Should former au pairs come back to New York to sue their host families for sexual assault?

New York Democrats opened a one-year hunting season on Donald Trump by temporarily removing the statute of limitations on sexual assault. A jury has demonstrated that no physical evidence is required for a plaintiff to make bank. Suppose that former au pairs come over from Europe to file lawsuits against the families for whom they worked in the 1990s. The jury will see a photo of a beautiful slender 18-year-old and, at the defense table, a fat old letch who used to be the host dad (cue the Harvey Weinstein footage). It won’t take a lot of juror imagination to picture the fat old guy pawing at the beautiful young woman, trapped in the room above the garage. If E. Jean Carroll can get $2 million for the assault on her 53-year-old twice-divorced body (in 1996, plus or minus 5 years), imagine what a jury would award for an assault on an innocent 18-year-old virgin.

Although divorce is much less common in Europe, if a former au pair has ended up divorced or a spinster or can claim to have suffered in some other way there could be enhanced damages from the assault. (As E. Jean Carroll achieved by saying that she wasn’t able to find new romance after the two proven divorces and one alleged rape.) Here’s a current photo of a household containing an au pair, from a profit-seeking government-authorized agency (only a handful of agencies can supply au pairs, which makes the trade profitable):

What jury is going to have trouble believing that something happened between the two folks on the left side of the photo during a full year living in the same house?

(For roughly half of the defendants, the former au pair plaintiff will be able to mine a rich deposit of salacious allegations made in a divorce lawsuit perhaps 15 years ago. New York divorce law did not technically become “no fault” until 2010 (Wikipedia), thus encouraging family court plaintiffs to present lurid accusations of abuse, rape, etc. in order to secure a victory.)

  • From a legal point of view, this path to riches could also work for a “bro pair” (male au pair), but these were not common in the 1990s
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Should E. Jean Carroll have been able to sue Donald Trump? (statute of limitations)

New York Democrats opened a one-year window for 30-year-old sexual assault allegations recently so that E. Jean Carroll could sue Donald Trump for attacking her in a New York department store at some point in the mid-1990s (as Toucan Sam points out, the plaintiff’s inability to remember the date was helpful because it prevents the defendant from coming up with an alibi for that day, e.g., “flight records show that I was in Florida with my Boeing 727 and so does this photo from the Palm Beach Post.

States are sovereign and can usually do whatever they want, but Trump was no longer a New York resident at the time his plaintiff got funded by Reid Hoffman. Is a Florida resident vulnerable to attack in the New York courts today because he had the poor judgment to be present in New York State at some point in the 1990s?

I wonder what happens if other states copy New York. Suppose that Pennsylvanians, envious of the pharma wealth accumulated in New Jersey, say that they learned from Dr. Fauci about the critical importance of pharma and, therefore, there won’t be any statute of limitations for suing an out-of-state pharma company for pain and suffering that a plaintiff attributes to ingestion of a pill. Pennsylvanians have no paper records of what drugs were prescribed to whom back in the 1980s, but can come to court with dramatic testimony, corroborated by family and friends, about being harmed. Female plaintiffs can copy E. Jean Carroll and talk about how a pill taken in the 1990s caused their spinsterhoods. Why wouldn’t Pennsylvania juries want to #BelieveNeighbors and hit out-of-state pharma companies with massive judgments for actual and punitive damages? Pfizer’s market cap of $200+ billion could be siphoned away within a few years.

If all of the pharma companies have been mined out by Pennsylvanians, the Montana Legislature could decide that automobiles are critical to family life in Montana. Therefore, claims of premature component failures, injuries due to design or manufacturing defects, etc. shouldn’t be subject to any time limits. Montana residents then file suits against Ford, GM, Toyota, et al., saying that cars for which they paid $10,000 in 1985 ultimately proved to be unreliable. Plaintiffs have no paper records, but can offer dramatic testimony, corroborated by family and friends, about what terrible cars were delivered to them. Montana juries can award each plaintiff $28,755 in actual damages ($10,000 in 1985 money adjusted with CPI to today’s Bidies) plus punitive damages. Why not believe the car purchase survivor if the money is going to be paid by an out-of-state or out-of-country manufacturer to a local resident?

