Volume 68, Issue 5
The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities page 66
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Volume 68, Issue 5
EDITORIAL BOARD
Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org
September/October 2021: Diversity & Inclusion
Book Review Editors Heaven C. Chee Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Susan Yorke Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Kristine Adams-Urbinati Ellen Denum Sara Gold Niles Illich Jeffrie Boysen Lewis Jon Jay Lieberman Glenda McGraw Regnart Amanda Thom Jeremy Stone Weber The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA., and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” ©Copyright 2021 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.
44 Profiles in D&I Leadership 66 The Subtle and 62 What Legal Instruments
Not-So-Subtle Impact of Bias on Women and Minorities
Can Protect LGBTQ+ Refugees?
By Francesca Braga
By Rachel V. Rose
Also in This Issue
85 FBA Calendar of Events
September/October 2021 • THE FEDERAL LAWYER • 1
COLUMNS 3 President’s Message On the Shoulders of Giants By Anh Le Kremer
4 Beltway Bulletin
The Start of Something New By Dan Renberg and Cissy Jackson
30 Thought Sponsor Post-Bankruptcy Tax Attributes in the Current Environment By Richard Liebman, BDO USA, LLP
PROFILES 34 Hon. Scott J. Laurer
6 At Sidebar
Judge, U.S. Court of Appeals for Veterans Claims
By Amanda Thom
38 Hon. Janis van Meerveld
The “Trials” of Having a Baby During the Pandemic
8 Diversity & Inclusion
Advocacy Within the Halls of the U.S. Department of Justice By Mimi Tsankov
10 Litigation Brief
The Importance of Pipeline Programs in Diversifying the Federal Bench and Bar By Joseline Hardrick
14 Focus on Indian Law
Representation and Inclusion: Moving Toward Demographic Parity for Native American Attorneys By Leah K. Jurss
16 International Files
The International and Domestic Origins of Human Trafficking Laws By Beth Persky and Federica Dell’Orto
19 Commentary
By Briana Tellado
U.S. Magistrate Judge, Eastern District of Louisiana By Peter M. Mansfield
BOOK REVIEWS 72 Credit Nation: Property Laws and Institutions in Early America Reviewed by Henry S. Cohn
73 Legal Sabotage: Ernst Fraenkel in Hitler’s Germany Reviewed by Jon M. Sands
FBA MEMBER NEWS 78 Chapter Exchange 80 Sections and Divisions 81 Member Spotlight 85 Calendar of Events
The Curious Case of an Insular Area in Need of Inclusion By Glenda McGraw Regnart
22 Commentary
Diversity in the Legal Field Requires Communication, Trust, and Sponsorship By Marisa T. Darden
26 Thought Sponsor
Increasing Diversity in Tax Law By Destiny Reese, Kostelanetz & Fink, LLP
28 Thought Sponsor
Words Matter: Understanding the Significance of Pronouns By Amy Bice Larson and Jessica Mills, Bush Seyferth PLLC
2 • THE FEDERAL LAWYER • September/October 2021
Federal Bar Association 1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • W. West Allen wwa@h2law.com President-Elect • Anh Le Kremer anh.kremer@cdirad.com Treasurer • Matthew C. Moschella mcmoschella@sherin.com Ernest T. Bartol etbartol@bartollaw.com Jeanette M. Bazis jbazis@greeneespel.com Joey Bowers jbowersfba@gmail.com Kevin A. Maxim kmaxim@maximlawfirm.com Glen R. McMurry glen.mcmurry@dinsmore.com Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov Adine S. Momoh adine.momoh@stinson.com John R. Thomas jt@fed-lit.com Jessica R. Toplin jtoplinfba@gmail.com Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members Christian K. Adams cadams@adamskrekllp.com Hon. Barry W. Ashe barry_ashe@laed.uscourts.gov Laura A. Conover laura@conoverlawpllc.com Anna W. Howard anna.howard@uga.edu Nathan A. Olin nate@oliplaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Membership Coordinator Clarise Diggs cdiggs@fedbar.org Program Coordinator Daniel Hamilton dhamilton@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Marketing Director Jennifer Olivares social@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Program Coordinator Ariel White awhite@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Oreste R. Ramos Second Circuit Olivera Medenica Dina T. Miller Third Circuit Christian T. Haugsby Frank J. McGovern Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe
Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Daniel J. Donnellon Donna J. Mikel Seventh Circuit Kevin G. Desharnais Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Hon. Suzanne Mitchell Eleventh Circuit Lauren L. Millcarek Oliver Alan Ruiz D.C. Circuit Patricia D. Ryan Jessica R. Toplin SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Eric S. Daniel Alternative Dispute Resolution Bryan J. Branon Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law Michael Mancusi Bankruptcy Law Christopher Sullivan Civil Rights Law Robin B. Wagner Corporate and Association Counsel David Greene Criminal Law E.J. Rymsza Environment, Energy & Natural Resources Vacant Federal Career Service Adam Hill Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Mark Shmueli Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Beth Persky Judiciary Hon. Michael J. Newman Labor and Employment Law TJ McGrath Law Student Glen R. McMurry LGBTQ+ Law Brandon King Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Steve Miller Social Security Law Jerrold A. Sulcove State and Local Government Relations Andrew S. Ballentine Taxation Robert Russell Transportation and Transportation Security Law John Wood Veterans and Military Law Maura Clancy Younger Lawyers Anna W. Howard
President’s Message
On the Shoulders of Giants Anh Le Kremer
Anh Le Kremer is a former business litigator at Stinson, LLP. She is currently the chief operating officer and general counsel for Nystrom & Associates, a behavioral health organization headquartered in Minnesota.
I have been a member of the FBA my entire legal career—20 years to be exact. Though my career has changed course over the years (I moved from private practice to in-house counsel, to my current role as a leader of a behavioral health organization), one thing has remained constant: my involvement and commitment to the FBA. When I’m asked, “Why the FBA?” my response is simple. It’s the people. Amazing people brought me into the association 20 years ago, and amazing people have kept me here and engaged since. The FBA connects you to such a vast network of talented and passionate lawyers and judges from around the country—individuals that you learn from and collaborate with, and who will ultimately become your lifelong friends. It’s often referred to as the “Federal Family,” and there is no other bar association out there quite like it.
Diversity & Inclusion. Diversity in the legal profession, in the judiciary, and in the membership of our association matters. We all know that we make better decisions when diverse voices from different backgrounds are part of the conversation. We foster public confidence in the legal profession and the judiciary when the American people see lawyers and judges who come from similar backgrounds in these roles. We are taking steps to incorporate D&I into the fold of the FBA so that the organization truly reflects the diversity of the American public that we serve. The FBA formed a D&I Standing Committee in 2020 (which began as a special task force under President Newman and President Bollin’s terms), and the D&I Committee created an Action Plan that the board of directors adopted in September 2020. The plan commits to increasing the diversity of the FBA’s membership and federal legal
The FBA has been the voice of the federal bar and bench for over 100 years, and I am so tremendously honored and humbled to serve as its 94th national president. I am the first Asian American national president and the first national president from the Minnesota Chapter. The FBA has been the voice of the federal bar and bench for over 100 years, and I am so tremendously honored and humbled to serve as its 94th national president. I am the first Asian American national president and the first national president from the Minnesota Chapter. The road to presidency in any organization is not a solo journey but is filled with people who support you, believe in you, and inspire you. I was in Huntsville, Ala., when Juanita Sales Lee was sworn in as the association’s first African American female national president in 2008. I remember being in awe of Juanita at that time (and still am to this day) and being thrilled at witnessing such a history-making moment. Lawrence Baca became the first Native American national president the following year. I’m here today because of the pioneers like Juanita, Lawrence, Russell Del Toro (first Hispanic national president, 20012002), and J. Clay Smith Jr. (first African American national president 1980-1981), who have led the way and allowed me to stand on their shoulders. This issue of The Federal Lawyer is focused on
community, increasing the diversity of our leadership, and integrating our commitment to D&I in the way that the FBA operates and in our internal and external communications. As president, I am excited to work alongside the board of directors and the D&I Committee to continue to cultivate a diverse and inclusive federal legal community.
September/October 2021 • THE FEDERAL LAWYER • 3
Beltway Bulletin
The Start of Something New By Dan Renberg and Cissy Jackson An Introduction
A former senior Senate staff member and presidential appointee, Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.
With Bruce Moyer’s retirement as the FBA’s government relations counsel, this is our first opportunity as his successor to write this column. Out of respect, we recommended retiring the title “Washington Watch” and thus welcome you to the inaugural “Beltway Bulletin.” We at Arent Fox LLP are honored to have been selected by the FBA to advocate for its priorities before Congress and the Executive Branch, maintaining the organization’s historic nonpartisan approach but also ensuring that the FBA has a seat at the table when issues important to you, its members, are decided. Our Arent Fox team is a diverse, bipartisan, and bicameral mix of former public servants, and we are united in our passion for the FBA’s policy priorities. The group includes two former U.S. senators, Doug Jones, D-Ala., and Byron Dorgan, D-N.D., and a former U.S. congressman, Phil English, R-Pa. We note that Sen. Jones served as U.S. attorney in Alabama before his election to the Senate, and one of your faithful scribes, Cissy Jackson, was his counsel and national security adviser. Jackson’s co-author, Dan Renberg, served on the staff of Sen. Arlen Specter, R-Pa. They are joined by other former congressional staff members; a former District of Columbia city councilman; and Terree Bowers, another former U.S. attorney in the Arent Fox Los Angeles office. Together, we will be the FBA’s eyes and ears inside the Beltway, advising and helping to fashion policy proposals. Even in this time of Zoom, we will help the FBA expand its relationships in policy circles and respond nimbly as challenges arise.
Supreme Court Preview The Supreme Court’s 2021-2022 term begins October 4, and this year’s docket promises several headline-grabbing decisions on controversial issues of general public interest, including the death penalty, abortion, the Second Amendment, and the use of public funding for religious schools. Three worth noting are United States v. Tsarnaev, the government’s appeal of the First Circuit decision vacating the death sentences imposed on convicted Boston Marathon bomber Dzhokhar Tsarnaev; Dobbs v. Jackson Women’s Health Organization, a constitutional challenge to a Mississippi statute prohibiting all
4 • THE FEDERAL LAWYER • September/October 2021
pre-viability elective abortions; and Carson v. Makin, equal protection and religious clause challenges to a Maine prohibition on using state student-aid funds at sectarian schools. In addition, the following cases should prove particularly interesting to federal practitioners: • C VS Pharmacy, Inc. v. Doe—This is a disparate impact disability discrimination case in which plaintiffs claim defendant pharmacy benefits managers’ (PBMs’) requirements for obtaining specialty medicines violate Section 504 of the Rehabilitation Act and, by extension, the Affordable Care Act. The PBMs and amici argue that allowing such claims will lead to “run-away prescription drug costs … higher premiums” and ultimately the end of all prescription drug benefits. • Cummings v. Premier Rehab Keller, P.L.L.C.— Cummings contends that her physical therapy provider’s refusal to provide an American Sign Language interpreter entitles her to emotional distress damages under Title VI and related statutes. The Fifth Circuit affirmed dismissal, despite an Eleventh Circuit ruling that such damages are available. The solicitor general supported the petition for certiorari. • Badgerow v. Walters—The petitioner filed an action in Louisiana state court to vacate a FINRA arbitration award, which defendants removed to federal court. Using the Vaden v. Discover Bank look-through analysis, the district court denied Badgerow’s motion to remand, finding that the underlying dispute could have been brought originally in federal court. Badgerow asks the Court to narrowly read Vaden, arguing that because she seeks to vacate only the part of the arbitration award based on her state law claims, the federal court does not have subject matter jurisdiction. Finally, it is unclear whether Justice Stephen Breyer, who turned 83 in August, will retire this term. To do so would afford President Biden an opportunity to replace him before the 2022 mid-term elections, which could alter the balance of power in the Senate. However, in a July interview with CNN, Justice Breyer declared he was feeling no pressure to step down.
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At Sidebar
The “Trials” of Having a Baby During the Pandemic By Amanda Thom
Amanda Thom attended California Western School of Law in San Diego. After graduation, she moved to New Mexico, where she practiced remotely for a civil litigation firm. She now is a solo practitioner, mainly taking criminal defense cases in both New Mexico and California.
When thinking about this “At Sidebar” article, I had trouble deciding whether to write about having a baby, taking the bar exam, or becoming a new attorney during a global pandemic. While they all would be topics of conversation, having a baby during the pandemic is probably the biggest change from non-pandemic times. Let me start with a little background. I began law school when I was six months pregnant with my first child, and I had my daughter between my first and second semesters. With my daughter, I followed the traditional route of a hospital birth with an epidural, and my experience was fairly traumatic, the details of which would make this column much too long. However, in short, my daughter is now a happy, healthy, intelligent four-year-old. Apparently, I like big challenges while pregnant because I then sat for the New Mexico bar exam while six months pregnant with my second child. I learned I was pregnant with him in October 2019—before COVID hit the United States. Even when I sat for the bar exam, COVID was still “this terrible illness happening on the other side of the world.” I don’t know that anyone really understood the ferocity with which the virus would hit the United States. However, because of my experience with my daughter, I chose to have a home birth attended by midwives with my son. Shortly after I sat for the bar exam, the mask mandate started and states began to shut down for what we believed would be short lockdowns. At that point, I was told that my husband and daughter could no longer come to midwife appointments with me. I attended all appointments during the second half of my pregnancy alone, wearing a mask, and following all precautions. Further, because pregnancy was considered a complicating condition, I took extreme measures to isolate myself. In addition to having just moved to New Mexico and all social activities shutting down, my pregnancy felt very isolating. My husband and I also had to prepare for various different scenarios—for example, what we would do if I had to go to the hospital during labor or if I needed to be induced. We are fortunate to live in a small, isolated town that has never really had a high rate of COVID,
6 • THE FEDERAL LAWYER • September/October 2021
but even so, the policies at the hospital were strict. Should we chose or need to go to the hospital, only my husband would be allowed (not my daughter), and he would not be allowed to leave and return—once there, he would have to stay. Unfortunately, as we were new transplants to New Mexico, we did not know anyone who could watch our daughter. Additionally, because of the risks of flying, we did not have any family members who would be able to come stay with us. We made the difficult decision that if I needed to go to the hospital, I would go alone—and while I understood the necessity for our daughter, it was yet again an isolating feeling. Fortunately, my pregnancy and birth were smooth, and I had a successful home birth. However, the “fourth trimester” (i.e., the first three months after a baby is born) was again another isolating time. My son was born in July 2020, right at the height of COVID restrictions, so we had no visitors. Much of the traditional assistance new parents are offered, particularly in a small community like ours, was simply unavailable to us. In the “before times,” as I call them, our community would arrange for people to make meals for new parents and drop them off, but that stopped during COVID. The only saving grace was that my husband was working from home when my son was born, so I did have some assistance between his work obligations. Overall, I think the person in my family most affected by the COVID shutdown, and particularly by the new baby, was actually my daughter. She spent the first six months of the COVID lockdown as an only child and still receiving much of my husband’s and my attention. However, after there was a new baby in the house, she had a sudden change to adjust to, and without the typical escape of school or adventures to go on. The entire experience of bringing a child into the world while it was under a global lockdown was unique, and often stressful. I certainly would not wish this level of complication on anyone, and particularly I am thankful that this was not my first child, as it would have been a completely different experience in its own right. To all new parents who have had to bring their first, or fifth, child into the world during this pandemic, I certainly applaud you. I know it’s not easy!
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Diversity & Inclusion
Advocacy Within the Halls of the U.S. Department of Justice By Mimi Tsankov1
Mimi Tsankov is an immigration judge with the U.S. Immigration Court. She serves on the FBA board of directors. She is the president of the National Association of Immigration Judges (NAIJ) and writes this article in her NAIJ capacity.
For the past four decades, the legal profession has undergone a gender representation transformation.2 A field once dominated by men3 now consistently sees law school classes filled to near parity in gender representation.4 With more women than ever entering the legal field, a greater focus has been generated on the roles and opportunities available to women once they begin their post-graduate professional lives.5 Legal departments in every corner of the legal community, from the judiciary,6 the federal workforce,7 and academia,8 to law firms9 and the corporate in-house community,10 have responded, and many are adopting policies that promote gender equality, often in the context of supporting concepts of diversity, equity, and inclusion among their ranks of attorneys. The results have been profound, with marked increases in gender equality evident throughout the profession, and in 2021, 37 percent of active attorneys were women, up 5 percent from 2011.11 Yet, when we dig a little deeper, the gains are not as clear cut, and these efforts have, at times, met with mixed results. For example, in the law firm context, despite a significant and sustained focus on diversifying the representation of female attorneys in law firms ranks, the profession as a whole remains one of the least diverse, especially with regard to the gender dimension.12 The American Bar Association has been measuring gender diversity in the attorney population, and its most recent study reflects that gender diversity in the profession is rising but at a marginal pace.13 We see similar instances of marginalized growth in academia as well, where the gender ratio of law professors still significantly tilts in favor of males.14 So, how are female lawyers addressing this at a grassroots level? At the federal level, they’re organizing and advocating.15 The largest single entity employing lawyers in the United States is the federal government. Bureau of Labor Statistics reports indicate that in 2019, lawyers held about 813,900 jobs nationwide, and of those, a full 5 percent worked for the federal government.16 Likely, the single greatest number work for the U.S. Department of Justice (DOJ), which hires more than 750 experienced attorneys nationwide each year.17
8 • THE FEDERAL LAWYER • September/October 2021
In terms of advancing gender equity, federal attorneys working at the DOJ have organized and advocated for themselves and their colleagues. In 2009, the National Association of Immigration Judges (NAIJ)— DOJ federal attorneys who are appointed immigration judges by the U.S. attorney general—formalized support for diversity by instituting a Women’s Committee in concert with NAIJ’s parent union, the International Federation of Professional and Technical Engineers.18 Since that time, the group has naturally expanded its purview to include “gender equality” in 2015 and then “gender and equality” in 2017, in line with a greater understanding and identification of need.19 In recognition of the broad nature of the group’s current mandate, NAIJ formally changed the group’s title to more closely match its expanded and redefined focus.20 The committee’s title has been revised to the NAIJ Diversity, Equity, and Inclusion Committee, which focuses on diversity, equity, and inclusion efforts generally, including identifying underrepresented groups of union members and removing or reducing unconscious biases with respect to such underrepresented groups.21 The group seeks to facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for members through the creation of subcommittees, as follows: • S ubcommittee on Gender Diversity, Equity, and Inclusion; • Subcommittee on Race, Ethnicity, and National Origin Diversity, Equity, and Inclusion; • Subcommittee on Sexual Orientation and Gender Identity Diversity, Equity, and Inclusion.22 By supporting and coordinating diversity, equity, and inclusion efforts, the committee serves as a resource for identifying best practices and providing training opportunities for NAIJ members.23 In May 2021, NAIJ submitted an official response to the UN Special Rapporteur on the Independence of Judges and Lawyers, UN Office of the High Commissioner for Human Rights, Questionnaire on Gender
Equality in the Judiciary.24 That document concluded that, while the immigration court system is approaching gender equality for immigation judges overall, a deficit still exists in female leadership at the highest levels.25 In addition, NAIJ works closely with other entities to pursue these objectives. A key partner is the DOJ Gender Equality Network (DOJ GEN). Formed in 2017, this group comprising DOJ attorneys is an advocacy and resource organization, and its primary objective is to promote the equal and supportive treatment of DOJ employees and contractors regardless of gender.26 Membership in the organization is open to everyone in the DOJ components, in all geographic regions. The focus of the group is to work with the DOJ leadership in developing and implementing effective policies and practices to enhance equality of opportunity regardless of gender, to foster an inclusive workplace, and to prevent gender-based discrimination in all departmental activities. Furthermore, DOJ GEN works to ensure an inclusive, safe, and healthy work environment by preventing sexual harassment and related conduct, and by ensuring fair application of equal employment opportunity and personnel laws, policies, and procedures.27 In the short period of time that the group has existed, it has achieved significant milestones, including providing input on a DOJwide workplace flexibility proposal, advocating for policies designed to promote pay parity, advancing public positions on how to address sexual harassment concerns, and calling attention to concerns about advancement opportunities for women.28 The organization has promoted diversity in leadership and management positions in the department.29 It has argued for measures that support equality of opportunity in career and leadership development, including workplace flexibility, and providing education about and overcoming barriers to inclusion and opportunity.30 In addition, DOJ GEN encourages inclusiveness by encouraging considerations of intersectionality within DOJ GEN activities, information-sharing, networking, and cross-component collaboration on issues of importance to DOJ GEN members.31 The group’s programs have been wide-ranging, dating back to 2017 when it joined the DOJ Justice Management Division in co-hosting a panel for a group of 40 female college students involved in a community program called Preparing Women to Lead.32 Yet, in spite of advancements, within the federal workforce, stubborn issues remain, especially in the areas of female representation in leadership positions, workplace flexibility, access to pay equity, and adequate protection from sexual harassment.33 DOJ is identifying and in some cases tackling these concerns. For example, in May 2017, a DOJ Office of Inspector General report found “potential systemic issues” involving how individual components within the department responded to sexual harassment claims by employees.34 On April 3, 2018, DOJ GEN hosted an in-depth program discussion with Inspector General Michael Horowitz about the details of the report. DOJ components in the Antitrust Division, the Civil Rights Division, the Bureau of Prisons, the Tax Division, and the Energy and Natural Resources Division co-hosted the program.35 In December 2017, DOJ GEN sent a letter to the DOJ leadership calling for reforms to address the OIG-identified systemic concerns.36 In an effort to address leadership disparities, in May 2019, DOJ GEN sent a letter to then-Attorney General William Barr concerning the lack of women in leadership positions at DOJ.37 Similarly, in October 2020, when then-President Trump issued Executive
Order 13950, which censored diversity training in federal agencies that were deemed to involve “divisive concepts,” it resulted in the canceling of a long-planned, high-profile DOJ GEN gender equality and diversity training event.38 As soon as Executive Order 13950 was revoked39 and, in honor of the most recent International Women’s Day, DOJ GEN hosted the previously canceled panel discussion featuring former U.S. attorney Jessie Liu and acting Alcohol, Tobacco, and Firearms director Regina Lombardo, and over 500 DOJ employees attended.40 In 2019, DOJ GEN scored a significant win when it successfully lobbied for the passage of Federal Employee Paid Family Leave Act (FEPLA), affording paid parental leave for federal workers.41 FEPLA provides federal workers access to up to 12 weeks of paid time off for the birth, adoption, or placement of a new child.42 These efforts by DOJ GEN have exerted pressure on administration and congressional leaders to become more effective at addressing gender imbalance and inequities. The Biden administration appears a willing partner in this effort. It has prioritized diversity, equity, inclusion, and accessibility through the signing of Executive Order 14035, advancing these objectives in the federal government.43 This government-wide initiative seeks to reinvigorate and prioritize opportunities for women as well as a host of others who have historically faced discrimination.44 The Office of Personnel Management will be leading the way by providing agencies with information and resources, and the administration plans to offer a methodology for assessing the current state of diversity, equity, inclusion, and accessibility in the federal workforce.45 One stated goal is to develop a strategic plan and provide a framework to address workplace harassment, and to do so creating more transparency and accountability.46 Executive Order 14035 uses a data-driven approach to increasing transparency and accountability. It establishes a reporting system for agencies to submit diversity, equity, inclusion, and accessibility plans and offers a mechanism for providing technical assistance and guidance.47 Leadership at the DOJ in addressing NAIJ and DOJ GEN concerns appears promising. In the first six months of this administration, executive orders have been issued that establish a tone of support for diversity, equity, inclusion, and accessibility—all NAIJ and DOJ GEN priorities. With much work left to be done, DOJ leadership has an opportunity with the high bar that has been set by President Biden to tackle gender equity concerns. With the outsized leadership role that DOJ plays within the legal profession as a whole, it has the power to raise the bar far beyond the federal workforce, as well.
Endnotes The author is president of the National Association of Immigration Judges (NAIJ), and in that capacity, serves on the board of the U.S. Department of Justice, Gender Equality Network. The views expressed here do not necessarily represent the official position of the U.S. Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ. 2 See generally Virginia Drachman, Sisters in Law: Women Lawyers in Modern American History (1998); Judith Baer, Our Lives Before the Law: Constructing a Feminist continued on page 11 1
September/October 2021 • THE FEDERAL LAWYER • 9
Litigation Brief
The Importance of Pipeline Programs in Diversifying the Federal Bench and Bar By Joseline Hardrick
Joseline Hardrick teaches Criminal Law and Constitutional Law at Western Michigan University–Cooley Law School’s Tampa Bay, Fla., campus. She is the faculty advisor for the FBA– Cooley Law School Student Division and the Diversity and Inclusion chair for the Tampa Bay Chapter of the FBA. Prior to clerking for U.S. District Court Judges Charlene Honeywell and James S. Moody Jr., she was a litigation associate at a prominent Tampa law firm. She is currently serving a four-year appointment to the Middle District of Florida Judicial Nominating Conference, appointed by Congresswoman Kathy Castor. ©2021 Joseline Hardrick. All rights reserved.
When I was in college, I interviewed for and was accepted into a new “Smart Start Scholarship Program” created by a national corporation. The program was created by the corporation’s CEO when it first opened offices in my hometown of Brooklyn, N.Y., as a way to give back to the community. The initial pilot program was so successful that it had expanded to all of New York City by the time I entered it. The program’s premise was to hire college students for four years, pay full tuition at one of the designated colleges that were partners in the program, and offer a new internship each year with one of the corporation’s departments. The program also included leadership training and professional development for corporate careers. Students rotated through various business sectors throughout the four years. The program recruited students of diverse backgrounds, and the partnering schools included the local community colleges as well as the top-tier universities in the area. As someone very concerned about financial aid, the program appealed to me because of the full-tuition scholarship. The paid internship was the icing on the cake. But it turns out the lessons I would learn along the way and the intensive support I received were much more valuable in the long run. The Smart Start Scholarship Program groomed me for a corporate setting, showed me the importance of preparation, prepared me for the politics of endless meetings, guided me in the nuances of leading a team of people, and provided a roadmap for navigating the mysterious world of “networking.” Because I was the first in my family to attend a private four-year college and work in a corporate setting, these lessons were invaluable. I walked into my first day on the job with the best clothes I could afford and ready to work hard. But I did not realize that “working hard” would take on so many different forms. The corporation was committed to creating a pipeline for leadership. Thus, it created a program that provided the participants with room to grow and make mistakes. It had built-in coaches to guide participants gently when they needed to adjust behavior to adapt to the environment. It also provided mentors
10 • THE FEDERAL LAWYER • September/October 2021
who would explain the “unwritten” rules of the game and observe as they also navigated the same landscape. Ultimately, the experience was a steep learning curve for me that included lots of mistakes along the way. But, because I was in a setting meant to develop a novice like myself, I could bounce back from mistakes after receiving constructive and helpful feedback. As a result, I was able to thrive. The Smart Start Scholarship Program is an example of a “pipeline program.” Organizations design pipeline programs to provide educational and career support to students belonging to groups that are unrepresented or underrepresented in the industry or who otherwise have challenges applying to or entering certain professions. Pipeline interventions can include test preparation, academic coursework, shadowing experiences, internships, and mentoring. The end goal is to increase academic skills, teach the student about the profession, and introduce them to the rigor of the academic program in a professional school. Pipeline programs can start in secondary school and continue through college and graduate school. It gives students experiences that boost their resumes. It also creates a safe space for learning, making mistakes, and creating valuable professional networks to support their careers. Pipeline programs are a practical way to make a real difference in diversity and inclusion. It is not enough to talk about it, have a committee about it in your organization, and issue nice-sounding mission statements and press releases. Rather than accepting the misguided belief that there aren’t enough qualified individuals from diverse backgrounds to hire, pipeline programs create pools of such individuals to recruit. Pipeline programs are an excellent resource for information for potential applicants. But they are also a great sounding board for industry leaders and organizations. Does your organization have a recurring issue with a particular group? It may be high turnover, a different writing style than you prefer, or lack of specific types of experience. Tell the pipeline programs about it; they can directly address those shortfalls (real or perceived) through training and development. They
can host you as a speaker to directly address those issues to their students. Coordinating diversity and inclusion efforts in this way is effective and productive while providing real-time feedback and knowledge. This is why pipeline programs are essential for closing the diversity and inclusion gap in the legal profession. Numerous pipeline programs are focused specifically on the legal profession. Among them are several that would help diversify the federal bench and bar, like Just the Beginning–A Pipeline Organization, https://jtb.org/, which centers on diversifying federal judicial law clerks and holds programming for both young students and law students. Other great programs serve as models, such as the Legal Education Access Pipeline, https://www.legalpipeline.org/, and the NALP/Street Law Legal Diversity Pipeline Program, https://www. nalp.org/streetlaw. Two pipeline organizations are near and dear to me: the Council on Legal Education Opportunity, Inc., https:// cleoinc.org/, of which I am an alumna, and Journey to Esquire©, www. journeytoesquire.com, the pipeline program I started three years ago. Suppose your organization (e.g., law firm, government agency, state bar, voluntary bar) or your local chapter of the FBA is interested in starting a pipeline program. In that case, many free and accessible resources are available. The Association of American Law Schools (AALS) provides a list of pipeline programs that can serve as a model https://www.aals.org/news/pipeline-programs/. The American Bar Association’s series “Re-Imagining Legal Education: Innovations in Pipeline Programs” provides best practices among current pipeline programs. It also maintains the National Pipeline Diversity Initiatives Directory, https://www.americanbar.org/groups/ diversity/diversity_pipeline/projects_initiatives/pipeline_diversity_directory/. There’s something to be said about not “reinventing the wheel.” If there is a pipeline program within your region, then get
involved, volunteer to speak to students on a panel, mentor students one on one, and donate to support the program. But, like me, you may see a gap in services and have the desire and time to start a program to help fill that need. A great resource is the AccessLex Institute, which provides research and data about legal pipeline programs in the report “Diversity Pipeline Programs in Legal Education: Context, Research, and a Path Forward,” available at https://www.accesslex.org/tools-and-resources/diversity-pipeline-programs-legal-education-context-research-and-path-forward/. This report identifies important considerations for creating and sustaining effective legal pipeline programs. One thing to keep in mind if you decide to begin a program is to start early. Please do not wait until law students have graduated to train them; we need to plant the seeds as early as undergraduate or even high school. Students may not completely understand the complexities of bankruptcy law or what a judicial law clerk does, but many of them have encountered and had to solve complex problems, have run into financial difficulty, or have witnessed criminal law play out in the media or their lives. Connect those real-life experiences with the idea of becoming someone who can help solve those problems for others, and you will spark an interest. Consider getting involved with or starting a pipeline program this year. The services provided by pipeline programs are more essential now than ever, given the disruption created by the pandemic, among other things, in the last few years. The future of the legal profession, including making sure it serves all community members by promoting diversity and inclusion, depends on it. Special thanks to Connor D. Porzig, third-year student at Western Michigan University–Thomas M. Cooley Law School, for his assistance in drafting this article.
