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Jun. 9 2010 — 4:29 pm | 3,810 views | 2 recommendations | 10 comments

I hate to be an attractive nuisance

I think I can say with some certainty that I never thought my interests in law and feminism would collide to defend a woman who proclaimed, “I want to be tits on a stick.” But then, I also never thought we’d ever have to live in a world without Gary Coleman.

But today, Elie Mystal’s post at Above the Law on Debrahlee Lorenzana, the former Citibank employee suing for being terminated because she was “too hot,” surprised me. In light of a video circulating of Lorenzana, in which she states her desire to have breast augmentation surgery in order to attract professional men, Mystal declares Lorenzana made herself an “attractive nuisance.”

“Ha! Attractive nuisance!” you might say if you vaguely remember the term from torts class, and then also remember that Lorenzana was fired for being a smoking hot liability. But if Mystal’s goal was to make a funny legal pun, he does so at the expense of accuracy. The attractive nuisance doctrine basically says that if you have something attractive to kids on your land — let’s say, a big rusty swing-set in the middle of your yard — it’s up to you to put a fence up to keep kids from playing on it. If you don’t, and a kid sneaks onto your land, plays on the swing-set, and breaks his arm — it’s your fault.

That’s right, the attractive nuisance doctrine relates only to children not grown-ass men. The doctrine was created specifically because we think that children can’t fully appreciate the risks and dangers associated with playing on things rusty broken down swing-sets or understand the concept of property boundaries.

So it would seem to me that Mystal is really arguing that all men are children. Or maybe, more generously, that men revert to a child-like decision making state when shown giant breasts and shouldn’t be held responsible for their actions. I could get behind this new theory of Mystal’s — but only if it means we can send all the men to daycare with a library of Hustler magazines and commence our female take-over of the world.

Clever, misleading puns aside — Mystal goes even further, calling it Lorenzana’s “fault” that men were distracted by her looks: “[S]urely when a woman places objects in her boobs for the specific purpose of attracting a ‘professional’ man, she’s got to assume some responsibility when men stare.”

Is it just me, or do “attract men” and “get fired,” seem like two totally different things? If Lorenzana made a video about how she wanted to get fired from a bank for having breasts in the size and shape of regulation soccer balls, I can understand how her statement of intent might be relevant here. But seeing as Lorenzana’s suit is about getting fired for being attractive, not about whether or not she knows she’s attractive, it just seems like one more excuse for Mystal to go on a bizarre blame rampage.

Even overlooking the legal word-play inaccuracies, Mystal just gets it fundamentally wrong, ignoring the actual issue of the suit (wrongful termination) and talking about it like it’s a sexual harassment claim. In doing so, he also manages to make callous demeaning comments about Lorenzana while simultaneously stomping all over any kind of notions of gender-fairness.

But maybe after looking at pictures of Lorenzana all day, Mystal just needs a nap. Or better yet — a time out.

Jan. 28 2010 — 12:38 am | 1,119 views | 2 recommendations | 5 comments

Alito’s Reaction: Much Ado About Nodding

Official 2007 portrait of U.S.

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There’s only been a few hours since the end of the President’s State of the Union and already it’s clear what will be heading up the news cycle tomorrow: Justice Alito’s Joe Wilson moment.

In case you missed it, which wasn’t hard since it was a few milliseconds of reaction, Justice Sam Alito shook his head and said “not true” after President Obama criticized the Supreme Court’s recent ruling in Citizen’s United.

It’s easy to get pulled along in the tide of outrage. The Supreme Court after all, is at least supposed to pretend to be neutral arbiters. AMERICAblog wrote it. Glenn Greenwald immediately twittered it. Huffington Post re-posted it. Talking Points Memo grabbed the vid.

But then comes Linda Greenhouse at the New York Times, as a voice of reason:

. . . Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Watching the video, it’s hard not to agree  that Alito’s nodding was most likely in reaction to Obama’s inaccurate characterization.  But, as Greenhouse herself states at the end of the article, this is not an explanation that lends itself to sound-bite. If I wake up tomorrow morning and Justice Sam Alito is the new Joe Wilson, I won’t be one bit surprised.

Jan. 18 2010 — 2:38 pm | 432 views | 0 recommendations | 3 comments

GOP prepping to block Kirk’s vote — but can they?

Massachusetts Attorney General Martha Coakley ...

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So here’s an interesting item floating around the Right-side of the Internets: GOP lawyers are already prepping to protest Massachusetts’s Appointed Senator Paul Kirk’s vote on the health-care reform bill if the election tomorrow is close, or Scott Brown wins.

Citing unnamed “Republican attorneys,” Fred Barnes trots out the possibility that after Election Day, Kirk’s vote in the Senate evaporates — regardless of the outcome of the race:

Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy” . . . If Brown wins narrowly and a recount is being conducted, Democratic lawyers might claim that he hasn’t been “duly elected.”  Republican attorneys believe, however, that a candidate has actually been elected, though it won’t be clear who that is until the recount is completed.

And in the event of a Brown victory, Barnes claims Democrats are plotting to delay certification of the election results to leave Kirk in the game for as long as possible.  So this is the kind of back and forth analysis of the law we’re in for in Massachusetts, unless all of it is made moot with a decisive victory by Democrat Martha Coakley.