Volkswagen Group has a market cap of about $70 billion. Montanans should be able to take it all by saying that they suffered from problems with the Audi 5000, including unintended acceleration (proven beyond a doubt by CBS’s 60 Minutes show).

Readers with legal minds: Could what the New York Democrats did run afoul of the U.S. Constitution? The Fifth Amendment, originally binding only on the federal government, but eventually extended to the states:

No person shall … be deprived of life, liberty, or property, without due process of law

The Fourteenth Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law.

It isn’t obviously “due process” to go from a 5-year statute of limitations to a 20-year statute (2019 change by Florida Realtor of the Year 2020/2021) to no limit (the 2022 change) and then back to 20 years (scheduled for end of 2023).

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Test your powers of skepticism

Donald Trump recently lost $5 million to a plaintiff at a trial in which there was no physical evidence, but only some dramatic testimony from a plaintiff and her confederates (#BelieveWomen). Let’s see how good we are at detecting liars. First, an example from a patent trial where I recently testified. The plaintiff’s expert is trying to bolster the inventiveness of the invention, a patent on a way to deliver internet applications to phones other than the obvious HTML/CSS/JavaScript. The patent (U.S. 9,063,755) was filed in November 2008, 1.5 years after Apple released the iPhone and promised that HTML/CSS/JavaScript web sites designed for desktop computers would render just fine on Safari for the iPhone. The inventor will seem like more of a genius if the Internet is completely broken as of 2008, but can be saved by this invention.

Q. What was Internet technology like at that time [2008]?

A. It was pretty exciting. As that paper showed, it was really a time when new devices were coming into the Internet, and web pages were getting much more sophisticated in terms of the kinds of things that they could do. …

But as you get into kind of the time frame of the patents, you can now start to do — sell things, you could provide videos. Say, if you had a restaurant, you could have a map, so somebody could say, “Well, where’s your location?” If you had a mobile device, you could get directions, turn-by-turn directions with Google Maps, or at the time, it was MapQuest, right? So you could do turn-by-turn directions.

You could do add to cart, so now you could buy things directly online and have them shipped to you. We take that for granted today, but once upon a time, that was really very much a novel kind of feature or service.

Google Maps, of course, was more than 3 years old in November 2008 (an October 2005 NYT article on mash-ups with Google Maps and JavaScript on the browser). MapQuest was a 1996 sensation. Streaming video via Real Video was available in 1997. As for the inchoate nature of online shopping in 2008, Amazon was a public company and had $18 billion in revenue that year. But the other side’s expert sounded so credible, smart, and sure of himself that I believed him and I have no doubt that the jury did too! (the side that hired me eventually prevailed and did not have to pay the patent owner)

Here’s an exercise for readers: look at the video in “Mormon mom accused of poisoning husband with fentanyl-laced Moscow Mule is seen promoting her kids’ bereavement book a MONTH before she was arrested for his murder” (Daily Mail). The authoress, before being arrested for murder, talks about the “unexpected” death of the person whom, if the police are to be believed, she stuffed full of fentanyl (why did he die rather than simply moving to San Francisco?). Most people are, of course, somewhat nervous when being interviewed on television for the first time. Other than that baseline nervousness you’d expect, can you tell that the husband’s death was perhaps not unexpected for this author?

The book has been memory-holed by Amazon, but not yet by Google:

When we follow the link…

Related:

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The fight over changing the judicial system in Israel

Israelis have been fighting each other lately regarding changes to the judicial system. See, for example, “Demonstrations forced Israel’s prime minister to delay a judicial overhaul” (NYT):

Much of life in Israel came to a halt yesterday: Hospitals stopped providing nonemergency care, planes were grounded at the country’s main airport, and malls and banks closed. The disruptions were part of an escalation in protests against the government’s proposed judicial overhaul, which has plunged Israel into one of its gravest political crises ever.