Diversity & Inclusion continued from page 9
Jurisprudence (1999). U.S. Equal Emp. Opportunity Comm’n, Diversity in Law Firms (2003), https://www.eeoc.gov/sites/default/files/migrated_ files/eeoc/statistics/reports/diversitylaw/lawfirms.pdf. That report reflects that women in the legal profession increased from 14.4 percent in 1975 to 40.3 percent in 2002. 4 Id. That report reflects that women receiving law degrees increased from 33 percent in 1982 to 48.3 percent in 2002. 5 National Ass’n for Law Placement, Diversity Best Practices Guide, 2020 Edition, https://www.nalp.org/uploads/2020_ DiversityBestPracticesGuide.pdf.; Berkeley Law Women in Business Law Initiative, Women in Business Law Initiative Roundtable Series, Addressing Development and Retention Gender Parity in U.S. Law Firms: Recommendations (Sept. 20, 2019), https://www.law.berkeley.edu/wp-content/uploads/2019/10/ GenderParity_Recommendations-for-Law-Firms.pdf. 6 Admin. Office of the Courts, Strategic Plan for the Federal Judiciary, https://www.uscourts.gov/sites/default/files/ federaljudiciary_strategicplan2020.pdf., at 15-18. 7 Exec. Order No. 14035, 86 Fed. Reg. 34,593 ( June 25, 2021). Executive Order (EO) 14035. Diversity, Equity, Inclusion, and Accessibility (DEIA), https://www.whitehouse.gov/briefing-room/ statements-releases/2021/06/25/fact-sheet-president-bidensigns-executive-order-advancing-diversity-equity-inclusion-and3
accessibility-in-the-federal-government/. University of Pennsylvania Carey School of Law, Promoting gender equality and gender equity at the University of Pennsylvania Carey Law School, (Mar. 30, 2021), https://www.law.upenn.edu/live/ news/11082-promoting-gender-equality-and-gender-equity-at-the. 9 National Association for Law Placement, Diversity Best Practices Guide, 2020 Edition, https://www.nalp.org/uploads/2020_ DiversityBestPracticesGuide.pdf. 10 Vanessa Scott and E. Leigh Dance, Global In-House Legal Leaders Share What’s Working in Diversity, Equity and Inclusion, ( June 3, 2021), https://www.law.com/corpcounsel/2021/06/03/global-inhouse-legal-leaders-share-whats-working-in-diversity-equity-and-in clusion/?slreturn=20210624110514. 11 American Bar Ass’n, 2021 National Lawyer Population Survey by State, https://www.americanbar.org/content/dam/aba/ administrative/market_research/2021-national-lawyer-populationsurvey.pdf. 12 Allison E. Laffey and Allison Ng, American Bar Ass’n, Diversity and Inclusion in the Law: Challenges and Initiatives (May 2, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/ articles/2018/diversity-and-inclusion-in-the-law-challenges-andinitiatives/. 13 Id. 14 McKinsey & Co., Women in Law Firms, https://www.mckinsey. 8
September/October 2021 • THE FEDERAL LAWYER • 11
com/featured-insights/gender-equality/women-in-law-firms#. In its 2017 survey, McKinsey conducted a “deep dive” on the state of women lawyers in U.S. law firms and discovered that despite gender parity in law school graduation rates, only 19 percent of equity partners were women, and women were 29 percent less likely to reach the first level of partnership than were men. Women of color accounted for 16 percent of attorneys at the entry level but only 3 percent of equity partners and 4 percent of managing partners. 15 The National Association of Immigration Judges has had a Women’s Committee since 2010 and has recently expanded its mission to include supporting diversity, equity, and inclusion beyond the gender dimension. The author has served as this group’s chair for over a decade. She also serves on the board of the International Federation of Technical and Professional Engineers Women’s Solidarity Network, https://www.ifpte.org/wsn. 16 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Lawyers, https://www.bls.gov/ooh/legal/ lawyers.htm. 17 DOJ, Office of Attorney Recruitment and Mgmt., A Career Counselor’s Guide to Lateral Hiring at DOJ, https://www.justice.gov/ oarm/images/lateralhiringguideforweb.pdf. 18 See NAIJ Records, on file with the author. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 See DOJ GEN, Who we are, https://www.dojgen.org/whoweare. 27 Id. 28 See DOJ GEN, What we’ve done so far! https://www.dojgen.org/ what-we-have-done. 29 DOJ GEN, DOJ Gender Equality Network: Recommendations for Moving Toward Gender Equality at DOJ, https://static1.squarespace. com/static/5a7097c0d55b41a81fbefaec/t/6046ddb4211e7e4b9a0685 4c/1615257013316/DOJ+GEN--briefing+document+for+new+adm inistration.pdf. 30 Id. 31 Id. 32 See DOJ GEN, What we’ve done so far!, supra note 28. 33 DOJ GEN, Letter to the Incoming Administration, DOJ Gender Equality Network: Recommendations for Moving Toward Gender Equality at DOJ ( Jan. 13, 2021), https://static1.squarespace.com/ static/5a7097c0d55b41a81fbefaec/t/6046ddb4211e7e4b9a0685 4c/1615257013316/DOJ+GEN--briefing+document+for+new+adm inistration.pdf. 34 DOJ OIG, Review of the Handling of Sexual Harassment and Misconduct Allegations by the Department’s Civil Division, Evaluation and Inspections (E&I) Report 17-03 (May 2017), https://oig.justice.gov/reports/2017/ e1703.pdf. 35 See DOJ GEN, What we’ve done so far! supra note 28. 36 DOJ GEN, DOJ GEN Letter to Scott Schools, Associate Deputy Attorney General (Dec. 22, 2017), https://static1.squarespace. com/static/5a7097c0d55b41a81fbefaec/t/5f88fa41018abc214c57 ea67/1602812481778/Thank-you+SH+note+12.21.17.pdf. 37 DOJ GEN, DOJ GEN Letter to AG Barr (May 14, 2019), https:// 12 • THE FEDERAL LAWYER • September/October 2021
static1.squarespace.com/static/5a7097c0d55b41a81fbefaec/t/5db1f8 e1471a0d65be026210/1571944673475/DOJ+GEN+Barr+letter.pdf. 38 See DOJ GEN, What we’ve done so far!, supra note 28. 39 Exec. Order 13985, 86 Fed. Reg. 7009 ( Jan. 20, 2021). 40 See DOJ GEN, What we’ve done so far!, supra note 28. 41 Id. 42 5 U.S.C. § 6382(d) (2020). 43 86 Fed. Reg. 34,593. 44 Id. 45 Id. 46 Id. 47 Id.
Editorial Policy The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment. The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.
Roxanna Abdoli 2021 Caplin-Swanson Diversity Fellow The Caplin-Swanson Diversity Fellowship honors the actions taken by two men of great character, our Firm’s founder Mortimer Caplin and Gregory Swanson, the first Black person to study law at the University of Virginia in 1950. To read the story of Mr. Caplin and Mr. Swanson or to learn more about the fellowship, please visit our Diversity and Inclusion page at www.caplindrysdale.com/ Diversity-and-Inclusion.
Focus on Indian Law
Representation and Inclusion: Moving Toward Demographic Parity for Native American Attorneys By Leah K. Jurss
Leah K. Jurss is an associate at Hogen Adams PLLC. Prior to joining Hogen Adams, she clerked for Hon. Roberto A. Lange of the U.S. District Court for the District of South Dakota and served as a Fellow at the Indigenous Law & Policy Center at Michigan State University College of Law. ©2021 Leah K. Jurss. All rights reserved.
On May 12, 2021, President Biden named his third round of judicial nominees to the federal bench. Included on this list for the U.S. District Court for the Western District of Washington was Lauren J. King.1 King is a citizen of the Muscogee Nation and currently chairs the Native American Law Practice Group at Foster Garvey and serves as a pro tem appellate judge for the Northwest Intertribal Court System. If confirmed, King would become the third Native American judge actively sitting on the federal bench, the first in Washington state history, and only the fifth in the entire 231-year history of the federal courts. In 2014, President Obama nominated Diane Humetewa, a member of the Hopi Nation, to serve on the U.S. District Court for the District of Arizona, and in 2019, President Trump nominated Ada Brown, a member of the Choctaw Nation of Oklahoma, to serve on the U.S. District Court for the Northern District of Texas. King's nomination is an important step forward in the representation of Native Americans on the federal bench, but it also highlights the distance yet to cover for Indigenous representation in the federal legal system. As a recent joint statement from the National Congress of American Indians and the Native American Rights Fund noted, “[i]f the federal judiciary reflected nationwide demographics, there would be at least 14 Native Americans serving as federal judges.”2 Resolving this disparity in representation is particularly critical because of the impact that federal courts have on the daily lives of Native American peoples. The unique nature of federal Indian tribes being treated as “domestic dependent nations” means that federal courts, not state courts, are called upon to interpret laws that affect tribes and tribal citizens.3 The need for additional representation of Native Americans in the legal world extends beyond the federal judiciary. In 2015, the National Native American Bar Association released a groundbreaking report on the study of Native American attorneys.4 The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the
14 • THE FEDERAL LAWYER • September/October 2021
Legal Profession surveyed approximately 20 percent of the estimated 2,640 lawyers in the United States who identify as American Indian, Alaska Native, and/or Hawaiian Native. In addition to survey responses, the study included a facilitated focus group and dozens of one-on-one interviews. This study was the first of its kind to provide a comprehensive review of the issues facing Indigenous attorneys, including those in private practice; federal, state, or tribal government practice; the judiciary; and academia. The study identified that Native American attorneys faced racial, ethnic, gender, and other professional challenges in workplaces that were not addressed by traditional diversity and inclusion programs. These challenges led to high levels of isolation in the workplace—feeling invisible in the law and being overlooked even in diversity and inclusion programs. Creating equity between the country’s Native American demographics and the number of Native American lawyers is not a simple task and must involve a concerted effort at every level of the legal system. Students need access to lawyers and visibility of the legal profession in high school and college—a chance to see the legal profession as a viable career choice. Pipeline projects, such as those operated by UC–Berkeley School of Law, Arizona State University’s Sandra Day O’Connor College of Law, the Indigenous Law Program at Michigan State University College of Law, and the American Indian Law Center, are critical to this work, but every pre-law program that supports student outreach efforts must actively recruit and include Native American students.5 Given the substantial barriers to attending law school as a Native American student, these programs must also address and assist with the high costs of financing law school, determining how to choose the best-fitting law school, navigating the application process, and building the professional and social networks necessary to succeed once enrolled. Once Native American students have chosen law school as the next step in their education, programs
such as the Pre-Law Summer Institute are important in preparing them to succeed in law school and form a community of fellow Native American students.6 The low enrollment of Native American students in law schools, as well as the differing motivations that many Native Americans have for attending law schools, makes this community vitally important. The Law School Survey of Student Engagement reports that the general lawyer population is motivated to attend law school because of a desire to have a challenging and rewarding career and obtain financial security; in contrast, the Pursuit of Inclusion report identified that Native Americans seek to attend law school because of a desire to give back to their communities, fight for justice for tribes, and work for the betterment of Indian people. Native American law student societies can connect students with each other during the grueling years of legal education.7 Law school administrators should make an effort to support the growth of their Native American student groups. Participating in the National Native American Law Students Association’s annual moot court competition, for example, can provide students with a combination of social support, practical skills, and mentor opportunities that can positively impact their future careers. In the semesters leading to graduation, law school career centers must make an effort to diversify their offering of support and guidance to ensure it includes a reflection of desired career choices for Native American students. Links to tribal governments, Indigenous legal organizations, and tribal courts should be just as present as big law firm recruiters, state governments, and national fellowship programs. Often viewed as an unofficial prerequisite for federal judicial service, a concentrated effort to elevate the number of Native American students selected for federal clerkships, in particular, can set the Native American lawyers up for successful judicial nominations in the future.8 After graduation, retention of Native American lawyers in the field requires a focus on eliminating the barriers to professional advancement that are unrelated to the lawyer’s skills—including the ironic dichotomy of racial bias and invisibility.9 Mentorship programs and the development of substantive training opportunities that specifically target Native American attorneys can increase job
satisfaction, but so too can better training for all of an organization’s employees on the specific issues that Native Americans face in the United States. Bar associations can also assist in this effort by developing education programs for non-Native lawyers about Indian law and prioritizing diversity in leadership positions. Like other historically marginalized groups, increasing representation in the law will take a concerted effort to remove barriers and increase supports. The benefits of this work will shine across the legal system, creating a profession that better reflects the demographics of the United States and its residents as a whole.
Endnotes President Biden Announces Third Slate of Judicial Nominees, The White House (May 12, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/05/12/president-biden-announcesthird-slate-of-judicial-nominees. 2 NCAI and NARF Joint Statement on the Nomination by President Biden of Washington State’s First Ever Native American Federal Judge, Native American Rights Fund (May 12, 2021), https://www.narf. org/lauren_king_judicial_nomination. 3 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 2 (1831). 4 The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession, National Native American Bar Association (Feb. 11, 2015), https:// www.nativeamericanbar.org/native-american-attorney-study/. 5 See, e.g., Pathway to Law Initiative: Native American Law School Admissions Workshop, Ariz. St. Univ. Sandra Day O’Connor Coll. of Law, https://law.asu.edu/pathway-to-law. 6 See, e.g., Pre-Law Summer Institute for American Indians and Alaska Natives, American Indian Law Center, Inc., https://www.ailc-inc. org/plsi/. 7 Pursuit of Inclusion, supra note 4, at 21-23. 8 A current search of the biographical information of sitting federal judges reveals that 588 previously served as a judicial law clerk. See Biographical Directory of Article III Federal Judges, Fed. Jud. Ctr., https://www.fjc.gov/history/judges. 9 Pursuit of Inclusion, supra note 4, at 35-42. 1
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International Files
The International and Domestic Origins of Human Trafficking Laws By Beth Persky and Federica Dell’Orto
Beth Persky is a certified specialist in immigration and nationality law with the State Bar of California’s Board of Legal Specialization. She is a graduate of the Fletcher School of Law and Diplomacy and the Boston University School of Law. Persky interned with the Washington, D.C., office of the United Nations High Commissioner for Refugees in 1989. She served as the FY 2021 chair of the International Law Section of the FBA. Federica Dell’Orto is an associate attorney at the Law Offices of Judith L. Wood, in Los Angeles. Dell’Orto obtained her J.D. in 2013 from the University of Milan as a five-year single-cycle master’s degree program in law, and she completed her LL.M. at Southwestern Law School in 2016. She will serve as FY 2022 chair of the International Law Section of the FBA. ©2021 Beth Persky and Federica Dell'Orto. All rights reserved.
The crime of human trafficking has been addressed over the years by both international and national entities. The first international conventions dealing with the issue of human trafficking took place at the beginning of the 20th century. They were mainly aimed at the repression of what was called “the white trade,” a widespread phenomenon in those years that mainly involved the trafficking of women and girls for prostitution purposes.1 The first international conference for the prevention of trafficking of women was held in Paris in 1895 and was followed by two more conferences—focused on the issue of trafficking women for prostitution— held in London and Budapest. The outcome of these conferences was the signing in Paris of the International Agreement for the Suppression of the White Slave Traffic on May 18, 1904.2 This agreement did not provide a definition of trafficking, and it limited its scope of application to the recruitment of women and girls who performed abroad for immoral purposes. The preamble of the agreement distinguished the trafficking of minors, which was deemed to be within the scope of applicability of the agreement regardless of whether consent was given by the girl, from the trafficking of adults, which was decided to be within the scope of the agreement only if done through coercion or abuse. The 1904 agreement did not oblige states to punish the perpetrators of the trafficking; it only required some degree of information exchange among states aimed at strengthening the efforts undertaken by each country toward the repression of the crime. The International Agreement for the Suppression of the White Slave Traffic,3 dated May 4, 1910, completed the 1904 agreement. The main difference between this agreement and the 1904 agreement was the fact that in 1910, the signatory states undertook the obligation of punishing traffickers. Approximately 10 years after the approval of the 1910 agreement, the signatory states called for a new international conference on the issue of trafficking; the need to expand the scope of application of the two previous agreements emerged. Thus, on Sept. 30, 1921 the International
16 • THE FEDERAL LAWYER • September/October 2021
Convention for the Suppression of the Traffic in Women and Children4 was signed. For the first time, a convention on human trafficking acknowledged that minor males could also be the victims of human trafficking (Article 2 of the convention). One of the most significant achievements for human rights in general, and also with regard to the battle against human trafficking, was the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations in 1948. In its article 4, the declaration expressly prohibits slavery and any form of slave trade.5 Other milestones in the fight against human trafficking included the following: • Th e 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. • The 1948 American Declaration on the Rights and Duties of Man. • The 1957 Abolition of Forced Labor Convention. • The approval, on Dec. 16, 1966, of the International Covenant on Civil and Political Rights, which became effective in 1976 and was ratified by 148 states. • The Convention on the Rights of the Child, adopted in New York in 1989 and ratified by 191 states. • The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. • United Nations General Assembly Resolutions 50/167, 51/66, and 52/98. • The Final Report of the World Congress against Sexual Exploitation of Children (Stockholm, 1996). • The Fourth World Conference on Women (Beijing, 1995). • The 1991 Moscow Document of the Organization for Security and Cooperation in Europe.6 The Convention on the Rights of the Child contains a provision on human trafficking, which requires all contracting states to undertake “All appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for
any purpose or in any form (art. 35).”7 The reference to a broader definition of trafficking, which finally includes purposes other than sexual exploitation, is significant. Finally, the most important agreement on the matter of human trafficking was entered into on Dec. 12, 2000. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children8 (“the Protocol”) is a protocol to the UN Convention against Transnational Organized Crime. It is one of the three Palermo protocols, adopted by the UN General Assembly in 2000. The Protocol contains the first exhaustive definition of human trafficking, as it is still used today. According to the Protocol, trafficking in human beings consists of: [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. International legislation identifies three elements to the crime of human trafficking: 1) the “recruitment” of persons; 2) the use of coercion; and 3) the purpose of exploitation. The last category generally includes phenomena of sexual exploitation, forced labor, slavery, or similar practices as well as organ harvesting. A differentiation must be made between the phenomenon of human trafficking, the subject of this article, and the smuggling of clandestine migrants (people smuggling). In the second case—socalled aiding and abetting illegal immigration—there is a person, the trafficker, who favors the illegal entry of one person or more people into a state. The smuggling of migrants is framed as a crime against the state, while the trafficking of human beings is a crime against one or more individuals. In a “people smuggling” operation, there is necessarily a border crossing, while human trafficking can also occur within national borders. Finally, in the case of human trafficking, the consent of the victim is irrelevant when there is the exploitation of the person. Article 5 of the Protocol establishes procedures for each state party to “adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol.” In the United States, the most relevant piece of legislation on the matter of human trafficking is the Trafficking Victims Protection Act of 2000 (the Act),9 as subsequently amended, which provides the tools to fight against human trafficking. 22 U.S. Code Chapter 78 is titled “Trafficking Victims Protection.” The purpose of Chapter 78 is to combat trafficking in individuals based on the congressional finding that, as the 21st century begins, the degrading institution of slavery continues throughout the world, and existing legislation and law enforcement in the United States and other countries had, at the time of enactment, been inadequate to deter trafficking and bring traffickers to justice, failing to reflect the gravity of the offenses involved.10 Trafficking in persons is the largest manifestation of slavery today.11 In its findings, Congress referred to the Declaration of Independence, which recognizes the inherent dignity and worth of all people, and states that all men [sic] are created equal. The findings
also refer to the abolition of slavery and involuntary servitude by the United States in 1865.12 Trafficking in persons is not limited to the sex industry but also includes forced labor and involves significant violations of labor, public health, and human rights standards worldwide.13 In addition to involuntary sex acts by means of fraud, force, or coercion, trafficking involves the violation of labor and immigration codes and laws against kidnapping, slavery, false imprisonment, assault, battery, pandering, fraud, and extortion.14 “Involuntary servitude” involves any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint, or the abuse or threatened abuse of the legal process.15 The term “severe forms of trafficking in persons” means either sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.16 A “victim of trafficking” is a person subjected to an act of trafficking.17 22 U.S.C. § 7109a mandates research on domestic and international trafficking in people and analysis of global trends in human trafficking and methods to combat it, and 22 U.S.C. § 7105 provides for protection and assistance for victims of trafficking in cooperation with relevant organizations, including the UN High Commissioner for Refugees, the International Organization for Migration, and private nongovernmental organizations that contract with or receive grants from the U.S. government.18 34 U.S. Code § 41309(a) requires the director of the FBI to: (1) C lassify the offense of human trafficking as a Part I crime in the Uniform Crime Reports; (2) T o the extent feasible, establish subcategories for state sex crimes that involve: a. A person who is younger than 18 years of age; b. Th e use of force, fraud, or coercion; or c. Neither of the above; and (3) C lassify the offense of human trafficking as a Group A offense for purposes of the National Incident-Based Reporting System. 34 U.S. Code § 41309(b) instructs the FBI director to revise the Uniform Crime Reporting System and the National Incident-Based Reporting System to distinguish between reports of: (1) I ncidents of assisting or promoting prostitution, which shall include crimes committed by individuals who: a. Do not directly engage in commercial sex acts; and b. D irect, manage, or profit from such acts, such as state pimping and pandering crimes; (2) I ncidents of purchasing prostitution, which shall include crimes committed by individuals who purchase or attempt to purchase or trade anything of value for commercial sex acts; (3) I ncidents of prostitution, which shall include crimes committed by individuals providing or attempting to provide commercial sex acts; (4) I ncidents of assisting or promoting prostitution, child labor September/October 2021 • THE FEDERAL LAWYER • 17
that is a violation of law, or forced labor of an individual under the age of 18 as described in paragraph (1); and (5) Incidents of purchasing or soliciting commercial sex acts child labor that is a violation of law, or forced labor with an individual under the age of 18 as described in paragraph (2).19 34 U.S.C. § 20711(a) mandates that the attorney general implement and maintain a National Strategy for Combatting Human Trafficking, to include: (1) Integrated federal, state, local, and tribal efforts to investigate and prosecute human trafficking cases, including: a. The development by each U.S. attorney, in consultation with state, local, and tribal government agencies, of a district-specific strategic plan to coordinate the identification of victims and the investigation and prosecution of human trafficking crimes; b. The participation in any federal, state, local, or tribal human trafficking task force operating in the district of the U.S. attorney; and c. Any other efforts intended to enhance the level of coordination and cooperation, as determined by the attorney general. (2) Case coordination within the Department of Justice, including specific integration, coordination, and collaboration, as appropriate, on human trafficking investigations between and among the U.S. attorneys, the Human Trafficking Prosecution Unit, the Child Exploitation and Obscenity Section, and the FBI. (3) Annual budget priorities and federal efforts dedicated to preventing and combating human trafficking, including resources dedicated to the Human Trafficking Prosecution Unit, the Child Exploitation and Obscenity Section, the FBI, and all other entities that receive federal support that have a goal or mission to combat the exploitation of adults and children. (4) An ongoing assessment of the future trends, challenges, and opportunities, including new investigative strategies, techniques, and technologies, that will enhance federal, state, local, and tribal efforts to combat human trafficking. (5) Encouragement of cooperation, coordination, and mutual support between private sector and other entities and organizations and federal agencies to combat human trafficking, including the involvement of state, local, and tribal government agencies to the extent federal programs are involved. (6) A national strategy to prevent human trafficking and reduce demand for human trafficking victims. Title 6 U.S.C. Section 642 provides for training of Transportation Security Administration, U.S. Customs and Border Protection, and other department personnel in the deterrence, detection, and disruption of human trafficking, as well as interdiction of perpetrators, including methods for approaching suspected victims without alerting suspected perpetrators. The Trafficking Victims Protection Act of 2000 was revised by the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003),20 the Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005),21 the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008),22 the Vio18 • THE FEDERAL LAWYER • September/October 2021
lence Against Women Reauthorization Act of 2013 (VAWRA 2013),23 and the Justice for Victims of Trafficking Act of 2015 ( JVTA).24 Most states have enacted state statutes that address and prosecute human trafficking, and the federal government assists in efforts to address human trafficking on state, local, and tribal levels through a number of initiatives, including a National Human Trafficking Hotline and a Training and Technical Assistance Program.25 The scope of the movement and laws against human trafficking have broadened over the years, and enforcement mechanisms have strengthened as social awareness of what constitutes human trafficking has increased.
Endnotes Many historians believe that the 1895 trafficking discussions were triggered by the increased number of women migrants from Europe seeking work abroad. Kristiina Kangaspunta, A Short History of Trafficking in Persons, F3 – Freedom from Fear Magazine, http://f3magazine.unicri.it/?p=281. 2 International Agreement for the Suppression of the “White Slave Traffic” (entered into force July 18, 1905), http:// hrlibrary.umn.edu/instree/whiteslavetraffic1904.html. 3 International Convention for the Suppression of the “White Slave Traffic,” (May 4, 1910), as amended by Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, and Amending the International Convention for the Suppression of the White Slave Traffic (May 4, 1949; entered into force June 21, 1951), http://hrlibrary.umn.edu/instree/whiteslavetraffic1910.html. 4 European Commission, 1921 International Convention for the Suppression of the Traffic in Women and Children, (Sept. 30, 1921), as amended by Protocol Signed at Lake Success, NY (Nov. 12, 1947), https://ec.europa.eu/antitrafficking/legislation-and-case-law-international-legislation-unitednations/1921-international-convention_en. 5 Article 4 states: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” United Nations Universal Declaration of Human Rights, 1949, http://www.jus.uio.no/lm/en/manifest/un.universal.declaration. of.human.rights.1948.html. 6 The listed conventions are referred to at 22 U.S. Code § 7101(b) (23), under the purposes and findings section of the U.S. Trafficking Victims Protection Act. 7 European Commission, The United Nations Convention on the Rights of the Child (CRC) (entered into force Sept. 2, 1990), https://ec.europa.eu/anti-trafficking/legislation-and-case-lawinternational-legislation-united-nations/united-nations-conventionrights_en. 8 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Nov. 15, 2000), https://www.unodc.org/unodc/en/organized-crime/intro/ UNTOC.html. 9 22 U.S.C. §§ 7101 et seq. 10 22 U.S.C. § 7101(b)(14). 11 22 U.S.C. § 7101(a), (b). 12 22 U.S.C. § 7101(b)(22). 13 22 U.S.C. § 7101((b)(3). continued on page 21 1
Commentary
The Curious Case of an Insular Area in Need of Inclusion By Glenda McGraw Regnart
Glenda McGraw Regnart serves as counsel to the firm for Cascadia Cross Border Law, LLC, and is owner/operator of Regnart Immigration and an adjunct professor of criminal law. She focuses her practice on providing expert advice and opinions concerning the immigration consequences of criminal convictions to criminal defense counsel. Regnart spent approximately 15 years working in the federal government, mostly with the Department of Homeland Security, U.S. Immigration and Customs Enforcement serving in a variety of roles. She is a member of the Mississippi and Alaska Bar Associations, the FBA, and the American Immigration Lawyers Association. ©2021 Glenda McGraw Regnart. All rights reserved.
Americans are markedly versed in the composition of our nation—50 states and the District of Columbia. While the United States is also charged with administering 14 U.S. territories, seldom do those areas generate focus. These territories, three of which are located in the Caribbean Sea and 11 in the Pacific Ocean, are generally overseen by the Office of Insular Affairs (OIA) within the U.S. Department of the Interior.1 OIA defines the term “insular” as a “jurisdiction that is neither a part of one of the several States nor a Federal district.”2 Insular is, in fact, a generic term referencing any commonwealth, freely associated state, possession, territory, or Territory. OIA disavows use of the term “possession” as no longer colloquially accepted and instead notes a preference for “territory,” defined as an unincorporated U.S. insular area, of which there are currently 13: Navassa Island, Puerto Rico, and the U.S. Virgin Islands in the Caribbean, and American Samoa, Baker Island, Guam, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, the Northern Mariana Islands, and Wake Atoll in the Pacific. Palmyra Atoll, the 14th area, is designated as a U.S. Territory, with a capital “T” because it is an incorporated insular area.3 It is against the backdrop of our U.S. territorial framework that our discussion begins. American territorial hamlets are rife with history, both salacious and chaste, but in a recent case arising out of the U.S. Court of Appeals for the Tenth Circuit, American Samoa gained focus as a study in U.S. citizenship.4 Pursuant to the Fourteenth Amendment’s Citizenship Clause, birthright citizenship is accorded to every person “born … in the United States.”5 All individuals born in the United States or its territories are U.S. citizens by virtue of the doctrine of jus soli, or birthright citizenship, with the glaring exception of American Samoa.6 Individuals born in American Samoa are given the dubious designation of U.S. national.7 While the full history and rationale behind the decision to exclude American Samoa from U.S. citizenship are beyond the scope of this discussion, it is without question one that was built on imperialistic ideology and supported by a questionably valid line of jurisprudence called the “Insular Cases.”8 These are a
series of decisions issued by the U.S. Supreme Court between 1901 and 1922 that established the structure for U.S. territorial policy after the Spanish-American War of 1898. The Insular Cases allowed the United States to acquire territories as permanent possessions while permitting the disenfranchisement of the nonwhite inhabitants of those territories. As one might expect, the Insular Cases are often analogized to the Jim Crow jurisprudence of the early 19th century. Yet unlike Jim Crow, the Insular Cases remain controlling case law. Developed during an era when territorial inhabitants were considered an inferior race and culture unfit to rule themselves, the Insular Cases have proven to be the foundation of American Samoans’ ineligibility for admission to the U.S. polity, despite their birth in a U.S. territory.9 The realities of having intermediate status of U.S. national means American Samoans are denied the right to vote in federal elections, serve on juries, petition for immigrant status for family members, or hold jobs requiring U.S. citizenship, and they are denied the ability to run for or hold elective office outside of American Samoa.10 Ironically, American Samoans are eligible to enlist in the U.S. Armed Forces and have enlisted in our military at a greater rate, per capita, than citizens of any other state or territory. Yet they cannot vote for their commander in chief. 11 Such realities ring familiar with the disenfranchisement and racial disparities our nation has endured for centuries. In 2018, three individuals born in American Samoa and a nonprofit organization based in Utah filed suit in the U.S. District Court for the District of Utah against the United States alleging their designation as noncitizen nationals, rather than U.S. citizens by virtue of their birth in a U.S. territory, violated the Fourteenth Amendment.12 The plaintiffs in Fitisemanu v. U.S. averred that because American Samoa is “in the United States” and “subject to the jurisdiction thereof,” American Samoans are entitled to birthright citizenship under Section 1 of the Fourteenth Amendment. On Dec. 12, 2019, the district court granted the plaintiffs’ motion for summary judgment, concluding: September/October 2021 • THE FEDERAL LAWYER • 19
American Samoans owe permanent allegiance to the United States. They are therefore “subject to the jurisdiction” of the United States. American Samoa is a territory that is within the dominion of the United States. It is therefore “in the United States.” Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.13 The district court succinctly stated that resolution of Fitisemanu required “the court to choose between two Supreme Court cases and their respective lines of precedent—Wong Kim Ark and Downes v. Bidwell,” also known as the Insular Cases.14 The court conducted an exhaustive analysis beginning with Calvin’s Case from 1608 and continuing into 19th century jurisprudence. Calvin’s Case established a two-part rule for acquisition of subject status at birth: (1) birth within the King’s dominion and (2) allegiance to the King.15 In Wong Kim Ark, an 1898 decision affirming birthright citizenship to a California-born son of Chinese immigrants, the Supreme Court held that “[t]he fourteenth amendment affirmed the fundamental rule of citizenship derived from Calvin’s Case ….”16 Distinguishing the Insular Cases, the district court in Fitisemanu noted that the Supreme Court has, since Downes, “thoroughly rejected the bigoted premise upon which Justice White’s dicta is founded—that some groups are inferior to others based simply on their race.”17 Although a clear victory for inclusion and a welcome departure from the checkered history of the Insular Cases, the decision was stayed pending appeal to the U.S. Court of Appeals for the Tenth Circuit. On June 15, 2021, the Tenth Circuit struck a surprising chord.18 In reversing the district court decision, the appellate court decidedly shifted the issue to Congress to craft a legislative solution, and declined to extend birthright citizenship to American Samoans, ironically relying in part on “the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship.”19 The appellate court’s majority opinion, however, resonates a familiar and disquieting tune. A culture previously deemed unfit to govern themselves, one upon whom decision-making must be made on their behalf by political elites, is today, facing the same colonialist ideology. If accorded the weighty rights and responsibilities of U.S. citizenship, American Samoans would lose their cultural identity; thus, to preserve their cultural identity, they should be denied birthright citizenship and remain relegated to the status of “national.” The appellate court pivoted the narrative to a near wholesale deference to concerns over cultural appropriation, sovereign desires, and potential loss of traditional customs and practices, going to great lengths to marginalize the Supreme Court’s prior admonitions against any extension of the Insular Cases.20 In relying on the Insular Cases, the appellate court held, “Notwithstanding its beginnings, the approach developed in the Insular Cases and carried forward in recent Supreme Court decisions can be repurposed to preserve the dignity and autonomy of the peoples of America’s overseas territories.”21 In conclusion, the court, declining to extend birthright citizenship to a group born in a territory of the United States, opined: We have grave misgivings about forcing the American Samoan people to become American citizens against their wishes. They are fully capable of making their own decision on this 20 • THE FEDERAL LAWYER • September/October 2021
issue, and current law authorizes each individual Samoan to seek American citizenship should it be desired.22 Required by the Insular framework to weigh the practical considerations concerning the extension of the constitutional right to birthright citizenship to American Samoa, I would hold that the extension of United States birthright citizenship is impracticable and anomalous.23 The circularity of the court’s rationale is anything but novel. Moreover, relying on civic differentiation as a justification for subjugation has historically led our nation down a path of racial and social inequality. In Plessy v. Ferguson, the Court espoused separate but equal as the law of the land and, in so doing, echoed a similar sentiment: We consider the underlying fallacy of the plaintiff ’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. … We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.24 Yet, it was Justice Harlan who foreshadowed our nation’s yoke of inequality. In a strident dissent, he cautioned “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”25 He was correct. In Fitisemanu, Judge Bacharach’s dissent poignantly determined that the plaintiffs are U.S. citizens on three bases: First, all were born in American Samoa, which is a territory “in the United States.” When the Fourteenth Amendment was ratified, courts, dictionaries, maps, and censuses uniformly regarded territories as land “in the United States.” Second, even if the territory of American Samoa lay outside the United States, the Citizenship Clause would apply because citizenship is a fundamental right. Third, even if the right were not fundamental, applying the Citizenship Clause to the three American Samoan plaintiffs would not be impracticable or anomalous.26 More importantly, the dissent aptly recognized that the interpretation and application of rights should never be subject to or influenced by popular opinion or political jockeying. “Our job is to interpret the Constitution regardless of the popularity of our interpretation in American Samoa, and the application of constitutional rights does not become impracticable or anomalous because of disagreement.”27 Citizenship is beyond legislative influence, and certain rights are not subject to political preference. “The very nature of our free government makes it completely incongruous to have a
rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”28 To be sure, from 1866 to 1868, many legislators would have preferred to remove the constitutional recognition of citizenship for the recently freed slaves. But that preference did not prevail because citizenship is not subject to a popularity contest. The influence of popular will or requirement of voluntary assent to the panoply of constitutional rights was specious in Plessy and it is specious today. The agelessness of our Constitution is axiomatic, and it is the responsibility of our judiciary to apply constitutional principles blind to the whim of a public body, not shroud their denial in a pretext of cultural self-preservation. Ours is a nation brimming with vast cultural identities, traditions, and self-expression, and the armor of U.S. citizenship fortifies the representation of those individualities. Irrespective of the guise of being revised or repurposed, the judiciary’s reliance on the Insular Cases yields an impractical and anomalous result out of step with our nation’s jurisprudential identity. It endorses the continued dominion over our nation’s imperial acquisitions by depriving territorial residents of American Samoa the rights guaranteed other Americans and allows popular opinion to steer the provision of citizenship. American Samoans owe allegiance to our nation; they have served and perished in wars defending our national ideals, and their customs and traditions are interwoven into the tapestry of our country. The cloak of U.S. citizenship is theirs; the recognition of that right, however, belongs to our judiciary.
