Author: TSA Press

“My grandfather was a fire and brimstone preacher / But there are things that the homilies and hymns won’t teach you / My mother was a genius / My father commanded respect / When they died they left no instructions / Just a legacy to protect.” Lin-Manuel Miranda (Hamilton)

This week, the National Asian Pacific American Bar Association (NAPABA) hosted their 31st National Convention in Austin, Texas. Over 2,000 members made the pilgrimage to this weekend’s convention, making it the most popular NAPABA meeting to date.

Like in past years, there was a feeling amongst the younger lawyers and law students that we were standing on the shoulders of giants. We felt blessed to have the opportunity to meet so many luminaries in one place. There was also a sense in the room that many veteran lawyers were excited to pass the torch of community building, pro-bono involvement, and trailblazing to greener lawyers. Lawyers are at their best when they are serving, and NAPABA is a community testament to this.

Today’s morning panel titled, “What’s on Trial at Harvard and UNC? A Discussion on Asian Americans, Affirmative Action, and Discrimination,” hit a chord, and filled up a ballroom with almost 200 attendees. Natasha Quiroga served as the moderator and Thang Diep, Liliana Garces, Nicole Gon Ochi, and Alyson Tom were the featured speakers on the panel. As highlighted on NAPABA’s website, the panel covered:

The contentious Harvard trial on race-conscious admissions thrust questions of Asian American identity, racialization, and political alignment into the national spotlight. The trial is over, but questions remain about the fairness of admissions policies, the current climate on college campuses for students of color, including Asian Americans, and the growing divide within the Asian American community about access to higher education.

In this program, you will engage in an interactive admissions simulation to understand how the admissions process works and how race can factor into decision-making.

After the simulation, the audience will engage in a dialogue with a panel of experts that include a litigator involved in both cases, a student who testified in the Harvard trial, a former admission officer, and a social scientist and legal scholar who has filed numerous legal briefs on behalf of the education community in affirmative action cases. Discussion topics will include: (1) the legal, evidentiary, and remedial distinctions between intentional discrimination and the constitutionality of a race-conscious admissions policy; (2) the social science evidence on the impact of race-conscious admissions policies on campus climate; and (3) the politicization of the affirmative action debate in the Asian American community and its implications.

I’ve covered affirmative action over the last few years in several columns:

1. Can We Now Address Legacy Admissions? Or Will We Keep Focusing On Affirmative Action In A Silo?
2. First Edward Blum Came For The Voting Rights Act, Now He Aims To Gut Affirmative Action With The Help Of Asian Americans
3. As Asian Americans Become More Pivotal In The Affirmative Action Debate, Both Sides Weigh In
4. Asian Americans Are Being Used As A Wedge To Advance The Anti-Affirmative Action Agenda
5. Affirmative Action Is Here To Stay (For Now); How Will This Benefit The Legal Profession?
6. Opponents Of Affirmative Action Will Get Another Bite At The Apple Next SCOTUS Term
7. ‘Affirmative Action’ In Law: The Four-Letter Phrase

For the record, everyone in the audience did not share the panelists’ or my viewpoint. It is clear that the growing divide within the Asian American community about access to higher education remains a highly contested issue. Now that I live next door to the University of North Carolina, I can attest that these cases will no doubt affect the campuses at issue, but also their respective holdings, and the appellate rulings, will reverberate throughout student bodies across the nation.

In the afternoon, Google sponsored the NAPABA Lunch Plenary titled, “Fred Korematsu’s Fight for Justice: A Reenactment of Korematsu v. United States.” The feature speakers included: Vincent T. Chang, Edward Chen, Yang Chen, Denny Chin, Francis H. Chin, Kathy Hirata Chin, Anna Mercado Clark, Andrew T. Hahn, Sr., Karen Korematsu, Lauren U.Y. Lee, Dale Minami, Concepcion Montoya, Peggy Ann Nagae, Karen Narasaki, Clara J. Ohr, Marilyn Hall Patel, Don K. Tamaki, Vinoo Varghese, Ona T. Wang, David Weinberg, and Jessica C. Wong.

As highlighted in the program:

Over seventy-five years ago, on February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, uprooting some 120,000 Japanese-Americans—two-thirds of them American citizens—from their homes on the West Coast and forcing them into concentration camps.