The fight has been described in the same generally hysterical tones that are used for Democrat-Republican disputes in the U.S., i.e., democracy vs. dictatorship/tyranny. (This always prompts me to ask whether Israelis will flee the impending tyranny and seek asylum in Syria or if instead they will choose Lebanon.)

For folks who want to understand what the fight is about, an Israeli friend recommended “‘Why do we need judicial reform?’ An architect behind the proposal explains” (JNS). First, one background item: Israel has no constitution. Its courts, therefore, can’t invalidate a law as being “unconstitutional.” Here are some highlights from the article:

There have been instances where the attorney general has refused to represent the government in a case, while refusing to allow the government the right to hire private counsel, leaving the government without legal representation to defend itself in court. The reform will allow the government to hire its own counsel in such an event, Koppel said.

One addresses the judicial pretext of “reasonability,” whereby judges overturn laws and administrative decisions based on whether they consider them “reasonable” or not. The pretext is vague enough that opponents of reform (at least in its current form) agree that it shouldn’t be allowed.

The fifth and final part of reform addresses the issue of how the Supreme Court can strike down laws. The reform would regulate the court’s ability to do so, requiring for example that all 15 Supreme Court justices sit on a case and that legislation be struck down by a special majority. Before, as few as three justices, selected by the court president, could strike down a law, Koppel said.

Essentially, then, the laws of Israel have been decided on by a triumvirate, in the best classical Mediterranean style! (Three judges pick whichever laws they consider “reasonable” to validate.)

Separately, for Israelis who disagree with any changes to the political system and who don’t want to escape to Syria, the option of Masada is open. My photo from 2016:

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The wisdom of juries at the Elon Musk trial

A lot of folks, including journalists, love to concoct ex post facto explanations for why the stock market moved as it did on a particular day. The Elon Musk trial has introduced us to a guy who sounds a lot smarter than most pundits and financial reporters. “Jury Rules for Elon Musk and Tesla in Investor Lawsuit Over Tweets” (NYT):

The federal judge in the case, Edward M. Chen, had already ruled that “funding secured” and Mr. Musk’s second statement were untrue, and that Mr. Musk was reckless when posting them.

“I thought he was crazy to try his chances at trial, given the stakes involved,” said Adam C. Pritchard, a law professor at the University of Michigan, noting the judge’s pretrial rulings. “You’re fighting with one hand behind your back in that situation — and yet he won.”

If he had lost, Mr. Musk and Tesla might have had to pay billions of dollars in damages to investors who said they had lost money when the company’s stock surged after his statements on Twitter and then tumbled after his plan fizzled.

One male juror said their arguments were difficult to follow and sometimes seemed disorganized. “There was nothing there to give me an ‘aha’ moment,” he said, later adding, “Elon Musk is a guy who could sneeze and the stock market could react.”

Let’s check in with the superpundits to see how they did compared to this juror. Dow 36,000 was published in October 1999 when the DJIA was at 10,000. The D.C. insiders authors predicted that the DJIA would be at 36,000 no later than 2004. They were proved correct… in November 2021.

Of course, inflation makes every feel smarter. Despite the higher nominal value (3.4X what it was when Dow 36,000 was published), a basket of DJIA stocks has less purchasing power, in terms of real estate in any part of the U.S. where people actually want to live, than it did in 1999. Let’s check Zillow for some houses in our MacArthur Foundation-created development:

  • overlooking a golf course: sold in February 2000 (before the dotcom crash) for $483,900 and now has an estimated value of $2.04 million (4.2X)
  • a simple townhouse: sold in October 1999 for $192,900 and now estimated at $621,500 (3.2X)

Inflation has actually been far worse than the above examples suggest since, of course, these houses are now more 20 years old and aren’t in the pristine condition that they were when new.

How about Jupiter Inlet Colony, where some migrants recently arrived?

(should be easy to find room for non-English-speaking migrants in the Jupiter Inlet Colony, described in this New York Post article!)