Endnotes Who We Are, U.S. Department of the Interior, https://www. doi.gov/oia/who-we-are (last visited July 16, 2021). 2 Definitions of Insular Area Political Organizations, U.S. Department of the Interior, https:// www.doi.gov/oia/islands/ policatypes (last visited July 16, 2021). 3 Id. 4 Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019). 5 U.S. Const. amend. XIV, § 1, cl. 1. 6 See 8 FAM §§ 308.2-1; 308.2-2. U.S. non-citizen nationals are entitled to U.S. passports which contain a Code 09 endorsement stating: THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN. 7 Id. 8 See Ross Dardani, Citizenship in Empire: The Legal History of U.S. 1
Citizenship in American Samoa, 1899-1960, 60 Am. J. of Legal Hist. 311 (2020); American Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism, 130 Harv. L. Rev. 1680 (2017). 9 See Tuaua v. United States, 951 F. Supp. 2d 88 (D.D.C. 2013) aff ’d 788 F.3d 300 (D.C. Cir. 2015) (“[T]he Insular Cases distinguish as universally fundamental those rights so basic as to be integral to free and fair society.”). 10 Gabriela Meléndez Olivera & Adriel l. Cepeda Derieux, “Nationals” but not “Citizens”: How the U.S. Denies Citizenship to American Samoans, American Civil Liberties Union (May 22, 2020), https://aclu.org/news/voting-rights/nationals-but-not-citizenshow-the-u-s-denies-citizenship-to-american-samoans/. 11 U.S. Army Reserve, American Samoa At A Glance (2014), https://www.usar.army.mil/Portals/98/Documents/At%20A%20 Glance%20Prints/Samoa_ataglance.pdf. 12 Fitisemanu, 426 F. Supp. 3d at 1157; see also 8 U.S.C. § 1408(1). 13 Fitisemanu, 426 F. Supp. 3d at 1196. 14 Id. at 1157. 15 See id. 16 United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898). 17 See e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 272 (1995) (“the Constitution and [the Supreme] Court . . . abide no measure ‘designed to maintain White Supremacy’”)(citing Loving v. Virginia, 388 U.S. 1 (1967)). 18 Fitisemanu v. United States, Nos. 20-4017 & No. 20-4019, 2021 U.S. App. LEXIS 17819 (10th Cir. June 15, 2021). 19 Id. at *4. 20 Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion); see also Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, ___ U.S. ___, 140 S. Ct. 1649, 1665 (2020) (“[W]hatever their continued validity we will not extend them in these cases.”). 21 Fitisemanu, 2021 U.S. App. LEXIS 17819 at *16 (emphasis added). 22 Id. at *24. Seeking U.S. citizenship refers to the affirmative process of naturalization. A path no other U.S. territory habitants are required to navigate. 23 Id. at *38. 24 Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (emphasis added). 25 Id. at 559 26 Fitisemanu, 2021 U.S. App. LEXIS 17819 at *45. 27 Id. at *90. 28 Afroyim v. Rusk, 387 U.S. 253, 268 (1967).
International Files continued from page 18
22 U.S.C. § 7101(b)(9), (10). 22 U.S.C. § 7102(8). 16 22 U.S.C. § 7102(11). 17 A “victim of a severe form of trafficking in persons” is a person who has been subjected to an act or practice described in 22 U.S.C. § 7102(8). 22 U.S.C. § 7102(16). 18 See Trafficking Victims Protection Act of 2017, Pub. L. No. 115-393, 132 Stat. 5265 (2018); Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (2013); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008); Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109164, 119 Stat. 3558 (2005). 14 15
Subsections (a) and (b) of section 237 of Pub. L. No. 110-457, 122 Stat. 5044 (2008). See Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, § 606, 129 Stat. 260 (2015); Abolish Human Trafficking Act of 2017, Pub. L. 115-392, §§ 9, 15, 132 Stat. 5254, 5256 (2018); Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, § 902, 129 Stat. 265 (2015). 20 Pub. L. No. 108-193, 117 Stat. 2875 (2003). 21 Pub. L. No. 109-164, 119 Stat. 3558 (2005). 22 Pub. L. No. 110-457, 122 Stat. 5044 (2008). 23 Pub. L. No. 113-4, 127 Stat. 54 (2013). 24 Pub. L. No. 114-22, 129 Stat. 227 (2015). 25 22 U.S.C. §§ 7104(b) and 7105(b)(1)(B); 8 U.S.C. § 1522(c)(1)(A). 19
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Commentary
Diversity in the Legal Field Requires Communication, Trust, and Sponsorship By Marisa T. Darden
Marisa T. Darden is a principal at Squire Patton Boggs LLP in Cleveland. She is a former assistant U.S. attorney for the Northern District of Ohio and a former assistant district attorney at the New York County District Attorney’s Office. She is the FBA-Northern District of Ohio Diversity Committee chair. The views expressed are her own.
Diversity and inclusion have become the hottest buzzwords in the legal marketplace. It is encouraging to see that practitioners across the profession are finally seeing the value and benefit to creating a work force tapestry that mimics the world. The enthusiasm, however, belies the statistics and the abysmal track record of our profession. The American Bar Association’s 2020 Profile of the Legal Profession explained that white men and women are “still overrepresented,”and that there are less diverse professionals in the legal field now than there were in 2010.1 In fact, just over 2 percent of all law firm partners in the United States are African American.2 The statistics within the Offices of the U.S. Attorney and the Federal Defender, the Immigration Court, and the Federal Bench are no better. In 2020, only two of 93 U.S. attorneys were Black, and only seven were women.3 Certainly strides have been made, but in most federal courthouses across the country, practitioners can count the attorneys of color that appear frequently on one or two hands. These metrics do not come close to reflecting our federal bar family, the clients we serve, or the goals of our profession. Conceptually, people understand that race alone is not a determinative indicator of the quality or capability of any attorney. But optics matter. How do we affirm to Black men in the criminal justice system that the process is fair and objective, when almost everyone around them, including the jury, appears vastly different? What assurances can we give clients that their issues and cultural nuances can be addressed if their only options are attorneys from majority communities? In today’s climate, where corporate clients are demanding diverse representation and racial accountability in staffing their matters, how can the larger profession begin to meaningfully invest in a pipeline of diverse talent that reflects the community at large? Publicly, lawyers and law firms have touted diversity as a priority for years. But partnership and leadership metrics remain largely unchanged. Why is the success rate so low? More to the point, how can law firms attract and retain attorneys of color and groom them for
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leadership so that we are not still having this conversation in 20 years? We cannot afford to wait any longer to do something bold and meaningful in diversifying our ranks. However, to engage on this topic, namely how we got here and where we are going, requires a few ground rules be laid in your organization:
Approach the Topic With a Willingness to Listen and Learn I often hear from my white colleagues that they are afraid to discuss issues of race, particularly in a professional setting, for fear of offending, saying the wrong thing, or having their words misconstrued. In my experience, this reticence is less often an issue when the majority person is in listening posture rather than in an assertive, opinion-espousing posture. Though we all have our experiences, opinions, and politics, to engage on this sensitive and emotional topic requires all participants be willing to earnestly listen to others and approach the subject from a sense of wonder and desire to learn rather than a desire to educate. Ultimately, this requires humility and patience, traits lawyers do not always possess in abundance. Resist the temptation to lecture or opine, and do more listening.
Do Not Assume People of Color Will Do the Work Often, chairs of diversity committees, mentors to young lawyers of color, and other leaders in the diversity space are attorneys of color themselves. If they volunteer, great! If they are the best person for the job for some reason other than the color of their skin, that’s also fine. But do not assume that just because you have a Black partner, a Latinx senior associate, or a minority staff member, that person is best equipped to run your team’s diversity projects. This is problematic for a host of reasons: it saddles your minority staff with more responsibilities for which they are often not compensated, and it signals to majority team members that minority mentorship and retention is not their problem. Similarly, change on these issues cannot always be led by people of color. Leadership, specifically
white leadership, must demonstrate a commitment to enhancing diversity from the top by creating and maintaining a culture of inclusivity and open dialogue, and consistently communicate a desire to foster meaningful change throughout an organization’s ranks.
We Are More Similar Than Different This seems intuitive, but I often remind myself that despite politics, geography, racial differences, and other chasms that seem difficult to bridge, we are all more alike than we are different. As attorneys and members of the bar, we all became lawyers for a reason. We all suffered through a bar exam and struggled to overcome difficulties to become successful practitioners. These experiences bind us and allow us to connect with the most different among us and begin from a place of empathy and understanding. The tragic death of George Floyd, and the international outrage it caused, eventually filled me with cautious optimism about the fate of our nation. Never have I seen a communal willingness to have the hard conversations, to engage on the concept of race in America, and to understand the Black and minority experience in this country and in our profession. I am heartened by my white colleagues’ willingness to approach these complicated topics with humility and a real desire to effectuate change. This opportunity cannot be squandered. Law firms, but really, all of us, can make incremental changes to provide junior attorneys of color a better way forward in the profession by focusing on these areas of growth:
1. Create a Culture of Trust Younger attorneys, women, and attorneys of color need to know that their place of employment is a safe space in which they can focus on work. This is an intangible difference between majority and minority attorneys that is difficult to explain. In my experience, and through an informal polling of my colleagues of color, the added responsibility of being one of a handful of African American attorneys can be taxing. To put it plainly, in even the best, most inclusive workplaces, issues arise that require minority attorneys to endure an added level of pressure and responsibility. There are the explicit examples (note I speak only of my experiences here, but I know I am not alone): I have been mistaken for a secretary, a paralegal, a court reporter—anything but the lead attorney on my case. Once informed that I am in charge, adversaries have refused to address me and only addressed my (often white) male colleagues, whom they assumed had more authority than me, or insisted on speaking to my supervisor. On more than one occasion, colleagues felt comfortable extolling the abolition of affirmative action and preference hiring programs, asking me “won’t it be freeing to know you got the job only on merit, and not because you are Black?” For the better part of my tenure at one place of employment, judges, defense attorneys, colleagues, and other employees regularly confused me for the other African American female who worked in my department, though we look nothing alike. Then there is the implicit bias, which is harder to curb. Often, as an attorney of color, there is no presumption of competence associated with your work.4 This breeds a pervasive concern that you are being treated differently because you are a minority or female, founded or not. The internal dialogue this creates is a lot to bear, and your designation as “other” feels stark because your surroundings are constantly reinforcing the fact that you’re the only one (or one of the only). Concerns run rampant regarding all sorts of considerations
that might otherwise be innocuous in any other circumstance: your communication style (too aggressive?); your dress, hair, and personal aesthetic choices (mainstream? acceptable to the majority?); perceived slights or exclusions from social and informal networking activities (purposeful, or do they just assume I don’t like golf?); and subtle statements during performance reviews (“we’d like to see you connect/smile/ more” or “we are concerned you are not the best ambassador for our brand”). To ameliorate both the subtle and overt requires diligent modeling from the top down and a commitment to training attorneys on implicit bias, particularly majority attorneys in leadership. Consider mandating implicit bias and racial diversity training for all senior leaders. Encourage staff to speak up and report real issues and concerns, and ensure that their speaking up will not negatively impact career prospects. Create an environment that encourages people of color to speak openly about their experiences among their colleagues. Designate a senior attorney to be the go-to person to speak openly about issues that do come up, and to provide a safe space for younger attorneys to seek advice and direction on whether to escalate more serious aspersions.
2. Invest Heavily in the Pipeline Your firm or organization should be investing in its younger generation both externally and internally. For those already-hired junior attorneys of color, create an active culture for mentorship and sponsorship. Most firms already have a formal mentoring program, but consider designating a structure just for minority and female mentorships, and pair them with a non-minority attorney who has buy-in on the organization’s diversity goals. Consider tying the senior attorney’s annual review or performance goals to successful mentorship outcomes. Similarly, consider pairing young attorneys of color and women with a separate sponsor—a senior leader who would be willing to extend their capital to advocate for the junior attorney in management and performance review discussions. These informal relationships can make or break a young attorney’s success. Externally, determine whether your team can aggressively recruit outside the traditional schools and channels. If your organization does not already participate, the National Black Law Students Association (BLSA) has national and regional job fairs. Consider recruiting at law schools associated with Historically Black Colleges and Universities, like Howard University School of Law in Washington D.C. and North Carolina Central School of Law. Create strategic partnerships, scholarship opportunities, and pipeline initiatives and conduct other outreach with local BLSA chapters in your area. Offer to conduct mock interviews, let the organizations use your space, and create other informal touch points with meaningful follow-up. Let law school leadership know your firm is prioritizing diversity and wants to partner to assist in diverse recruiting efforts.
3. Mark Clear Trajectories for Success and Promotion There must be more transparency and accountability in metrics for firm success. Many firms have adjusted their associate review process to include clear requirements, guidelines, and/or parameters for financial and seniority advancement. But a promotion into partnership remains elusive. Those in power are often purposefully vague on the necessary requirements to be voted into partnership, and senior leadership rightly retains authority to consider a number of factors. However, the less transparent those metrics are, the harder it is to September/October 2021 • THE FEDERAL LAWYER • 23
instill a culture of attainability. This is true for everyone but disproportionately affects women and people of color. And it is not often intentional. Somewhat unique to other organizations, success in a law firm is partly predicated on the ability to forge quality relationships within. You need to be liked and respected in order to succeed. To be liked requires an ability to connect. Connection is harder when the person in a position of power cannot innately see and draw upon obvious commonalities. A clear, written, discernable path to partnership abrogates reliability on the intangible. Law firms would benefit from having a more transparent set of goals for associates to attain that make partnership elections objective. This would also incentivize minority associates to stay at the firm; if attorneys know exactly what they have to do and can largely rely on the promise that if they achieve the metrics, they will be rewarded, then they can build their career on those promises, rather than leaving law firms to enter government or the private sector (which largely have adopted objective metrics for advancement). There is no one-size-fits-all answer to a problem that has existed for decades. Our profession has historically been a national leader on issues of equity and advocating for what is right. There is no reason
why that cannot be the case in the diversity space. The future of our profession necessitates it. To that end, the FBA and its local chapters should continue to discuss these issues, encourage frank discourse, and push members to think of creative solutions to a problem we can work to improve and eradicate over time.
Endnotes Am. Bar Ass’n, ABA Profile of the Legal Profession 2020, at 37, www.americanbar.org/content/dam/aba/administrative/ news/2020/07/potlp2020.pdf. 2 Nat’l Ass’n for Law Placement, 2020 Report on Diversity in U.S. Law Firms 4, www.nalp.org/uploads/2020_NALP_ Diversity_Report.pdf. 3 Zoe Tillman, There Are 93 US Attorneys. Seven Are Women and Only Two are Black., Buzzfeed News ( June 28, 2020), www. buzzfeednews.com/article/zoetillman/trump-us-attorneys-lackdiversity-justice-department. 4 See Debra Cassens Weiss, Partners in Study Gave Legal Memo a Lower Rating When Told the Author Wasn’t White, ABA Journal (April 21, 2014), www.abajournal.com/news/article/hypothetical_ legal_memo_demonstrates_unconscious_biases. 1
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Increasing Diversity in Tax Law By Destiny Reese, Kostelanetz & Fink, LLP
Destiny Reese is a paralegal at Kostelanetz & Fink, LLP in Washington, D.C. She graduated summa cum laude from Spelman College in May 2021. She will be attending law school in fall 2022, pursuing business and tax law. ©2021 Destiny Reese. All rights reserved.
Unfortunately, few undergraduate and law school students aspire to become tax attorneys. This is primarily because tax law is often mistaken to be solely concerned with preparing tax returns for wealthy people or working for the Internal Revenue Service; it is seldom acknowledged for its ability to enact social, economic, and racial change. Due in part to such misconceptions, the lack of diversity in tax law persists. As Temple Law School professors Alice Abreu and Richard Greenstein assert, “[I]ndividuals who are members of racial or ethnic minorities are more likely than others to prioritize the professional pursuit of a particular subset of social values.” Thus, “the view of the tax system as the bastion of a monolithic set of values unconnected to the pursuit of values like justice could be contributing to the relative lack of diversity in the tax bar.”1 In addition to students who are racial or ethnic minorities, students who are members of other marginalized groups, such as low-income communities, the LGBTQ community, and women, are also more likely to engage in work that is considered “socially responsible” and can improve the lives of their respective communities. Dismantling perceptions of tax law as a field concerned with a “monolithic set of values” is therefore crucial to combat its lack of diversity. To put this into perspective, according to the American Bar Association, 85 percent of lawyers in the United States are white. Of that 85 percent, 74 percent are male. What this means for tax law is that white males are at the forefront of decision-making, policy-reforming, and the overall representation of U.S. taxpayers. Implicit biases affect their ability to effectively represent members of diverse demographics. As millions of taxpayers continue to face systemic racism and classism, the lack of representation exacerbates their oppression. In an effort to combat this lack of diversity in tax law, Kostelanetz and Fink, LLP (K&F) sought to recruit students from Historically Black Colleges and Universities (HBCUs) in the firm’s Pre-Law Paralegal Program for high-achieving college graduates. This spring, K&F launched an annual internship program in partnership with Spelman College, the top-ranked HBCU in the nation, that offers a paid internship to a Spelman student interested in joining its paralegal team during the spring semester of their senior year.
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This internship leads to a full-time position in the PreLaw Paralegal Program, which is a two-year program that prepares students for law school while offering a broad array of training sessions, such as Confidentiality and Security, Legal Research, Civil Litigation Procedure, and Tax Litigation Procedure. Paralegals receive 25 hours of initial formal training, followed by two additional formal training sessions every month. I am honored to have served as K&F’s first Spelman intern during spring 2021. Prior to this internship, I was one of the many undergraduate students who failed to consider a career in tax law due to widely circulated misconceptions. At K&F, I am learning about the numerous paths available in tax law, whether it be working in policy, government service, private law firms, accounting firms, or teaching or lobbying. I am also discovering many ways in which I can make an impact. I was assigned three mentors: partner Sharon McCarthy, associate Daniel Davidson, and paralegal Hannah Weinstein. My mentors, in addition to partners Claude Millman and Lawrence Sannicandro, played key roles in exposing me to both the legal field at large and, more specifically, the field of tax law. Through weekly mentorship sessions, I learned about the experiences of each of my mentors and how their unique paths led them to working at a law firm with particular expertise in tax law. I was also given the opportunity to work alongside various attorneys by sitting in on client calls and performing extensive legal research, document review, and document production. My initial training consisted of 25 hours of remote training sessions. Each interactive session was facilitated by a partner, an associate, or paralegals. Following my training, I began conducting legal research utilizing PACER and Westlaw. I worked on a pro-bono matter, a civil matter, and various criminal matters, and I was intrigued to learn about the variety and versatility of tax-related work. I also learned about the U.S. Tax Court and its Tax Trailblazers program, which is a series of monthly webinars promoting diversity and inclusion in tax law. This program, facilitated by Chief Judge Maurice B. Foley, features African-American men and women who have paved the way for other African-Americans in tax law. Programs such as this are important in
dismantling the misconception of tax law being a field concerned with a “monolithic set of values.” I attended the first webinar of the series, which took place in March 2021 and featured Loretta Collins Argrett, the first African-American to serve as the assistant attorney general in the Tax Division of the Department of Justice and the first African-American staff member of the Joint Committee on Taxation. Argrett was born and raised in Greenwood, Miss., when segregation was at its height. She was raised by her mother, who was an educator, and her father, a business owner and minister. Both of her parents were well educated, and they encouraged her to always work hard to obtain an education, and she did exactly that. At the age of 16, she attended Howard University, an HBCU in Washington, D.C., and at the age of 35, she attended Harvard Law School, where she focused on tax law. Argrett’s passion for tax law stemmed from her growing up around small Black businesses, which she believed provided economic protection to the Black families in her community. She realized that she could utilize tax law to help improve the economic status of minority communities by providing advice on tax planning. Argrett also expressed that tax law was an area that no Black women specialized in during that time, so she took on the challenge of paving the way. Argrett left listeners with two valuable pieces of advice. She said that challenges should not be feared; rather, they should be confronted with courage and a willingness to grow. She also added, “Throughout your life, different opportunities will come up; they may not be something you want to do, but you need to consider them because there is a learning experience to everything.” This advice, coupled with the words of other influential figures in tax law, speaks to the need for open minds and courageous souls within minority communities to consider careers in tax. In April 2021, I had the privilege of organizing a panel titled “Exploring Careers in Tax Law” to speak before the Morehouse-Spelman Pre-Law Society. Chief Judge Foley participated, along with Eric Hylton, former commissioner of the IRS Small Business/ Self Employed Division; Steven Dean, professor at Brooklyn Law School; and Nyamagaga Gondwe, visiting assistant professor of tax law at NYU School of Law. Echoing the advice given by Argrett, the panelists challenged students at both historically Black institutions to pursue careers in tax law by expressing the need for Black representation to combat the systemic racism embedded in our tax system. U.S. tax policies have historically discriminated against Black Americans, intensifying the severity of the Black-white wealth gap. According to the Federal Reserve, as of 2019, the average wealth of white families is $983,400, whereas the average wealth of Black families is $142,500.2 Tax breaks, for example, increase as a taxpayer’s income increases, meaning that wealthier individuals, who are disproportionately white, receive significantly more tax breaks and therefore are better equipped to build wealth than lower-income individuals, who are disproportionately Black.3 Provisions in the tax code allow taxpayers to exclude income such as employer-provided healthcare and retirement plans, inheritances, and capital gains from their tax returns.4 These forms of income are key contributors to the wealth of many white individuals, yet they are not taxed. Furthermore, a new Washington Post analysis shows that Black households pay significantly higher property taxes than white households. On average “[B]lack households pay 13 percent more in property taxes each year than a white family would in the same situation. This is because homes in predominately Black neighborhoods are in-
tentionally overvalued—a practice that originated during the Jim Crow era to drive out Black homeowners.”5 Practices such as this make it all the more difficult for Black families to own homes, which disqualifies them from tax breaks and, in turn, exacerbates the racial wealth gap. Black presence in tax law is vital to mitigating its systemic racism. To push for more diversity in this field, there must be an active pursuit to include members of ethnic and racial minority groups through engaging, educating, and mentoring. If tax practitioners prioritize initiatives such as partnerships between law firms and HBCUs and events similar to the Tax Trailblazers program, more diversity can be achieved for the benefit of all taxpayers.
Endnotes Abreu, A. and Greenstein, R., Rebranding Tax/Increasing Diversity, 96 Denv. L. Rev. 1 (2018), https://ssrn.com/abstract=3156578. 2 Neil Bhutta, et al., Bd. of Governors of the Fed. Rsrv. Sys., Disparities in Wealth by Race and Ethnicity in the 2019 Survey of Consumer Finances, FEDS Notes, (2020), (Sept. 21, 2020).https:// doi.org/10.17016/2380-7172.2797. 3 Shaun Harrison, How inequities in U.S. taxation can perpetuate systemic racism. Equitable Growth, Wash. Ctr. for Equitable Growth (2021), https://equitablegrowth.org/how-inequities-in-us-taxation-can-perpetuate-systemic-racism/. 4 See 26 U.S.C. §§ 901-989. 5 Andrew Van Dam, Analysis, Black families pay significantly higher property taxes than white families, new analysis shows, Wash. Post, July 2, 2020, https://www.washingtonpost.com/ business/2020/07/02/black-property-tax/. 1
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September/October 2021 • THE FEDERAL LAWYER • 27
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Words Matter: Understanding the Significance of Pronouns By Amy Bice Larson and Jessica Mills, Bush Seyferth PLLC
Amy Bice Larson is a partner and a member of the Diversity, Equity, and Inclusion Committee at Bush Seyferth PLLC. Licensed and active in both Michigan and Texas, she has extensive experience handling catastrophic product liability cases. She represents clients at all stages of litigation, from coordinating complex discovery as national discovery counsel for a major automotive manufacturer through representation at trial. Jessica Mills is an associate and a member of the Diversity, Equity, and Inclusion Committee at Bush Seyferth PLLC. She focuses her practice on product liability litigation and commercial litigation. Mills is on the board of directors of the Wolverine Bar Association and is the secretary of the Wayne Law Black Law Alumni Council.
Advocacy that is comprehensive yet succinct is central to the legal profession. Part and parcel to that is a command of the rules of grammar. Understanding the language used to identify the LGBTQIA+ community likewise is essential to being an effective legal advocate. According to the latest Gallup poll, 5.6 percent of adults in the United States identify as LGBT as of 2020—up significantly from the 4.5 percent in 2017.1 Within the legal field, the overall percentage of reported lesbian, gay, bisexual, and transgender lawyers increased almost 10 percent from 2017 to 2018 based on the most recent diversity report from the National Association for Law Placement.2 An attorney’s ability to properly represent these individuals depends on understanding the significance of an individual’s declared pronoun, which, in turn, requires an understanding of the terms encompassed within the LGBTQIA+ acronym3: L: Lesbian—Usually a woman whose primary sexual and affectional orientation is toward people of the same gender. G: Gay—A sexual and affectional orientation toward people of the same gender. B: Bisexual—A person whose primary sexual and affectional orientation is toward people of the same and other genders, or towards people regardless of their gender. T: Transgender—An adjective used most often as an umbrella term and frequently abbreviated to “trans.” Identifying as transgender or trans means that one’s internal knowledge of gender is different from conventional or cultural expectations based on the sex that person was assigned at birth. Q: Queer or Questioning—Historically, queer has been used as an epithet or slur against people whose gender, gender expression, and/or
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sexuality do not conform to dominant expectations. Some people have reclaimed the word queer and self-identify in opposition to assimilation (adapted from “Queering the Field”). For those people, this reclamation is a celebration of not fitting into social norms. I: Intersex—An umbrella term to describe a wide range of natural body variations that do not fit neatly into conventional definitions of male or female. Intersex variations may include, but are not limited to, variations in chromosome compositions, hormone concentrations, and external and internal characteristics. Hermaphrodite is an outdated and inaccurate term that has been used to describe intersex people in the past. A: Asexual or Aromantic—A broad spectrum of sexual orientations generally characterized by feeling varying degrees of sexual attraction or a desire for partnered sexuality. Asexuality is distinct from celibacy, which is the deliberate abstention from sexual activity, despite sexual desire. +/Plus—Other gender or sexual identities that are not already included in the LGBTQIA acronym, such as pansexual or gender-fluid. Relatedly, “Nonbinary” is used to refer to a gender identity and experience that embraces a full universe of expressions and ways of being that resonate for an individual, moving beyond the male/female gender binary.4 These identities are often communicated through the use of names and pronouns. Of late, however, the use of pronouns by members of the LGBTQIA+ community has become controversial, especially in terms of integrating less common ones into legal and other formal writing.5 The Trevor Project, a leading national organization providing crisis intervention and suicide
intervention for LGBTQ youth, has put together a list of pronouns that may be used. In order of nominative, objective, possessive determiner, possessive pronoun, and reflexive, they are: • • • • • •
She, her, her, hers, and herself He, him, his, his, and himself They, them, their, theirs, and themself Ze/zie, hir, hir, hirs, and hirself Xe, xem, xyr, xyrs, and xemself Ve, ver, vis, vis, and verself 6
Merriam-Webster and others have taken another approach. In September 2019, it added the singular pronoun “they” to refer to “a single person whose gender identity is nonbinary,” or to a person whose gender is unknown or is intentionally not revealed.7 Later that same year, that publication chose the pronoun as its Word of the Year.8 The American Dialect Society, for its part, selected the singular “they” as Word of the Decade of the 2010s.9 Such recent recognition may tend to obscure the fact that the use of the singular “they” is not new. The Oxford English Dictionary traces singular “they” back to 1375, where it appears in the medieval romance poem, William and the Werewolf.10 That poem’s “use of singular ‘they’ to refer to an unnamed person seems very modern.”11 But, according to the Los Angeles Times, “for decades, transgender rights advocates have noted that literary giants Emily Dickinson, William Shakespeare, William Wordsworth, and Geoffrey Chaucer all used singular they in their writing.”12 Perhaps building on this wider acknowledgment of the singular “they,” the U.S. House of Representatives introduced gender-neutral language in the Rules Package for the 117th Congress, which began in 2021.13 These rules include diversity and inclusion measures intended to promote LGBTQ+ rights through gender-inclusive language, which includes changing pronouns and familial relationships in the House rules to be gender-neutral.14 LGBT History Month offers practitioners a chance to consider the long-established history of usage of the singular “they,” and how it can be used to respect the gender identity of those they have sworn to advocate for. It is also an opportunity to remember that when in doubt about someone’s preferred pronoun, do not assume. Whether a client, a colleague, or a new acquaintance, the best way to confirm a preferred pronoun is simply to ask.
Endnotes Jeffrey M. Jones, LGBT Identification Rises to 5.6% in Latest U.S. Estimate (Feb. 24, 2021), https://news.gallup.com/poll/329708/lgbtidentification-rises-latest-estimate.aspx. 2 2018 Report on Diversity in U.S. Law Firms, National Association for Law Placement, Inc. (NALP) ( Jan. 2019). 3 US Davis LGBTQIA Resource Center Glossary ( Jan. 14, 2020), https://lgbtqia.ucdavis.edu/educated/glossary. 4 Id. 5 But see Chelsea Lee, Welcome, singular “they” (Oct. 31, 2019), https://apastyle.apa.org/blog/singular-they (American Psychological Association’s October 2019 endorsement of the use of the singular “they” in scholarly writing). 6 Trevor Support Center: A Guide to Being an Ally to Transgender and Nonbinary Youth (2021), https://www.thetrevorproject.org/ resources/trevor-support-center/a-guide-to-being-an-ally-totransgender-and-nonbinary-youth/. 7 https://www.merriam-webster.com/dictionary/they. 8 “They” is Merriam-Webster’s Word of the Year 2019 (2021), https:// www.merriam-webster.com/words-at-play/woty2019-top-lookedup-words-they. 9 2019 Word of the Year is “(My) Pronouns,” Word of the Decade is Singular “They” ( Jan. 3, 2020), https://www.americandialect. org/2019-word-of-the-year-is-my-pronouns-word-of-the-decade-issingular-they. 10 They, pron., adj., adv., and n. ( June 2021), https://www.oed.com/ view/Entry/200700#eid18519864. 11 Dennis Baron, A brief history of singular “they” (Sept. 2, 2018), https://public.oed.com/blog/a-brief-history-of-singular-they/. 12 Jen Manion, Opinion: The rightness of the singular ‘they’ (Dec. 15, 2019), https://www.latimes.com/opinion/story/2019-12-15/theysingular-grammar-transgender-history. 13 Pelosi and McGovern Unveil Details of Rules Package for the 117th Congress ( Jan. 1, 2021), https://rules.house.gov/press-releases/ pelosi-and-mcgovern-unveil-details-rules-package-117th-congress. 14 Anagha Srikanth, House introduces gender-neutral language in new rules for Congress, New reforms promote inclusion and diversity ( Jan. 4, 2021), https://thehill.com/changing-america/respect/diversityinclusion/532518-house-introduces-gender-neutral-language-in-new. 1
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Post-Bankruptcy Tax Attributes in the Current Environment By Richard Liebman, BDO USA, LLP
Richard Liebman is a CPA and attorney with more than 30 years of professional experience, specializing in providing federal income tax advisory services to financially troubled companies in Chapter 11 or out-of-court debt workouts. He received his B.S. in business and economics from the Illinois Institute of Technology and his J.D. (with honors) from Northwestern University School of Law. ©2021 Richard Liebman. All rights reserved.
