America’s First Female Lawyer

Posted on May 26, 2015 by wellsdc

Saturday, May 23 was the birthday of Arabella Mansfield (1846-1911), who, in 1869, became the first female attorney in the United States.

Via National Women’s History Museum / Facebook

Via the National Women’s History Museum on Facebook:

In 1869 she became the first female lawyer in the United States. Mansfield passed the bar despite the fact that the test was only supposed to be administered to men at that time. She challenged the legality of the restriction in Iowa and won her appeal, making Iowa the first state to admit women to its bar.

(h/t Georgette)

From the Iowa Organization of Women Attorneys: Continue reading →

Ignoble Moments in U.S. History: The Chinese Exclusion Act of 1882

Posted on May 6, 2015 by wellsdc

On May 6, 1882, U.S. President Chester A. Arthur signed the Chinese Exclusion Act, which barred all immigration into the United Stated from China for ten years (h/t Melynda). With subsequent renewals, it remained in effect until 1943. Technically, the law only barred “Chinese laborers,” but it effectively prevented all immigration for reasons I’ll get into below.

Chinese immigration to the western United States began around the time that area became the western United States (as opposed to northern Mexico), in the late 1840’s. The California Gold Rush was a major factor, but the (white) Americans coming to California from the eastern U.S. weren’t necessarily thrilled with them being there, but they were tolerated for some time.

As the Gold Rush wound down, Chinese immigrants and their families settled in cities, especially San Francisco. Many of them took work in restaurants and laundries, and Chinese-Americans played a prominent role as laborers in railroad construction. After the Civil War, however, they made convenient scapegoats for all number of complaints: Continue reading →

Congratulations Are in Order

Posted on May 5, 2015 by wellsdc

In addition to being a lawyer, I have been represented by several lawyers over the course of my adult life—sometimes for reasons I would have rather avoided, sometimes for purely cautionary reasons, and sometimes for good reasons. A lawyer who helped me with some business startup matters (which I’ll call one of the good reasons), Elizabeth Copeland at Strasburger & Price in San Antonio, has been nominated by President Obama to the U.S. Tax Court in Washington D.C.

Tax Court sounds like a place I never, ever, ever, ever, ever want to go, but it’s a great career opportunity for her, so my congratulations!

Of course, she still has to be confirmed and all that. Ugh.

A Rant About “Actual Innocence”

Posted on April 28, 2015 by wellsdc

Rant derived from a comment on a friend’s Facebook post:

“Actual innocence” is basically a defense strategy once you get to the appellate level, which is one of the truly ridiculous side effects of a criminal justice system that focuses on burden of proof rather than guilt/innocence.

It is generally accepted among police and prosecutors that a “not guilty” verdict does not equate to “innocence”—it just means that the state didn’t meet its burden of proving guilt beyond a reasonable doubt. Yet thanks to uncreative word usage, a “guilty” verdict is construed by police and prosecutors to mean that the person actually committed the offense (i.e. is “guilty”), not just that the state met its burden of proof. Appellate courts then look at it more as a question of whether the state broke any rules or the trial court made any errors, and not whether the defendant actually committed the offense.

In a purely procedural, theoretical sense, it’s a great system. It works perfectly for jurists like Scalia, who seems oblivious to the presence of complicated human beings within the system.

The most bizarre side effect, IMHO, is the ability of courts to use acquitted conduct as evidence at sentencing, because the burden of proof for factors to be applied at sentencing is “preponderance of evidence” (proof that something more likely than not happened) as opposed to “beyond a reasonable doubt.” There was a recent case of several defendants who were convicted of drug distribution, but acquitted of conspiracy to distribute. The trial court applied enhanced sentences based on the drug distribution conspiracy—the very same activities for which the jury had just acquitted them. The appellate court said this was fine because (a) the enhanced sentence was only for the distribution conviction, and (b) the state had met the “preponderance of evidence” burden re: conspiracy, just not the “beyond a reasonable doubt one.”

tl;dr – In the criminal justice system, “not guilty” and “innocent” are two separate concepts. The antonym for both terms is “guilty,” but the system doesn’t really trouble itself with making a distinction there.

Truth Bomb in SCOTUS

Posted on March 5, 2015 by wellsdc

This comes from Texas Freedom Network‘s daily “News Clips” email:

BOOM.

Here’s a bit more context, via National Journal: Continue reading →

A Difficult Animal Welfare Topic

Posted on March 5, 2015 by wellsdc

A news story out of Wisconsin sort of piqued my curiosity, although I’m not delving too far into this one, except to make a few general observations (h/t G):

A Wausau man accused of performing a sex act with a horse has been charged in Marathon County with bestiality.

[Name and age redacted but available almost anywhere else] was charged with sexual gratification with an animal sex organ, possession of drug paraphernalia, possession of marijuana as a repeat offender and bail jumping, according to court records.

I vaguely remembered hearing somewhere that “bestiality” is not actually a criminal offense in many U.S. jurisdictions, so I set about to try to look that up without actually using Google. Wikipedia is our friend in this regard: “As of 2012, bestiality is illegal in 37 U.S. states. Most state bestiality laws were enacted between 1999 and 2012.” As it turns out, bestiality was usually included, expressly or by implication, in state-level “sodomy” or “crimes against nature” laws, which were mostly struck down in 2003 by the Supreme Court’s decision in Lawrence v. Texas. I do not, let’s be clear, think that this negatively affects the importance or validity of that decision in any way.