Although the rest of his family reported as ordered, Fred Korematsu refused to go. He was arrested, and convicted of violating the Executive Order and related military proclamations. He appealed his conviction first to the Ninth Circuit and then to the Supreme Court. The Supreme Court affirmed his conviction as well as the convictions of Minoru Yasui and Gordon Hirabayashi, upholding the Executive Order.

In 1983, some forty years later, the federal court in San Francisco vacated Korematsu’s conviction after evidence was uncovered showing that the government had suppressed evidence that undermined its assertions in the cases before the Supreme Court that the relocation and incarceration of Japanese Americans during World War II without individualized consideration of loyalty was a matter of military necessity. Fred Korematsu spent the rest of his life teaching the lessons of his case. As he put it, “No one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist.”

This program will tell the story of Fred Korematsu and his fight for justice through narration, reenactment of court proceedings, and historic documents and photographs. This is the eleventh of a series of historic reenactments presented by the Asian American Bar Association of New York.

It was quite fitting Google supported the lunch plenary as it had honored the late Korematsu for his 98th birthday in its Google Doodle two years ago. At last year’s Asian Pacific Interest Section of the State Bar of Texas (APIS) “Our Time is Now” Conference, Karen Korematsu, Founder and Executive Director of the Fred T. Korematsu Institute, reminded the audience of how far we’ve come and implored us to become more involved in our communities — to make a difference and to keep the ball rolling forward. The other featured speaker, Andrew C. Kim, questioned the Conference’s theme. He stated, “We are proclaiming ‘our time is now,’ but is it? I’m not so sure. I do know that if we do not speak up when there is injustice and we just keep our heads down — to go along to get along, like most of our parents taught us — there will be no change. We must act if indeed our time is now.”

I was thrilled NAPABA honored the late Korematsu and brought him to the forefront of the consciousness of the first time NAPABA attendees and young Asian Pacific American attorneys in the audience. As I have mentioned in a past ATL column titled “In Honor Of Fred Korematsu Day, Let’s Remember The Legacies We Have All Inherited And Our Duty To Fight Injustice,” along with his courage and sacrifices, Korematsu should be honored nationally for his contribution to our country’s history of civil rights. In The Dallas Morning News, I recently wrote that for Thanksgiving, I will be thankful for many things, but I will particularly be grateful for those who have fought for our civil rights. Freedom isn’t free, and many people have made the ultimate sacrifice so we could be where we are today. Texas should honor Fred Korematsu for his contribution to our country’s history of civil rights.

In the afternoon, I had the opportunity to join Congresswoman Eddie Bernice Johnson for her Asian American Advisory Council conference. Johnson spoke about the importance of the 2020 Census, need for diverse candidates as the lines get redrawn, upcoming HB-1 visa bills, Trump impeachment inquiry process, and our government’s needed role in the rising tensions between China and Hong Kong. I appreciated her insights regarding the history of the United States and Taiwan. But above else, I continue to be amazed by Johnson’s institutional knowledge and bias for action.

Just as the panelists for the affirmative action conversation implored the audience, when judging someone it is important to be mindful and conscious of their history and understand them in a holistic context — we must be mindful of the legacies we have all inherited and conscious of the shoulders we stand on. On Tuesday of this week, my late father would’ve turned 75 years old. I’m reminded of the many lessons he taught me when I attend a NAPABA conference.

Whether its affirmative action, human trafficking, digital media for children, secondary trauma in the courtroom, female representation in corporate Silicon Valley, healthcare fraud, digital health, body cameras, smart contracts and blockchain, artificial intelligence and employment discrimination, or the crisis at the border, NAPABA continues to host programs that tackle the toughest issues of our day.

Beyond crafting the annual programing, NAPABA helps to cement lifelong bonds for the participants who make the pilgrimage to its annual convention every year. The affinity groups, galas, and conferences serve as a community replenishment for the mind, body, and soul of NAPABA members and attendees.

Fellow millennials, and now Gen Z members, I encourage you to put some money aside every paycheck and dedicate these funds to visiting interesting people, attending affinity events, and going “all in” on your respective pursuits. And don’t ever become too busy to return your parents’ phone calls. They deserve to hear from you more often. In fact, call them right now and thank them for everything they’ve done for you. One day, you may not get the chance to do this.