Let’s check in with the intersection of Efficient Market Hypothesis and coronapanic:

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The first day of a federal court patent infringement trial

As part of my expert witness slavery to the world of patent litigation, I recently reviewed the transcript from a five-day trial.

Part of the first day’s transcript covers jurors attempting to be excused from what was promised to be a single week of jury duty.

  • Teacher saying that she wanted to present for the first day of school. Success!
  • Medical office manager who is responsible for transporting children to school. Failure.
  • Woman with “extreme anxiety”. Success! Not only that, but her plea to be excuse was expedited above most of the others. The judge’s only question for her: “you are in a lot of discomfort about being here?”
  • Bartender who needs to work and get tips to survive financially. Failure.
  • Person who lives one hour away and will have to stay in a hotel to make serving on the jury practical. Failure. (Some of your tax dollars will be used to pay for that hotel, however.)
  • Mom who says that she has to drop off and pick up an 8-year-old at school while the father works from home in an inflexible call center environment. Success!
  • Person who had planned a vacation and had already bought a plane ticket for the trip. Success! (offer to show the judge an email proving the plane ticket purchase was refused)

The surviving jurors received an explanation of what the case was about and, before the attorneys on both sides could give opening arguments, watched the following video:

The action had started at 9 am and the above items filled the time until the lunch break just after noon.

It feels as though some of this stuff could have been done via Zoom or email on the preceding business day. Jurors who were destined to be excused could have avoided coming in, spreading COVID-19, etc. On the other hand, how would you be sure that jurors were paying attention to a YouTube video if they weren’t in the courtroom?

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Government cannot agree on whether coronapanic is over

“Migrant Expulsion Policy Must Stay in Place for Now, Supreme Court Says” (NYT, yesterday):

The Supreme Court said on Tuesday that a pandemic-era health measure that restricted migration at the southern border would remain in place for the time being, delaying the potential for a huge increase in unlawful crossings.

Unlawful? If they’re coming over to claim asylum, isn’t that a lawful crossing of an open border?

“The administration asked to end Title 42, but there was no clear plan for how they would have managed the inevitable influx,” said Justin Gest, a professor at George Mason University who studies the politics of immigration.

The expulsion policy, first introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum seekers — about 2.5 million times.

“We are deeply disappointed for the desperate asylum seekers who will continue to be denied even the chance to show they are in danger,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents migrants challenging the expulsion policy. “But this ruling is only temporary, and we will continue this court battle.”

Justice Gorsuch, joined by Justice Jackson, said the legal question that the court agreed to address, about the states’ intervention, “is not of special importance in its own right and would not normally warrant expedited review.”

By issuing a stay while it addressed that question, he added, the court effectively took an incorrect position, at least temporarily, on the larger issue in the case: whether the coronavirus pandemic justifies the immigration policy. The federal Centers for Disease Control and Prevention had initially adopted the policy to prevent cross-border transmission of the disease, a policy that the agency has since said is no longer medically necessary.

“The current border crisis is not a Covid crisis,” Justice Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

So… the CDC and Justice Gorsuch agree that coronapanic is over. We have nothing to fear from 2.5 million unvaccinated potentially SARS-CoV-2-infected immigrants.

But… at the same time, we are informed by the CDC that Science says coronapanic is not over. “Requirement for Proof of COVID-19 Vaccination for Air Passengers” (cdc.gov) has not been updated since July 14, 2022:

On October 25, 2021, the President issued a Proclamation to suspend and limit entry into the United States for non-U.S. citizens who are nonimmigrants, referred to as “Covered individuals,” seeking to enter the United States by air travel and are not fully vaccinated against COVID-19. On the same day, CDC issued the Order: Implementing Presidential Proclamation on Safe Resumption of Global Travel During the COVID-19 Pandemic to implement the President’s direction.

