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Burned

This morning, the Milwaukee Journal Sentinel published an article describing the results of their investigation into a multi-national corporation based on information I provided. Please read and share: http://projects.jsonline.com/news/2017/2/15/chemicals-left-in-barrels-leave-many-at-risk.html

Key Findings

    • A group of industrial drum reconditioning plants, owned in part by Greif Inc., has disregarded safe practices for handling hazardous materials, harming workers and endangering those who live nearby, as well as the environment.
    • Practices at the six facilities have resulted in workers suffering chemical and heat-related burns, injuries from exploding barrels, breathing difficulties and other health problems.
    • The operations have caused at least one big fire — heavily damaging an Indianapolis facility, endangering nearby residents and firefighters.
    • Plants have been cited repeatedly by regulators for dumping too much mercury in the wastewater and toxic emissions into the neighborhood air. At the Milwaukee plant, the safety manager and workers said chemical residue was washed down a floor drain.
    • Greif’s executives knew of environmental risks in the industry and structured CLCM in a way that could shield the publicly-traded Greif from civil liabilities. Executives told financial analysts in 2010 that “those risks were very real,” and that the company was protected in part by “contractual arrangements.”
    • Agencies entrusted with protecting workers and the public have been ineffective, significantly reducing fines and failing to address egregious hazards. Such has been the case for decades.

Stop Sessions!

Support the NAACP’s sit-in in protest of Jeff Sessions’ nomination as Attorney General. Call your senators at 877-959-6082 to oppose the confirmation.

My fellow white people: It’s time to go all in.

Donald Trump speaking at a rally in Fountain Hills, Arizona, generously shared by Gage Skidmore on Wikimedia Commons
Donald Trump speaking at a rally in Fountain Hills, Arizona, generously shared by Gage Skidmore on Wikimedia Commons

Look. I’m a white guy. On top of that, I’m straight, cis, and both of my parents went to college. Hell, all four of my grandparents went to college. Because of de facto segregation and other factors of institutionalized oppression, the vast majority of my friends and neighbors are white and have many of these same privileges. The reality is, unless we do something outlandish like openly oppose him, we’re going to be just fine in Trump’s America. Sure, our children will grow up in a country that is hateful, economically devastated, and ravaged by climate change, but most of us didn’t wake up yesterday with a very real fear for our lives, our freedom, or our basic rights. Many people did.

To my white friends and neighbors: this is not business as usual. Honestly, since the founding of this country and before, it never should have been. People of color and other marginalized populations have been suffering since the beginning, and most of us haven’t cared enough to step even an inch outside of our little white bubbles to intervene on their behalf.

Even in this election, THIS ELECTION, I don’t remember seeing a single one of my white “liberal” middle-class neighbors so much as “Like” a Facebook post that was in any way “political” (by which I mean having any bearing on the human suffering that would result from a Trump presidency). I sure as hell didn’t see any of them out in the streets.

So. White people. Friends, neighbors. We’ve failed people of color, LGBTQ people, immigrants, Muslims, the differently abled, and women, and we’ve been failing them for a long time. WE. CAN’T. FAIL. THEM. ANY. LONGER. If you think this was just another election, and Trump will just be another George W. Bush, you’re in for a surprise. All those people who unexpectedly voted in droves in support of Trump’s hate? If he were to all of a sudden become a “normal politician” as president (as many seem to be hoping), he will have failed the people who handed him this election. Alternatively, to keep his base fired up, he doesn’t even have to “succeed” as president by improving the economy or anything else. All he has to do is stoke hatred. And this is the man who will soon be in charge of the most advanced surveillance apparatus in the history of the world. You remember all of that hateful shit he promised to do? He’s going to do it.

Unless. Remember Dr. Seuss? You’ve read The Lorax to your kids, right? Unless someone like you cares a whole awful lot, Nothing is going to get better. It’s not. Cute, right? Now fucking do it.

No more white “politeness.” No more sitting at home while your fellow men and women are being killed in the streets because of the color of their skin or their faith. No more going to work and keeping your head down when the boss does something sexist or racist. No. More.

It is time to go all in. At a minimum, that means being open and vocal about your views (which I’m assuming include things like opposing mass deportation, hate crimes, eliminating rights of bodily autonomy or marriage equality, and so on). That’s a start, but it’s not nearly enough. It is time that we use our privilege as a shield to protect as many of the vulnerable  as possible.

I’m making a pledge: To everyone with less privilege than me, I will stand side by side with you. No matter what. Your struggle is mine.

Solidarity.

United States v. Anthony, 24 F. Cas. 829 (1873)

Graphite Drawing of Proposed Design for the Susan B. Anthony Dollar, public domain
Graphite drawing of proposed design for the Susan B. Anthony Dollar, public domain

Today, I will be casting my vote for the first female president of the United States.