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

A onetime name partner of what Biglaw firm was also a former partner at Cravath? He joined the firm that carried his name after serving as Assistant Secretary of War under President Franklin Delano Roosevelt.

Hint: This attorney served in a number of government positions, including as a member of the Warren Commission following the assassination of John F. Kennedy.

See the answer on the next page.

Some legendary retailers destroyed by hedge fund manager owners are allowed to finally die, sold for scrap, their inventories liquidated at marginally discounted prices. And then there is Sears. For more than a decade, it has been in a spiraling, mutually self-destructive relationship with its owner and former CEO, Eddie Lampert, although it must be said that most of the destruction has been on the Sears end of things. And for some time now, it’s been pretty clear to everyone except Eddie Lampert that this is a lost cause. Still, Lampert clings, and clings, and clings, keeping her on life support, providing the occasional infusion of life-giving money and sawing off the gangrenous parts as they appear, either for love or because he’s managed to financially engineer this patently disastrous situation into something he’s still making money on.

Rep. Devin Nunes remains super angry about a satirical internet cow. Earlier this year, we wrote about his lawsuit against the satirical cow on Twitter (and against Twitter itself) as well as a bunch of other lawsuits Nunes has been filing against critics in the intervening months. The cases appear to be fairly obvious SLAPP lawsuits; that is lawsuits that are designed solely to silence critics, rather than based on any legitimate legal basis. As we’ve noted, the venues in which Nunes has focused his lawsuits (mostly Virginia, and now Iowa) have either weak or non-existent anti-SLAPP laws. Tragically, the original case, against two satirical Twitter accounts, including one called “Devin Nunes’ Cow” (a satirical reference to Nunes’ oft-repeated claim of being a California dairy farmer, even as his family farm has uprooted itself to Iowa) was not thrown out by the judge on jurisdictional grounds, allowing the case to move forward.

According to the Fresno Bee, however, even as that lawsuit is ongoing, Nunes’ lawyer in the case has sent a threatening demand letter to Andrew Janz, a lawyer and state prosecutor who ran against Nunes in the last election and lost (much more narrowly than many people seemed to expect). The full letter is truly a piece of work, demanding Janz make the @DevinCow account stop making fun of Devin Nunes and issue an apology.

I only wish I was joking. The letter is amazing in so many ways, starting from the opening lines:

I represent Devin G. Nunes.

I write again – this time to address a matter of grave import and enormous consequence.

A matter of grave import and enormous consequence?!? Do tell! Oh, it’s the fact that a thin-skinned public official can’t take pretty modest mockery:

As you well know, for over two years, Mr. Nunes has been maliciously harassed, stalked, bullied online, threatened and egregiously defamed on Twitter by the user or users who post day and night, through the anonymous Twitter account, @DevinCow. [https://twitter.com/DevinCow].

I mean, how could anyone think this letter was a good idea?

The letter then notes that a PAC connected to Janz appeared to be helping to raise legal defense funds for whoever is behind the @DevinCow account. If true, that wouldn’t violate any laws, but Nunes and his lawyer imply that something terrible is happening here.

Based upon the evidence I have reviewed, it appears that you or an agent or agents acting at your direction is coordinating, instigating, aiding and abetting the user or users of the @DevinCow Twitter account in the malicious harassment, cyberbullying, stalking and defamation of Mr. Nunes.

Malicious harassment, cyberbullying, stalking and defamation? Get over yourself Nunes. What happened to supporting free speech and the 1st Amendment? A satirical cow mocking you is none of the above. It is not harassment. It is not cyberbullying. It is not stalking. And it is most definitely not defamation. It’s satire. It’s the mocking of public officials, which is something we’ve celebrated in this country basically since the very beginning. It’s also all entirely protected by the First Amendment of the Constitution. You know? The document that Devin Nunes has sworn to protect?

