Author: admin-blacktail

Rafael Moscatel is the author of the best-selling business book series Tomorrow’s Jobs Today and director of The Little Girl with the Big Voice, a critically acclaimed documentary. His third book, The Bastard of Beverly Hills, is an award-winning memoir about hope, forgiveness, and redemption and will be published in 2023.

Categories
Constitutional Law

DEI leader who condemned ‘woke do-gooders’ files free speech suit against Bay Area college

The following article was first published by the SF Chronicle in July of 2023. Attorney Abby  Moscatel is local counsel for Tabia Lee.

DEI leader who condemned ‘woke do-gooders’ files free speech suit against Bay Area college

The Black woman who was fired by De Anza College as director of its diversity office — an office she criticized as overly “woke” — has filed a free-speech suit against the school.

Tabia Lee “stood up for free speech, academic freedom, humanism, and equal treatment for all students and faculty, regardless of race,” and “refused to knuckle under to campus orthodoxy,” a lawyer for Lee declared in a lawsuit filed Monday in federal court in San Jose.

As a result, the suit said, Lee “was accused of ‘Whitesplaining’ and not being the ‘right kind of Black person’ ” and was dismissed after less than two years at the college of 16,000 students in Cupertino. She seeks reinstatement, reimbursement for lost pay and punitive damages.

ONLY 25¢! Don’t miss our Summer Sale on unlimited digital access.
ACT NOW

One of Lee’s lawyers, Michael Thad Allen, and his firm have represented other academics who say they have been punished for questioning excessive campus policies favoring racial minorities and LGBTQ rights, practices that conservatives have labeled “cancel culture.”

For example, one of Allen’s clients, an associate professor of psychology at the University of Central Florida, was fired in 2021 for alleged classroom misconduct, seven months after tweeting that “Black privilege is real” and that Black people “are missing out on much-needed feedback” after nationwide protests of the killing of George Floyd by Minneapolis police. The teacher was reinstated by an arbitration panel and is now suing the school for violating his freedom of speech.

Another client, a former instructor at St. Philip’s College in Texas and a self-described conservative, is suing the school for removing him after a student reported — falsely, according to the instructor — that he had said pedophilia was widespread in the LGBTQ community.

Lee “has been canceled at De Anza,” Allen said Thursday. “She stood up for civil rights, universal human rights, equal treatment for all students regardless of the simple accident of skin color or sex, or other ascribed characteristics so beloved on college campuses.”

Lee, who has a doctorate in education, taught middle school in Los Angeles for a decade, then developed courses at Notre Dame de Namur University in Belmont and the College of San Mateo before being hired in the summer of 2021 as director of the Office of Equity, Social Justice and Multicultural Education at De Anza. She is also a cofounder of Free Black Thought, an organization of scholars, parents and others who oppose many of the views of mainstream civil rights organizations.

Early in her tenure, Lee’s lawsuit said, she was assigned to moderate a campus talk by Alicia Garza, founder of Black Lives Matter, and encouraged students to ask questions of Garza, even though Lee’s faculty overseers had forbidden any unscripted questions.

“At De Anza, Black women are expected to think the same (or to shut up),” attorney Abby Jane Moscatel said in the suit.

She said another staff member told Lee in 2021 that a Women, Gender and Sexuality Center at De Anza was considered a “safe space” for women of color, and that white people were not welcome. Lee responded that any campus facility should be equally available to members of all races and ethnicities, and the school’s response was “openly hostile,” the suit said.

After being notified of her dismissal, Lee told The Chronicle, “I think that’s why I was attacked from the beginning. Because I declared myself ‘not woke.’” In that interview, Lee referred to some employees at the school as “woke do-gooders.”

Lee also objected to the school’s use of the gender-neutral term “Latinx” instead of Latino or Latina. While De Anza officials contended that Latinx was more inclusive, the suit said a 2020 survey by Pew Research Center found that most members of that ethnicity had never even heard of the term, and only 3% used it, the suit said.

In addition, Lee accused the school of fostering, or at least tolerating, antisemitism. The suit said she was prevented from holding workshops on Jewish culture and remembrance, and that De Anza rejected her proposal to commemorate International Holocaust Remembrance Day on Jan. 27.

“‘Equity’ and ‘Engagement’ at De Anza does not include Jews,” Moscatel wrote.