A financially troubled business faces a multitude of challenges that impact both its immediate survival and its future financial results if it survives the immediate threat. Included among these challenges are potential federal income tax law issues. Since a struggling business typically is operating at a loss—and presumably has no income to tax—one might ask why tax issues would be relevant. A comprehensive answer to this question requires an in-depth review of the Internal Revenue Code (IRC) and the regulations thereunder, as well as various tax treatises, but this article narrows the focus to out-of-court debt workouts and bankruptcies. This much narrower focus will examine how the Tax Reform and Jobs Act of 2017 (TCJA) and the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act)1 impact the application of the federal tax law to corporations in Chapter 11 bankruptcies.
Background A fundamental concept of bankruptcy law is to encourage and facilitate the rehabilitation of financially troubled debtors, giving them a fresh start in business. A fundamental concept of tax law is that the receipt of a loan is not income subject to tax since the loan is intended to be repaid. If a loan is not fully repaid and the debt is settled for a value less than the full amount owed, the portion of the debt that is not satisfied and becomes no longer payable is considered income, which the debtor generally is required to recognize in the year the cancellation occurs (subject to certain exceptions). Such income typically is referred to as cancellation of debt income, or CODI. The question confronting Congress in 1980, when the IRC sections dealing with CODI were revised in response to the 1979 revision of the Bankruptcy Code, was how to reconcile the fundamental concepts of bankruptcy and tax law. Congress answered this question by creating a set of rules that does not subject CODI to immediate taxation but instead seeks to recover tax in the future as the business returns to profitability. These rules are intended to support a fresh start for the business in bankruptcy
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through a timing mechanism (no current taxation), while recognizing the principle that CODI is income that ultimately should be taxed (in the form of reduced tax benefits down the road). The mechanics for implementing this tax policy are found in IRC Sections 108 and 1017 and several sets of tax regulations that have the following effects: • I n specific situations, including bankruptcy, CODI is excluded from gross income. • The debtor loses specified tax attributes that would otherwise reduce future taxable income. Loss of attributes that may otherwise reduce taxable income in the future is intended to reverse the benefit of excluding CODI from income. The rules and application of the rules are substantially more complex than this simple summary may imply. Within that complexity lie traps for the unwary debtor but planning opportunities for a well-advised debtor. Absent proper and timely analysis and planning, a debtor corporation reorganizing out of court or in a Chapter 11 bankruptcy proceeding may find itself paying more income tax post-reorganization than would have been the case had an analysis and planning been undertaken sufficiently early in the process. With this brief background, we will now turn to two aspects of the TCJA, which, while not amending the tax law referred to here, could have a negative impact on the reorganization of corporate debtors. This discussion will also address certain tax law changes made by the CARES Act.
Net Operating Loss Carrybacks A net operating loss (NOL) is the excess of tax deductions over taxable income for a tax year. Taxable income and tax liability must be computed on an annual basis. Cumulative taxable income over a period of years may be less than taxable income in one or more individual years due to NOLs in intervening years. As a rough justice form of income averaging over time, the IRC has allowed NOLs to be carried back for a limited number of years to offset taxable income in those
years, generating refunds of tax paid on the taxable income. The law also allowed any NOLs not carried back to be carried forward to offset taxable income in years after an NOL was generated. Prior to the TCJA, NOLs could be carried back for a maximum of two years from the year in which the NOL was generated, and the carryforward period was a maximum of 20 years. Any NOL not used in this period expired. The TCJA changed the carryback and carryforward rules in three ways—by eliminating the carryback of NOLs, making the carryforward period unlimited, and limiting the amount of NOL carryforwards that could be used to the lesser of the NOL carryforward to that year or 80 percent of taxable income for that year. For calendar year taxpayers, these changes became effective Jan. 1, 2018. NOL carryforwards generated before the effective date of the TCJA (before 2018 for calendar year corporations) remain subject to the 20-year carryforward and can be used free of the 80 percent of taxable income limitation. The CARES Act made temporary changes to the TCJA by eliminating the 80 percent limitation for tax years beginning before 2021 and allowing NOLs generated in 2018, 2019, and 2020 to be carried back for up to five years. Beginning in 2021, NOL carrybacks are once again not allowed. Eliminating the NOL carryback may be a reasonable policy choice in the context of businesses that are generally profitable with only startup NOLs or occasional operating NOLs to be used over time and without risk of expiration. Under the TCJA, a corporation experiencing financial distress after a period of profitable tax-paying years cannot utilize its losses to reduce taxes paid in earlier years. Given the negative economic impact of the coronavirus pandemic, maximum liquidity is needed quickly by business taxpayers. Congress recognized this when the carryback was temporarily reinstated and expanded by the CARES Act. The hope is that the pandemic will end (or at least be brought under control) sometime in 2021, and when the economy returns to some form of normalcy, so too will the NOL rules as adjusted by the TCJA. The question is, should NOLs of financially distressed corporations be allowed to be carried back for a period of tax years to help with financial rehabilitation? Regardless of whether financial distress is caused by a pandemic or another reason, a corporation in financial distress needs immediate liquidity to help it survive. As evidenced by the CARES Act, tax refunds can be an important source of liquidity supporting a recovery by creditors and the debtor’s return to profitable tax-paying operations.2 To eliminate the need to define and measure “financial distress” for this purpose, the NOL carryback could be made available only for NOLs generated while a corporation is in bankruptcy. While this may appear to offer an incentive for bankruptcy filings, there are sufficient drawbacks to a bankruptcy filing—including the cost of the bankruptcy process, the potential loss of control within the process, and additional complexities outside of normal operations—such that allowing bankrupt companies to benefit from NOL carrybacks should not lead to bankruptcy filings that would not have been undertaken in the absence of an available NOL carryback. Also, the carryback period could be limited to two or three years so that only companies that fell from profitable tax-paying operations into Chapter 11 and NOLs could benefit from the carryback. Such a change would be consistent with the policy of helping debtors obtain a fresh start and recover from financial distress. The change also would
be consistent with the concept that CODI that is not taxed should result in increased tax in the future. This is true because even if NOLs that might have been reduced by excluded CODI are carried back instead, there are usually other “tax attributes” to reduce, such as capital loss carryforwards; the tax basis of debtor property, including basis in depreciable or amortizable property; and tax credit carryforwards subject to reduction by excluded CODI.
Interest Expense Deductions Interest expense incurred by a corporation is generally deductible when computing taxable income subject to various rules, which, when applicable, either defer or disallow the deduction in whole or in part. One such rule, enacted by the TCJA, limits the deduction of net business interest expense (interest expense less interest income) to 30 percent of adjusted taxable income (ATI). The concept of ATI can be complex, but it is generally taxable income with interest expense, taxes, depreciation, and amortization added back. Only interest expense and taxes will be added back for this calculation starting in 2022. The CARES Act increased the 30 percent factor to 50 percent for taxable years beginning in 2019 and 2020. There is no grandfathering for interest on debt incurred prior to the introduction of the TCJA. Any interest deduction not currently allowed becomes an interest expense carryforward, which may be deducted in the future, subject to this limitation and any other limitations that may apply.3 The IRC specifies seven categories of tax attributes that are to be reduced by CODI excluded from income, and the order in which these categories are to be reduced is as follows: • • • • •
NOLs General business credits Minimum tax credits Capital loss carryovers Tax basis of property (including subsidiary stock, where applicable) • Passive activity losses and credit carryovers • Foreign tax credit carryovers If NOLs are insufficient to offset all the excluded CODI, the process moves to general business credit carryovers. If this amount is less than the remaining CODI, the process moves to minimum tax credits and so on until all of the CODI has reduced one or more tax attributes. If there is more CODI than total tax attributes available for reduction, the excess CODI is permanently eliminated without a corresponding reduction in attributes. Attributes can vary by taxpayer since not every bankrupt corporation will have all seven tax attributes. In many bankruptcies, the available tax attributes are primarily NOLs and tax basis of property. Note that the disallowed interest expense deduction carryforward discussed above is not included among the tax attributes against which excluded CODI can be offset.4 The deductibility of interest expense on debt obligations that are subject to compromise during the post-petition period has been controversial. The IRS now seems to accept such deductions, except for the year of bankruptcy plan confirmation. When there is no NOL carryback, accruing and deducting such interest expense will increase an NOL for the year and increase the amount of CODI when the interest is forgiven as part of the bankruptcy. As noted, September/October 2021 • THE FEDERAL LAWYER • 31
there currently is a five-year NOL carryback for NOLs generated in 2018, 2019, and 2020, so deducting interest expense in one or more of those years, to the extent the deduction is not limited, may increase the carryback and tax refund, offset by the reduction of a tax attribute, which may not be an NOL when the accrued but unpaid interest is forgiven as part of the bankruptcy plan. Another question is whether interest that is not deductible will increase CODI when it is forgiven as part of the bankruptcy plan. If so, this will add to NOL attribute reduction, leaving the limited interest expense carryforward unreduced. Given the ATI limitation, the interest expense carryforward may be of less utility than the NOL carryforward. This is of greater concern if the NOL carryforward reduced due to this additional CODI is pre-2018 NOL, which is not subject to the 80 percent annual limitation. On initial examination, the answer to the question appears to be that CODI is increased. Such accrued and unpaid interest is almost always a liability of the debtor in addition to the principal, so that when the total of principal and accrued interest is satisfied for less than the full amount, the difference is CODI. When some additional elements of tax law are considered, however, the answer to the question is less clear. First, the “tax benefit” doctrine may apply. This doctrine found in several court cases posits that since no real tax benefit was obtained, nonpayment of this interest should not result in CODI. Second, IRC Section 108 (e)(2) provides that no CODI exists if the liability in question would have given rise to a deduction when paid. Third, CODI created by such accrued interest expense may be considered a form of interest income that can net against the previously disallowed interest carryforward, resulting in a deduction that may increase an NOL for the year of the bankruptcy
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32 • THE FEDERAL LAWYER • September/October 2021
plan confirmation. Absent statutory or regulatory direction by Congress and Treasury, respectively, the determination of which of these arguments may be of assistance remains open to debate. Another approach to dealing with the disallowed interest expense carryforward would be to include this tax attribute in the statutory list of tax attributes subject to reduction by CODI excluded from income. Adding an election to allow the debtor to determine if the interest tax attribute would be reduced before NOLs, or pro rata with NOLs, would allow debtors to obtain the maximum benefit afforded by the fresh start principle. Precedent already exists for such an election because current law allows a debtor to either follow the statutory ordering of attribute reduction previously discussed or, at the taxpayer’s election, to reduce the tax basis of depreciable property first, which generally has the effect of preserving more NOL carryforward than if the NOLs were reduced first. This flexibility is important since, in some cases, future depreciation deductions may be less valuable than a larger NOL carryforward. Similar flexibility with respect to the disallowed interest carryforward would be helpful in facilitating a financially troubled debtor’s fresh start.
Endnotes Tax Cuts and Jobs Act, Pub. L. No. 115-97 (2017), Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 (2020). 2 For example, the author had a client in Chapter 11 prior to the TCJA where the NOL carryback generated tax refunds that enable the unsecured creditors to receive a substantial recovery, which would not have been possible without the carryback and refund. 3 I.R.C. § 163(j). 4 I.R.C. § 108(b). 1
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Judicial Profile
Hon. Scott J. Laurer
Judge, U.S. Court of Appeals for Veterans Claims by Briana Tellado Briana Tellado is a legal editor at the Court of Appeals for Veterans Claims. She previously clerked for Hon. Michael A. Toto of the Superior Court of New Jersey and served 10 years in the U.S. Army Judge Advocate General’s Corps.
J
udge Scott J. Laurer’s career—in fact, his entire life—has been shaped by one tenet: service before self.1 From his childhood home where the older siblings watched out for the younger ones and the parents took care of the grandparents, through his accomplished career as a Navy judge advocate, to his current position as a judge, he has exhibited selfless service. Born as the third of seven children, he grew up in the historical town of Woodbury, N.J.. In this small town of about 10,000 people,2 British General Lord Cornwallis planned the advance on Philadelphia. Founded in 1683, the town played a key role in the Battle of Red Bank, where roughly 600 American colonists defeated over 6,000 Hessian troops during the Revolutionary War. His childhood was reminiscent of the Adventures of Tom Sawyer, exploring the town’s lakes and waterways, fishing, and playing with friends. In the historical 18-room Victorian house in which he was raised, there was always something going on. Judge Laurer enjoyed growing up in a big family because it allowed him to lead and to follow. His family relied on teamwork, whether it was going to church, to school, or on a family vacation, everything was like a team operation just to get everyone ready. The older children would help with the younger children, so he walked his four younger siblings to and from elementary school. Then, later on, two of his grandparents lived with the family—first his maternal grandfather, and later his paternal grandmother. His upbringing, focused on family and faith, stressed service before self. He loved his country, his family, and history. His father served in the Navy during the Korean War era, and his uncle served in the Army in Vietnam. His maternal grandfather worked as a claims investigator for the Yellow Cab company in Philadelphia. He worked with attorneys and talked about his work with the family. Woodbury is the seat of Gloucester County, where the courthouse is, so there were always lawyers around town. When he completed a survey in high school to identify his career interests, he filled it out as candidly as he could, and the top profession recommended for him was attorney. The seed was fully planted. It never changed,
34 • THE FEDERAL LAWYER • September/October 2021
and he still really likes being an attorney. As a college student at Rutgers University-New Brunswick, he majored in political science. He spoke to a Navy recruiter, asking if it would be possible to attend law school part time while serving in the Navy. The recruiter advised that in the Navy, it was unlikely that he would be stationed in one location long enough to complete a law degree. Judge Laurer’s first goal was to become a lawyer, so he went to law school instead. While at Temple University School of Law, he learned for the first time that a person could be an attorney in the Navy. One day, he saw people in military uniforms in the student lounge, who he later learned were judge advocates. In an era before the internet, even the Navy recruiter he spoke to knew little about the Navy Judge Advocate General’s ( JAG) Corps. This was four years before the JAG television show and even before the movie A Few Good Men came out, where Tom Cruise played the leading role of a Navy judge advocate defending two Marines accused of murder. In Judge Laurer’s second year of law school, he applied to and was accepted into the Navy JAG Corps Student Program.3 He was commissioned as an officer in the inactive Navy Reserve at the rank of ensign. After law school and passing the bar exam, he would need to serve three years as a judge advocate.
After finishing his second year of law school, he spent most of the summer attending Navy Officer Development School. During his third year of law school, he performed short periods of active duty for training at Naval Base Philadelphia, working at the legal service office and with the staff judge advocate for the commander of the naval base. After graduating from law school, he studied for the New Jersey and Pennsylvania bar exams while working at the naval base again for pay and legal experience. In November, after he learned that he had passed the Pennsylvania bar exam, he was ordered to report to the Naval Justice School in Newport, R.I., in January. There, he spent three months with a class of new judge advocates in the Navy, Marine Corps, and Coast Guard, learning about military justice, civil and administrative law, and legal assistance. The Navy ordered Judge Laurer to report to Naval Legal Service Office San Francisco for his first duty station. His first position (the Navy calls them billets) would be as a trial counsel (Navy prosecutor). He had been dating his then-girlfriend for two years. He knew he didn’t want to go to San Francisco without her, so they got married after he graduated from the Naval Justice School. So my initial commitment was for three years and I wound up serving 30. My wife would frequently tease me and remind me how I told her I was going to do my three years and get out, but she’s been my biggest supporter throughout. She deserves a lot of credit. She had never been west of Pittsburgh before we got married, and we wound up globetrotting all over the place. Why did he end up serving 10 times longer than he at first agreed to? “The Navy was more interesting, fun, and satisfying than I ever imagined.” For his second billet, he was sent to Naval Special Warfare Group One in Coronado, Calif., where he served as the judge advocate for all the West Coast and Pacific SEAL teams. He deployed on missions and exercises with the SEALs, and his commander sent him through the Army’s airborne training at Fort Benning, Ga., where he was the only judge advocate in the class. But why does a Navy lawyer need to know how to jump out of Army airplanes? “The commander sent me not because I was likely to parachute in anywhere, but it was helpful in reviewing a high number of parachute mishap investigations. I learned to understand the terminology and process and procedure for jumping.” About a decade into his career, the Navy selected him to attend civilian postgraduate school. He earned his LL.M. in international and comparative law at George Washington University Law School. It was his first time being a full-time student without having another paid job. “Our daughter was born that year, so it was great both professionally, being able to attend graduate school at the government’s expense, then having sort of flexibility as a student in terms of time and how you can spend it.”
Throughout his distinguished Navy career, Judge Laurer was stationed overseas in Japan, Germany, and Italy. He learned some of the local phrases in every foreign country he lived in, but he really embraced the chance to study the German language while in Germany. He got to live among civilians in the town his paternal grandparents emigrated from in the early 1920s. After work, he attended German language classes two nights a week at a local volkshochschule, which offers evening courses for various age groups in many subjects. He remains conversant in German today. But being a Navy lawyer wasn’t all fun and games. While he got the chance to travel to some exotic locations, he made more than his share of sacrifices. He first experienced challenging living conditions while serving with the Naval Special Warfare Group. During those deployments, he usually stayed in tents in austere conditions. He learned the importance of covering his boot openings with socks when he wasn’t wearing them. Otherwise, his foot would be greeted by an uninvited guest when he put his boots on. Judge Laurer’s next deployments were aboard the USS Blue Ridge, the command and control flagship for the U.S. Seventh Fleet, which sailed from Japan. His stateroom (what civilians call a bedroom) was located right below the helicopter flight deck. Before that, he considered himself a light sleeper. But it sounded like the crew was always intentionally dragging the chains and dropping the chocks above him. His room on his next seagoing deployment wasn’t much better. Aboard the aircraft carrier USS Abraham Lincoln, his stateroom was right below one of the carrier’s jet blast deflectors. When aircraft took off from the ship, the rumble from the jet blast deflectors would shake his books off the shelf as the aircraft were catapulted into the air. These were his accommodations, on a ship in the Persian Gulf, shortly after 9/11 happened and changed the strike group’s scheduled operations. His deployment began in support of Operation Enduring Freedom and Operation Southern Watch. “We were actually on our way home when we were ordered back into the Persian Gulf for Operation Iraqi Freedom.” What was scheduled to be a six-month deployment turned into 10. At the time, it was the longest deployment for an aircraft carrier since Vietnam. Judge Laurer and his wife expected him home in January 2003, in time for his son’s birth in March. But the mission came first, and his son came early. When he returned to the states in May 2003, his son was almost three months old. Later, as a senior Navy attorney, he volunteered to go to Afghanistan for a year. He first slept in a tent but was later upgraded to a CHU (containerized housing unit, like a metal shipping container). Because of his international law LL.M. and his experience serving in the Office of the Chairman of the Joint Chief of Staff as deputy legal counsel, where his duties included the international agreements portfolio, he was ultimately assigned as the special legal advisor to the commander of the InternaSeptember/October 2021 • THE FEDERAL LAWYER • 35
Left: U.S. Navy Captain Laurer (center) accompanying U.S. Marine Corps General John Allen (left), who was then-commander of the ISAF and USFOR-A, during his visit to Bagram Airfield in Afghanistan. Below: USS Abraham Lincoln homecoming to Naval Station Everett, Wash., with Judge Laurer’s two children.
tional Security Assistance Force and U.S. Forces-Afghanistan, where he drafted and helped negotiate the Bilateral Support Agreement between the United States and Afghanistan. Other high-profile billets included serving as the special counsel to the chief of Naval Operations and the commanding officer of U.S. Region Legal Service Office for Europe, Africa, and Southwest Asia. For what turned out to be his last active-duty assignment, the Department of Defense detailed him to serve as the deputy legal advisor to the National Security Council at the White House. The then-deputy national security advisor described the experience as being “like a deployment with a commute.” Judge Laurer agrees. “You’re working typically 12-plus hour days and frequently on weekends.” It was during this assignment that he developed close working relationships with attorneys from the Office of White House Counsel. In the second year of his detail, he was asked whether he was interested in a judicial appointment to the U.S. Court of Appeals for Veterans Claims. “It wasn’t something I was even considering,” he recalls. “I wasn’t seeking a judicial appointment at the time. There wasn’t much explanation other than, ‘Hey, we think you’d be a great fit for this court.’” In 1988, the Veterans’ Judicial Review Act4 established the U.S. Court of Veterans Appeals. Located in Washington, D.C., the court was renamed the U.S. Court of Appeals for Veterans Claims (CAVC) in 1999.5 As a court 36 • THE FEDERAL LAWYER • September/October 2021
of record established under Article I of the U.S. Constitution, the CAVC is part of the U.S. judiciary and is not part of the Department of Veterans Affairs. Out of the court’s nine active judges, six of them are military veterans.6 The court also has 10 senior judges, four of whom are currently acting in recall status7 to help with the court’s increasing docket. The judges are appointed for 15-year terms. The CAVC has exclusive jurisdiction to review final decisions from the Board of Veterans’ Appeals concerning veterans benefits, including disability compensation, the G.I. Bill, pensions, burial expenses, survivor benefits, home loans, and eligibility for VA health care. The court also hears petitions for writs of mandamus. Appellants who prevail at the court may file a motion for attorney fees pursuant to the Equal Access to Justice Act.8 Appellants who do not prevail may appeal to the U.S. Court of Appeals for the Federal Circuit.9 The Federal Circuit first recognized the CAVC’s authority to certify class actions in 2017,10 and the CAVC published its new class action rules11 on Veterans Day in 2020. The court receives nearly 900 appeals per month,12 on par with the Supreme Court.13 Unlike the Supreme Court, the CAVC cannot refuse to hear any appeal by denying certiorari. The first step to becoming a judge was for then-Captain Laurer to complete an interview at the White House before a panel of seven White House and other agency attorneys. The timeline for becoming a federal judge is not set in stone, so he notified the Navy of his plans to retire. “I waited anxiously for the president’s official announcement regarding his intention to nominate me because in the military, you can’t just retire with two weeks’ notice.” After President Trump announced his intention to nominate Judge Laurer for a judicial appointment in late August 2019, his nomination was sent to Congress. In the meantime, he was subjected to what he calls “extreme vetting” through financial disclosure reporting and an FBI background investigation, which was even more detailed than the investigations required for his security clearance. Judge Laurer and the court’s other new judge, Judge Grant Jaquith, attended their combined Senate Veterans’ Affairs Committee hearing on Nov. 6, 2019. Two days later, Captain Laurer retired after serving nearly 30 years on active duty with the U.S. Navy JAG Corps. He was glad to have his parents at his retirement ceremony, especially because his father was himself a Navy veteran. Although Judge Laurer would not recommend changing careers in the middle of a global pandemic, his priority was assembling a chambers team with experience and knowledge in veterans law. He felt comfortable and knowledgeable about the practice of military law,
and national security law specifically, but had a lot to learn about veterans law. Three of the law clerks he hired have over 18 years of combined veterans law experience. Even the clerk who is a recent law school graduate had completed an internship with the National Veterans Legal Services Program.14 He also sought a confidential assistant with relevant experience and chose a former confidential assistant to the chief judge of the Court of Appeals for the Armed Forces, another Article I court. His confidential assistant is also a retired Navy chief petty officer legalman (paralegal). He is grateful to everyone at the CAVC family, who he says made his transition as seamless as possible, and he especially praises the court’s development and execution of its continuity of operations plan. Everybody had practiced teleworking with the required technology, so when the time came to work remotely, the court didn’t miss a beat. The court has been working remotely for over a year and now holds all oral arguments through Zoom, which are live streamed over YouTube.15 Teleworking can be challenging at times, he admits. For example, he was holding an oral argument earlier this month when his internet connection quit. The argument was paused for a few minutes until his connection came back. Holding online interviews for his chambers team was also less than ideal, but he credits the court’s human resources team for exceeding his expectations in casting a wide net to harvest an exceptionally talented group. Even though he has been deciding cases at the court since September 2020, Judge Laurer’s chambers team met in person for the first time in March 2021, when he swore in one of his law clerks as an attorney. Still, he tries to foster a chambers where everyone can trust each other and collaborate openly. He also welcomes diversity of experience and thought. “Collectively, you can accomplish the mission in a way that you could never do with a group of individuals working on their own.” During chambers update meetings, his team often starts off with an icebreaker, such as “Would you rather?” or “Introduce your pet.” Judge Laurer also tries to keep himself approachable by not taking himself too seriously, such as when he wore a garish red, white, and green suit to the CAVC virtual holiday party. He has learned in the Navy that being a good mentor and supervisor means being there for people when they need you,
sincerely caring about them, their careers, and their personal lives. He’s also committed to honesty. In the Navy, for example, he told his colleagues that if they wanted to remain competitive for promotion, they had to do certain jobs. “It’s not all necessarily the exciting stuff,” he said. There are some jobs that people may consider unpopular or less exciting, like working at the Pentagon in a windowless office. When asked what makes a good judge, Judge Laurer reflected that he strives for legal ability, sound judgment, and composure. He thinks his military leadership experience has translated well into managing chambers because it really is a team or unit. He prides himself on his commitment to continuous improvement, described by the Japanese as kaizen, which means never being satisfied with “good enough” because “Our veterans and their family members deserve no less than that.” Judge Laurer seeks to reach the right legal decisions. But he’s also aware of the timeliness factor. “Justice delayed is justice denied for a lot of these veterans. Particularly in their later years, that becomes a key factor.” His favorite part about his new job as a judge? “The mission—making sure that veterans and their families get the benefits that they deserve. It’s the thing that makes me excited to get out of bed in the morning.” He’s also privileged and honored to lead his extremely talented chambers team. Finally, he enjoys the newfound judicial independence. “Coming from the executive branch and the Department of Defense in particular, where it’s very structured and hierarchical, to now being one of nine judges, is really cool.” Judge Laurer has participated in several panel decisions of the court, which are decided by three judges, but most of the court’s opinions are single-judge memorandum decisions. For his first en banc case, he and Judge Jaquith are sharing writing responsibilities. He is inspired by the writing of Justice Antonin Scalia, who said: “Originalism is the only game in town—the only real, verifiable criterion that can prevent judges from making the Constitution say whatever they think it should say.” He also strives to write concisely in a way that every veteran can understand. Given the number of pro se claimants, and even if they are represented, it’s the veteran who is the claimant and we always have to remember to speak continued on page 43
Judicial Profile Writers Wanted
The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to Lynne Agoston, managing editor, at social@fedbar.org.
September/October 2021 • THE FEDERAL LAWYER • 37
Judicial Profile
Hon. Janis van Meerveld
U.S. Magistrate Judge, Eastern District of Louisiana by Peter M. Mansfield
G
Peter M. Mansfield has litigated in private and government practice in New Orleans for the past 18 years. He is currently on the FBA’s editorial board.
reat bodies of water shape, define, and bind the Greater New Orleans area. The Mississippi River meanders with gentle, crescent-shaped bends and curves in its southern-flowing march to the Gulf of Mexico. Lake Pontchartrain, the second largest saltwater lake in the United States, borders to the north, providing horizon-touching scenic beauty and recreation alongside its ever-present threat of Gulf-fed flooding. Culturally, the area is an international gumbo, with French, Spanish, Irish, Italian, African American, Caribbean, Native American, Creole, Cajun, Greek, and Vietnamese influences permeating its food, music, and people. Given that context, it is particularly appropriate that an internationally raised federal jurist with a Dutch last name meaning “of the lake fields”1 would end up living, practicing, and eventually judging in the water-encased mashup of New Orleans. And like that inimitable city, U.S. Magistrate Judge Janis van Meerveld of the Eastern District of Louisiana is a product of varied influences and life experiences. She’s held (or still holds) a number of titles: immigrant, naturalized citizen, emergency medical technician, litigator, Biglaw partner, wife, mother, grandmother, globetrotter, multi-linguist, cancer survivor, hurricane evacuee, fitness enthusiast, fine-arts aficionado, nonprofit board chair, author, mentor, teacher, mediator, and, of course, federal judge. To be sure, her biography isn’t lacking the many accomplishments in life that one is accustomed to find in a federal judge’s profile. But that’s just part of the story. Her full tale also includes major, even life-threatening, adversities and countless instances of unseen impact and influence on young, vulnerable, and overlooked individuals in the New Orleans community and bar. But the story first starts across the Atlantic Ocean, with Dutch and English immigrants to Canada.
Before the Bench Judge van Meerveld was born in Toronto to a Dutch father, Jan, who had emigrated from Zunderdorp, the Netherlands, and a London-born mother, Kathleen Casey. Jan and Kathleen had two other girls, Karen 38 • THE FEDERAL LAWYER • September/October 2021
and Kristen. Unfortunately, Kathleen succumbed to breast cancer when the three girls were still young. Jan remarried a New Orleanian, Joy Maria Boudreaux, and eventually had a fourth child, a son also named Jan. A number of international moves bookmark Judge van Meerveld’s early years—first to Hamburg, Germany, at age 2, then to New Orleans at age 5, eventually landing for the longest stint in Brussels at age 8, where Jan worked for the Dole Food Company in international fruit imports. While overseas, she mastered French and picked up conversational Dutch. She also studied German and Spanish. Anticipating another imminent overseas move, Judge van Meerveld attended the International School in Brussels. But the next international move did not occur until she left Brussels and returned to New Orleans to attend Newcomb College of Tulane University. At Tulane, Judge van Meerveld studied international relations. As a weekend night job, she drove an ambulance as a licensed emergency medical technician for Charity Hospital in downtown New Orleans. As she later recalled, “It was pretty wild. I delivered three babies before I was 21—one at home in bed, one in the back of the ambulance, and one on the floor of a grocery store.”
Despite those experiences (or, perhaps, because of them), a career in medicine was never the plan. As an undergrad, Judge van Meerveld always had an eye toward law school, aspiring to an eventual career as a diplomat. She left New Orleans for law school at Boston University, but like the song Louis Armstrong and Billie Holiday made famous,2 she immediately missed New Orleans and returned to Tulane after her 1L year. New Orleans has been her home ever since.3 As a law student, the eventual federal judge appeared in federal court for the first time. She arrived not as an advocate or for moot court, but to become naturalized as a U.S. citizen. “I had no inkling then that I might one day work in that building as a United States Magistrate Judge,” she recently shared. The judge remembered the solemnity and importance of the event, but also a humorous anecdote: “I was introduced by the staff as Janis van Meerveld from ‘Cambodia’ instead of Canada. Everyone looked at me in amazement. I just smiled and took the oath and the certificate anyway! It must have all been legal and valid because in 2016, I went through a pretty exhaustive FBI background check and here I am.” Despite participating in international moot-court competitions in law school, Judge van Meerveld lost interest in a career in international diplomacy. She turned her attention to law firms in the New Orleans area, eventually joining the general-litigation group of Adams and Reese, LLP, a National Law Journal and American Lawyer top 200 lawfirm.4 While “Biglaw” has become a pejorative term in some circles, Judge van Meerveld enjoyed the “mentorship, experience, expertise, and wisdom that was readily available next door, down the hall, or in another regional office.” She continued: “Varying perspectives and opinions are also really useful because the practice of law is an art, not a science; there are almost always strategic choices to be made in how to proceed.” While in private practice, Judge van Meerveld began litigating maritime cases, but eventually developed a client-base and expertise in defensive employment litigation. This practice also included non-litigation-based employment work, like preparing or revising handbooks, training employees, and counseling clients on federal laws and termination issues. But it was her original stint in maritime practice that had the greatest impact on her personal life. In 1993, the same year she made partner at Adams and Reese, Judge van Meerveld married Charlie Cerise, another New Orleans-based maritime defense lawyer. As she related the meet-cute story: “We actually met on a maritime personal injury case representing co-defendants. The out of town treating physician said he wouldn’t operate on the plaintiff, but then he did. We had to re-depose him. That one-hour car ride together was all it took!” Though Cerise eventually joined Judge van Meerveld in partnership at Adams and Reese, their respective practice areas diverged. But that’s not to say there was a
strict separation between work and home life: “Charlie was then and is still now a great resource for me. We both love the law, love litigation, and are perfectly happy hearing about each other’s cases, helping strategize, commiserating, whatever.” The couple has found mutual support in their common professional calling: “I actually think this job would be much harder if your mate didn’t understand the pressures, the issues, the personalities, the hours, and the deadlines,” she observed. They are proud parents to two sons: Andrew, a graduate student in history at the University of Chicago, and Robert, a junior at Boston College, who plans to continue the family tradition in law. The judge also has a stepson, Adam Cerise, who is a general surgery resident and, with wife Maggie, is raising the judge’s two “hilarious” grandchildren. Since her employment law practice was largely in federal court, Judge van Meerveld appeared frequently before U.S. magistrate judges in settlement conferences. Through those experiences, she began to inventory her skillset as an attorney against that of an effective jurist. “I admired the judges and liked their role in the court system,” she shared. “I also thought I’d be good at it. I’m fair and even keeled; I can see both sides. Having been a litigator for so long, I understood the parties’ needs, but also the lawyers’ needs, and the system’s needs. I was always on the hunt for practical, cost-effective solutions.” But that’s not to say that the road to the bench in New Orleans was quick or easy—from the time she first considered a future with the court, “a magistrate judge job did not open up in New Orleans for almost 15 years!” Also, by 2016, Judge van Meerveld had to wind down nearly three decades in private practice. She reflected: “I was not eager to leave my practice. I really enjoyed being an advocate, and I was developing a significant book of business which was fun to grow.” But, ultimately, “the draw of the federal judiciary was even more attractive.” Judge van Meerveld took her judicial oath on July 29, 2016.5
Judge van Meerveld and family in historic Jackson Square in New Orleans, July 2021.