It might make sense to have two branches of government disagreeing, but in this case it seems that the CDC disagrees with itself. Millions of unvaccinated asylum-seekers crossing via land to settle permanently are not a threat. Even a single unvaccinated air traveler who intends to stay temporarily, e.g., Novak Djokovic, is an existential threat (like climate change). From CNN:

Readers: Is there a way for these two CDC positions to be rendered logically consistent?

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Elizabeth Holmes as seen by those who knew her best

Letters sent to the judge (public because they were officially filed in the case) reveal a more positive side of Elizabeth Holmes, now sentenced to serve 11 years in Federal prison (but maybe Joe Biden will pardon her?). But the letters also reveal a lot about their authors and show that Elizabeth Holmes’s capacity for self-delusion might not be unique.

From the father of her children:

Liz and I met at a friend’s Fleet Week charity event in the fall of 2017. …

When our dog Balto had been carried away by a mountain lion from our front porch Liz had faith that he could still be alive. She searched for 16 hours in brambles, and poison oak to find him. It was only once she saw his lifeless body that she could come to realize that he was gone. It crushed her.

Her selflessness knows no bounds. … So much of what has been written about Liz is untrue.

Her nightmare of being raped at Stanford was replaced by the nightmare of 12 monstrous years with Sunny which was then replaced by the nightmare of losing her life’s work and the vilification to follow. It’s been a long road of hardship for her.

Many people will make arguments that you should have leniency to ensure she can help others, to ensure she can invent great things or lift up a woman facing the unimaginable reality that she has been raped, and incarceration will limit her capacity to do those things.

From her dad:

Church was a very important part of our life together. Even that became an adventure. The priest at Holy Trinity in Washington DC conducted a children’s Mass with a little blue puppet known as Mr. Blue. We learned a lot from Mr. Blue.

We only learned of the true nature of Sunny Balwani’s abuse after she finally left him in 2016. … For us as a family, one painful lesson is how critical it is for rape and abuse victims, as well as the families of the victims, to understand how vulnerable they are to abuse and control, how that plays out over time and how to psychologically respond to that. … Elizabeth’s relationship with Mr. Balwani was not one of conspiracy as the media contended. The relationship was one of fear, control, and submission.

Personal wealth has not been a motivator for Elizabeth in her life.

From a pilot and military drone pioneer:

(For the record, I agree with Mr. Blue! It is the investors in Theranos who should be imprisoned, not the young Stanford dropout whom the investors believed was more capable than the file cabinets full of chemistry PhDs at Philips, Siemens, Roche, et al.)

From Senator Cory Booker, Democrat of New Jersey:

I knew Ms. Holmes for about six years before charges were brought against her. We first met at a public policy conference hosted by the late Senator John McCain, bonding at a dinner when we discovered we were both vegan – there was nothing to eat, and we shared a small bag of almonds. … she was not only sincere about her interests but a person who would indeed dedicate herself to making positive contributions in the world beyond her company. … I believe that Ms. Holmes has within her a sincere desire to help others, to be of meaningful service, and possesses the capacity to redeem herself.

From Timothy Draper, bigshot venture capitalist (partner more famous due to various encounters with Silicon Valley females, all of whom were having sex with a slate of other guys (when do these folks have time to work?)):

I am a venture capitalist and have been one for over 35 years. I have seen a wide variety of companies in a wide variety of industries. Some succeed and some fail. We backed Tesla, when it was just an idea on paper, agreed to an investment in Skype when it was an entirely different business than the one they ended up with, backed Baidu when no other US investor was even looking at China. When we backed Theranos, we knew it was a long shot. Elizabeth, at 19 came to us and said, “We will change health care as we know it.” She told me how passionate she was about the need for change, and said she would be making the sacrifice of dropping out of Stanford to create the business.

Now we have a horrifying situation. A potentially great entrepreneur with extraordinary vision is being condemned by society for taking that enormous risk, sacrificing everything and failing, by not properly communicating her side of the story to the public.