143 years ago, Susan B. Anthony was arrested for the crime of voting. Judge Hunt summed up the case against her in United States v. Anthony:

It is charged that the defendant thus voted, she not having a right to vote, because she is a woman.

At her sentencing hearing, Ms. Anthony spoke eloquently:

Judge Hunt: The Court must insist – the prisoner has been tried according to the established forms of law.

Susan B. Anthony: Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women; and hence, your honor’s ordered verdict of guilty, against a United States Citizen for the exercise of “that citizen’s right to vote,” simply because that citizen was a woman and not a man… 

Judge Hunt: The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution. 

Susan B. Anthony: May it please your honor, I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper—The Revolution—four years ago, the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconstitutional forms of law, that tax, fine, imprison and hang women, while they deny them the right of representation in the government; and I shall work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that “Resistance to tyranny is obedience to God.”

Solidarity to all those whose right to vote is being suppressed or denied today. And thanks to the wonderful book The Tree of Liberty: A Documentary History of Rebellion and Political Crime in America for the sources!

 

Wisconsin’s Attorney General “doesn’t hate” but joined a hateful lawsuit against trans youths

WI Attorney General Brad Schimel, modified public domain
WI Attorney General Brad Schimel, modified public domain image

Content note: Reference to rape, hateful language regarding trans individuals.

On November 1, 2016, Wisconsin’s Attorney General Brad Schimel spoke at an event hosted by the UW Law School’s Christian Legal Society student group about the intersection of his faith and work. At the event, AG Schimel shared a touching story from his time as a prosecutor in Waukesha county. He had prosecuted an alleged rapist and failed to secure a conviction, and the survivor asked him why he put her through the pain of the trial when no good came of it. In that moment, said AG Schimel, he did not have an answer for her, so he went back to his office and prayed for divine guidance. The answer that came to him was this:

“On the shoulders of people like you, the world is getting better… you’re dragging us out of the caves” through the changing of laws in response to your suffering and struggle.

According to AG Schimel, the survivor took comfort in that idea, and that moment has played an important role in the AG’s life, faith, and approach to the law.

In that context, I asked AG Schimel the following question: “How do you square that [story] with an issue like transgender rights, and joining the lawsuit against treating [trans youth] according to their gender identity under the law in Wisconsin?” [In May 2016, the US Departments of Justice and Education released their joint guidance conveying that under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status. This guidance primarily reminds schools that they must respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status or gender transition, and treat students consistent with their gender identity.]

Here is AG Schimel’s response:

“That’s not an accurate picture. What we’ve done is.. what we’ve done is join the suit to stop the federal administration from changing the statute. Because what they’ve done is, they’ve taken the word sex and changed it to a gender identity. You can’t do that. If you want to do that, do it through the Congress, change the law. That’s the nature of our lawsuit… it’s simply about the rule of law… I know that there are some who don’t like my politics, who will attack that I hate _____ and insert the, ‘whatever.’ I don’t. I don’t hate. And I don’t want anybody harmed.”

I followed up by noting that trans youth represent a very vulnerable population, and considering that the subject of the event was applying faith to his role as attorney general, he could stand up for a population that is incredibly victimized and in need of changes to the law (like the survivor in his story). He responded by again arguing that such decisions have to be made by legislatures and that people wouldn’t want him as Attorney General to be deciding what the law is.

The problem is, the lawsuit AG Schimel joined against The United States of America and other parties on behalf of the state of Wisconsin is incredibly hateful.

For those who are not familiar, being trans or transgender simply means a person is a different gender than the one assigned to them at birth. Compared to the general population, trans individuals are much more likely to live in extreme poverty, to experience employment discrimination, to attempt suicide, and to be the victims of violence. According to the National Transgender Discrimination survey, those who expressed a transgender identity while in grades K-12 reported alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%); harassment was so severe that it led almost one-sixth (15%) to leave school or college.

The lawsuit filed by AG Schimel and others is filled with hateful language and inaccurate innuendo about trans youth. For example (emphasis added):

  • “Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights.”
  • “Defendants cannot foist these radical changes on the nation…”
  • “‘Sex,’ as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of Defendants.
  • “In other words, a student can choose one ‘gender identity’ on one particular day or hour, and then another one the next.”
  • “Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”

Responding to harassment of trans students and treating those students consistently with their gender identity is not a “massive social experiment” or “radical change,” nor do trans youth wantonly “choose” their gender identity on any given hour or day. By including these inaccurate and hateful concepts into a legal complaint on behalf of the state of Wisconsin, AG Schimel is contributing to the very real harm suffered on a daily basis by trans individuals.