Now come the demands to Janz. Because he’s apparently helping to organize the legal funding to protect whoever is behind the @DevinCow account from this obvious SLAPP suit, Nunes’ lawyer is now making patently ridiculous demands:

Demand is hereby made upon you as follows:

1. Immediately cause the user or users of @DevinCow to cease and desist from publishing any further false or defamatory statements of and concerning Mr. Nunes;

2. Immediately cause the @DevinCow Twitter account to retract all harassing, disparaging, false and defamatory tweets and retweets of and concerning Mr. Nunes, and apologize for the harm done to Mr. Nunes and his family;

3. Within one (1) business day of retraction and public apology, cause the termination of the @DevinCow Twitter account.

It also notes to Janz that he should reveal who is behind the account:

As a Deputy District Attorney, it would be egregious and irresponsible for you to continue to keep secret from the public the identity of @DevinCow.

You are legally, ethically and morally responsible to act now.

This is all, of course, utter nonsense. And this is all strategically bizarre. Who could possibly think that getting this freaked out by a satirical account could ever possibly lead to anything good? It appears to show Devin Nunes is scared of fairly mild criticism and mockery. And the idea that such a ridiculous letter would have any good results, other than leading to even more mockery of Nunes for his thin-skinned freak out, and raising serious questions about Nunes’ own fitness for office. If you can’t take a bit of criticism from satirical constituents, maybe you don’t belong in public office.

Also, even if this is all performative, all it’s really served to do is get a lot more people paying attention to the satirical cow. Before the lawsuit, the account had about 1,200 followers. It now has over 630k — which is pretty close to Nunes himself (there was a point in which the cow surpassed Nunes himself, but both have increased their follower counts quite a bit since then. Either way, encouraging over 600,000 users to follow an account designed solely to make fun of you, and then continuing to throw a legal temper tantrum over the account is not a good look for a sitting Congress member.

In the meantime, it certainly doesn’t look like the DevinCow account has any interest in backing down or apologizing:

In the meantime, Nunes continues to be wrong about Twitter as well. In a recent interview he spouted a bunch of nonsense about the case:

He claims he had no choice but to sue. That’s wrong. He could have not sued, for instance. He could have ignored the mockery. Or he could have responded to it. He could have shown why they were wrong if they were. There are many options short of suing — especially for a Congressman who once introduced a bill to stop frivolous lawsuits. He says he’s “been slandered and defamed” which is also just wrong. Slander is spoken defamation. If there was defamation (and there wasn’t) it would be libel, not slander. But even more to the point, he’s arguing that Twitter is negligent and that’s why he’s suing Twitter as well. Why negligent? Because something something bots. No, really.

“Twitter’s case, it’s even worse because they’re negligent to the fact. I mean, they’re allowing these bot farms, both large and small bot farms, and they allowed it to go on, knowing that the people behind it are operatives.”

First off, even if that’s true, so what? How is that “negligence”? How is that against the law? The interviewer even seems a bit surprised by this and asks if there “evidence to that effect” and Nunes doesn’t actually say that there’s evidence, but seems to suggest that Twitter protecting the anonymity (a 1st Amendment right, by the way) of its users is proof of negligence.

“We know they’re operatives. Twitter knows they’re operatives. And they refuse to give us the people behind it…. And they’ve had six months to come clean and shut all this down and tell us who are these political actors that they’re hiding from the public? And from their investors? I think people will want to know why did you knowingly hide what, one we believe is a smaller political operation and one we believe is a much larger political operation. And Twitter knows the names of them and they oughta come clean and give them to us. And that’s why we’re in court. And so, they’re proving our case for us. [Chuckles] I mean, this is like the definition of negligence, what Twitter and their high priced lawyers have been doing over the last six months.”

Spoiler alert: what Twitter and their high-priced lawyers have been doing over the last six months is certainly not negligence. Protecting the 1st Amendment protected anonymity of your users, who include some satirical accounts mocking a thin-skinned Congressman, seems like good practice in protecting free speech and the all-American tradition of being able to speak up and criticize our elected officials.

Devin Nunes Demands Satirical Internet Cow Stop Making Fun Of Him… Or Else

A Decade Later, AT&T Pays A Pittance For Lying About Its Unlimited Data Plans
Alexandria Ocasio-Cortez Apologizes And Unblocks Critic Who Sued Her
ACLU Sues DOJ Over Facial Recognition Documents

After fighting to get pro se litigants a better break from the federal judiciary — joining Judge Posner and Matthew Dowd in the William Bond case — David Boies is going to experience life as a pro se litigant himself, filing suit on his own behalf against Alan Dershowitz.