Elizabeth has a lot of brilliance in her. She will continue to be a positive contributor to society. Her vision for healthcare was only partially portrayed in her efforts at Theranos, and her ideas could save millions of lives over the course of the next few decades. Restraining her would be a travesty. People have asked me if I would back her again. My answer: Not as a CEO, but as an entrepreneur and Chief Science Officer, absolutely!

Who agrees with me that this Draper guy is the one who should be imprisoned? A college dropout as Chief Science Officer? “Vision” as a substitute for achievement?

Jessica Ewing, a former product manager at Google, reminds us that it is women who are the real victims:

And when I saw Elizabeth do that, I questioned my own life. What was I doing with my time, why couldn’t I do something at a larger scale that helped more people? Elizabeth inspired me to start my own company, Literati, which helps kids find books and become stronger readers. We all need heroes that look like us.

(Speaking for myself, it would be a challenge to regard anyone who looked like me as a hero.)

Speaking as a woman who has raised $60M in venture capital, I can confirm it is not easy. It is not easy for anyone, but I feel it’s worth noting that approximately 3% of venture capital goes to women CEOs.

$60 million in capital for a kids’ book club service?!? The home page shows that they send out Women Who Dared, a book that is available for free in our kids’ book club service, a.k.a. The Palm Beach County Public Library. How are the investors ever going to get a return from this when the competition is funded by an infinite river of property taxes?

Note the contempt by this elite feminist for “the masses”:

I’m not sure what actual purpose decades in prison would serve Elizabeth. She is not a threat to society and does not require further rehabilitation. She has already lost her net worth, has been mocked, ridiculed, and has seen her genuine effort to achieve her soul’s highest purpose turned into home entertainment for the masses. In short, I believe my friend has suffered enough for her sins, and putting her away would effectively do nothing but discourage more women from starting businesses

(The lowest risk and highest return business for a young woman to start in California involves meeting with venture capitalists, but no pitch deck is required. See Litigious Minds Think Alike: Divorce litigators react to the Ellen Pao v. Kleiner Perkins lawsuit for a calculation of the child support profits available by formula under California law.)

Jimmy Carter’s Director of the CDC weighs in. Just as today’s CDC figured out that cloth masks and bandanas were effective PPE against an aerosol virus, such that vulnerable people could feel free to leave their COVID-safe homes, yesterday’s CDC figured out that the best place to look for scientific knowledge is not among those who actually studied science, e.g., by going to grad school in science and then working as a post-doc:

I was impressed by her scientific knowledge… Ms. Holmes has scientific gifts …

He ultimately joined what he refers to as Theranos’s “Board”. I’m not sure if this was a medical advisory board or the corporate board. Either way, I think that he is more deserving of prison than Holmes.

More on the subject of why women have to lead differently, stretching the truth as necessary:

A couple of letters down, Andrew Goldberg agrees that “It’s incredibly difficult to be a startup founder, let alone a female startup founder.” How does Andrew know? He/she/ze/they was originally Angelina Goldberg and switched to a male-sounding name in order to escape prejudice?

A woman who knew Holmes as a Stanford undergraduate writes “my own experiences had led me to believe that the justice system favored men” (94 percent of Californians collecting child support, i.e., the victors of the winner-take-all family court system in that state, identify as women in Census data (source)). She reminds us of who the real criminal in U.S. society is: “we have seen our democracy nearly overthrown”.

It is almost impossible for a woman to get ahead, writes Genta H. Holmes, Bill Clinton’s U.S. Ambassador to Australia:

She contradicts my theory that the real villains of the story are the professional investors. In fact, it is “social media” that we should blame:

Scanning through the 281 pages of letters, the overall portrait is of a deluded person and the authors of the letters show that delusion is an all too common human trait. Even after the exposure of Theranos in Bad Blood, the letter authors haven’t processed that the person with no scientific or engineering training was not and is not on track to make a scientific/engineering difference to the 8 billion humans who infest what used to be a great planet.