A faculty committee, motivated by Lee’s “dissent from De Anza’s race-based orthodoxy,” recommended against renewing Lee’s tenure in May 2022, the suit said. It said college President Lloyd Holmes refused to dismiss her and ordered further review, but went along with her removal after another committee voted unanimously against her this February without observing her in class.

The college referred an inquiry about the suit to the Foothill-De Anza Community College District, which said Wednesday it would not comment on individual personnel matters. “We can share that faculty members have comprehensive due process and appeal rights both under the law and negotiated through their bargaining unit,” said Paula Norsell, a district spokesperson.

Categories
Technology

Duty of technological competence extends to understanding impact of disruptive forces 

The following article by Abby Moscatel of Blacktail Law Group was first published in the Montana State Bar magazine in July of 2023.

Duty of technological competence extends to understanding impact of disruptive forces

We tend to overestimate the effect of a technology in the short run and underestimate the effect in the long run. 
-Roy Amara, futurist

By Abby Moscatel

The State Bar of Montana adopted Comment 8 to the American Bar Association’s Model Rule of Professional Conduct 1.1 (Duty of Competence). “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in its law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing education requirements to which the lawyer is subject.”1
By now, you are probably familiar with using social media evidence in trials. As an insurance defense lawyer in Southern California, most of my defense verdicts or good outcomes were directly linked to impeachment evidence found on social media platforms. As a plaintiff attorney in Montana and California, I carefully monitor all parties’ social media presence.
However, our duty to be competent with technology clearly spans beyond social media searches. Disruptive technology and its impact on our practice are changing daily. Here are a few types of technology we need to know about, along with examples of how they can sneak into our cases:

1. Blockchain
Blockchain is a decentralized, distributed, public digital ledger that records transactions across many computers, so they cannot be altered retroactively.
Most people associate blockchain with cryptocurrency, and the buzz around distributed ledger technology continues to make news. Samuel Bankman-Fried of FTX Trading is being prosecuted for allegedly using this tool to defraud investors worldwide out of billions of dollars.2
However, blockchain is becoming more relevant to our damage analysis. For example, I have a case involving lost opportunity costs, and my client invests in cryptocurrency. To get the correct information to the economist expert, I need to understand what it is and how my client invested in it before I know how to identify and craft record subpoenas. By knowing what it is and how my client uses it, I can more easily prove damages during trial.

2. Smart Cities
Smart Cities are technologically modern urban areas, often municipalities, that use several digital technologies, like sensors, to collect specific data.
When I was researching smart cities in preparation for writing a book on disruptive technology, I interviewed the CIO for the City of Burbank about how he is using technology to make the city safer and more efficient.3
Three takeaways: First, our cities are collecting mass amounts of data related to traffic accidents and crime. Second, nearly everything a municipality does can be acquired with a public records request. Most of the time, video coverage of a traffic accident is long gone when my client walks through the door. But, with the record retention schedules cities abide by, I can get the data I need about the crime statistics and traffic development proposals for the scene of an accident. And third, smart cities are a growing trend because it allows municipalities to be more efficient.
I predict that cities will increasingly collect and utilize data, leading to a treasure trove of data ripe for our use.

3. Health Information Technology
Health Information Technology (HIT) is the application of information processing involving computer hardware and software that deals with storing, retrieving, sharing, and using healthcare information, data, and knowledge for communication and decision-making.
Yes, we must understand how electronic medical records are generated and edited for medical malpractice or injury-related cases. However, we also need to understand Health Informatics because it impacts the standard of care.
When I spoke with the Credentialing and Peer Review Committee Chair at L.A. Care, she told me they are using data to analyze fraud. If we understand a little bit about how data is being collected and analyzed in this space, we can ask for the correct information in discovery.
For example, suppose I have a medical malpractice case against a physician involving opioid addiction, and that physician is working for a large hospital. In that case, I determine if the physician has been flagged for writing excessive or fraudulent prescriptions.4

4. Other Emerging Tech
Other types of emerging technology are creeping into our practice, requiring us to think outside of our standard interrogatories. Here are a few:

  •  AgTech
  •  Artificial Intelligence (see article on page 17)
  • Big Data & Internet of Things (IoT)
  • Telematics
  • eDiscovery
  • Information Governance
  • Digital Ethics and Privacy
  • Cyber Security
  • Digital Preservation
  • Records Management and
  • Library Science

The bottom line is that it is no longer enough to work a keyboard and back up our client files when it comes to technology and our law practice. Social media reports are not sufficient, either. We must take a close and hard look at our client’s cases, determine what information we need to ascertain, and then be able to apply traditional discovery methods to get it during discovery and ultimately admitted in trial.