By chensiyuan (chensiyuan) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 4.0-3.0-2.5-2.0-1.0 (http://creativecommons.org/licenses/by-sa/4.0-3.0-2.5-2.0-1.0)], via Wikimedia Commons

This is a heavy topic, so here’s a picture of Yosemite Valley to marvel at.

Since I am of the opinion that consent is the most important factor in any sort of sexual activity—i.e. if the participants all give knowing, willing consent, they can pretty much do what they want; and by “all” participants I really do mean all participants, including anyone who can see what you’re doing (it’s fine by me if you like stuff involving clown noses and Cool Whip, but I never agreed to watch you do it in public, so get behind closed doors, or at least high walls, please)—I am generally of the opinion that sexual activities with animals is not permissible. They cannot give consent in any way that we humans can unambiguously understand as consent. Continue reading →

The Cleveland Police Department’s Defense in the Tamir Rice Lawsuit

Posted on March 2, 2015 by wellsdc

Last Friday, the City of Cleveland answered the wrongful death/civil rights lawsuit filed by Tamir Rice’s family, and part of its defense has caused much anger and consternation, especially to non-lawyers. I find just about everything about the Cleveland PD’s actions in this case—and those of their supporters—to be infuriating, but from my perspective as a lawyer, the defense outlined in their answer seemed like pretty standard legal language to me:

The city, in its response, wrote that Tamir’s death on Nov. 22 and all of the injuries his family claims in the suit “were directly and proximately caused by their own acts, not this Defendant.” It also says that the 12-year-old’s shooting death was caused “by the failure … to exercise due care to avoid injury.”

The response does not explain these defenses in more detail, though 20 defenses are listed in all, including another one that says Tamir died because of “the conduct of individuals or entities other than Defendant.”

If you read the city’s answer, linked in the blockquote above (and also here), you’ll see that the quoted portions come from the city’s “affirmative defenses” on page 38, which read as follows: Continue reading →

The Cake Will Be Bone-Shaped, I Assume

Posted on February 20, 2015 by wellsdc

Pat Robertson is worried. In other news, the sky is blue.

But seriously, Pat Robertson is concerned about same-sex marriage. Again.

After a Washington state judge found on Wednesday that a Christian florist had violated the state’s anti-discrimination law by refusing to sell flower arrangements for a same-sex couple’s wedding, Robertson asserted that an “intelligent judge” would have ruled against the gay men.

“To say that some procedural anomaly in the statute overrides the fundamental religious freedoms of the people, it’s just crazy,” he insisted. “And I hope that the lawyers for this florist will appeal this thing to get into the federal courts.”

“But this is outrageous!” the conservative preacher continued. “To tell a florist that she’s got to provide flowers for a particular kind of wedding. What if somebody wanted to marry his dog? She’s got to have flowers for that? What if there’s a polygamous situation where a guy has five wives and he wants to have five ceremonies, and she’s going to be forced by the law to provide them flowers. I mean, this is crazy.”

[Emphasis added.] (h/t Alice)

My favorite part of this whole “marrying-your-dog” trope is that it gets the question backwards. If you really value liberty and freedom, the question should always be “why should this be illegal?”, not “Why should we as a society allow this?” (Yes, I’m paraphrasing Donna from “The West Wing.”) Continue reading →

Freeze Peach

Posted on February 16, 2015 by wellsdc

This is critically important:

Free speech is the right to speak your mind without government censorship and without fear of extralegal retaliation like harassment or violence. That’s all!

Free speech doesn’t include the right to speak your mind on any forum anywhere. The government may not prevent you from speaking, but private parties, like blog owners or corporations, aren’t required to let you use their property as your platform.

Free speech doesn’t include the right to be believed or to be taken seriously. People may mock, ridicule or laugh at what you say, or they may reject it outright.

Free speech doesn’t include the right to be listened to. People who don’t desire to hear your opinion can hang up on you, block you on social media, change the channel, close the browser tab. Free speech doesn’t give you the right to bombard people with harassing messages or otherwise force them to pay attention to you against their will.

And free speech doesn’t include the right to suffer no consequences whatsoever for your expressed opinions. As Facebook found out, if you say things that other people find abhorrent, they may boycott you, disinvite you or choose not to associate with you.

– Adam Lee

The “Lactating Male” Case Isn’t Quite So Simple as That

Posted on February 5, 2015 by wellsdc

You’ve probably heard about the Supreme Court’s decision to deny certiorari in Ames v. Nationwide Mutual Insurance Company, in which a lower court had denied a woman’s pregnancy discrimination claim for alleged failure to provide reasonable accommodations for lactation, followed by constructive termination. The aspect of the case that has been making its way around the web is the trial court’s statement that the case was not an example of sex discrimination, because (to paraphrase), men can lactate, too. While I find fault with the decisions of the trial court, the Eighth Circuit Court of Appeals, and the Supreme Court in this case, the “men can lactate too” statement is not a particularly critical part of the analysis—although it is an attention-grabbing one.

milk typography by johnnyhuynen [CC BY-ND 3.0 (http://creativecommons.org/licenses/by-nd/3.0/)], via DeviantArt

I actually started this post all full of piss and vinegar over a crappy legal decision based on a ridiculous premise, but as I read more about it I realized that the real legal basis for the trial and appellate courts’ decisions, and probably the Supreme Court’s rejection of the case, is not as ridiculous as the “male lactation” bit. The case has far more to do with what employees must do to trigger and employer’s legal responsibility to provide “reasonable accommodations” for pregnant employees, or employees who have recently given birth. Continue reading →

Cryptic Philosopher

IT'S A TRAP!!!

Category Archives: Law