September/October 2021 • THE FEDERAL LAWYER • 39
Overcoming Obstacles The patience and perseverance necessary to reach a federal judgeship in New Orleans was likely second nature to Judge van Meerveld by 2016. Her life and career have been marked by overcoming adversities. She readily admitted that “[t]he work life balance issue is a hard one for professional women” at law firms. After tying to juggle a household of two small children and two law-firm partnerships, Judge van Meerveld went “part time” for a while. But, she cautioned, “I put ‘part time’ in quotation marks because it was only ‘part time’ by Biglaw standards. You take an enormous pay cut and damage your career path for what is usually a pretty modest reduction in hours.” The judge cited “long hours, inflexible schedules (without a business justification for keeping them inflexible), traditional notions, and im-
plicit biases about working mothers” as factors that “are proving very hard to overcome; the statistics bear this out.” The judge has incorporated her own experiences and analysis into regular lectures to lawyers on implicit bias, “hoping to get people to start thinking differently about some important issues holding back women and people of color.” The judge has overcome obstacles not just to her livelihood, but to her very life. In 2000, she tested positive for a gene mutation indicating a substantially heightened risk for breast cancer, which had taken her mother’s life. Despite prophylactic surgery, she was found to have breast cancer and underwent preventative chemotherapy that year. Another tumor developed in the chest wall in 2005. In August of that same year, Hurricane Katrina struck the Greater New Orleans area, requiring a twomonth-plus relocation to Baton Rouge, La. Judge van Meerveld was lucky that her house avoided the catastrophic flooding that affected most streets in her city, but continuing chemotherapy and starting radiation for cancer in post-Katrina chaos carried its own challenges.6 Cancer returned a third time in 2009. While Judge van Meerveld was fortunate each time to have avoided any metastasis, this good news was tempered when breast cancer claimed the life of her older sister, Karen, in 2010 at just 51 years old. Reflecting on these events, the judge reported, “I’m pleased to advise I have been cancer free since 2009, though I am extremely vigilant. I take excellent care of myself, eat right, and I exercise a lot; at least once a day, but often twice.”
Discharging Duties
Top: Judge van Meerveld and family at the Fushimi Inari Taisha Shrine, Kyoto, Japan, 2017. Bottom: Judge van Meerveld and family at Peterhof, St. Petersburg, Russia, 2018.
40 • THE FEDERAL LAWYER • September/October 2021
Like most jurists who grace these profiles, Judge van Meerveld considers it “an honor and a privilege” to serve in the federal judiciary. But she particularly credits her “gifted, generous, and collegial” colleagues on the Eastern District of Louisiana bench: “Our judges readily share their experience, guidance, and wisdom. All the judges work well together and show mutual respect.” Those warm feelings about her fellow jurists are reciprocated. Eastern District of Louisiana Chief U.S. District Judge Nannette Jolivette Brown commented, “It is such a pleasure to work with Judge van Meerveld. I have known her for over 30 years. She brings the same energy and commitment to the bench as she did to her clients in her private practice. Her diversity in thought and practice serves the legal community well from whichever side of the bench she appears.” Judge van Meerveld is also effusive in her praise of the local bar. She noted, “It’s big enough to be varied and interesting, and small enough to know a lot of the frequent flyers and develop relationships with numerous lawyers.” She further praised the “high degree of competence too—lots of good lawyering, good brief writing, and a high degree of professionalism.” The Eastern District of Louisiana’s five full-time U.S. magistrate judges are all on the assignment wheel for new civil and criminal cases. Thus, all five work with the 14 district court judges. Like other districts, local
rules in the Eastern District of Louisiana automatically refer certain non-dispositive motions to the assigned magistrate judge.7 Judge van Meerveld estimates that she spends anywhere from a quarter to a third of her time conducting settlement conferences, usually around 120 a year. “I really enjoy my settlement function and I’m extremely invested in my settlement conferences,” she said. She reads required preconference position papers long before the conference, and seeks further detail and clarification from the parties in advance if necessary. In the conference itself, she first invests time just listening: “I know it is an important part of the process for the parties to feel heard so I allow them to tell me their story for quite a while. That way, too, they don’t think I prejudged everything and walked in with my mind made up about winners, losers, value, and the like.” But she’ll frequently pivot to a more evaluative model: “The impact of the ‘black robe’ is palpable on the litigants when trying to reach a resolution. A mediator can tell a party she has a weak case; it’s far more powerful coming from a judge.” The judge also utilizes organizational charts she’s developed for complex cases: “I started out creating the charts for myself, but they are so useful I now print everyone a copy and hand them out at the settlement conference.” She continues to broker further negotiations in almost every case that doesn’t resolve in the first session. Judge van Meerveld takes a hands-on approach to her motion docket as well. As she shared, “I hold oral arguments in most of the motions that get filed with me. I know from experience that litigators want court time; so do I.” She invests time preparing for motion hearings and expects the same from counsel. The biggest mistakes she encounters in motion practice and hearings? “Some lawyers want to tell me what they were prepared to say and don’t adapt to the questions.” She also counsels against boilerplate objections, outdated forms, invocation of pre-2015 revision discovery standards, halfhearted attempts at pre-motion resolution, and the occasional bullying and abuse. Notably, however, not every discovery dispute requires a motion and open-court hearing to get the judge’s attention. She offers an open door for less formal resolution of discovery disputes, usually in a teleconference. “We resolve a tremendous amount of disputes this way—faster, cheaper, and more collaboratively,” she noted. On the criminal side, the judge confesses to some initial intimidation at the prospect of criminal duties, given her exclusively civil-law background. But that trepidation soon dissipated after observing the recurring nature of the criminal docket and receiving some helpful scripts from fellow judges. Indeed, the judge cited a decision arising from a criminal matter as her most memorable from five years on the bench. In Matthews v. Cain,8 Judge van Meerveld found that a life sentence without parole under a Louisiana recidivism statute handed down to a 21-year-old for simple
Judge van Meerveld and family at Kamakura, Japan, 2017.
burglary constituted an Eighth Amendment violation. Her opinion exhaustively surveyed Supreme Court and Fifth Circuit precedent on excessive sentences, and further cited legal scholarship synthesizing the relevant principles.9 The state eventually resentenced Matthews, making him parole eligible. Like her peers across the country, Judge van Meerveld has had to adapt to new ways of moving her docket during a global pandemic. In fact, New Orleans was among the early hotspots for the COVID-19 outbreak in spring 2020. She credits court staff and leadership for quickly recognizing the seriousness of the issue, and then proactively finding novel ways to keep the gears of justice moving. “Judges were immediately given the option of holding proceedings virtually, while at the same time, the court took steps to create safe courtrooms, jury rooms, elevators, common areas, etc. in case it was feasible to hold live proceedings,” she remarked. The court’s technology team secured needed hardware and apps, and even arranged for masked, drive-thru handoffs of equipment in a parking garage. Within a short time, it was typical for an Eastern District of Louisiana judge to serve as a Zoom host, create breakout rooms, screen-share, sign warrants and complaints electronically, and hold virtual civil and criminal court proceedings, settlement conferences, status conferences, and even bench trials. September/October 2021 • THE FEDERAL LAWYER • 41
Mentor, Teacher, and Servant Judge van Meerveld has always had a strong desire to mentor the next generation of lawyers. As she explained: “There are so many pressures on younger lawyers and I do have a lot of advice for them based on things I did right along the way, but especially, the things I think I did wrong.” One such lawyer is Margot Want, who has worked for Judge van Meerveld over the years as a summer law clerk, associate attorney, and now, as a career law clerk. Want recalled: When I was a summer law clerk, she made a point to get to know me and the other female law clerks and to talk to us about how women can make it at a law firm, even if they also want to raise a family. Throughout my career, she has been a champion for me. I know that she has played this same role for countless other female attorneys, and we have all grown and advanced further as a result. Former judicial extern Tu Phuong Vu Huynh agreed: “During the externship, she always made herself accessible to me, which allowed me to be comfortable in asking questions.” Recent law-school graduate Journee Berry originally met the judge through their mutual involvement with the Boys Hope Girls Hope nonprofit. In her interactions, “the judge has connected me with practitioners, prepared me for job interviews, edited my legal writing, encouraged me when I was studying for the bar exam, recommended skills to focus on developing as a young attorney, and suggested ways to gain relevant trial experience.” Berry concluded: “Without her mentorship, I likely would have dropped out of law school.” In addition to one-on-one mentoring, the judge frequently appears on the CLE and speaking circuits, averaging almost 20 presentations annually since taking the bench. She is particularly passionate about a well-received course she developed on implicit bias. The judge cautioned that some implicit biases “aren’t against a particular group; many implicit biases are in favor of the in-group.” Also, somewhat counterintuitively, “even people negatively impacted by implicit biases harbor those same biases to their own detriment.” She summarized: “In my presentations, I especially want to shine a light on its impact on legal careers, to try to break the cycle of the in-group promoting the in-group.” Amanda Kaiser, the executive director of the New Orleans Chapter of the FBA said she would “best describe Judge van Meerveld as forever in motion with the next steps and what more can be done to break down barriers in the local legal community.” As one practical example, the judge’s standard order setting oral argument contains a proviso allowing two attorneys to argue for a party if one is a younger member of the bar.10 Outside the courtroom, Judge van Meerveld has served the New Orleans affiliate of Boys Hope Girls Hope in various capacities for the past 21 years, including a recent stint as board chair. The late U.S. District Judge Adrian Duplantier, Eastern District of Louisiana,11 co-founded the New Orleans branch more than 40 years ago and originally recruited her to the organization. Judge van Meerveld explained the mission and method: “We take a select group of kids who are academically promising but have difficult home lives, place them at partner schools—the finest in the city—and provide them with a residential home life that gives them support, structure, tutoring, guidance, and a college path.” Boys Hope Girls Hope’s network president and CEO Kristin Ostby de Barillas noted that “Judge van Meerveld is not only a brilliant and persuasive leader, but she is al42 • THE FEDERAL LAWYER • September/October 2021
ways willing to roll up her sleeves and put in the tireless work needed to effect change.” The New Orleans affiliate’s executive director, Chuck Roth, echoed similar sentiments: “Judge van Meerveld has been instrumental in supporting this program as a fierce advocate for all program participants.” In addition to her longstanding work with Boys Hope Girls Hope, the judge has also served on the board of the Susan G. Komen Foundation in New Orleans for much of the past decade. Free time is at a premium for this busy judge, but the wanderlust of her formative years is never far from her mind. She confessed that “traveling is an obsession for me; so much so I was afraid my FBI background check would get derailed by the list of countries and dates I had to provide.” Just two months before international travel ground to a halt amid initial COVID-19 outbreaks, the judge’s family took a “bucket list” trip to Vietnam and Cambodia. The judge remarked, “It was a gift in so many ways because the memory of it has sustained me through the rest of the lock down.” As time permits, she also enjoys a vibrant and affordable arts scene in New Orleans, including the opera, ballet, art galleries, touring Broadway shows, and a variety of local productions.
Conclusion In reflecting on her five years of service to the bench and bar in the Eastern District of Louisiana, Judge van Meerveld recalled a quote from the late Justice Ruth Bader Ginsburg, who stated, “I consider federal judging the best job a lawyer can have. You are beholden to no client, your obligation is to strive to get it right, to rule as the law and justice require.” And Judge van Meerveld agreed: “It’s kind of the best of all worlds; I’m still an advocate but now for the law rather than a client.”
Endnotes Or, as she remembered one lawyer’s attempted translation: “Janis of Sea World.” 2 Louis Armstrong & Billie Holiday, Do You Know What it Means to Miss New Orleans?, on New Orleans (Original Motion Picture Soundtrack) ( Jasmine Records 2017 ed.). 3 Which is not to say that she totally lost her affinity for Dutch food and culture: “Even after moving to the U.S. I made a lot of trips back, seeing my parents in Brussels and my Oma and tantes and ooms in and around Amsterdam. I like a lot of their delicacies and can pop a head off a gerookte paling—smoked eel—peel the skin and pick the meat off like a native. And I definitely eat my frites with mayonnaise—no exceptions.” 4 Adams and Reese LLP, LAW.COM, https://www.law.com/lawfirm-profile/?id=1&name=Adams-and-Reese-LLP (last visited Feb. 19, 2021); Recognitions, Adams and Reese LLP, https://www. adamsandreese.com/about?tab=recognitions (last visited Mar. 1, 2021). 5 Sitting on the bench that day for her investiture was Eastern District of Louisiana Senior U.S. District Court Judge Peter Beer, who had administered her naturalization oath 30 years earlier. 6 Judge van Meerveld reflected on these experiences in an article titled The Continuing Anguish of a Lucky Evacuee, 25 Health Affairs 489 (2006). 7 Eastern District of Louisiana Local Rule 72.1 (Dec. 3, 2018), https://www.laed.uscourts.gov/sites/default/files/local_ rules/New%20CIVIL%20RULES%20LAED%20%20FINAL%20 1
w%20Amendments%2012.03.18.pdf. 8 337 F. Supp. 3d 687 (E.D. La. 2018) (Brown, J., adopting in its entirety as the opinion of the court the report and recommendation of van Meerveld, M.J.). 9 Id. at 694–706. 10 The full proviso, originally adapted from federal judges in New York, is: “The Court strongly encourages argument by junior attorneys, particularly where the junior attorneys drafted or contributed significantly to the underlying motion or response.
Accordingly, if a junior attorney (i.e., a lawyer practicing for less than seven years) argues a motion or opposition for a party, the Court will allow multiple attorneys to argue for that party so that issues can be split between attorneys or a more senior attorney can offer clarification, if necessary.” 11 For more on this late legal legend, see Adrian Guy Duplantier, U.S. District Court, Eastern District of Louisiana, https:// www.laed.uscourts.gov/court-history/judges/duplantier (last visited Feb. 25, 2021).
Laurer Profile continued from page 37
to them, even in a highly complex technical area of the law. They should be able to understand our decisions and so we should not use legalese unless it’s absolutely necessary. Once the global pandemic is over, Judge Laurer looks forward to traveling again. Until then, he enjoys anything outdoors—gardening, hiking, and pistol shooting. He is an avid reader of history. He espouses the benefits of exercise and physical activity, crediting it with helping him stay healthy throughout the pandemic and helping him to stay sane through his job change.
Endnotes Skype Interview with Hon. Scott J. Laurer, Ct. of Appeals for Veterans Claims (Mar. 26, 2021). 2 Woodbury, N.J., had a population of 10,174 in 2010. Woodbury City, New Jersey, U.S. Census Bureau, https://www.census.gov/ quickfacts/woodburycitynewjersey (Apr. 1, 2010). 3 Student Program, U.S. Navy Judge Advoc. Gen.’s Corps, https:// www.jag.navy.mil/careers_/careers/opportunities_sp.html (last visited Apr. 27, 2021). 4 Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988) (codified as amended in 38 U.S.C. §§ 7251 to 7299). 5 See Veterans’ Programs Enhancement Act of 1998, Pub. L. No. 105368, 112 Stat. 3341 (codified in scattered sections of 38 U.S.C.). 6 Judges, U.S. Ct. of Appeals for Veterans Claims, http://www. uscourts.cavc.gov/judges.php (last visited Apr. 26, 2021). 7 See 38 U.S.C. § 7257. 8 Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980) 1
(codified as amended at 28 U.S.C. § 2412(d)(2)(F)). 9 38 U.S.C. § 7292. 10 Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), class certification denied en banc sub nom. Monk v. Wilkie, 30 Vet. App. 167 (2018), aff ’d, 978 F.3d 1273 (Fed. Cir. 2020). 11 See Rules 22 and 23 of the Court’s Rules of Practice and Procedure. U.S. Vet. App. R. 22, 23, U.S. Ct. of Appeals for Veterans Claims, Rules of Prac. and Proc. (Nov. 10, 2020), http://www. uscourts.cavc.gov/documents/Rules11-10-2020.pdf. 12 CAVC received 872 appeals in March 2021. Chief Judge Margaret Bartley, U.S. Ct. of Appeals for Veterans Claims, Address at the Quarterly Virtual Employee Recognition Ceremony (Apr. 8, 2021). 13 The Supreme Court receives between 7,000 and 8,000 petitions for a writ of certiorari each Term. FAQs—General Information, Supreme Ct. of the U.S., https://www.supremecourt.gov/about/ faq_general.aspx (last visited Apr. 26, 2021). 14 The National Veterans Legal Services Program (NVLSP) provides free legal representation to veterans and active-duty military personnel before the Department of Veterans Affairs, the Board of Veterans’ Appeals, and the Court of Appeals for Veterans Claims. It also publishes advocacy and training materials for attorney and nonattorney advocates who represent veterans in their efforts to secure veterans benefits. What We Do, Nat’l Veterans Legal Servs. Program, https://www.nvlsp.org/what-we-do/ (last visited Apr. 26, 2021). 15 United States Court of Appeals for Veterans Claims, YouTube, https://www.youtube.com/channel/UCkhT0OvwPHFaXd0ZEFup0g (last visited Apr. 26, 2021).
Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. September/October 2021 • THE FEDERAL LAWYER • 43
44 • THE FEDERAL LAWYER • September/October 2021
Profiles in D&I Leadership
T
he FBA is powerfully situated—and bears critical responsibility—to ensure that federal practice and federal courts truly reflect the rich diversity of the nation we serve. The FBA’s Committee on Diversity and Inclusion was established to lead the organization in fulfilling this responsibility by advancing diversity, equity, and inclusion, both within the organization, and in the broader legal community. A core component of the committee’s work involves ongoing guidance from and partnership with advisory boards composed of national D&I leaders. By learning from and collaborating with these leaders from around the country, our collective effort toward true diversity, equity, and inclusion in the federal legal community is critically strengthened. Tara Norgard Chair, FBA Diversity & Inclusion Committee
All profiles originally published in fedbarblog.
Bethany Drucker by William D. Goren Interview with Bethany Drucker, General Counsel, A.S.G. Staffing; Member, FBA Corporate Advisory Board, by William D. Goren. Edited for clarity and length. Goren: From all the work I do in the diversity and inclusion space with respect to disability inclusion, I don’t know many general counsels that are out about any one of their disabilities. I certainly don’t know many while stressing pushing their companies to understand their disability compliance obligations and stressing the importance of people with disabilities to their companies. So, I think you bring a unique perspective to all that. Drucker: Thank you. I’m general counsel of a staffing company. So, we place temporary employees in light industrial settings. I always say what I do is like employment law on steroids. You’re dealing with the employee, you’re dealing with the company, you’re
dealing with the third-party company, and then you’re dealing with the other agencies that are in there. There are so many levels of issues that go into this field, especially with diversity and inclusion and anything from racism to sexism to age discrimination to disability. There are two prongs I see with ADA disability: there’s the medical prong—where people say, okay, this is how we’re going to treat it. And then there’s the social prong—which involves the discrimination, the stigma, the false assumptions that someone who maybe is hard of hearing, someone who’s epileptic, someone who has Down Syndrome, that that person can’t perform the job. And most of the time, if someone believes they can perform the essential functions of the job with a reasonable accommodation, and it’s not an undue hardship, it can be done. It’s just educating, not just the other companies, not just our company, but the line leads in the factories, educating everyone that people win when you give people jobs. A, it’s good for morale; B, it’s good for the economy; and C, it’s the right thing to do. We didn’t choose how we were born. And some people develop them with various health issues over a lifetime. And as we see now, especially with COVID, there are going to be more and more and more people with disabilities and now, more than ever, every company, whether you’re a temporary employee company or a Fortune 500 company that has white collar workers, everyone must start accommodating and recognizing it. September/October 2021 • THE FEDERAL LAWYER • 45
Goren: Do you find that the people that you’ve used in your agency are open about their disabilities, or do you have to encourage them to open up because they have protected rights? Drucker: It’s two-fold. We make sure that everyone understands that if you need a reasonable accommodation, you should reach out to HR. And then HR will get me involved and we’ll have the interactive discussions. Oftentimes, people don’t let us know because they’re afraid that they are going to face discrimination, and so we find out from the client. Or else, what I consider, now more than ever, we have to be vigilant about what I consider an obvious disability, and that may be someone who’s going to the bathroom excessively. They may have diabetes. They may have a prostate issue. They may be on medication. Those are the things that would then trigger me to have an interactive conversation. More commonly now, is depression and the various spectrums of that. So, I have an employee who maybe didn’t have any issues, was a high performer, spoke very eloquently. Now, all of a sudden, that employee is erratic, they’re up, they’re down, they’ll cry, they’re not making sense, they’re confused. And it’s not just one day, but maybe it’s going on for a week. I have a conversation with that employee, because to me, that disability has become obvious. That is a mental disability, and we can accommodate that. I’m seeing more and more of that, and I’m hoping employers at all levels are recognizing that when it is an obvious disability, we have the duty to engage in an interactive discussion. It’s not that the employee has to come to out with it, if to me, it is obvious. But it also comes with treating employees as peers. We’re not big on corporate bureaucracy at my company. We don’t have these multifaceted layers. I wear many hats. So, when you’re in a position where you talk to a lot of people, you see a lot of people, you get to know people’s personalities and you can see when someone’s off. Our job is, we’re in the people business. Our commodity isn’t widgets, isn’t clothing or food, or technology; it is people. I think that’s another reason why we’re so focused on equality, diversity, and inclusion—because our commodity is human beings. I can’t possibly protect my company without protecting the people we put to work. So, we take tremendous pride in trying to do the right thing. Mistakes happen and then we always work hard to correct it. No one’s perfect. We try to be proactive. Goren: I was just wondering, clearly you have a professional reason for doing this and believing in this, but you’re clearly on a mission and this is personal to you. I’m just wondering why is this a personal and professional mission to you? Drucker: I’ve been hard of hearing my entire life. I had to see a speech therapist as a child. I’m deaf in my left ear and that’s my entire life. But as I got older, and it wasn’t until my mid-30s, I was diagnosed with cancer. I am now, 14 years later, still dealing with different levels of cancer. And as a result of some of the cancer treatments, I did develop epilepsy. So, I am someone that really understands people with disabilities, illnesses, and sicknesses. Because there’s a stigma that goes into it if someone finds out she has cancer or he has cancer. They’re thinking, “Oh, that’s so horrible for that person.” But the employer is thinking, “Wow, does this mean that person’s not going to be working; do I have to replace them; how long are they taking off on FMLA; can they perform the work?” I’ve always worked. That’s been one of the things that has helped me is that I’ve always worked. I find doing that provides me a mission, keeps my mind active, keeps me focused on other things and working with people, which I love. I’m someone that likes people, it helps me as well. So, yes, it is personal. 46 • THE FEDERAL LAWYER • September/October 2021
And, in my spare time I try and help various people with understanding what their rights are at work, to ask for reasonable accommodations. How they can do it and sometimes to be realistic. For instance, I can’t drive. I have epilepsy. So, I’m never going to take a job that’s going to be sales job on the road where I have to do all of that. So being realistic, what we can do, and learning more about that. Understanding if someone is going through radiation or chemo, to understand the side effects that those drugs may cause and then what kind of reasonable accommodation do you need for that? I’m very understanding of people’s health and everybody has something, whether it is a disability where it limits a life function or it’s something that they live with that doesn’t interfere. But everybody has something. I think, basically, the entire world can have some level of empathy toward people with disabilities. And people are judgmental based on how you look. If I look normal, that’s great. If I’m really sick and if I’ve lost some weight or my hair, people judge you. We have such a visually brutal society. People back away if someone doesn’t look like them. This can go on many different levels, not just for disability. So again, I’m really pro-inclusion. Goren: Most of the time, you hear people become general counsel because that was the client they serviced at the firm and the firm said “come join me.” Was your path typical that way or did you take another path. Drucker: Mine’s a little typical and not at the same time. First of all, I didn’t go to law school straight out of college like most people. Goren: Good for you. I did it straight like most people, but I am convinced that you are much better off taking two years off before going to law school. You’ll have a much better experience. That’s just me. Drucker: I worked. I owned and operated two retail stores. Opened them up and then decided to go to law school. But after law school, I worked in billable law firms. I worked in matrimonial law and criminal defense; highly, highly antagonistic on one side, and I would always say, the criminal defense clients were so easy; the matrimonial clients, crazy. But again, I like working with people; you learn a lot. Billable hours were definitely … actually, it was kind of fun. At that age, who needs sleep. Then I actually got diagnosed with cancer and ended up deciding to move … I’m a New Yorker. I was living on Long Island, and then I moved here to Chicago because my sister’s here. Then, I accepted one of the world’s best jobs (short of working at the House of Blues in 1992). I worked for the City of Chicago Inspector General’s Office. I worked on investigations—state, local, and federal—tremendously interesting, tremendously fun, and you’re part of a team. I worked with people while learning all the nuances of the various laws, various violations, various personalities. I also interviewed a lot of people, and I enjoyed that. So, I left billable hours to do public sector work, and it was wonderful. I absolutely loved it. The reason I ended up leaving was the city was having a lot of financial hardships. We had 26 unpaid furloughs, and I really wanted to get back to practicing law. I highly recommend for anyone who wants to be an attorney to do two things. One is, when you’re young, get a job in customer service. It’s so humbling to be yelled at by people. Goren: I completely agree with that. I think anybody, regardless of your profession, should be in customer service at some point. I did Borders, and it certainly made me a much better attorney having had those years of retail experience. There’s absolutely no doubt about it. Drucker: After the Inspector General’s Office, I went to work for myself and I had several clients, one of which is my current
employer. They were a client, and then they had asked me to come on board and work just for them and no one else. So that’s how I managed to get the general counsel position. It’s been a wonderful, wonderful experience. Goren: Is it just you in the general counsel’s office, or do you have attorney’s working for you? Drucker: I am the entire legal team for our entire corporate staff. We have eight offices in three different states, and we also have a sister company. We give out about 10,000 to 13,000 W-2s a year. I am the entire legal staff. Luckily, since I’ve been with them, started in 2014, we have not had one employment law related lawsuit, no fines, no EEOC charges or Illinois Department of Human Rights claims that have stuck. We’re very, very proactive and we work as a team. There are no egos. I’ll pick up the phone and talk to a complainant. We speak to the clients. We treat everyone like human beings. And it is busy, busy work, but I love it. Being a general counsel, you’re wearing many different hats. Goren: You mentioned you haven’t had any of those EEOC type suits, and so you must have some kind of system then where nobody gets terminated or let go without you reviewing it first. Otherwise, I don’t see how that works. Drucker: Well, that doesn’t always happen because in the temporary staffing, a client may let someone go and I find out about it later. So immediately, we’ll get on it, and sometimes we have to take corrective measures where we err on the side of caution. If I think this person shouldn’t have been let go by the client, we’ll take care of them and make sure they have other assignments and then educate the client. It does come from the top down. The owner of the company, who I report to, terrific guy. He himself, he’s a cancer survivor, so he understands people with disabilities. He’s someone that really, really works hard. We all work together and keep our egos in check. Everyone can step in and help anyone at any time. If payroll needs something, they need me to do something, I’ll do it. We really work as a team and that’s something that separates us from other companies, is working as a team. And the team isn’t just legal, it’s HR, workers’ comp, operations, payroll, sales. We’re all on the team. We really try and instill that and help the employees. In any given day, I can get an email or phone call and my day is shot—then I don’t get done with work until midnight. But it’s good work. There is something very rewarding about helping people find and maintain work. I’m also very passionate about helping ex-offenders. Goren: I can’t imagine many other temporary agencies are taking the top down, people first approach that you all are taking. Am I off base or is there something to that? Drucker: No, you’re spot on. And we’re also maybe not the most… Maybe we don’t have the same revenue levels the others do because they may bill more and make more money. But we spend more on quality, our people, and having a good business. The temp industry is very rough. It can be cutthroat and we are not a dispatch agency, which means there are some agencies, people come in and they’re just dispatched right out. We hear horror stories of people getting … well, you can Google staffing agencies and lawsuits and have reading from now until Christmas. But we really try and do the right thing. Illinois is so heavily regulated. We have the Illinois Day and Temporary Labor Services Act. We have everything else that all other states have and a lot of protection for employees, which is
terrific. The only downside to that is the implementation of these protections, meaning that for each temporary employee who maybe doesn’t have more than a GED, they have to be given and understand and review enormous amount of paperwork just to get to the pool of candidates, because those are all mandated policies and laws. It can become cumbersome for the employee. So, we work hard, if anyone has questions, to reach out to HR, reach out to me. But, to answer your question, I haven’t had any lawsuits, and I’m not just doing the self-praise for our company, ASG staffing, but I haven’t seen other large staffing companies or medium-sized staffing companies for temporary workers in manufacturing go to this level. They may be making more money, but we have good people, and we can go to sleep at night knowing we did the right thing. Goren: I’m wondering what are you hoping to bring to the FBA Corporate Advisory Board? Drucker: Well, I’d like to bring not just awareness but a plan of action. People can do trainings that can bring a level of awareness, but trainings are only beneficial if people actually practice them. If not, they’re a two-hour webinar, live in person, and then people go onto the next thing. People have short-term memories. I want to see a plan of action, how people can reach out to work with people with disabilities. Just like some job specs maybe have to be tailored differently. So that way, it can include and encourage people to apply from all walks of life. Everyone, whatever protected status, everyone should be able to apply for a job in which they can perform the essential functions with or without a reasonable accommodation. I’d like to see people, especially in the general counsel roles, to roll up their sleeves a little bit more and get to know what happens below them. There’s a lot of delegating going on, and maybe some more people should learn to walk in other people’s shoes (cross-training). Maybe that person spending time in that department can understand a level of empathy and what obstacles the people in that department have, how we can place people, how we can help people. It’s an overall level of just working together, teamwork. Goren: How do you assemble teams to accomplish company goals? Drucker: What I do with our HR team and our operations team, I’ll come up with different plans and different assignments. I give people ownership for a certain topic that someone’s going to work on. Especially now with COVID, updating our COVID policies, which have to be updated every week because of CDC changes and trainings. Always delegating certain things and going through the best practices. Oftentimes, it’s just giving people the tools and saying, okay, this is your project, you work on this, you work on that, and let’s all basically meet up here and go over it and share ideas and inputs. Everyone has their own topic and then they can collaborate together. One of the great things about diversity and inclusion is the more minds you have with different backgrounds to look at something, the more you capture, the better off you are. If everyone was just like me, it would be pretty boring. So, it’s great to have different people with different experiences, different mindsets, creatively reaching out to people. Maybe it’s looking up to see what people’s backgrounds are and asking them if they’d be interested in contributing. Sometimes it’s right before you say okay, this person can work on this topic, this person can work on reasonable accommodations, this person could work on how to attract more people to apply. I write comedy on the side as a hobby, so one of the things I do is clustering. I’ll write an September/October 2021 • THE FEDERAL LAWYER • 47
idea, then I put 10 poles out with each idea that pops into my head, and that’s the same thing that goes on with project management, law, problem-solving. You start to see all the different spectrums of all the different issues that derive from one idea. Sometimes it’s just a list or brainstorming, which often times are very useful, at least for me. Goren: I don’t know anybody in corporate America who is a head attorney for a company. How many of them are out with their disability? I don’t think it’s many. And then, regardless, they are true believers trying to make a difference for people with disabilities and yet maintaining their obligations to the corporation. Can’t be more than five of you, period. Drucker: I think people are ashamed or embarrassed to say they have a disability. They think maybe they are afraid of the reaction they’re going to get. Goren: Definitely. Drucker: I didn’t ask to be born like this. I joke with my parents, like, “What genes did I get?” But I’m very lucky because I can work. I live an extremely healthy lifestyle. Some people say I’m boring: I don’t drink; I don’t smoke; I exercise; I don’t eat processed food. But I’m alive and I’m able to contribute. So, if there’s anything I can give back to people, I do, because that’s what I think is part of my purpose. I think if I can help people, we can inspire people and bring them up. And also, from an economic standpoint, the more people who are able to work, the better. People don’t want to be on disability. People can then become depressed, and then it just catapults into other issues, whether it’s drinking or not eating well or more depression. People need to have routines. People need to be involved in things, and people shouldn’t be ashamed if they have a disability. Someone should be ashamed if they’re an awful person, if they’re a mean person. Those are things people should be ashamed of. Not a disability. I think that stigma just has to go out the door. Goren: Let me ask you one more question, because I know you’re so busy, but one of the things that I have seen with people with disabilities is that it’s almost impossible for us to find mentors. And I did not find a mentor until, at 48, I was actually teaching people how to be paralegals full time, and I had a couple of people at that institution, South Suburban College actually, who stepped up and said, “Listen, here are your strengths, go do them. We know you have weaknesses, but we love that stuff. So just give that to us and you just go do what you do best.” I’d been a licensed attorney since 25. So, it took me 23 years to find a mentor. Where do we find our mentors, especially since people with disabilities silo terribly. Just because I’m deaf and identify as small deaf proud, that doesn’t mean I’m going to get someone with epilepsy or MS or anything else? So, I am wondering what your thoughts are on that. Drucker: That’s remarkable. I think that actually leads to an idea of maybe there is a network where people can get a mentor. Like, for instance, there are cancer networks where someone can basically be assigned to someone who had that type of cancer so that they can learn from them. Maybe there’s a network of professionals. And it doesn’t have to all be lawyers. It could be other people, whether it’s a CPA or someone else, where someone has a mentor, a professional mentor to help them. Goren: I’m thinking if you get thrown into the very competitive business of the law and you have a disability that you’re open about or you’re thinking about being open about it, where do you find someone who can say, “Hey, that’s okay. Here’s how you might go about it. Here are things to think about.” I don’t think there is such a place. 48 • THE FEDERAL LAWYER • September/October 2021
Drucker: There isn’t. There isn’t that I’m aware of. Goren: Me neither. So, the question then becomes, since there’s nothing out there, do you have any suggestions as to how such an individual, besides just pure blind luck, finds such a person? Drucker: In this day of social media, such as on LinkedIn, maybe people could ask for help. I think we have to maybe create something, whether it’s this forum, we let people know in the legal community, hey, if you need someone, reach out to us. We can help you. And ideally, eventually, what I’d like, if there’s a three-year plan, I’d love to have enough awareness training and action taken in the legal community where other general counsels, other employment law counsels in house, the attorneys in law firms, where they have someone in those law firms they can go to. Someone that’s not just HR, someone that they can maybe go to as a mentor. Goren: I can’t imagine your company litigating itself. Do you insist that the companies that do your litigation have people with disabilities staff your cases? Drucker: I have never used outside counsel. Goren: Wow. That’s mind boggling. Drucker: Caveat. There was one matter where I did consult with a firm over something that wasn’t employment-law-related. But short of workers’ comp defense, we haven’t had any need for litigation. I was brought into the company because they were using a very respected law firm that was handling a case for them. Since I came in, we haven’t had anything filed. I should knock on wood. We haven’t had any need for litigation. There’s no budget for outside counsel spend because we haven’t needed it. We don’t have any litigation. A lot of staffing companies are in litigation now with Title VII issues, antitrust issues, wage and hour issues, national labor review board issues. We have zero and I’m trying to keep it that way. Goren: I’m just thrilled to meet you. Who says LinkedIn doesn’t lead you anywhere because it put us together. Thank you so much and I look forward to staying in touch. Keep up the great work for your company. If you could only convert more of your fellow general counsels to being true believers and seeing the point of all this, that’d be wonderful. Drucker: I think we will. I think we will. I think, as time goes on, I think people are really seeing awareness. So much has happened in 2020, and some of it has been awful, but some of it has been wonderful. So, you have to look at where we can go from here. Goren: I agree with that. I am seeing a different mindset with respect to the rights of people with disabilities than I was before, now that we’re in COVID-19. Even on phone calls with lawyers, I’m seeing lawyers be much more human than they used to be, sharing many more things than they used to. I think we are seeing a different mindset now, and that is one thing positive from this. Drucker: People have to change their cultures within their organizations if they want overall change. And you can still be a very effective general counsel or corporate counsel and not speak legalese, not have to be so formal all the time. Again, I say, roll up your sleeves, get a little dirty, talk with everyone. Obviously all legally correct. There’s nothing wrong with being casual. When I speak with a complainant, I’ll call them at night so I’m not interfering during the workday. People have to treat people like you want to be treated. I rarely say anything legalese because who wants to hear that. I identify myself with my role and what the purpose is, but no-one needs to be spoken down to or condescended. We all can speak the same language.