If AG Schimel truly believes his statement to me that his objection to the Title IX guidance is based on a question of legal process and the “rule of law,” that’s one thing. But to proclaim that this lawsuit is not about hate is simply false.

Next Steps

I hope that those Wisconsinites who share Attorney General Schimel’s faith will press him to explain and renounce the official hatred toward trans youth he has joined our state to by participating in this lawsuit.

 

Ergonomics for Lawyers & Law Students

Computer workstation variables, public domain
Computer workstation variables, public domain

In my life prior to law school, I was a health and safety consultant and occasionally evaluated workers’ ergonomics in both industrial and office settings. Ergonomics, or the law of work, basically deals with the idea that our bodies were not meant to do the same thing all day every day (especially when that same thing puts our body in awkward positions). For those of us in the law or other office-type positions, “that same thing” that we do all day every day often is sitting in front of a computer screen.

I’m going to assume that most people reading this have some idea of the risks of this type of behavior, so I won’t go into too much detail about them. But essentially, it can wreak havoc on your body, your mental health, and your lifespan. So it’s worth taking a moment to consider what little things you can do to improve your ergonomic characteristics.

The Mayo Clinic offers a great how-to guide, so rather than paraphrase the basics of office ergonomics here, please visit their wonderful tool.

Stanford University provides a good explanation here of the importance of taking breaks and microbreaks. Basically, you should take short (2-5 minute) breaks every 30 minutes of sedentary work to reduce the ergonomic strain on your body. This also fits in with productivity research (I am a big proponent of the Pomodoro Technique for getting things done, a subject for a future post). Further, you should take 30 second microbreaks every 10 minutes, especially to rest your eyes if you are otherwise staring at a computer screen (look away from your screen and focus on things at different distances for a few seconds).

Finally, if you are feeling any symptoms of ergonomic stress (for example: wrist, neck or shoulder pain, numbness or tingling), do something about it immediately. The longer you wait and continue applying the ergonomic stress, the more damage you are causing and the more likely it is that you may need expensive treatment.

A couple of quick tips from experience:

  • If you have wrist or hand pain associated with computer use, consider a trackball mouse immediately.
  • Do everything you can to avoid resting your wrists on a sharp or hard edge while you are typing.
  • Although it’s not especially practical for those of us who use laptops, consider a monitor stand to elevate it and pair that with an external keyboard.
  • Again, not super practical for many of us, but if you do have a dedicated desk, consider the benefits of standing while working. I used a couple of these relatively cheap stands to convert an old workstation into a standing desk environment.
  • Seriously, as overworked and stressed as you are, try out the breaks and microbreaks. Your body, mind, and productivity will thank you.

Solidarity to ourselves, because sometimes we need it.

Al Shimari v. CACI Premier Tech., Inc. (2016)

Abu Ghraib cell block, public domain photograph
Abu Ghraib cell block, public domain photograph

Content note: This post discusses legal issues related to a case of alleged torture. Because I believe it is important to understanding the gravity of the situation, I have included a short description of the plaintiffs’ claims about the specific acts they endured. This portion of the text should be either blurred or blacked out depending on what browser you use. If you do choose to read the text, either click on the blurred portion or highlight it with your cursor to view it (if it is blacked out).

Last week, the US Court of Appeals for the Fourth Circuit ruled that Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili, and Asa’ad Al-Zuba’e, four Iraqi nationals who have alleged they were abused at Abu Ghraib prison in 2003 and 2004, may continue their civil action against a private military contractor that provided “interrogation services” to the US military at the time.

During their time detained by the US military at Abu Ghraib, the plaintiffs describe having been “repeatedly beaten,” “shot in the leg,” “repeatedly shot in the head with a taser gun,” “subjected to mock execution,” “threatened with unleashed dogs,” “stripped naked,” “kept in a cage,” “beaten on [the] genitals with a stick,” “forcibly subjected to sexual acts,” and “forced to watch” the “rape[] [of] a female detainee.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 521 (4th Cir. 2014).

The contractor had argued that Federal Rule of Civil Procedure 12(b)(1) prevents US courts from even considering this case on the grounds that they lack subject-matter jurisdiction over so-called political questions. The court’s response earns it a spot as this week’s Decision in Solidarity:

We recognize that the legal issues presented in this case are indisputably complex, but we nevertheless cannot abdicate our judicial role in such cases. Nor will we risk weakening prohibitions under United States and international law against torture and war crimes by questioning the justiciability of a case merely because the case involves the need to define such terms. The political question doctrine does not shield from judicial review intentional acts by a government contractor that were unlawful at the time they were committed.