Boies will probably not face the same challenges as most pro se litigants.

Until recently, Boies had represented Virginia Giuffre, a victim of Jeffrey Epstein’s sex trafficking ring, in her lawsuit against Dershowitz for defamation. Giuffre claims Epstein made her sleep with Dershowitz while she was a child — Dershowitz publicly claimed she was alternately confused or blackmailing him and then demanded that she file a defamation suit against him for calling her a liar. She filed a defamation suit and Dershowitz started in with the “whoa, I didn’t mean that literally” act.

After roping Boies into the argument by claiming Giuffre’s famous lawyer was running an extortion ring, Dershowitz argued that Boies had to be disqualified as an advocate-witness. Judge Preska indulged this theory and Giuffre secured Chuck Cooper to take over the case. Yesterday, Dershowitz filed a counterclaim citing emotional distress. Cooper responded:

Recycling the same false claims from his increasingly stale playbook, Alan Dershowitz has once again launched an attack on Virginia Giuffre and her lawyers. Lets call his counterclaim what it is:  a failed attempt to make something old and tired look new.

Meanwhile, Boies filed a defamation complaint of his own today against Dershowitz because, you know, Dershowitz went to the press repeatedly and claimed that Boies was running an extortion racket. He actually said, “I believe the law firm of Boies Schiller is a RICO” which is… just wow.

Yet somehow, it feels as though Dershowitz is going to be surprised to learn of this suit. Maybe Dershowitz is playing nine-dimensional chess, but it sure seems like every argument he makes creates even worse fallout: Don’t just deny… demand they sue you! Then get sued. Don’t just litigate the case… get Boies kicked off! End up facing Chuck Cooper. Don’t just claim Giuffre’s mistaken… accuse Boies of blackmailing you! Get sued by Boies.

Plus, if you assume what Dershowitz was hoping to avoid in disqualifying Boies was allowing Boies to conduct discovery — he’ll still get to see everything anyway.

But this is setting up a truly epic disqualification motion!

(Check out the full pro se complaint on the next page.)

Earlier: Dershowitz Wanted To Get Boies Disqualified… So Now He Has To Deal With Another Famous SCOTUS Litigator
Judge Mocks That Bonkers Republication Argument Dershowitz Made
Alan Dershowitz Says He Has A ‘Perfect Sex Life,’ Answering The Question Literally No One Asked
Who’s Up For A Fun Night Out Watching Alan Dershowitz Talk About Sex Trafficking?
Dershowitz’s Motion To Disqualify Boies Schiller Immediately Dumped For Hilarious Reason
Harvard Law School’s Dershowitz Moves To Disqualify Boies Schiller In Sex Trafficking Case
Dershowitz Wanted A Trial Over Sex Trafficking Accusations — He’s Getting One
Some (Tentative) Good News For Alan Dershowitz… And Some More Bad News
I Just Had To Think About Alan Dershowitz’s Underwear And Now So Do You
Alan Dershowitz Says He Thinks He Should’ve Gotten Epstein A BETTER Deal In Wild Doubling-Down Interview
After Publicly Demanding His Accusers Sue Him, Dershowitz Is Arguing That His Accusers Have No Basis To Sue Him

As many of you know, I favor strong First Amendment protections for journalists and protesters and especially students. But I’m also very much against the President of the United States’ and his followers’ repeated attempts to get Congresswomen of color harmed or killed.

Legally, these two ideals appear to be in conflict. Would you like to see me try to square them? Would you like to hear a fully thought-through articulation of why free speech does not, or at least should not, include personal threats made against any person who dares to oppose Donald Trump? Would you like to hear an expert in First Amendment law tell me why I’m wrong?

If so, please join me and Ken White (aka @Popehat) at Berkeley Law on Monday, November 18th at 5:30 p.m. We will be having a spirited debate about what free speech does mean, should mean, and must mean in the age of Donald Trump. We’ll be playing some of our old hits like: Can a gun store suggest killing Congresswomen if it didn’t actually threaten them? And some new ones like, well, whatever dangerous, hateful thing Trump says in the next 10 days, probably.

Click here to RSVP. Especially if you agree with me! But, even if you don’t. I will defend forever your right to oppose me… just so long as you don’t think you can use the n-word without catching some hands.

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.