Retail investors weren’t harmed by the Theranos fraud. I’m not sure that patients were harmed by the Theranos fraud, other than being worried for a few days in between a Theranos test and an accurate blood test. I guess the 11-year sentence has to be understood also in the context of Holmes’s refusal to plead guilty. The whole criminal justice system is set up with long sentences for those who insist on rolling the dice at trial, thus forcing the government to work. The idea is that the accused will plead guilty and receive what used to be the standard sentence for someone who had been convicted at trial. Holmes will thus serve 3 years for what she did at Theranos and 8 years for trying and failing to pin all of the blame on Sunny Balwani, the old guy with $40+ million with whom she was having sex.

Related:

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Will Harvard apologize for discriminating based on skin color if this is found unconstitutional?

The Supreme Court is pondering the fate of Harvard’s race-based admissions system (see It was okay to discriminate against white people, but maybe it is not okay to discriminate against Asians and What is Harvard’s argument for race-based admissions in the #StopAsianHate age?). From the Bad Guys (TM):

Here’s part of an email from the Harvard president, sent on Halloween:

When Harvard assembles a class of undergraduates, it matters that they come from different social, economic, geographical, racial, and ethnic backgrounds. It matters that they come to our campus with varied academic interests and skill sets. Research and lived experience teach us that each student’s learning experience is enriched by encountering classmates who grew up in different circumstances.

Harvard is not alone in believing that we are more than our test scores and that our unique perspectives bring a wealth of educational benefits to a high-quality educational enterprise.

See if we can guess an ethnic group that is less than its members’ test scores…

The legal battle we have waged, which reaches its apex today, is as important to other colleges and universities, and to society, as it is to us. Educators and scholars, civil rights organizers, historians, and education advocates stand with us. Leaders in business and technology stand with us. Former military officers and the heads of the nation’s service academies stand with us. Their voices—ringing out in amicus briefs—are part of a chorus that has risen across our campus and throughout our country in defense of forty years of legal precedent, as well as the history of the 14th Amendment.

Today, individuals of great skill will argue in favor of our cause inside the highest court in the land.

Mediocre individuals were apparently scheduled to argue against Harvard’s Great Cause.

We now await the final decision of the court with earnest anticipation. Whatever it is, we will honor the law while also remaining true to our values.

Translation of “remaining true to our values”: “We will find a workaround so that we can continue discriminating against these Asian nerds without running afoul of the law.”

This academic bureaucrat is proud of the work that he has done for decades in sorting student and faculty applicants by skin color. Suppose, however, that the Supreme Court rules that the sort-by-skin-color policy is unconstitutional. By inference, then, Harvard and its bureaucrats have been depriving applicants of their constitutional rights to be judged by factors other than skin color. The big question for today: Will the president of Harvard and lesser bureaucrats offer an apology?

Speaking of unconstitutionality and appeals, what happened to the Biden administration’s appeal of Judge Kathryn Mizelle’s finding that the CDC’s mask order was unconstitutional? Joe Biden never apologized for violating Americans’ constitutional rights, I don’t think. The appeal was filed in April (heritage.org). In the meantime, it looks as though Joe Biden actually could legally order Americans to #MaskUpSaveLives. The courts seem to agree that this can be done via the TSA if not the CDC. “Supreme Court leaves TSA mask requirement ruling in place” (The Hill, Halloween):

The Supreme Court on Monday let stand a ruling that allows the Transportation Security Administration (TSA) to require mask-wearing on planes, trains and other forms of transport.

The U.S. Court of Appeals for the D.C. Circuit found no merit in Corbett’s claim and affirmed the TSA did have the agency to maintain security and safety within the transportation system, including imposing the masking requirement.

Biden has the power to keep us safe and secure! But why didn’t he reimpose the airport-and-airline mask order on November 1 after the Supreme Court failed to intervene? Even if most airline passengers are vaccinated we don’t want people gathering unmasked and breeding a vaccine-resistant superbug that will be deadly to the unvaccinated, as happened with Marek’s disease. Even if Democrats can control the entire United States and force everyone to get accept COVID-19 vaccinated there will still be billions of unvaccinated and/or unboosted folks in poor countries who would be vulnerable to the superbug that we created via our policy of widespread vaccination followed by mass gatherings.