But as long as we’re hypothesizing on this perfect storm of state and Constitutional election law, there are a few other interesting issues that it raises. For one, it doesn’t seem to be at all certain that Kirk’s seat in the senate would turn itself into the pumpkin at the stroke of midnight on January 20, especially if the election results are dragged out. Second, if there’s a recount, and a legal battle, could Kirk stay in office and vote on the health-care bill, anyway? And if he does and it’s counted, but a court later rules that Kirk was ineligible, can his vote be vacated?

But all these questions, seem to be trumped by one: What court could hear such an argument? And the answer doesn’t look great for conservatives.

“I’m not convinced enough that [the Republican's fight] would have much chance of succeeding,” says Curt Levey, executive director of the conservative Committee for Justice. “You can’t go to federal court based on Massachusetts law, you can’t go to federal court based on senate precedent . . .  the main thing they’re hanging their hat on is the Massachusetts law that says ‘until election and qualification of the person duly elected to fill the vacancy.’ But that’s something you’d have to do in a Massachusetts state court, and it’s hard for me to imagine them doing well in a state court and hard for me to believe a Massachusetts court would leave Massachusetts without a senator.”

Regardless, these questions could still wind down a very twisted, and easily politicized path — not unlike the one we saw in Minnesota, last year.  And while the novel issues might fascinate scholars and earn party lawyers plenty of billable hours, it could be a devastating outcome for the people of Massachusetts and the Democratic party if they’re left without a senator for one of the most  important votes in history.

Jan. 8 2010 — 3:43 pm | 13,695 views | 1 recommendations | 4 comments

Quote reveals a pro-choice Sotomayor?

Sonia Sotomayor, U.S.

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In the recent  New Yorker story on Justice Sonia Sotomayor, Lauren Collins slips in an un-reported quote from the newest justice, which minority senators might be kicking themselves for missing:

In 2000, at the graduation ceremony of the Bronx Leadership Academy, Sotomayor had said, “It is so exciting to be at the door of a major change in one’s life. That’s why brides and bridegrooms smile so much at weddings and why so many tears of joy are shed when a wanted child arrives”—her unprompted use of the phrase “wanted child” acknowledging the possibility that an expectant parent could feel otherwise

Whether the phrase “wanted child” necessarily implies its opposite is certainly a matter of debate — and one that very well might have taken place during this summer’s Senate confirmation hearings. It lends itself to a near judicial question of interpretation: Does “wanted” imply that there are “unwanted” children, as Collins suggests? Or is “wanted” merely a superfluous adjective meant to imply the hopes and dreams of a couple in having children?

There’s really no way of knowing, but rest assured that all of these interpretations and more would have likely been trotted out. With very little, if any, information on Sotomayor’s position on abortion, it’s hard to believe the minority would have let something like this slip away had they known about it.

Indeed, conservative Senators, pundits and talk-show hosts grasped at flimsier straws this July — attacking Sotomayor for her “wise Latina” remarks, and ironically heralding her as an activist judge for her part in the 2nd Circuit’s precedent following Ricci decision.

“Unless you have a complete meltdown, you’re going to be confirmed,” Sen. Lindsey Graham (R-S.C.) memorably said to Sotomayor during her hearings. That “meltdown” was very much what the minority was hunting for this summer — and the fact that a quote like this, or rather an adjective like this, could have been Sotomayor’s undoing says a lot about the adversarial heights the Supreme Court confirmation process has reached.

Oct. 25 2009 — 3:35 pm | 114 views | 1 recommendations | 6 comments

Wondering why Alaska’s so corrupt? Look to the press

After covering Alaska on and off for a little over a year, I get asked a lot why the state has so much corruption. Well, here’s one idea: maybe the Fourth Estate isn’t really doing its job to check the people in power.

Here’s a reporter from a local Alaska news station, KTUU,  at the start of an interview with Sen. Lisa Murkowski (R-AK). The reporter asks Murkowski — who has been in the Senate for almost seven years — to spell her name and state her job title.

“Murkowski has been in office for nearly 7 years and the number one station in Alaska has a reporter assigned to the senator who doesn’t even know who she is,” said Dennis Zaki, who runs Alaska Report and captured the video. “The other two local channels didn’t even show up to the press conference.”

To give the reporter some credit, this might not be her fault (god knows I’ve been in plenty of interviews unprepared), so much as her news station for sending her into a situation she wasn’t experienced enough to deal with. But that’s part of the problem. If the top local news station doesn’t have reporters who even know the names of their national representatives, how can they hold these politicians accountable?

Alaska has had some crackerjack reporting in the past, but for a state that gets the most earmarks per capita ($506.34 per person in 2008) in the country, I don’t think it’s out of the question to continue to demand a credulous press asking for some political accountability.

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    About Me

    While working at Talking Points Memo Muckraker during the 2008 Election, I covered the Justice Department politicization, voting rights law and the insanity of Alaska politics. I loved the beat which was somewhere between the wonky side of politics and the law. The realization was enough to send me off to law school in D.C. -- which seems to be a perfect combination of both.

    Though I've covered everything from birth control to blenders in my few years in journalism, this blog will be a compilation of stories related to the Supreme Court, federal courts, and the law generally. With an occasional story about Sarah Palin or Ted Stevens thrown in for good measure.

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