Goren: Thank you so much for a fabulous interview. I know the readers and the FBA will so much enjoy this. Drucker: Thank you so much.
About Bethany Drucker Since 2014, Bethany Drucker has served as general counsel for ASG Staffing, Inc. (“ASG”). Each day, Drucker is entrenched in employment law, contract matters, and business compliance as a one-person legal team for this light industrial staffing company that issues approximately 12,000 W-2s a year and is in three states. Through proactivity, legal compliance, and active listening to the needs of the employees and the clients, Drucker has kept ASG free from litigation and thoroughly enjoys her hands-on role. Drucker works hand in hand with the host clients to ensure that diversity and inclusion is a reality among the workforces. She embraces the philosophy that a general counsel’s role is to wear many hats that further the business needs and to maintain the highest level of integrity and ethics at all time. Drucker brings over 18 years of practicing law to ASG, including work in state, federal, and local investigations on the governmental side. Throughout her career and personal life, she has advocated for fairness for all and has written editorials on the benefits of hiring ex-offenders and eradicating disparate treatment. As a person with disabilities, she is an everyday supporter for others with disabilities. Drucker obtained a B.S. in journalism from Boston University and a J.D. from Hofstra University, where she co-authored an article on mediation. While in law school, she worked full time as owner and operator of two retail stores. Drucker is also a trained mediator and a comedy writer hobbyist. She lives in Evanston, Ill., with her two dogs.
About William D. Goren William D. Goren, Esq., of William D. Goren, J.D., LL.M. LLC in Decatur, Ga., has 30 years of experience dealing with the ADA as an attorney. His law and consulting practice as well as his blog, Understanding the ADA (http://www.williamgoren.com/blog/), all focus on understanding the ADA so that the client understands what it means to comply with that law. In particular, he provides consulting, counseling, representation, and training services involving compliance with the ADA and related laws. Goren also brings a deep, personal understanding of what it means to have a disability, equipping him with exceptional insight on how the ADA actually works. He is deaf, with a congenital bilateral hearing loss of 65-90+ decibels, but he functions entirely in the hearing world thanks to hearing aids and lip-reading. For reasons independent of his deafness, Goren also uses voice dictation technology to access his computer. He is also a frequent presenter, a trained mediator, a FINRA arbitrator, and an arbitrator on the CPR employment panel. Finally, he is the author of Understanding the ADA, now in its fourth edition (ABA 2013), and numerous other articles on the rights of individuals with disabilities. Interesting fact: He trained his miniature poodle to be a hearing dog while he practices virtually.
Don Liu by Christine Jordan Jordan: What motivated you to pursue a career in law? Lui: I didn’t go to college to go into law. I was originally a theology major. I was inspired by Dr. Martin Luther King Jr. and wanted to bring that same level of leadership to the Asian-American community and be in the pulpit. Law was an alternative I chose to that path. I went to law school at Columbia to practice civil rights. As a law student, I even studied under the former director of the NAACP, Jack Greenberg. When I graduated, I couldn’t afford to be a civil rights attorney with my student loans. To be practical, I went into corporate law with a plan to pay off my student loans and then practice civil rights. My first job as a new attorney was at Simpson Thatcher where I worked in mergers and acquisitions. Jordan: In the past, you’ve mentioned that there were very few Asian-American leaders in the corporate world when you were beginning to take on leadership roles. Where did you find inspiration and mentorship as you worked your way to higher positions? Lui: When I began my career, there were so few Asian-American lawyers in the field that even my parents’ friends questioned my career path, as Asians weren’t seen as lawyers by the larger society. They asked, “Why would anyone want to hire you?” Being Asian-American was perceived as a huge disadvantage. English was my second language and juries would view me as a foreigner. I faced a lot of second-guessing, but I continued to pursue my legal career. I did meet kind people along the way who wanted me to succeed. At Simpson Thacher, I worked under John Carr, the first Black corporate partner at the law firm. He was an incredible mentor who didn’t actively set out to mentor me, but I learned so much from him. I worked with him on leveraged buyouts. Mentoring was not a focus in the legal field when I was first coming up in the 80s. It later became prominent in the legal career and practice. The mentors I encountered were purely by accident. I think that the best mentors are not necessarily assigned or arranged formally, and they understand that the prudent thing to do is to help the next generation of practitioners when possible. Jordan: Have you ever faced discrimination, micro-aggressions, and/or other racist behavior in the legal field? If so, how have those experiences shaped your approach to leadership? Lui: One time, John and I went to Toronto to handle a hostile takeover of a Canadian company. When we met with our clients, they asked if we were in fact with Simpson Thacher. It was as though they had to make sure we were their attorneys because a Black man and an Asian-American man were standing before them instead of white men. They asked us if we were in the right conference room! Instances like that continued to happen during my career, but they have lessened over time. Another time at Simpson & Thacher, the partner who was assigning cases told another attorney to “Put Liu on that case because September/October 2021 • THE FEDERAL LAWYER • 49
he won’t miss a typo.” That man had never met me, and if he had, he would have known that I’m bad at typos. He had the implicit bias that because I was Asian-American, I would be good at menial work. Today, there are more Asian-Americans in leadership roles in the corporate world. Even though there is more of an Asian-American presence in the profession, implicit bias remains unchanged. My advice is to address the issue when it arises in a particular situation. I refused to be boxed into any stereotype as an Asian-American lawyer, and this required pushing the envelope from time to time. I faced the “bamboo ceiling,” a barrier to progress for Asian-Americans, and my strategy was to break through that barrier to build my legal career. Jordan: The recent protests originating in Minnesota in response to the homicide of George Floyd, along with years of racial injustice, directly affected Target as a company. Yet your executive team was masterful in its response by calling for social justice reform in this country. What advice would you give other members of the FBA to address social reform and bring about true inclusion in the legal community? I am not an African-American, and I’m not going to jump to any conclusions about being an African-American. I think it’s important to first listen and learn. At Target, we have established the REACH Committee (Racial Equity Action and Change) and begun listening sessions in order to educate our team leaders as to what issues they face and to determine how to take effective action. The need for social justice is undeniable, and we’re committed to using Target’s size, scale, and resources to create positive change.
About Don Liu Don Liu is executive vice president and chief legal & risk officer for Target and a member of its executive leadership team. He oversees all legal, risk and compliance, corporate governance, and governmental affairs matters for the company. He also serves as Target’s chief compliance officer and corporate secretary. Prior to joining Target in 2016, Lui was executive vice president, general counsel, and secretary for Xerox Corporation. He also held in-house legal leadership roles at Toll Brothers, IKON Office Solutions, and Aetna U.S. Healthcare. He began his career in private practice, specializing in securities and mergers and acquisitions. Lui currently serves on the boards of CaringBridge and Haverford College. He is also a member of the American Law Institute and the National Asian Pacific American Bar Association. He formerly sat on the Comcast Asian American Diversity Advisory Council and the boards of the Minority Corporate Counsel Association, where he served as chairman for two years, and MoreBank, an ethnic community bank he helped found. Lui graduated from Haverford College with a B.A. in philosophy and religion and received his J.D. from the Columbia University School of Law.
About Christine Jordan Christine Jordan, of the Blackfeet Nation, is a member of the FBA’s Diversity & Inclusion Committee.
50 • THE FEDERAL LAWYER • September/October 2021
Harvey Anderson
by Markenzy Lapointe and Ashlee Hamilton To view the interview with Harvey Anderson, please visit www.fedbar.org/blog/ profiles-in-di-leadershipharvey-anderson/.
About Harvey Anderson Harvey Anderson serves as general counsel for HP Inc. In this role, Harvey leads the worldwide Global Legal Affairs team and is responsible for day-to-day operation of Global Legal Affairs, sharpening its legal acumen across the company and creating an effective and agile strategic partnership with the business. Anderson has over 25 years of experience in public policy, regulatory compliance, corporate/ commercial transactions, and IP litigation. He has counseled leading global internet, security, and communications companies in private and public company settings. Most recently he served as the chief legal officer of AVG Technologies, and prior to that he spent six years as the chief legal officer of Mozilla. Throughout his career, Anderson has focused on public affairs issues, most notably launching the “Do Not Track” privacy initiative, organizing the SOPA internet protest movement, working to advance open web issues like net neutrality and intermediate liability protections, and serving on the FCC’s Open Internet Advisory Committee. Anderson has a B.S. in civil engineering from Marquette University and a J.D. from the University of San Francisco School of Law.
About Markenzy Lapointe A former Department of Justice prosecutor, Markenzy Lapointe has a varied practice that includes high-stakes commercial, product liability, and professional malpractice disputes, as well as criminal investigations. Having handled dozens of product liability claims, Lapointe co-leads Pillsbury’s Product Liability practice. Lapointe has a wealth of trial, arbitration, and mediation experience in state and federal courts and works closely with clients to achieve the best and most cost-effective solution. He successfully defends corporations and individuals in commercial disputes, including class actions, business divorces, and high-exposure product liability. He also defends professional malpractice actions. Because of his substantial jury trial experience, which includes chairing or co-chairing 25 trials, he is routinely asked to present and test case themes and strategies before mock juries to help assess viability at trial.
About Ashlee Hamilton Ashlee Hamilton focuses her practice on general and complex litigation matters. In law school, Hamilton gained experience by interning at the LevittQuinn Family Law Center. She also externed at the Frank D. Lanterman Regional Center, where she advocated for exceptional students seeking services from their school districts. Prior to law school, Hamilton served as a K-8 special education teacher at a project-based hybrid homeschool. She has in-depth knowledge of the education industry and continues to seek ways to improve the lives of exceptional students.
James L. Chosy by Peter S. Hyun
Hyun: Hi Jim, pleasure to meet you. Could you please provide some background on your journey to becoming general counsel at U.S. Bank? Chosy: Sure. I certainly didn’t start my legal career wanting to be a general counsel, or even an in-house lawyer. I didn’t know enough to know what that meant. I do not come from a family of lawyers and really had no lawyers in my immediate orbit. Coming out of law school at the University of Minnesota, the only thing I knew was that I didn’t want to do litigation, thinking it just didn’t fit my personality. I was fortunate to have a great learning experience at my first job at the law firm of Dorsey & Whitney in Minneapolis, and quickly gravitated to the corporate group and the corporate practice. I began doing public company and transactional work, including for a predecessor bank to U.S. Bank. I eventually moved in-house there when a Dorsey senior partner with whom I did a lot of work became general counsel and invited me to join him. During my tenure, the bank acquired a mid-sized investment bank called Piper Jaffray Companies, and I was asked to serve as its general counsel. I readily agreed, and inside of two years, the bank spun out Piper as its own independent public company. I went with it and served as general counsel for over 12 years. Then, in 2013, my predecessor at U.S. Bank retired and I was invited to return, which I did having come full circle from my first move in-house. I’ve been very lucky to have had some amazing opportunities and have never looked back from leaving private practice. Hyun: A lot of lawyers across the country look to you as a leader on issues of diversity, equity, and inclusion. Could you describe how this issue first became a priority for you? Chosy: I’d be happy to. I’m not sure whether there was a seminal moment in time—I’ve always been interested in issues relating to justice, and equality and opportunity, particularly because they are so core to the legal profession. I am incredibly proud to be a lawyer,
and I have great regard for the profession as a whole and want it to be representative of all of those who seek to or should participate in it. It’s a higher calling, and a trust for those who pursue it and those it serves. To know that the legal profession still frequently measures as the least diverse of comparable white-collar professions like medicine, architecture, accounting, and engineering is unacceptable. To me, the law should be first—not last. I’ve also come to appreciate just how essential diversity is to the actual work of lawyering. Our clients depend on us for the best service and advice. We really need a diverse set of perspectives to bring the best intelligence to what we do. A homogenous set of lawyers just can’t do the same job as a diverse set of minds in solving complex problems. What has also accelerated my thinking on this is that for my industry in particular—financial services and banking— everything has been moving toward technology and digitization. To me, diversity is really a key to creativity and unlocking innovation in these critical areas as is being demanded by the marketplace. Hyun: I’d love to unpack that idea a little bit. You’ve previously stated that “delivering advice and counseling our clients” … “to do that well we really need diverse talent to bring diverse perspectives to work.” Are there some specific examples where you’ve observed that first-hand? Chosy: Pick any day of the week or any meeting we have or any decision we take, and to me, diversity just leads to much better brainstorming, much better discussions, and ultimately, much better decisions and problem-solving. I’ve always thought of in-house law practice as a team sport. To have a great team, you need a diverse set of complementary players with different experiences and skills. We’re working continually to find that right set of diverse and complementary players for our Law Division team. For example, as I mentioned, banking is rapidly transforming by going digital across new payment systems. Just think about how much banking you can do on your mobile phone today that previously required you to walk into a traditional bank branch and transact with paper. Consequently, as bank lawyers, we’re needing to think differently and much more creatively and with an eye to the future. Our mandate now involves more right-brained thinking. This means that to perform optimally, we need a much broader array of backgrounds, perspectives, disciplines, and expertise than ever before. Said more simply, we need more diversity in our ranks than ever before. Hyun: You’ve also previously talked about how in the legal profession, things are “slow to change” and that there are a lot of “legacy barriers and impediments” that are not yet fully addressed or eradicated, which makes progress on DE&I challenging. What are some of those barriers that you have observed while trying to build a more inclusive workplace? Chosy: Historically, the legal profession has been slow to change in many respects. Lawyers and legal organizations tend to resist change; we don’t necessarily embrace it. We can be risk averse and like to rely on precedent, in our caselaw analysis but also in the way we lead, manage and operate. Some of the legacy barriers include access. The law has been and largely remains more exclusive than inclusive. Hierarchical systems tend to be run by majority lawyers; we still don’t have enough diversity in leadership ranks due to both explicit and implicit discrimination and biases over time. In an apprenticeship profession, confirmation bias can reinforce the status September/October 2021 • THE FEDERAL LAWYER • 51
quo rather than opening things up to historically underrepresented groups, whether in recruiting, work assignments, promotional opportunities, compensation, or billing credit in law firms. Even the billable hour system is a barrier, devaluing unbillable time spent on things like diversity work. Hyun: At U.S. Bank you’ve made some inroads on gender diversity but you yourself have acknowledged you have a way to go with respect to professionals of color. When you look at internal data, or KPIs (key performance indicators), on the topic of the advancement of people of color, what are some of the data points that you specifically look for? Chosy: Yes, we’re working hard but certainly don’t have it all figured out and are not where we want to be yet. Key data points would include hiring, promotion, and turnover of diverse professionals. Are you bringing in enough diverse talent, are you providing promotional and advancement opportunities in a representative way, and are you retaining your diverse talent? With these three metrics, you can get a pretty good sense of how you are doing. Of course, the goals are critically important—what are you measuring against? How are you defining success in your department or organization? Maybe one of the most important things, though it’s less measurable, is the amount of time spent on DE&I by the leader, whether it’s the CEO of the company, the general counsel of the organization, or the managing partner of the law firm. Without a big commitment of time and attention by the leader, you’re not going to get anywhere—I’m convinced. Hyun: What type of data or information do you look at when U.S. Bank is looking to hire outside counsel? Chosy: Good question. We have a preferred law firm program that we set up a couple of years ago that represents 40+ firms that make up probably 80 percent of our legal spend. We made it a criterion of the program that firms meet certain requirements related to diversity. For example, we ask them if they have signed up to adhere to Diversity Lab’s Mansfield Rule, and if not, to do so. Of the list of 40+ firms we have, there were seven or eight that, but for us asking them to do that, would not have. And there was one firm that wrote me a very thoughtful letter after we made this request, admitting that while they had heard of the Mansfield Rule, they were not overly familiar with it. But when they looked at it, they liked what they saw and were excited to sign up. That was quite gratifying for us, and also reinforcing of what I often hear from lawyers at big law firms—corporate clients can help influence progress by expressly asking for it. We also require that there be one diverse leader on the client service team for U.S. Bank. And then we also ask firms for a broad array of diversity data. We want to work with firms that share our values, diversity being one of our core values. Last year, we also instituted a new award called “Invested in Diversity”—a recognition for a law firm that we thought stood out for its diversity efforts. Morgan Lewis was the firm we recognized last year. And to memorialize its effort and the recognition, we commissioned a local Twin Cities-based artist who created an original sculpture called “We the People,” representing the Little Rock Nine from 1957. It was just a unique way of showing our appreciation and commendation of their good work. Hyun: You lived through the last recession in 2008, and many in the legal bar and the community have been sounding the alarm about how the economic difficulties due to the current pandemic may similarly disproportionately affect women and people of color within 52 • THE FEDERAL LAWYER • September/October 2021
law firms, law departments of companies, nonprofit organizations, and public entities. What are your thoughts on this? Chosy: It’s a great question, and there’s been a lot of talk and frankly, anxiety in the broader profession about that. We must be vigilant in guarding against any regression on the progress we’ve made with diversity in the profession. It would be quite short-sighted to knowingly lose ground, and I’m hopeful that most legal employers are self-aware enough to not let that happen. COVID-19 can’t be an excuse; our resolve must remain strong. Diversity, equity, and inclusion are more important than ever, now, in this crisis moment. The current environment demands innovation and creativity in solving tough problems. Diversity of background and perspective is critical to each of these. This should be an opportunity for greater gains, not regression. I’d also say that inclusion is paramount in this new world of remote work environments which can feel isolating, so we must be even more focused on that piece of DE&I. Hyun: You are based in Minneapolis, the city in which George Floyd died. His death, as well as incidents all over the country, have spurred conversations not just about policing, but racial justice more broadly, in workplaces and communities in America. The FBA issued a statement denouncing racial injustice, and U.S. Bank has also taken steps to fight against racial injustice. How have you been thinking about your organization’s role in the broader fight against racial injustice? Chosy: We’ve been thinking and talking a lot about racial justice in the wake of the horrific killing of George Floyd right here in Minneapolis, now the epicenter of our national reckoning on racism. I live in South Minneapolis, not too far away from where it happened. It’s been an incredibly painful time for our city and community. Particularly, and obviously, for our African-American citizens. While I’m sickened and devasted by what happened, I am hopeful for positive change and encouraged that the outrage and the demands for equality and justice have not abated. American society has much to atone for, from 1619 to today, and we must. We at U.S. Bank and in my Law Division certainly have a role to play in what needs to happen from here. At the bank level, we’ve announced multiple investments (over $100 million) and initiatives to bridge gaps and address inequities. Within my legal group, we’ve announced a new commitment to racial justice in the form of a stand-alone program focused on education and community action and service, and that will leverage our existing pro bono and DE&I programs. Educational efforts will address racism, anti-racism, and racial justice, while community action will extend beyond traditional pro bono legal services and could involve things like education, housing, voting rights, criminal justice reform, or policing reform. I feel a special responsibility in this, as a corporate leader with a platform, as a lawyer and representative of the legal system, and as a citizen of Minneapolis. We are committed to the journey of standing against racism and working with purpose to learn, grow, build community, and foster change. There is much work to be done, and it’s overdue. We all must be better and do better. Hyun: The role of the general counsel, as you know, is multifaceted beyond simply providing sound legal advice. When you think about the skills that are needed to do the job well, what advice would you give to younger lawyers aspiring to rise to that level within an organization? Chosy: The advice I would offer is to prepare yourself well. Abraham Lincoln once said as a young man, “I will prepare and someday
my chance will come.” If you are an in-house lawyer looking to move up, prepare yourself. Learn the business, inside and out. Meet people and learn what they do. Serve the organization and your clients as best you can. Volunteer and take up responsibility, even if outside your normal lane. Become less of a lawyer and more of a business partner who happens to have a legal background. The job of the general counsel is at least three roles in one: leader/manager, counselor/advisor, and lawyer. In that order of importance. Try to become all three. I would also say try to demonstrate the qualities sought in a general counsel. Things like good judgment, problem-solving ability, strong communication skills, high ethics and integrity, creativity, a service-orientation, and drive. Very importantly, too, enthusiasm. Businesspeople want to work with lawyers they like to work with. Lastly, I’d say that, because the road to becoming a general counsel is very demanding and can be consuming, try to retain your humanity. Be a human being, too. As the author Anna Quindlen once said, “You cannot be really first-rate at your work, if your work is all you are.” Hyun: Thank you so much, Jim, for your time. Chosy: Thank you, Peter.
About James L. Chosy James L. Chosy is senior executive vice president and general counsel of U.S. Bancorp, the parent company of U.S. Bank, the fifth largest commercial bank in the United States. Chosy is responsible for all aspects of the company’s legal affairs. Chosy rejoined U.S. Bancorp in 2013 from Piper Jaffray Companies, a middle-market investment bank and asset management firm. He had served as managing director, general counsel, and secretary of Piper Jaffray since March 2001. Prior to joining Piper Jaffray in 2001, he was associate general counsel and secretary of U.S. Bancorp. He first joined U.S. Bancorp (then First Bank System) in 1995, having begun his legal career with the law firm of Dorsey & Whitney in Minneapolis. Chosy is a member of the board of directors of the Guthrie Theater and the Fund for Legal Aid, the board of counselors of Equal Justice Works, the general counsel advisory committee of the Bank Policy Institute, and the corporate advisory panel of the FBA’s special task force on diversity and inclusion. He is also a Life Fellow of the American Bar Foundation and a member of the Leadership Council on Legal Diversity. He has previously served as a member and chair of the board of directors of the Clearing House Association, the University of Minnesota Law School, and the Children’s Theater Company, and is a past recipient of the University of Minnesota’s alumni service award. In 2019, he received the Lead by Example award from the National Association of Women Lawyers. He received his J.D., magna cum laude, from the University of Minnesota in 1989, where he served as an editor of the Minnesota Law Review. He is also a 1986 graduate of the University of Wisconsin-Madison.
About Peter S. Hyun Peter S. Hyun is a partner at Wiley Rein LLP. He is part of the firm’s Government Investigations/White Collar practice. He is a former assistant U.S. attorney in the Eastern District of Virginia’s U.S. Attorney’s Office, assistant attorney general in the New York Attorney General’s office, and chief counsel for U.S. Senator Dianne Feinstein.
Mary Frontczak by Kiera Murphy
I was fortunate to get to interview Mary Frontczak about diversity and inclusion. During the conversation, I learned about Compass Minerals and its business operations in the COVID-19 era. Mary also spoke on why she values diversity and inclusion, how it has shaped her career, and what steps can be taken to advance diversity and inclusion in the legal profession. And, spoiler alert: the most surprising thing she shared was her response to being asked how outside counsel can help Compass Minerals with its diversity and inclusion goals. Read on to hear her answer to that question as well as her many other insights. Murphy: What first interested you in the mining and agribusiness fields? Frontczak: The people in the industries tend to be very down to earth and genuine. They are incredibly hardworking. As far as the industries themselves, salt mining and plant nutrition are essential to all we do. These industries help keep people fed and keep the world safely going. Murphy: Is it correct that Compass Minerals owns the largest salt mine in the world? Frontczak: Yes, the largest underground salt mine in the world is a Compass Minerals’ facility in Goderich, Ontario, Canada. Murphy: What kinds of legal issues arise in mining? Frontczak: Literally anything that comes to mind when operating a large company. We deal with issues in mergers and acquisitions, contracts, employment, and regulations from the Mine Safety and Health Administration and the Occupational Safety and Health Administration. Because we operate in four countries, those being the United States, Canada, Brazil, and the U.K., many legal issues can also arise from having industrial operations in different countries. Logistics can likewise be challenging. For example, we have to consider how to get the salt from point A to point B, where to store it, how long it can be stored, and aligning production levels to sales demand. Murphy: How has Compass Minerals been affected by the COVID-19 pandemic? Frontczak: Compass Minerals was deemed an essential business and has not to date been impacted in a material way. Our mines and manufacturing operations are running at or near usual levels. I know I have also been busier than ever, as have many in our company headquarters, supporting our 21 production and packaging sites. On top of becoming chief legal officer in November 2019, I started managing the company’s human resources division in February 2020. And legal and human resources issues have been closely related throughout the pandemic. As mentioned, we are navigating the current landscape in four countries, with each country responding to the pandemic very differently. Murphy: Why is diversity important to you? Frontczak: Beyond being the right thing to do for our people, September/October 2021 • THE FEDERAL LAWYER • 53
it is simply smart for business and the legal profession. We need the best talent and will benefit greatly from many different perspectives. The legal profession will not be as good as it could be if it does not work to include diverse attorneys. At Compass Minerals, we know that diverse experiences and thinking styles help us build an inclusive culture and achieve good business results—both within our legal team and the organization as a whole. Murphy: What has your own experience been like as a woman in the legal profession? Frontczak: I graduated law school in 1991. As a woman, I was definitely a minority in my law school class. But it wasn’t until I started working full time and moving through different stages of life that I saw how women were at a disadvantage. For example, the rigid law firm system made it incredibly hard for many of the women I know to keep working and progressing professionally after having children. There were no different levels of law firm partnership. You were either an equity partner or an associate. There was no flex time or remote working. So, these smart, talented women opted out because it was too hard on their families, and their husbands were the ones earning a larger income. Then, because these women opted out, the law firms were not getting the best talent or benefiting from different ideas. I’ve also seen this play out in settings outside the legal profession. When I was earning my MBA at Washington University in St. Louis, I was the only woman on my team for my marketing class. For one of our projects, we had to develop a plan to market women’s face cream. I was the only who said that we could charge much more if we convince the customers that the product would keep them from aging, which is just something the men never considered. So having diversity and including diverse voices in the conversation will yield new and stronger ideas. We should not have a homogenous work force that yields only the same ideas and perspectives. Murphy: How did you keep working after having a family and not opt out like some of the other women? Frontczak: I was driven by being a wife and mother. It really motivated me because I earned my family’s primary income. So much of what I did was for the sake of my family. I wanted to pay for my son’s college and graduate school. I am incredibly proud of him. He went to the University of Chicago and later earned his MBA from the University of Texas at Austin. He is now a wealth advisor, a Chartered Financial Analyst, and a Certified Financial Planner. Murphy: Was there something in particular that motivated you to get involved with the FBA’s diversity and inclusion efforts? Frontczak: I first received an invitation to get involved from Tara Norgard, the chair of the Diversity & Inclusion Committee, to join the committee’s Corporate Counsel Advisory Board. I saw the work the committee was doing and loved the idea of collective forces working toward one common goal. A lot of what we do in the legal profession is competitive, like law firms competing against law firms, but the committee’s work is 100 percent collaboration. It is very important for federal practitioners to really understand differences and have a variety of perspectives. Murphy: What do you see as the biggest “roadblock” to increasing diversity in the legal profession? Frontczak: Most of all, change has to be intentional. Achieving diversity and inclusion won’t magically happen, especially because many in the profession need to recognize that there is a problem that needs to be fixed. Then we need to figure out how to do something 54 • THE FEDERAL LAWYER • September/October 2021
about it. I feel very optimistic about the recent changes I’ve seen because so many attorneys are becoming aware of unconscious bias. Awareness is such a big step toward correcting the problem. Law firms must likewise be intentional in promoting and developing diverse candidates, such as helping them build a book of business. They must put diverse candidates in front of decision makers and have them deal directly with clients to build relationships. Murphy: Are there things you are doing at Compass Minerals to advance diversity and inclusion in the legal profession, like in evaluating and hiring outside counsel? Frontczak: We’re currently going through a request for proposal process for outside legal services with Compass Mineral’s procurement group. I insisted on having questions on diversity initiatives at the different law firms. I made clear to all of them that it is an expectation. I asked for specifics, like the race, gender, or LGBTQ status of the attorneys who would work on the matter. I additionally wanted to see diverse equity and non-equity partners, because many diverse attorneys experience challenges when trying to make the transition to a senior role. If a law firm wants to do business with Compass Minerals, it needs to walk the talk. Murphy: Are there things outside counsel can do better to partner with you in achieving your diversity and inclusion goals? Frontczak: For one thing, people could ask what our goals are and how they can help us achieve them. I’ve never actually been asked this question and it would say a lot if someone did ask it. I know that there can be fear around conversations like this, so an attorney could simply say, “Help me understand your diversity and inclusion goals.” Murphy: The number of diverse attorneys retained in the legal profession is much lower than the number that enters the profession. How can we improve retention? Frontczak: Policies must change to accommodate different needs. We need flexibility around different issues. For example, a person shouldn’t have to be an equity partner right away. There should be flexibility around when it happens. We should make policies like parental leave gender neutral and make sure that it is widely accepted to take parental leave. Both women and men should be able to go part time or accept of-counsel status without judgment. When we make that change, decision-makers won’t subconsciously think that a big project should be given to a man because he’ll be less likely to take time off for the birth of a child, etc. Murphy: Lastly, how can bar associations help achieve your diversity and inclusion goals? Frontczak: Diversity is important, but inclusion is just as important. Bar associations and their members can help ensure that all members feel respected and valued as attorneys in the legal profession.