Abby Moscatel is the author of the best-selling business book Tomorrow’s Jobs Today: Wisdom and Career Advice from Thought Leaders in A.I., Big Data, Blockchain, the Internet of Things, Privacy and More! She is a Martindale-Hubbard AV Preeminent-rated trial lawyer practicing in California, Montana, and in some federal Jurisdictions. She founded Blacktail Law Group, PLLC, in 2021 and can be reached by email at amoscatel@blacktaillaw.com or by phone at 406.318.7223. You can learn more about her firm at http://www.blacktaillaw.com.

Endnotes

1. http://www.synopsys.com/glossary/what-is-blockchain.html

2.  Tomorrow’s Jobs Today, Second Edition, by Abby and Rafael Moscatel (2023)

3.  Id.

4.  Thompson., T., and D. Brailer. “Health IT strategic framework.” DHHS, Washington, DC (2004)

https://www.montanabar.org/News/View/ArticleId/11829/Duty-of-techonological-competence-extends%C2%A0to-understanding-impact-of-disruptive-forces%C2%A0

Categories
Constitutional Law

Are Vaccine Mandates Constitutional?

Mask Mandates
Montana's Governor says parents should decide whether their children wear masks in school.

The following was first published by the Flathead Beacon in October of 2021

The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional

In the early 1900s, we created a smallpox vaccine that prevented both transmission and infection. The Board of Health in the city of Cambridge, Mass., adopted a regulation forcing free vaccinations of its residents. If they did not want to take the vaccine, they had to pay a one-time fine of $5 (roughly $120 today). A man challenged the regulation, in part because he had bad experiences with prior vaccines.

While his case was pending, he continued traveling, public speaking, and living life normally. At the end of the day, the court ruled against him, and he had to pay the $5 fine. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

The facts under Jacobson are like what we have with COVID because we are in a pandemic, and we have a “vaccine” that various levels of government are trying to mandate.

However, today’s vaccine mandates on the state level go much further than Jacobson. For starters, we are seeing restrictions on conducting everyday life like travel, eating at restaurants, working, and shopping unless vaccinated. Second, the fine for not taking the vaccine is not a relatively inexpensive, one-time charge. Rather it is invasive and expensive testing that is ongoing.

Now that the courts are beginning to hear challenges to state vaccine mandates, we can hope that they will recognize the differences between a one-time fine and being ostracized from society. One such case is based in Oregon and is being litigated in part by the Freedom Foundation. In Williams v. Brown (Case Number 6:2021cv01332), the challengers are either working in the medical field or in state government, and they all have natural immunity and antibodies. More plaintiffs are joining the action every day. They are challenging the state vaccine mandate because there is no natural immunity exemption.

The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional.

First, the separation of powers prevents the executive branch from creating legislation. Here, Congress has not passed any legislation mandating vaccines. The Biden Administration is using a work-around by using the Occupational Safety and Health Administration (OSHA) by telling OSHA to write the rule that any business with at least 100 workers must force employees to get vaccinated or produce weekly test results showing they are virus free. If a company refuses, the fines reach up to $13,600 per violation. OSHA will attempt to use its “emergency temporary standard” (ETS) to fast-track the rulemaking process. Most of OSHA’s emergency rules have been struck down by the court. Of the 10 total rules under ETS ever, courts overturned four and partially blocked the fifth.

Second, even if the OSHA rule survives legal challenges (a BIG “IF”), we have a commerce clause problem. The commerce clause states that states have general police powers for health and safety, not the federal government. Recently, the Supreme Court ruled that health insurance mandates are NOT covered under the commerce clause. A vaccine requirement is arguably further removed than a health insurance mandate, and it affects employees.

Third, the government is trying to force businesses to do its dirty work. It is unconstitutional to make businesses force mandates on individuals that the government can’t do itself.

So, are vaccine mandates constitutional? It depends on who is telling you to take them, and under what authority. Will businesses go ahead and force their employees to take the vaccine anyway, and before the court hears OSHA and Jacobson challenges? Now, that is a different question, altogether.