Is Joe Biden following the Science, but waiting until after the election to bring the masks back?

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It was okay to discriminate against white people, but maybe it is not okay to discriminate against Asians

“In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America” (scotusblog.com):

In 2003, the Supreme Court ruled in Grutter v. Bollinger that universities may consider race in their admissions processes as part of their efforts to achieve diversity on campus. On Oct. 31, the justices will hear oral arguments in a pair of cases asking them to overturn Grutter and outlaw race-based affirmative action in higher education altogether.

The challengers urge the justices to rule that the Constitution and federal civil rights laws bar any consideration of race in college admissions. But the universities at the center of the dispute, as well as their supporters, counter that overruling Grutter would have sweeping effects well beyond university admissions, affecting everything from the performance of U.S. businesses to the practice of medicine in an increasingly diverse society.

Both of the lawsuits were filed in federal court in 2014 by a group called Students for Fair Admissions, which describes itself as “dedicated to defending the right to racial equality in college admissions.” The group was created that same year by Edward Blum, a stockbroker and conservative activist who, though not a lawyer, has backed other prominent lawsuits challenging the consideration of race in undergraduate admissions as well as a challenge to the constitutionality of the Voting Rights Act. SFFA says it has more than 20,000 members.

The two universities being challenged are Harvard University and the University of North Carolina. But according to Harvard’s brief, over 40% of all U.S. universities — and 60% of selective universities — consider race in some form during their admissions process. The cases being heard on Monday could affect all of them.

“Consider race” = “discriminate by race” and it was legally okay for decades despite a U.S. Constitution that apparently barred such discrimination, at least for the government and its affiliates. I wonder if we can cut through all of the briefs that have been filed in this case. Can the issues be summarized with the following?

  • It is settled law that discriminating against white people is okay and, in fact, something to be proud of.
  • Asians now wear the “people of color” mantle.
  • It is not okay to discriminate against one subgroup within “people of color” in favor of another subgroup within that victimhood category.
  • Universities are not just discriminating against white people (permissible/legal/praiseworthy), but they’re also discriminating against Asians (impermissible/illegal/deplorable).

Who wants to bet on the outcome of these cases?

The current ruler is on the side of the righteous:

The Biden administration, which filed a “friend of the court” brief supporting the universities, pushes back sharply against SFFA’s suggestion that the universities’ consideration of race as one factor in their admissions programs is inconsistent with the court’s decision in Brown. SFFA’s “persistent attempts to equate this case with Brown trivialize the grievous legal and moral wrongs of segregation,” U.S. Solicitor General Elizabeth Prelogar writes.

The Ivy League schools from which the Supreme Court justices graduated are on the side of the righteous and, in fact, are the most eager and aggressive sorters of applicants by skin color.

So if we think of courts as helping the powerful, this one should go in favor of righteousness (continued racial discrimination).

On the other hand, it is tough to think of a way for the justices to write a decision that would allow continued discrimination against whites (the oppressors) while forbidding discrimination against Asians (successfully established in the victimhood category). The previous decision was absurd: “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Via this approach to Constitutional law we could say that slavery is permissible right now because we’re in an inflation crisis and high wages are driving up prices, which then drive up wages in a spiral. Since we can’t stop indexing government spending to inflation, the only way to break the spiral is for 25 percent of working-age Americans to be enslaved. “Court expects that 25 years from now, the use of slavery will not longer be necessary to stop the inflation spiral that was launched in 2021.”

Because I am not creative enough to envision how a decision barring discrimination only against Asians could be written, my prediction is that race discrimination by these universities that get taxpayer money will be outlawed.

A Harvard job ad for an astronomy professor requires “Statement describing efforts to encourage diversity, inclusion, and belonging, including past, current, and anticipated future contributions in these areas” and “Demonstrated strong commitment to teaching, advising, and broadening institutional diversity is desired.”

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