 

Term Paper Time: The United States Supreme Court is finishing its homework before summer vacation handing down a rapid series of decisions in the past week. In a 7-2 decision in Flowers v. Mississippi, the justices reaffirmed the rule against racial bias in jury selection overturning the murder conviction of a black defendant after 41 of 42 African Americans potential jurors were dismissed over six trials for the same crimes. Thomas dissented, mostly joined by Gorsuch, finding neutral, non-racial reasons for the dismissal. In another 7-2 decision, The Court found that a large cross dedicated to World War I fallen soldiers could remain on public land finding it held a secular meaning within the constitutional separation of church and state in American Legion v. American Humanist Association. Ginsburg read a dissent from the bench, that was joined by Sotomayer, finding that the cross puts Christianity above other faiths. SCOTUS became more divided in Gundy v. United States, where a slimmer 5-3 majority upheld a 2006 law aimed at sex offenders, providing the U.S. attorney general discretion to decide whether the law applies retroactively. Gorsuch, joined by Thomas and Roberts, dissented citing concern that the attorney general was given “the power to write his own criminal code.” Acknowledging the group was less than sympathetic, the dissent questioned, what group would next be subject to officials authoring their own laws? Consensus became further attenuated as the court divided along strictly partisan lines in a 5-4 decision finding giving property owners a ”fast track” to sue in federal court when they believe state or local governments have infringed on their property rights. The Court came together as one big happy family in the fairly uncontroversial issue of North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust finding that a trust beneficiary’s residence is not sufficient on its own for a state to tax a trust’s undistributed income. The Court’s current consensus had many wondering if the court is intentionally forging an apolitical front in an increasingly divided nation, although much more politically loaded decisions are due out this week

Social Media Run Amok: 72 officers of the Philadelphia Police Force were placed on administrative duty amid a massive investigation into racist and insensitive social media posts by the same. Philadelphia-based Ballard Spahr will be assisting the Philadelphia Law Department and Internal Affairs in going through the posts. Regardless of the legal ramifications, Philadelphia Police Chief Ross admits, the posts hurt relations with citizens. Further complicating the relationship between employment and personal social media use is the emergence of the “deep fake”, recently making news with an altered video of Nancy Pelosi intended to make her look impaired.

Facebook’s refusal to remove the altered video was answered with a fraudulent video of Mark Zuckerberg, testing the strength of their convictions. Regulations, policies, and hearings close in on the runaway train that is social media, but will it be soon enough?

Lit Lifestyles: The practice management tool Litify raised a staggering $50 million from investment firm Tiger Global Management which the legal tech company is planning to use to expand beyond plaintiff’s firms and edge out other big players like Clio and RocketMatter. Also in legaltech, Judge Posner joins Legalist to help bring litigation funding to those who may otherwise not have access. Speaking of funding, pro tip—litigation funders aren’t too keen on those dollars being used for keeping up a reality star’s lifestyle (twice)(allegedly). They fund lawsuits not designer swimsuits. The more you know…


It’s rare that a government lawyer’s argument in a grey nondescript courtroom with fluorescent lights becomes must-see TV. But this week, the visibly uncomfortable and stuttering performance of Justice Department lawyer Sarah Fabian who had the unenviable job of defending the policies of our elected administration went viral. Fabian attempted to hone in on the legal argument to defend the Trump Administration’s CBP treatment of immigrants at the border against incredulous judges asking if she was really going to argue to deny children toothbrushes, soap, and room to sleep. As we watched the video we wondered: What is the potential for social media to drive engagement in democracy and policy? You can watch the full 10 and a half minutes of Ms. Fabian dodging and weaving here. Feeling overwhelmingly righteous and a U.S. Citizen entitled to vote? Remember that Fabian was merely the foot soldier sent to do the dirty work of the democracy that we built and/ or allowed to happen.

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