About Mary Frontczak Mary Frontczak has multiple roles in life. She is a mother. She is a businesswoman. She is the chief legal and administrative officer and corporate secretary for Compass Minerals, a leading provider of essential minerals focused on safely delivering where and when it matters to help solve nature’s challenges for customers and communities. Furthermore, Frontczak has learned through these roles and throughout her career that promoting diversity and inclusion is not only a smart business decision but one that allows people to embrace each role they have.
About Kiera Murphy Kiera Murphy is an associate in the Business Litigation practice group at the law firm of Faegre, Drinker, Biddle & Reath LLP. She is a member of the Minnesota Chapter Membership Committee and the Membership and Diversity & Inclusion Committees of the FBA. Murphy’s practice focuses on business and white-collar litigation.
Michelle Fang by Lisa M.Kpor Kpor: Michelle, thank you so much for joining us today. Fang: Thank you. It’s my pleasure to be here. Kpor: Many members of the FBA may recall that you penned the January 2019 General Counsel Open Letter to Law Firms that criticized firms for having partnership classes that remain largely male and largely white. What makes diversity and inclusion so crucial that it drove you to prepare that letter? Fang: I want to start by saying that, while I spearheaded the Open Letter, it was group effort on behalf of some amazing lawyers who are part of the Women’s General Counsel Network. The Open Letter was the result of seeing certain partnership class announcements in December 2018 and our frustration that things were not better off in terms of diversity in the legal profession. In hindsight, my shock was naïve. Had I been paying better attention, I would not have been so surprised. Since then, I have gone on a journey of educating myself about what people like me can do to help increase diversity in the legal profession. We are not providing the best counsel to our clients if our profession does not reflect the diversity of this country. Kpor: Was it your reaction to the 2018 partnership classes at certain firms that compelled you to be more involved in diversity and inclusion efforts? Fang: Absolutely. I had mentored women attorneys for a long time and had intentionally hired women as lead partners on a number of my matters, but I had not been involved in any meaningful way with diversity and inclusion efforts in our profession. After the Open Letter was released, I wanted to better inform myself about how I can personally contribute to helping to change some of the diversity issues facing our profession. I had no desire to just write a letter and let that be the end of it. I wanted to make a difference. So, I started speaking with diversity and inclusion experts and also listening to critics who felt the Open Letter was “all talk” and would be bound to fail like so many efforts before it. After crowd sourcing best practices, and with support from Diversity Lab, I put together a list of Strategies and Tactics for In-House Legal Departments to Improve Outside Counsel Diversity. When someone says, “What can I do?” I send
them that link. There is no need to reinvent the wheel. No one inhouse legal team can do everything on that list, but if everyone does three things on this list, we can start to make a meaningful difference. Kpor: You mentioned the Diversity Lab a few moments ago. Can you tell us more about that organization? Fang: Diversity Lab defines itself as an incubator for innovative ideas and solutions that boost diversity and inclusion in law. Diversity Lab has a certification process called the Mansfield Rule, modeled after football’s Rooney Rule, for both law firms as well as in-house law departments. The aim is to boost diversity in law firm and corporate leadership. Under the Mansfield Rule, among other things, legal organizations must affirmatively consider a slate of candidates that is at least 30 percent diverse for key leadership positions, partnership/ promotion decisions, and formal client pitch opportunities. You can be assured that if you only interview majority males for a role, then the chances of hiring a straight, white male will essentially be 100 percent. The aim of the Mansfield Rule is that, if you broaden whom you consider for these positions, you will inevitably hire and advance a greater number of highly qualified diverse attorneys. I am proud to report that Turo recently obtained Mansfield Certified Plus status. Kpor: Tell us about the Pay It Forward Movement you’ve been discussing on social media. Fang: Kate Huyett, chief marketing officer of Bombas, founded the Pay It Forward Movement. The movement provides an avenue for experienced professionals to open up their calendars and “speed” mentor Black students or business professionals. Lawyers occasionally ask me, “How can I make a difference?” If people want to make a difference in the lives of Black professionals, here’s something YOU CAN DO. Sign up (https://docs.google.com/forms/d/e/1FAIpQLSdG5pOYPhwMpLqD66N10CSeYKsOtDTTeZBML3b_dY680AgMaQ/viewform) and pay it forward. I have been spending time each Friday doing #PayItForward and have met some amazing attorneys. It is not only valuable for the mentee, but as a mentor I have found it profoundly rewarding and energizing. One senior attorney I connected with through Pay It Forward wrote to me about a week after our first session and said, “I have embraced your suggestions and have had SUCH AWESOME responses. Seriously. I am so grateful and it is amazing the amount of wisdom that I received in the short time span. I am interviewing with four companies right now and hope to be considering offers soon ….” What a valuable use of 45 minutes of my own time to have such an impact on someone else’s career prospects. Because it is a grassroots initiative, anyone can get started immediately and decide for themselves how many hours they would like to participate and on which topics they are open to discussing. Other movements that came out of Black Lives Matter in the professional sphere that I am passionate about include Tony Effik’s #BlackandBrilliant and Niani Tolbert’s #HireBlack. These initiatives aim to build a more diverse workforce and, as an ally, I have been trying to amplify their messages. Kpor: How does the Pay It Forward initiative differ from the Advanced Law Mentoring Program in which you have been involved? Fang: Advanced Law is a collective of more than 250 general counsel reshaping the legal market by sharing outside counsel performance feedback, with a focus on curating a high-quality panel of regional law firms that excel at client service. Last year, Advanced Law kicked off a new mentoring program where in-house counsel can mentor diverse law firm lawyers looking to be elevated to partner or equity partner. Holland & Knight is a member of the Advanced September/October 2021 • THE FEDERAL LAWYER • 55
Law Mentoring Program, and I have been mentoring a fantastic attorney at Holland & Knight. We have mutually rewarding conversations, and I try to encourage her regarding self-advocacy and give her advice about client development. Kpor: That’s amazing. I read that you are also involved with the Law in Technology Diversity Collaborative. Can you talk a bit about the Collaborative? Fang: I am thrilled to talk about that! That initiative was born from eBay’s legal diversity internship program started by attorney David Pilson. eBay’s Patricia Svilik expanded the program and recruited other technology companies to create a cross-company summer associate class. The tech companies interview and source the talent, in consultation with the law firm, going to top Bay Area law schools as well as law schools across the country with high diversity indexes. In a way, we are using our influence to get law firms to consider top talent that they might not otherwise have interviewed through on-campus recruiting. The summer associates spend half their summer in-house at a tech company and half their summer with a partner law firm. In our first year of the program last summer, seven technology companies, 12 law firms, and 15 summer associates participated in the Law in Technology Diversity Collaborative in Silicon Valley. This year, we had 15 technology companies, 18 law firms, and twenty-five first-year law students participating in the program in the Bay Area and Los Angeles. The goal is to provide diverse law students with a rich summer associate program where they can receive unique in-house experience as well as top law firm experience. They are paired with law firm and in-house mentors, and we offer rich professional development curriculum and social networking events. Plus, they will have a cohort of peers to serve as a source of referrals and as a support system as they progress in their legal careers. One of the biggest problems we are facing is keeping amazingly talented, diverse attorneys in the profession, and the Collaborative hopes to help address that problem. Any company can partner with law firms and do this, regardless of whether they are participants in the Collaborative. Kpor: With all of these various diversity initiatives in place, some of which have been in existence for many years, how is it possible that law firms have not made more significant gains in terms of diversity and inclusion in the past decade? Fang: One of the biggest obstacles is origination credit, which unfortunately is tainted with the systematic and institutionalized racism of our society. Power within many law firms is obtained by which an attorney receives origination for first bringing a client to the law firm. So, if an AmLaw 50 law partner landed a Fortune 100 company as a client in the 1980s, it is quite possible that partner— whether no longer working on that client’s portfolio, retired, or deceased—may still be getting origination credit (and compensation) for the relationship and all the work subsequently brought to the firm. This can make it extraordinarily difficult for diverse attorneys to obtain credit, compensation, and recognition, not only for the work they are doing but also for the new cases they are bringing into the firm. There are two great strategies for ensuring that diverse attorneys—whether they are women, lawyers of color, lawyers with disabilities, and/or LGBTQIA lawyers—are given an opportunity to succeed in our profession. The first strategy is to ensure that diverse attorneys receive origination credit for their involvement in bringing new matters to the law firm. I encourage in-house counsel to insist, and verify, that if they are intending that a specific attorney receive 56 • THE FEDERAL LAWYER • September/October 2021
origination credit on a matter, that that attorney will in fact receive the origination credit before awarding the work. I can’t tell you how many stories I have heard where, even after insisting a specific diverse lawyer receive origination credit, it did not in fact happen because of the antiquated and opaque way many firms allocate origination credit. Relatedly, many well-intentioned in-house counsel throw up their hands and say they want to help, but they don’t know any diverse partners to hire on their matters, so they keep going to the same trough. I challenge those lawyers to get out of their comfort zone. I recently had a new matter in a niche area of the law and realized every attorney I knew in that space was a majority male. So, I pushed myself outside my comfort zone. I actually reached out to Don Prophete (Constangy, Brooks, Smith & Prophete), who had been quite vocal in his frustration with the Open Letter and efforts like it that have produced little meaningful change, and asked him if he knew of any diverse lawyers who practiced in that area. He gave me the names of three outstanding diverse women litigators: Lillian Hardy (Hogan Lovells), Tara Elliot (Latham Watkins), and Indira Sharma (Saul Ewing). While they didn’t specialize in the area of the law that I was looking for, they did indeed look quite impressive in their own areas of expertise. So, I reached out to each of them and set up a “virtual” coffee to get to know more about their practices. Each of them blew me away, and I would hire them in a nanosecond if I were hiring in their areas of practice. I have already referred one to a former colleague and think I will have the chance to work with another in the next few months. If we don’t take the time to get to know outstanding, diverse attorneys outside of our own networks, we can be confident things won’t change in our profession. I challenge every in-house attorney to get to know excellent diverse attorneys outside of your network so that one day you may have the opportunity to hire them. Remember too, the way partners become powerful rainmakers is that they are not only hired for their area of expertise but they also bring work to other attorneys at their firm. Getting to know their specialties is important, but if you have diverse attorneys you value, give them the chance to bring work to their firms beyond their areas of expertise. The second method is to hire lawyers from minority- or women-owned law firms. When we released the Open Letter, one of the first people to reach out to me was Joel Stern, the CEO of the National Association of Minority and Women Owned Law Firms, Inc. (NAMWOLF). I had never explicitly gone to NAMWOLF to hire a lawyer, and now it’s one of the first places I go when I have a new case. The reality is that the AmLaw 200 is unlikely to achieve parity in terms of representation at the equity partner level for diverse lawyers in the near future, so if we want to make a meaningful difference in our profession, hiring attorneys from minority- and women-owned firms is an important part of the equation. Kpor: I noticed that you mentioned lawyers with disabilities in your last response. As we know, disabled attorneys are a diverse group in their own right. How do disabled attorneys fit into this conversation? Fang: I really must give credit to William Goren, who is an openly deaf attorney, for teaching me the importance of being more inclusive in this regard. When Bill saw the Open Letter, he called me out and told me about the importance of including disabled attorneys in this conversation. Whenever I speak out about diversity, equity, and inclusion in our profession, I know I will hear from Bill if I don’t include individuals with disabilities. He keeps me honest. Just think
about how much disabled attorneys have had to overcome just to become members of our profession. We need to make sure disabled lawyers are not lost in the shuffle when we talk about diversity and inclusion. I don’t think there is an easy solution to ensuring that our profession is more welcoming and inclusive of disabled attorneys, many of whom are unlikely to self-identify due to societal stigma, but I know that at least being conscious of this need is a step in the right direction. Kpor: It seems as though your recommendations fall into distinct buckets—diversifying the pipeline; retention and promotion of diverse attorneys; and mentorship. What would you say to successful majority male attorneys who feel uncomfortable mentoring diverse associates and young lawyers? Fang: What better thing can you do with your privilege than help give exposure, opportunity, and sponsorship to attorneys who don’t look like you? We cannot make meaningful strides in diversity and inclusion in this profession unless the powerful rainmakers at law firms, who are largely but not exclusively white males, are personally invested in these efforts. Bring diverse attorneys on your case, give them meaningful client-facing opportunities, advocate for their advancement. Talk to them after work over a sandwich and ask them about their career goals. These seemingly small moments can make someone’s career. If you are only mentoring, golfing, and advocating for people who look like you, all you will be doing is ensuring the status quo. That is not serving the profession, your firm, or your clients as best as you can. We don’t want to get rid of straight, white male lawyers. We need them! They have so much to give to our profession and their clients, so much to teach and contribute. But bring those who don’t look like you along, and help them get to where you have gotten. Life has given you a leg up, and now it’s your turn to pay it forward. Kpor: So, in a matter of 18 months, you have gone from not being an active participant in diversity and inclusion initiatives to galvanizing 240 general counsel to sign an Open Letter on diversity and inclusion in our profession, participating in the Pay It Forward Movement, serving as an Advanced Law mentor, being a founding member of the Law in Technology Diversity Collaborative, and contributing to so many similar programs. How do you find time to actively participate in so many diversity and inclusion initiatives? Fang: Honestly, I don’t have the time, but we make time for things that are priorities in our lives. I carve out time whenever I can. Fortunately, my company and my team have been supportive of my efforts. But for far too long, the obligation to make advancement in diversity and inclusion has fallen on diverse attorneys to do all of that work. That is not sustainable, fair, or enough in and of itself to achieve the transformation needed. Kpor: I have noticed that you are very active on LinkedIn. You may not know this, but you commented on one of my LinkedIn posts. Fang: Really? What did I say? Kpor: Last spring, I shared a post on LinkedIn that read, “I am eternally grateful for people like Alexis Robertson and Bobby Earles who take a great idea and pair it with action. The ‘It’s Just Black Lawyers Having Lunch Event’ was a memorable and impactful event that felt more like a reunion than a networking luncheon. I look forward to attending many more luncheons in the future.” Michelle, you commented and said, “What a wonderful way to build community and support and keep more diverse attorneys in the pipeline. We need you there.” I was so amazed and honored that you chimed into this conversation, especially because many lawyers who look like you
might assume that my post was not for them. What prompted you to chime in and encourage me to continue participating in, and my firm to support, those types of events? Fang: What a wonderful way for this to come full circle. I do remember your post now. I know both Alexis and Bobby through the work that I have been doing in the diversity and inclusion space. They both took the initiative to reach out to me, and it has been a genuine pleasure getting to know them better. I have been intentional about amplifying their messages; particularly with respect to what white allies can do to support Black attorneys in law firm practice. The “It’s Just Black Lawyers Having Lunch” events were on my radar because of Alexis and I wanted to lend my support. As an ally, one of the things I can do with my voice and my privilege is to inform law firms that events like these matter. If you have a diverse leader at your law firm who is doing something innovative like this, it is important. Do more of this and support and reward it. That’s why I responded to your post. It was a signal to the legal community that this was an important event and it matters, not just to Black attorneys but to white clients as well. We support and value diversity and inclusion at law firms. Kpor: There is a looming fear that the diversity gains achieved since the end of the Great Recession will tumble due to the COVID-19 pandemic and current economic crisis. Do you think the pandemic could jeopardize diversity efforts at law firms? If so, what can we do to lessen the blow? Fang: That is a meaningful, valid fear. The number of diverse attorneys in the legal profession is just recovering from the meager gains that had been made, and were lost, in the recession of 2008. I would challenge law firms to understand that diversity and inclusion are not things that are simply “nice to have.” This is a business imperative for you. If you are not keeping up in this area, especially with social justice efforts and the Black Lives Matter movement gaining mainstream acceptance, I think it will be hard to remain competitive. Hopefully, some of the insight I have provided today can shed light on ways law firms and in-house teams can continue moving forward with respect to diversity and inclusion. Kpor: Finally, what efforts do you wish to see implemented in the FBA to advance diversity and inclusion in the legal profession. Fang: I would love to see more diversity among the FBA leadership. The FBA should also have concrete, tangible actions that demonstrate its commitment to diversity and inclusion. I think the FBA is certainly heading down this path, and I am excited to see what is ahead. Kpor: I share that excitement as a member of the FBA Diversity and Inclusion Standing Committee. I am also very excited about our new Diversity and Inclusion Action Plan, which we will be sharing with FBA membership in the near future. Michelle, thank you so much for your time. Fang: Thank you, Lisa. It was wonderful joining you.
About Michelle Fang Michelle Fang is the vice president and chief legal officer at Turo, the global leader in peer-to-peer car sharing. Previously, Fang spent nine years at eBay serving in a number of leadership positions, including head of Global Intellectual Property, head of North American Litigation, and, most recently, general counsel of StubHub. In 2019, she was named one of the 50 Most Powerful Women in Technology (National Diversity Council), General Counsel of the Year (by both September/October 2021 • THE FEDERAL LAWYER • 57
Corporate Counsel: Women, Influence, & Power in Law Awards and the Association of Corporate Counsel). The Recorder named Fang as one of the California Women Leaders in Tech Law and the Financial Times of London profiled her as one of the Five Top Fast Mover GCs.
About Lisa M. Kpor Lisa M. Kpor is a litigation attorney at Holland & Knight, LLP and has served as a member of the Task Force and Standing Committee since its inception. Her practice focuses on a broad range of legal issues, including shareholder oppression actions, financial services litigation, product liability disputes, and complex breach of contract suits.
Renny Hwang
by Brandie Burris
Last summer, Renny Hwang and Brandie Burris grabbed virtual coffee as a part of the FBA’s Diversity & Inclusion Corporate Advisory Board interview series. The conversation fell at a time of reflection and challenge for many current and aspiring attorneys as the COVID-19 pandemic continued to disrupt our personal and professional lives and police violence sparked protests and renewed conversation about diversity, equity, and inclusion across the country. Burris: Renny, thank you for your time this afternoon. I know we are connecting in the midst of unprecedented times, in the wake of the pandemic, heart-wrenching killings of Black Americans by law enforcement, and weeks of protest and unrest across the country. With that in mind, I want to start by checking in with you. How are you doing? Hwang: I have to admit that it has been a challenging summer both personally and professionally. Professionally, my workload remains busy. For now, I am managing my team’s work remotely. My team and I are each uniquely impacted by current events. Whether that is a product of recent conversations around Black Lives Matter and systemic injustices faced by Black Americans, a personal impact from COVID-19, challenges working remotely with kids, or some other combination of challenging factors. During this time, I have found it helpful to look for silver linings. All things considered, my family and I are grateful for what we have. I have also worked to step-back and reflect on what’s important to me. This is one of the reasons I prioritized our conversation. I hope the series calls attention to the need for diversity and inclusion within the federal practice and the legal community more broadly. And, I really appreciate your first question. I want to ask you, too: how are you doing? Burris: Thank you for asking. It has been a challenging summer 58 • THE FEDERAL LAWYER • September/October 2021
for me, too. I am a full-time law student and a parent; my daughter is two years old. As for many working parents, the transition to working and learning at-home was a challenge. I also thought I would be spending my summer working at a law firm, but the firm canceled its summer program due to COVID-19. While I was deeply disappointed when I first got this news, I’m struck by how inconsequential that loss feels in light of the past few weeks. As a Black law student living in Minneapolis, our conversation comes at a time when I am reckoning with the challenges faced by my community and rethinking my role in fostering positive change. So, like you, I am taking time for personal reflection and introspection. Hwang: Thank you for sharing. Wow, law school with a toddler is very impressive. Burris: (laughing) Thank you! One thing I noticed in the aftermath of George Floyd’s killing was a number of law firms and private companies issued public statements admonishing racism and announcing new or reinforced commitments to diversity and inclusion. To you personally, why is diversity and inclusion so important? Hwang: First, I hope commitments to diversity and inclusion become more normalized in our day-to-day lives. These conversations cannot only occur in response to public outrage. As someone whose parents immigrated to this country, I often make connections between my commitment to building diverse and inclusive teams and experiences personal to me and my family. I think about my father often and how he built meaningful relationships and networks of support with people from diverse backgrounds throughout his life. Also, in my career I have seen the importance of diversity on teams and how inclusion, or a lack thereof, impacted me personally. While I have been mostly fortunate in my life and career, I recognize––especially in light of recent events––racial and social injustice are still real challenges within our society. Our society should be inclusive and should be a place where we all are treated fairly and equally. Also, our country is incredibly diverse, and our workplaces should reflect that reality. There are countless benefits to prioritizing diversity and inclusion. For example, it fosters a range of perspectives and experiences on your team, facilitates mutual respect across teammates, and promotes acceptance and understanding across lines of difference. Burris: Well said. I am also the child of an immigrant! My mother and grandmother are both Jamaican immigrants, so we share that personal connection. Hwang: I wonder when our families immigrated to the country, whether they would have anticipated their children and grandchildren becoming attorneys. We are a society built on the law. And, the “rule of law” is ingrained into the fabric of American society. Still, I doubt whether my parents ever envisioned me attending law school and becoming integrated into our legal process. I imagine this is a common experience for first-generation law students, and relevant to our conversation about the lack of diversity in the profession. Burris: Absolutely. Like other law students I know, I review law firm diversity data and notice persistent gaps in representation for women attorneys and attorneys of color. I often wonder how an employer’s diversity statement or recent statement of solidarity translates into action. So, for you personally, how does your commitment to diversity and inclusion show up in your work as an attorney? Hwang: The stats are truly revealing. I love working at Google for a lot of reasons: the people, the culture, the amazing benefits. But, personally, what I love most is our active commitment to diversity
and inclusion. The legal team at Google “puts its money where its mouth is” and undertakes concrete initiatives to increase diversity in the legal profession. While none of our programs are silver bullets, they are important positive steps forward. For example, we host an annual Legal Summer Institute and invite law students from underrepresented backgrounds to join us for a week of programming, and then place students with one of our law firm partners for a full summer internship. The program meaningfully engages diverse law students early in their careers and offers exposure to in-house legal careers and legal careers in technology. We also connect students to mentors. Another example is our diversity accelerator program with outside counsel. With this initiative, we set specific and measurable diversity metrics that we expect our partner law firms to meet. We also require our partners to take specific actions to create and strengthen an inclusive hiring pipeline. Personally, for my litigation team, we highlight diversity as a factor in our outside counsel selection process. So, with every pitch we ask for, we also look for diverse representation. And, often, we will follow up and ask for more diversity on teams. Based on my experience, it is important to have conversations with our partners early on to establish the importance of diversity and inclusion within the baseline rules of our expected operation. Another program I am especially excited about is one where we provide diverse junior attorneys the opportunity to make their first federal appellate argument. For many companies, it may be hard to trust a young attorney with a high-stakes appeal. But as a client, we are willing to take the leap with our firm partners to operationalize our values on diversity and inclusion. We had our first oral argument in this program scheduled for early this year. When the COVID-19 pandemic prompted the cancellation of the oral argument, we successfully advocated to have the argument rescheduled as a telephonic hearing, providing the junior attorney an invaluable opportunity. Burris: Wow, that last program seems pretty special. Hwang: It is pretty special. Essentially, you have a client, law firm, and a federal court working together to create a truly rewarding opportunity for diverse junior attorneys. The program truly takes on the “it takes a village” metaphor. As with many diversity and inclusion initiatives, if only one stakeholder is invested, then the initiative is unlikely to go very far, but when we all work together, we can make a difference. Burris: I really like the “it takes a village” metaphor. It sounds like the program nicely mirrors our goal with the FBA’s Diversity and Inclusion Committee: to bring together various stakeholders within federal practice to ensure our practice and the federal courts better reflect the rich diversity in our country. Earlier, we chatted about our kids, parenting, and how our kids might decide to enter the legal profession! What would you want the legal profession to look like years from now, when our children might be graduating from law school and looking at their career options? Hwang: In the future, I hope the legal profession is more reflective of society more broadly with diversity reflected at all levels. So, not just at the entry-level, but also all the way up the levels of leadership. If my kids make the decision to go to law school, I don’t want their first thought upon graduation to be “well here’s my glass ceiling.” I want them to view the legal profession as a place where they belong and can succeed, thrive, and make a difference. Unfortunately, I am not confident all graduates view their career options coming out of law school that way now.
Burris: Thank you for sharing, I dream about a similar future too. To wrap up our conversation, I wanted to give you an opportunity to share some advice with our readers. I’m open to whichever group you want to speak to: (1) current law students who want to work on diverse and inclusive teams and are entering the job search process, or (2) your peers who share your commitment to diversity and inclusion but are earlier in the work and are unsure where to begin. Hwang: Sure, I would be happy to provide some of my thoughts directed at both groups. To current law school students: Your first job out of law school is a very formative experience. My advice is to focus on finding a place that is a good fit for you. Early in your career, you want to find a team where you will receive opportunity, support, and mentorship. And, in many ways, by prioritizing diversity and inclusion in your job search, you will likely land somewhere that embraces many of those things. If a student finds herself in a position where she needs to choose between law firms or to choose between teams within a law firm, my first question to her would be, what’s your assessment of each team’s commitment to diversity and inclusion? To my peers: As attorneys, we often have many priorities to balance at a time. Nevertheless, I believe we hold a personal responsibility to support meaningful improvement on diversity and inclusion. For example, the appellate program I mentioned is a relatively small program and, so far, has only impacted a few attorneys directly. But, any small step in the right direction is good. As attorneys, we need to work more proactively to identify our levers of influence. What are the levers of change that might be available to you? Big or small, I suspect we all have more influence and opportunity to make meaningful change than might appear at first glance. Burris: Renny, thank you for your time and for a great conversation. Hwang: Of course, and thank you, Brandie.
About Renny Hwang Renny Hwang is director of litigation for Google. He heads Google’s IP Litigation practice, managing a team of over 20 attorneys and technical advisors. His team handles a docket of approximately 300 patent and other intellectual property matters worldwide. Hwang also advises on IP issues related to open source as well as complex licenses, acquisitions, and transactions. Previously Hwang practiced IP litigation in Los Angeles at a global law firm. He also has experience in product management and software development, leading product and engineering teams in building internet software technologies. Hwang received his J.D. from Harvard Law School and a B.S. in computer science and an M.S. in engineering management from Stanford University.
About Brandie Burris Brandie Burris is a student at the University of Minnesota Law School and is editor-in-chief of the Minnesota Law Review.
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Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. 60 • THE FEDERAL LAWYER • September/October 2021
62 • THE FEDERAL LAWYER • September/October 2021
What Legal Instruments Can Protect LGBTQ+ Refugees? FRANCESCA BRAGA
International Migration and Refugee Protection: The Case of LGBTQ+ People “All human beings are born free and equal in dignity and rights.”1 International human rights law establishes legal obligations on states to ensure that every person, without distinction, can enjoy their fundamental human rights. They have an equal right to live free from violence, persecution, discrimination, and torture.2 Despite these universal standards, people experience widespread violations and abuses in all world regions based on their race, sex, religion, nationality, membership of a particular social group, political opinion, sexual orientation, gender identity, and sex characteristics. In 2020, at least 82.4 million people worldwide were forced to flee their homes due to persecution, conflict, violence, human rights violations, and events alarming public order.3 These individuals risk their lives on dangerous, illegal, and long journeys on foot and overcrowded boats. Some journeys may take mere days, but others can take weeks or months. They move from one country to another, searching for a place to live with security and dignity. Among these migrants were nearly 26.4 million refugees, about half of whom are under 18.4 Developing countries hosted the vast majority of the world’s refugees (86 percent). More than two-thirds of all refugees came from just five countries: Syrian Arab Republic (27 percent), Venezuela (16 percent), Afghanistan (11 percent), South Sudan (9 percent), and Myanmar (5 percent).5 Although most of the refugee and migrant population consists of adults in decent health and without vulnerabilities, certain groups—particularly unaccompanied and separated children, people with disabilities, and pregnant women—are more exposed to abuses and inequalities rooted in discrimination based on different grounds. One group is not often mentioned: the LGBTI community. In at least 70 countries, discriminatory laws criminalize private, consen-
sual same-sex relationships, exposing millions of people to the risk of arrest, prosecution, and imprisonment, and even the death penalty in at least five countries.6 It is well established that such criminal laws are discriminatory and violate international human rights norms. In many other places, however, social norms, traditions, religions, and customs make existence for LGBTQ+ people equally dangerous, even if laws and regulations are not officially against them. Daily, they can be victims of multiple forms of persecution and discrimination attributable to sexual orientation and gender identity. It is widely documented that LGBTQ+ refugees are the subject of killings, sexual and gender-based violence, physical attacks, torture, arbitrary detention, and immoral or deviant behavior accusations.7 Considering a Muslim lesbian refugee in the camp of Kakuma in Kenya, or Cox’s Bazar in Bangladesh, or Lesbos in Greece—she can face discrimination, persecution, and violence more frequently than other categories. The woman will be stigmatized at least five times for her sex, religion, nationality, gender, and status. Due to these multiple layers of discrimination and persecution, LGBTQ+ individuals are highly marginalized. International refugee law has changed quite a bit over the last couple decades, as it has adapted to new refugee needs and humanitarian challenges. Therefore, essential to achieving a nondiscriminatory application of refugee law is ensuring that age and gender-sensitive and inclusive asylum procedures are in place.