Concurring with the court’s decision, Judge Floyd wrote:

While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the President to declare such conduct lawful. The same is true for any other applicable legal prohibition. The fact that the President–let alone a significantly inferior executive officer–opines that certain conduct is lawful does not determine the actual lawfulness of that conduct. The determination of specific violations of law is constitutionally committed to the courts, even if that law touches military affairs.

Solidarity to Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili, Asa’ad Al-Zuba’e, and victims of torture everywhere.

Daryl Holloway’s Tip for Lawyers: Listen!

On October 4, 2016, with assistance from the Wisconsin Innocence Project, Daryl Holloway was exonerated of a crime he did not commit and released from prison after 24 years.

Mr. Holloway stopped into my substantive criminal law course along with UW Law School students who assisted in his exoneration. Professor Klingele asked him what his advice would be for future lawyers, and his answer was simple: Be good listeners.

Mr. Holloway spent more than two decades in prison, waking up each day knowing that he was innocent of the crimes that put him there. Take a minute to try to imagine what that would be like. Now try to imagine reaching out to lawyers to explain your innocence and ask what can be done about it, and to have them ignore you or not take you seriously.

Although Mr. Holloway’s situation was extreme, his desire was common. People who seek legal assistance are often experiencing one of the most stressful times of their lives, and before anything else, they want a lawyer to actually listen to them.

In the excellent book The Good Lawyer: Seeking Quality in the Practice of Law by Nancy Levit and Douglas Linder, the very first chapter is “The Good Lawyer is Empathetic.” As they explain:

Empathy enables you to understand your clients’ interests, tell your clients’ stories in a more powerful way, and gain your clients’ appreciation for leaving them feeling valued.

For this first post on Practicing in Solidarity, please find below a few of the suggestions from The Good Lawyer on how to follow Mr. Holloway’s advice and become a better listener and more empathetic:

(1) Give your client your full attention. Do not multitask when meeting with clients. Take steps to avoid interruptions and external distractions, such as noise.

(2) Listen actively. Avoid thinking about what you will say next when your client is talking. Understanding should precede being understood.

(3) Pay close attention to clients’ clues (body language, tone of voice) so as to appropriately respond to their concerns.

(4) Reflect your understanding of your client’s emotional state. Acknowledge how your client’s legal problem makes him feel.

(5) Think of your client as a person, not just as a source of income, and be curious about your client’s entire story. 

Solidarity to Daryl Holloway and the Wisconsin Innocence Project!

Encryption and Legal Ethics: Signal

The EFF’s Secure Messaging Scorecard introduction, generously shared by the Electronic Frontier Foundation via Wikimedia Commons

Wisconsin Supreme Court Rule 20:1.6(d) pertains to a lawyer’s duty of confidentiality, and states:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 

Astute observers of current events may have noticed that electronic communications are not particularly secure and are subject to inadvertent disclosure quite regularly. Even lawyers’ electronic communications have recently been hacked or leaked with serious consequences. In my opinion, lawyers who do not offer encrypted communications options are doing themselves and their clients a great disservice, and as the risk of hacking continues to rise at the same time encryption tools are becoming easier to use, may in the future be risking a potential violation of SCR 20:1.6(d).

As I describe on Solidarity Law’s contact page, I am a firm believer in the importance of encryption for digital communications, regardless of whether your subject matter is sensitive in any way. One option I recommend for secure texting and phone calls is Open Whisper Systems‘ Signal app for iPhone and Android. According to the Electronic Frontier Foundation:

Signal is a free and open source software application for iPhone that employs end-to-end encryption, allowing users to send end-to-end encrypted group, text, picture, and video messages and have encrypted phone conversations between Signal users on iPhone and Android.

John Knefel, journalist and co-host of the excellent Radio Dispatch podcast, recently wrote an article detailing Open Whisper Systems’ recent legal victory against a gag order forbidding it from disclosing a government subpoena for customer data. Because of this victory, we now have additional confirmation of how effective Signal is as a tool for keeping your communications private. According to the ACLU’s response on behalf of Open Whisper Systems to the FBI in this case:

The only information responsive to the subpoena held by OWS is the time of account creation and the date of the last connection to Signal servers for account [redacted]. Consistent with the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2703(c)(2), OWS is providing this information in response to the subpoena… Although OWS does not have, and therefore cannot produce, other categories of information listed in the subpoena, OWS notes that not all of those types of information can be appropriately requested with a subpoena. (Emphasis added)

Unlike phone carriers and other messaging services who keep all of the content and metadata of your communications (making it subject to disclosure to the government or hackers), Signal simply does not have anything more than the date of your account creation and the last day  you used their service. What they don’t have, hackers can’t hack and the government can’t access.

See the contact page for more information about how to create strong passwords and how to encrypt your email communications.

Solidarity to Open Whisper Systems for their excellent work in this area!