Protecting the LGBTQ+ Community From Persecution: Is the 1951 Convention Still Relevant? In many countries, LGBTQ+ people experience grave human rights abuses and other forms of discrimination and persecution due to their actual or perceived sexual orientation and/or gender identity, and they are forced to leave their homes, families, and ambitions, September/October 2021 • THE FEDERAL LAWYER • 63
seeking protection abroad. Although the major international human rights treaties do not explicitly recognize a right to equality based on sexual orientation and/or gender identity, discrimination and persecution on these grounds are prohibited by international human rights law.8 The 1951 Convention Relating to the Status of Refugees (1951 Convention), as amended by its 1967 Protocol Relating to the Status of Refugees (1967 Protocol), is still one of the most important human rights treaties that regulates refugees, internally displaced persons, stateless people, and asylum seekers worldwide. It has set the main framework for providing international protection and defines the minimum standards for the treatment of refugees. All states are prohibited from expelling, returning, or extraditing a person to another state where there are substantial grounds for believing that they would be in danger of being subjected to torture or persecution.9 Indeed, Article 33(1) of the 1951 Convention recognizes this obligation under the principle of non-refoulment. It is part of customary international law, a set of binding regulations for all states. Moreover, under Article 1A(2) of the 1951 Convention, the signatory states must provide safe refuge to individuals fleeing persecution based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. “Membership of a particular social group” was added near the end of the deliberations on the draft 1951 Convention, and it is the ground with the least clarity. This category cannot be interpreted as a “catch-all” that applies to all individuals fearing persecution. There is no “closed list” of what groups may constitute a “particular social group” within the meaning of Article 1A(2). The discussion of the term in UNHCR’s Handbook10 is quite general. A “particular social group” is a group of people who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one that is innate, unchangeable, or otherwise fundamental to identity, conscience, or the exercise of one’s human rights.11 The political and social context has seen dramatic changes. In the last few years, the number and variety of refugee claims based on the grounds of “membership of a particular social group” have increased dramatically. The social group cases have been pushing the boundaries of refugee law, raising issues such as domestic abuse, homosexuality, coercive family planning policies, female genital mutilation, and discrimination against the disabled.12 Its potential breadth makes it a plausible vehicle for refugee claims that do not easily fall under the other grounds set out in Article 1A(2) of the 1951 Convention,13 such as the LGBTQ+ community. The most critical and detailed discussions of “social groups” occur in cases in common-law jurisdictions—in particular, Canada, Australia, the United Kingdom, the United States, and New Zealand. Courts and tribunals have also affirmed this in various jurisdictions, including Australia, Canada, France, Germany, New Zealand, Sweden, the United Kingdom, and the United States.14
LGBTQ+ Asylum Seekers in the United States The United States is not a signatory to the 1951 Convention, but it is a party to the 1967 Protocol. It has incorporated the substantive provisions of the 1967 Protocol into U.S. domestic law—the Refugee Act of 1980—which binds the United States to the same obligations regarding the status and treatment of refugees.15 The first case to interpret the meaning of “particular social group” was Matter of Acos64 • THE FEDERAL LAWYER • September/October 2021
ta,16 where the Board of Immigration Appeals (BIA) concluded that a “particular social group” required a “group of persons all of whom share a common, immutable characteristic” that “the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” Moreover, asylum based on sexual orientation was first granted to an individual in 1994: the decision in Matter of Toboso-Alfonso declared precedent for LGBTQ+ asylum cases.17 The BIA stated that the petitioner was not persecuted “in response to specific conduct on his part (e.g., for engaging in homosexual acts); [but] rather simply from his status as a homosexual.” Therefore, the persecution tied to his sexual identity made him eligible for asylum in the United States. Moreover, courts have recognized sexual orientation and gender identity as constituting membership in a particular social group that could form the basis of an asylum claim with evidence of persecution.18 In U.S. and international law, an individual who becomes eligible for asylum has to demonstrate a genuine and well-founded fear of being persecuted, as stated in Article 1A(2) of the 1951 Refugee Convention. LGBTQ+ asylum trends are closely linked with the domestic political climate and make sexual orientation asylum claims particularly challenging. President Biden has signaled a strong desire to take significant actions to strengthen the refugee resettlement program and advance the rights of LGBTQ+ people in all federal programs. His Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration directs his administration to “seek opportunities to enhance access to the refugee program” for populations particularly vulnerable to persecution. In addition, the order explicitly references individuals at risk based on their “gender, gender expression, or sexual orientation.19 The Biden administration also released a Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Persons Around the World. The memo directs the State Department and Department of Homeland Security to enhance access to protection and assistance for LGBTQI refugees and asylum-seekers. A total of 11,400 applications for asylum were filed in the United States from 2012-2017 based on LGBTQ+ status.20 Recently, many LGBTQ+ asylum seekers have had to stay in Mexico due to the COVID-19 pandemic, and they have been targeted. Eighty-one percent of LGBTQ+ asylum seekers reported being victims of attacks or attempted attacks in Mexico in the last few months. This includes rape, human trafficking, kidnapping, and other violent assault.21
What Is the Future of LGBTQ+ Refugees? LGBTQ+ refugees have similar stories, but each one is still unique and peculiar—they are stories full of suffering, pain, fatigue, false expectations, and frustrations. Once they arrive in the countries of transit or their destinations, they often choose not to reveal their sexual orientation. One of the main reasons is the lack of protection and basic understanding from staff members who work in immigration centers. They have no choice, so they go back into the closet, hiding their sexual orientation. Only a few countries allow asylum for people who are persecuted based on sexual orientation, gender identity, gender expression, and/or gender characteristics. Most do not have legal or operational frameworks to handle such cases and often actively discriminate
against such people. The lack of preparedness at several levels (i.e., international, regional, and local) explains the lack of accurate data documenting the influx of LGBTQ+ refugees and why many choose not to claim asylum based on their LGBTQ+ status. It is essential to understand the peculiar needs of LGBTQ+ asylum seekers in order to support them going forward. Francesca Braga is an international human rights lawyer. She is also a consultant for NGOs in Southeast Asia in international migration, gender, and labor law. She holds a law degree and two LLMs in international law (United Nations 2016, Fordham University School of Law 2018). ©2021 Francesca Braga. All rights reserved.
Endnotes U.N. General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948, 217 A (III), Art. 1. https://www.refworld.org/ docid/3ae6b3712c.html (last visited Sept. 10, 2021). 2 The nondiscrimination provisions on account of “sex” or “other status:” Articles 2(1) and 26 of the International Covenant on Civil and Political Rights; Article 2(2) of the International Covenant on Economic, Social and Cultural Rights; Article 2 of the Convention on the Rights of the Child; Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedom. 3 UNHCR, Figures at a Glance https://www.unhcr.org/figures-ata-glance.html (last visited Aug. 16, 2021); see also UNHCR, Global Trends Forced Displacement in 2019, https://www.unhcr.org/ statistics/unhcrstats/5ee200e37/unhcr-global-trends-2019.html (last visited Aug. 12, 2021). 4 Id. 5 Id. 6 United Nations for LGBT Equality – Free and Equal, Fact Sheet Criminalization, https://www.unfe.org/system/unfe-43-UN_Fact_ Sheets_-_FINAL_-_Criminalization_(1).pdf; see also European Union Agency for Fundamental Rights, Current Migration Situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers (May 2017), https://fra.europa.eu/sites/default/files/ fra_uploads/fra-march-2017-monthly-migration-report-focuslgbti_en.pdf; see also ILGA, State-Sponsored Homophobia-Global Legislation Overview Update, Dec. 2020, https://ilga.org/statesponsored-homophobia-report. 7 UNHCR, Guidelines on Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (Oct. 23, 2012), https://www.unhcr.org/509136ca9.pdf . 8 Supra note 3. 9 Supra note 6. 10 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Reissued Feb. 2019), https://www. unhcr.org/publications/legal/5ddfcdc47/handbook-procedurescriteria-determining-refugee-status-under-1951-convention.html 11 T. Alexander Aleinikoff, Protected characteristics and social perceptions: an analysis of the meaning of ‘membership of a particular social group,’ 264-331, https://www.refworld.org/pdfid/470a33b30.pdf. 12 Id. 1
Id. UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (Nov. 21, 2008), https://www. refworld.org/pdfid/48abd5660.pdf; see also T. Alexander Aleinikoff, Membership in a particular social group: Analysis and Proposed Conclusion (Aug. 2001), https://www.refworld.org/ docid/3bf92b584.html. 15 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. 16 Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). 17 Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990); Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000). 18 Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1082 (9th Cir. 2015). 19 Sharita Gruber, 4 Ways the U.S. Government Can Strengthen Refugee Resettlement for LGBTQI People ( June 20, 2021), https://www.americanprogress.org/issues/lgbtq-rights/ news/2021/06/21/500755/4-ways-u-s-government-can-strengthenrefugee-resettlement-lgbtqi-people/ 20 Ari Shaw et al., LGBT Asylum Claims in the United States, UCLA School of Law Williams Institute (Mar. 2021), https:// williamsinstitute.law.ucla.edu/wp-content/uploads/Asylum-LGBTClaims-Mar-2021.pdf. 21 Julia Neusner, To Protect the Lives of LGBTQ Asylum Seekers, the Biden Administration Must Fully End Title 42, Human Rights First, ( July 21, 2021), https://www.humanrightsfirst.org/blog/protectlives-lgbtq-asylum-seekers-biden-administration-must-fully-endtitle-42. 13 14
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The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities RACHEL V. ROSE
B
efore delving into the impact of bias on women and minorities, it is important to appreciate what bias is and what it is not.
As set forth in Black’s Law Dictionary and adopted by several courts, “bias” is defined as “[i]nclination; bent; prepossession: a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction.”1 According to psychologists, bias is a fundamental human trait occurring below the level of consciousness, which stems from our need to process information quickly and classify individuals.2 Subsequently, our brains take the information and categorize it into schemas—general classifications with a concept of what is common to all members of a class. When schemas generally categorize people by age, gender, race, or other criteria, they are called stereotypes.3 Bias has three components: cognitive (stereotypes); affective (prejudice); and behavioral (discrimination).4 The general term “bias” is not an inherently negative concept because it is the brain’s way of “sorting new people into easily recognizable groups,” such as “elderly people” or “people who went to the same school that I attended.”5 Bias is further classified as implicit or explicit—both of which may be associated with either a positive or a negative preference. The key distinction between the two is that explicit bias is a conscience preference and implicit bias is an automatic preference based on an individual’s subconscious thoughts.6 While neither subtype of bias requires animus, either type may produce discriminatory behavior. As the U.S. Department of Justice observed, “[w]ith implicit bias, the individual may be unaware that biases, rather than the facts of a
situation, are driving his or her decision making.”7 This point is important because a person may have endured a significant trauma and may be reacting out of fear and past experiences based on current facts and circumstances rather than bias related to schemas.8 Again, a biased reaction toward an individual may be positive or negative. Crucially, it is important for the parties to ascertain whether the reaction is based on the facts of a current situation and the individuals involved or whether there is a negative bias toward an entire group that shares the characteristics. Now that bias has been explained, the remainder of this article is devoted to specific examples and how bias impacts women and minorities, both in the courtroom and in the legal profession, regardless of the person’s role—lawyer, judge, juror, party, or staff.
Analysis Negative bias and the discrimination that often results can be an uncomfortable subject to broach. Often times, the individuals engaged in the behavior—whether explicit or implicit—become reactive, deny their actions, and escalate their behavior. Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.”9 As the Centers for Disease Control and Prevention—Office of Equal Employment Opportunity explains, race discrimination occurs when an unalterable characteristic is present (i.e., physical features attributable to a particular race).10 A related concept is color discrimination, which occurs when individuals are treated differently because of the color of their skin. Sex discrimination is more pronounced and “occurs when men and women who are similarly situated are treated differently based on gender [and happens] when an organization’s policy has a disproportionate adverse impact on a person or a group based on gender.” Although Title VII and the September/October 2021 • THE FEDERAL LAWYER • 67
related types of discrimination apply in employment situations, the underlying conduct often ties back to bias and has implications outside of an employment context. As a recent American Bar Association article articulated, “[d] iversity is needed to bring together the brightest minds to create solutions to business, economic, and social challenges…. To create this type of atmosphere in our bar associations, law firms, workplaces, and communities, intentional action is needed.”11 This same article quoted Dr. Derald Wing Sue’s definition of microaggressions being “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon
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their marginalized group membership.”12 As Forbes reported, if you want to witness heads nodding as personal experiences are exchanged, convene a small crowd of women and minorities.13 Unfortunately, Many have faced the textbook examples of gender bias—e.g., being passed over for promotion, characterized as “aggressive” or “not playing nice” in performance reviews, navigating questions over timing of pregnancy and breastfeeding. And a majority will attest to the slow and painful effects of microaggressions—e.g., being talked over in group meetings, listening to a male colleague repeat an idea as if it were his own, or having her own thesis dissertation topic “mansplained” to her.14
Created by Women of Color Caucus and Social Justice Task Force of the Virginia Sexual & Domestic Violence Action Alliance
Microaggressions, including mansplaining, which usually are repetitious and more subtle, can adversely impact an individual’s “sense of well-being and success—in a way that is: (1) often unrecognized outside the experience of a women [sic] herself, and (2) commonly left to the woman to decide how and whether to address it.”15 To appreciate microaggression and its impact, here are two scenarios:
Scenario 1—Mansplaining in Action During a contract negotiation, an accomplished female lawyer who is considered an expert on the subject matter realizes that she is the only woman on a call with five men, only one of whom is a minority. During the course of the conversation, she notices that opposing counsel not only misstates the law and lies about the role of a government enforcement agency but also has the sheer gall to say that she is wrong. Her voice turns stern, in the way a parent addresses a child in certain circumstances, and she recites the law and the citations back to him from memory. This happens not once, but four times throughout the conversation. Each time, she responds in kind. After the two-hour conversation ends, she emails the group an article in which she is quoted as an expert. The article contains specific examples. The response she receives from opposing counsel is “we’ll send it to our subject matter expert (SME).” She thinks, well, wait, I am a well-regarded expert in this area, why is he sending it to another expert when the text is right in front of him, and it is expressly stated in the law—no ambiguity. That is when she remembers a BBC article on mansplaining.16 The author parses the “-splaining” part into three factors: (1) is the explanation wanted or occurring in a situation such as an educational setting; (2) are assumptions about competence or intelligence being made; and (3) is bias affecting the interpretation.17 This leads us to a simple question: does the woman or the minority have more relevant experience? As the diagram in the article suggests, the answer to the question leads us to whether or not mansplaining has occurred. Here are the three answers and the correlation to mansplaining: • A bout the same amount of relevant experience or knowledge = probably mansplaining. • She has more knowledge or experience than the man = definitely mansplaining. • She has more knowledge or experience and is a well-known expert = just stop talking now.18 Unfortunately, this situation is all too common. Although the woman addressed it during the conversation by pushing back with the correct law and following up with an article that indicated that she is an expert, the male opposing counsel would still not accept it. Instead, he chose to assert power and control by sending it to his male SME. Interestingly, the female attorney was not the only person who picked up on the situation. Two men—one an older white male and another a minority—called to say that she “held her own” and that they knew that she was right on both the law and how she pushed back. Will the other men ever learn? That remains to be seen.
Scenario 2—The Blow-Off Another situation involved a mediation related to a potential case settlement. In one room was the client, an African-American woman, and her lawyers—two white women and a white man. In
the other room was the African-American woman who was the corporate entity’s representative and her lawyers—two white men. The mediator was also a white male. For the first five to six hours, the two “camps” remained in separate rooms, and the mediator met with one room at a time. Then, it was suggested that one lawyer from each side meet in a side room. One male from each side entered the side room to talk … or so the room with three women surmised. Just about that time, the mediator came into the room, relayed that the three male lawyers were meeting in the side room, and that it was a good idea to get the “lawyers together, face-to-face” to work things out. As the mediator exited, the three women looked at each other and then one said, “why is it that the women are the ones in the separate rooms and the men are making the decisions?” Then, another woman said, “well aren’t we lawyers, too?” Although the women mentioned their observations to their male colleague, the client was really bothered by the situation. Just as the mansplaining scenario occurred four times in one contractual negotiation, the microaggression did not stop there. While in the car, one of the male opposing counsel called and, upon learning that the two women were in the car, asked the male lawyer to call him back. Amazing. The question is, how do we begin to dismantle microaggression and the related discrimination based on gender and/or racism? A wheel created by the Women of Color Caucus and Social Justice Task Force of the Virginia Sexual and Domestic Violence Action Alliance is instructive.19 Whether it is race or gender discrimination based on implicit bias utilizing microaggression, the underlying impetus relates to power and control. Based on the nuances between implicit and explicit bias, it is imperative to appreciate that some individuals’ actions are intentional and malicious, other people may be decent and not appreciate their actions, and still others may never act in a certain way unless they are in a group and “herd mentality” takes over. A UCLA Law Review article, “Implicit Bias in the Courtroom,”20 is instructive on breaking the link between bias and behavior in the courtroom. Here are the key takeaways: • P erhaps decision-making processes can be altered so that biases do not translate into behavior. • Judges should remind themselves that they are human and fallible, bringing a life of experiences and biases with them to the bench. • Individuals who adopted an egalitarian approach were less likely to allow implicit bias to translate into biased behavior toward a particular protected class. • Use voir dire to screen potential jurors for implicit and explicit bias—whether positive or negative. • Promote diversity in jury selection, which includes a mix of men and women as well as different races and religions. To sum up bias and the resulting discrimination, consider what a Caucasian juror wrote to a judge regarding jury deliberations during a civil rights case filed by African-American plaintiffs: During deliberations, matter-of-fact expressions of bigotry and broad-brush platitudes about “those people” rolled off the tongues of a vocal majority as naturally and unabashedly as if they were discussing the weather. Shocked and sickened, I sat silently, rationalizing to myself that since I did agree with the product, there was nothing to be gained by speaking out September/October 2021 • THE FEDERAL LAWYER • 69
against the process (I now regret my inaction). Had just one African-American been sitting in that room, the content of discussion would have been quite different. And had the case been more balanced—one that hinged on fine distinction or subtle nuances—a more diverse jury might have made a material difference in the outcome. I pass these thoughts onto you in the hope that the jury system can some day be improved.21 Hopefully, appreciating the words of the juror’s note to the judge in the context of negative bias and the resulting discrimination prompts a curiosity about how to address negative implicit bias.
Conclusion—How to Address Negative Implicit Bias As Martin Luther King Jr. said, “I look to a day when people will not be judged by the color of their skin, but by the content of their character.” Justice Ruth Bader Ginsberg’s sentiment builds upon those words to encompass more than just color: “All I can say is I am sensitive to discrimination on any basis, as I have experienced that upset.” Personally, I am fortunate to have positive and healthy relationships with a variety of people—men, women, African-American, Asian, homosexual, heterosexual, young and old. Like Justice Ginsberg and many of my female and minority colleagues, I have experienced discrimination, including microaggressions. The first step in addressing the issue and beginning the process of change is to examine one’s personal beliefs, values, attitudes, and perceptions. If an individual experienced a particular type of trauma, they need to identify why they reacted to the certain set of facts and circumstances and identify the root cause of the trauma. The next step of self-reflection, especially if the individual is in a group or a position of power, is to consider microaggression and the profound impact the negative remarks or actions can have on diminishing the value and humanity of a female, minority, or group. Only after individuals self-reflect can the door open for meaningful conversations and transformative change in our communities, workplaces, and courts. Rachel V. Rose is a principal at Rachel V. Rose– Attorney at Law, PLLC in Houston. She advises clients on compliance, transactional, and litigation matters in healthcare, cybersecurity, corporate, and securities law as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine. Presently, Rose is the chair of the FBA’s Government Relations Committee and a member of the Qui Tam Section’s Executive Board. She can be reached through her website, www.rvrose.com.
Endnotes What is BIAS?, The Law Dictionary, Feat. Black’s Law Dictionary Free Online Legal Dictionary (2nd ed. 2021), https://thelawdictionary.org/bias/ (last visited July 23, 2021); see also Maddox v. State, 262 S.E.2d 636 (1979); Pierson v. State, 177 S.W.2d 975 (1944). 2 Gordon W. Allport, The Nature of Prejudice (AddisonWesley Pub. Co, 1954); Michael Billig, Prejudice, Categorization, and Particularization: From a Perceptual to a Rhetorical Approach, 79-103 Eur.J Soc. Psych (1985). 1
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Shawn C. Marsh, The Lens of Implicit Bias, https://www. ncjfcj.org/publications/the-lens-of-implicit-bias/ (last visited July 22, 2021). 4 Id. 5 U.S. Dep’t of Just., Understanding Bias: A Resource Guide, https://www.justice.gov/crs/file/836431/download (last visited July 22, 2021). 6 Id. 7 Id. 8 Jessica Bomyea, et al., Information Processing in PTSD: Evidence for Biased Attentional, Interpretation, and Memory Process, J. Exp. Psychopathol. (2017), https://journals.sagepub.com/ doi/10.5127/pr.037214. 9 Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964). This article refers to Pub. L. 88-352, Title VII, as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e. The Civil Rights Act of 1991 § 109, 42 U.S.C. § 2000e et seq (1991), and the Lily Ledbetter Fair Pay Act of 2009, amend several sections of Title VII. 10 Centers for Disease Control and Prevention, Office of Equal Employment Opportunity, Types of Discrimination, https://www.cdc.gov/eeo/faqs/discrimination.htm (last visited July 23, 2021). 11 Artika R. Tyner, Unconscious Bias, Implicit Bias, and Microaggressions: What Can We Do About Them?, https://www. americanbar.org/groups/gpsolo/publications/gp_solo/2019/julyaugust/unconscious-bias-implicit-bias-microaggressions-what-canwe-do-about-them/. 12 Id. (quoting D. W. Sue. Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation ( John Wiley & Sons Inc. 2010). 13 Deena Shakir, From Microaggressions To Mansplaining: Busing Biases In Venture Capital, Forbes ( Jan. 13, 2021), https:// www.forbes.com/sites/deenashakir/2021/01/13/frommicroaggressions-to-mansplaining-busting-biases-in-venturecapital/?sh=2eff4c8818b6. 14 Id. 15 Simone N. Vigod, et al., The impact of gender discrimination on a Woman’s Mental Health, The Lancet – EclinicalMedicine (Mar. 18, 2020), https://www.thelancet.com/journals/eclinm/article/ PIIS2589-5370(20)30055-9/fulltext. 16 Kim Goodwin, Mansplaining, explained in one simple chart, BBC - Worklife ( Jul. 29, 2018), https://www.bbc.com/worklife/ article/20180727-mansplaining-explained-in-one-chart. 17 Id. 18 Id. 19 See https://www.communitysolutionsva.org/index.php/resources/ item/dismantling-racism-resources (last visited Jul. 23, 2021). 20 Jerry Kang, et al., Implicit Bias in the Court Room, 59 UCLA L. Rev. 1124, 1172-1179 (2012), https://www.uclalawreview.org/pdf/59-5-1. pdf. 21 Janet Bond Arterton, Unconscious Bias and the Impartial Jury, 40 Conn. L. Rev. 1023, 1033 (2008) (quoting letter from anonymous juror) (emphasis added). 3
Attention Readers of The Federal Lawyer We invite and encourage you to submit pithy but concise (600 words or fewer) submissions that tell the story of law “firsts” or “trailblazers” in your area. Please think expansively. For example, who was the first lawyer of color to become a partner at a historically white law firm in your area? Who was the first female lawyer to serve as your area’s federal, state, or country prosecutor? Who was the first openly gay lawyer to serve as a judge on your local federal or state court? We hope to publish as many submissions as possible in the May/June 2022 edition of The Federal Lawyer. Some firsts or trailblazers may even be invited to sit for an interview with the president of the FBA.
Please send each submission, along with a photo of the person featured, if available, to managing editor Lynne Agoston at social@fedbar.org. Deadline to Submit: Jan. 3, 2022
Please see www.fedbar.org/blog/magazine/ for the full 2022 editorial calendar.
FBA JUDICIAL PROFILE INDEX A Valuable Benefit of Your Membership
1st Circuit This index contains profiles as they were published in The Federal Lawyer magazine. The index is organized by circuit and district, which can be accessed via the tabs at right. If you would like to search for a specific judge, it is recommended that you use the search function above and type in the judge’s last name. This index will be updated with both new profiles and historical profiles on a regular basis. If the judge you are looking for does not appear, this either means that they have not yet been added to the index or have not been profiled. The Federal Lawyer encourages submissions of judicial profiles; contact Managing Editor Sarah Perlman at sperlman@fedbar.org for more information.
Access the index today at www.fedbar.org/JPI
September/October 2021 • THE FEDERAL LAWYER • 71
Book Reviews
Credit Nation: Property Laws and Institutions in Early America By Claire Priest Princeton University Press, Princeton, NJ, 2021 226 pages, $39.95
Reviewed by Henry S. Cohn
On Aug. 4, 1789, three weeks after the storming of the Bastille signaled the beginning of the French Revolution, threatened French nobles stepped up at their National Assembly to abolish all traces of their feudal land system. By contrast, in the English colonies in North America, the end of feudalism occurred more gradually, without the drama of what is known today as the “night of August 4th.” In the 17th and 18th centuries, colonial courts and legislatures gradually separated themselves from the English land law, and this, according to Yale Law School professor Claire Priest, laid the groundwork for the credit nation still in effect in the United States. Priest begins with the ownership of land in the colonies. The Crown, through its Board of Trade, allotted land in small acreage to encourage settlement by more
people in the New World. The owner of land received it in “free and common socage,” whereas the land of the typical British landowner was laden with burdens, including arbitrary land taxes imposed by a local manorial lord. The recording of deeds was vastly superior in the colonies compared to England. In the colonies, deeds were recorded at the local town hall or county court and open for public viewing. In some colonies, unrecorded deeds were void. In England, deeds were often privately maintained. Deed validity required a “livery of seisin” ceremony that was not imposed on conveyances in the colonies. Priest discusses the imposition of the Stamp Act by Parliament in 1765. One of the reasons that the colonials objected to the Stamp Act was that it interfered with the colonial recording system by placing a fee on recording transactions. This grievance over the Stamp Act was one of the causes of the American Revolution. In the New England colonies, the colonial land law did not include primogeniture, which was the right, when a person died intestate, of the eldest son to inherit all the real property of the deceased, to the exclusion of his siblings. Primogeniture was abolished in other regions of the United States after 1776. In England, primogeniture continued until 1925. In Connecticut, a significant primogeniture case—Winthrop v. Lechmere—was decided in 1728. It was one of the few colonial cases that reached the Privy Council in England. The Privy Council was technically the final appellate body for the English colonies, although it rendered few decisions. It was an administrative body, not a court, and its concern was with English politics and policy. The issue in the case pitted a brother ( John Winthrop) against his sister (Ann Lechmere). Under Connecticut colonial law, full primogeniture did not apply, and therefore, Winthrop had to share with Lechmere their father’s estate, consisting of extensive realty. Lechmere received favorable treatment in both the New London, Conn.,
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probate court and the Connecticut legislature (at that time the Connecticut court of last resort). Winthrop was outraged that he was not the exclusive heir and traveled to England to overturn the colonial result. In doing so, he ignored his own health and safety as well as the plea of a friend that he give in to his sister’s claims out of consideration for a family member. Winthrop presented his argument to the Privy Council, and it agreed with him, finding that strict primogeniture was the law of both England and its colonies, and that Connecticut’s law was invalid. The Privy Council’s decision created a crisis in Connecticut, threatening titles to land obtained both prior to and after the decision. Diplomatic and legislative efforts were made without success to overturn the Privy Council’s holding in Winthrop v. Lechmere. Then, in 1745, another decision from the Privy Council, which dismissed an untimely appeal, was intentionally misread by the colony’s authorities to hold that the Privy Council had reversed its position. This was the status of the law until 1776 and the start of American Revolution, after which primogeniture did not survive. Priest also spends much time on another feudal land restriction, the “entailed fee.” This allowed a grantor to declare by deed that his real property was “entailed” and not held in “fee simple.” This resulted in realty passing, upon the grantor’s death, to the grantor’s eldest son or, if he was without sons, to the daughters as a group. This status continued from the original grantor to each subsequent grantee, with the land not alienable or subject to the claims of creditors. The entail was used to support aristocratic land holdings. Some colonies enacted statutes that allowed for elimination of individually entailed properties through a court action known as “docking or barring the entail.” Connecticut’s approach was to allow the entail only through “the first grantee in tail.” After the American Revolution, the new states heeded the Founding Fathers, such as Thomas Jefferson, who called for the full repeal of the entail, seeing it as anti-demo-
cratic and a vestige of English feudal rights. In France, the entail was abolished, as was primogeniture, in an atmosphere of violence, on the night of August 4th. Priest shows that the colonies’ thoughtful simplification of land titles, the development of a public recording of land transactions, and the elimination of primogeniture and the entail led to the creation of the American credit nation. Conveyances were easily made, mortgages were readily obtainable, and unsecured creditors were willing to make loans. Priest also discusses the Debt Recovery Act of 1732, passed by Parliament to reassure English and colonial lenders that debtors could not unreasonably interfere with court actions to collect on defaulted debts. Although the American credit system established between the 1600s and 1776 was an important achievement, Priest notes one negative aspect of it: its facilitation of slavery. In the colonies, slaves were legally equivalent to realty. The credit system allowed easy purchase, conveyance, recording ownership, and mortgaging of slaves, thereby supporting the expansion of slavery, mostly in the South. Priest further declares that in spite of all their talk of democracy, slaveholders supported the entailing of their slaves to protect them from seizures by creditors. After the American Revolution, banks were the chief source of credit for slave purchases. In “Financialization of Enslavement in the First and Second Banks of the United States” (forthcoming in the Journal of Southern History, September 2021), Professor Sharon Ann Murphy relates that [i]n order to fully understand the depth and breadth of the system of enslavement in the United States, we need to unmask the relationship between enslavement and the “institutions, practices, and people that collectively constitute a tangled web of money, investment, credit, and debt.” (quoting Professor Stephen Mihm) She continues, “Slave-traders, for example, held accounts with the Second Bank and used their banknotes to facilitate the buying and selling of enslaved peoples across state lines.” These antebellum slavery lending practices that Professor Murphy condemns had their roots in the laws and practices that Professor Priest describes in Credit Nation.
Judge Henry S. Cohn was appointed to the Connecticut Superior Court in 1997 and has been a judge trial referee since 2015. He has written a book on the Hartford, Conn., Circus Fire, published by Yale University Press, and has written numerous other pieces, including book reviews for The Federal Lawyer.
Legal Sabotage: Ernst Fraenkel in Hitler’s Germany By Douglas G. Morris Cambridge University Press, 2020 285 pages $110
Reviewed by Jon M. Sands
The ultimate dilemma posed by Douglas Morris in this fine study is: How does a lawyer confront an evil government in a subverted legal system? This conundrum has been faced by many working in a legal system where the government eschews the rule of law and instead rules by force. In standing for rights, and defending those facing charges, such lawyers may risk their profession; they may even risk their freedom. Few in Nazi Germany, however, other than Jewish lawyers, risk their lives. Even fewer take this stance knowing that they themselves are the target of hatred and prejudice and have no real protection. One such person who faced this test was a German Jewish socialist lawyer in Nazi Germany: Ernst Fraenkel. He is renowned as one of 20th-century Germany’s great intellectuals, a shrewd constitutional theorist for the Social Democrats, and
a respected political scientist who worked to secure West Germany’s new democracy. This book homes in on the most dramatic years of Fraenkel’s life, when he worked within Nazi Germany actively resisting the regime, both publicly and secretly while balancing his role as a practicing attorney and political dissident. “Legal Sabotage” is a fitting title for Fraenkel’s efforts to thwart injustice, save his clients, and actively oppose the Nazi regime. The author, whom I know, is a German legal historian as well as a practicing federal public defender. This is a multi-faceted study: biographical, political, intellectual, and legal. Morris sets Fraenkel in his time (the Weimar Republic of 1918-1933), profession (legal), politics (socialism), and practice (representing trade unions and political and Jewish defendants). The study is replete with examples of strategy, arguments, and necessary compromises, even lies, Fraenkel used in defending clients facing likely torture and death under the Nazi regime. A World War I veteran, Fraenkel was a leading socialist lawyer in the Weimar Republic. An intellectual and a political scientist, he engaged in political advocacy, writing articles and tracts defending the Left while he represented various powerful trade unions in Berlin. Hitler’s attainment and consolidation of power in March 1933 and the Nazi takeover of the German state crushed the Left, restricted Jewish participation in the professions, and began the creation of a separate extra-judicial state. Morris recounts the steps taken to restrict Jewish participation in the law: ousting Jewish lawyers from partnerships, bar associations, and social organizations; restricting their practice; forcing Jewish judges to retire; and limiting Jewish lawyers to representing only Jewish clients, and then limiting their court appearances and finally outright disbarring them. Jewish lawyers could then act only as advisors. The legal profession did not honor itself. While most Jewish lawyers despaired, as first their professional careers were taken away and then even their lives, Fraenkel became defiant. “Fraenkel survived in part because he was so bold—not reckless, not ambitious, but bold.” Fraenkel opposed tyranny by accepting his mortality: He accepted the risk of dying for standing up for his clients—visiting them in prison, first as a lawyer and then as an advisor—and for his writings and in his political activities. In this
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manner, Fraenkel combated the paralysis that afflicted so many of his fellow socialists and Jewish lawyers, who hoped somehow to outlast the Nazi regime by keeping their heads down. They sought to follow the rules, no matter how prejudicial, and not draw attention. Fraenkel also refused to succumb to hopelessness, and even suicide, when so much was taken away. One can defy a regime and end up a martyr, but Fraenkel survived professionally for six years by his fatalism and professionalism. Using his wits, Fraenkel stayed in Germany until late 1938. As the Nazis prepared to arrest him, he fled Berlin, eventually coming to the United States. Had he delayed even a day, he might have found himself bound to a concentration camp rather than on a flight to freedom; that is, if he survived an arrest. He subsequently landed in New York as a refugee—a refugee with a manuscript about Nazi law and politics: The Dual State. Published in 1941, Fraenkel’s The Dual State is a study of the Nazi subversion of the German legal system. Morris rightly sees this study as a vindication of Fraenkel’s approach to resistance. Fraenkel combined his experiences with a theoretical framework of how institutions and systems are corrupted. He explained that in the transition from the Weimar Republic to Nazi rule, the Nazis created a dual state—“the arbitrary, often violent, lawlessness of the prerogative state and the Nazified legal order of the normative state.” Rules, laws, and conventions bind normative state; the prerogative state is extra-legal and trumps the legal order. In Nazi Germany, these “two states not only existed alongside each other but helped to form each other’s character.” Nazi rule “politicized the legal system, recasting the old liberal order into the new Nazi legal order and replacing the rule of law with Nazi politics.” As the Nazis advanced their goals regardless of the law, the legal system reshaped itself to help the Nazis. This was done through pressure, appointments, coercion, and supplication. “The prerogative state steadily encroached on the normative state, while the normative state increasingly modeled itself on the prerogative state.” Rather than being in opposition, over time, the legal state and the political state became one. Fraenkel understood that the dual state provided a space where even an opposition lawyer could act. He navigated that space. “He survived by testing the boundaries without crossing them, by pressing the limits of
the political within Nazi Germany’s normative state and by retreating before intruding into the prerogative state.” Fraenkel had room to maneuver in the early years, when the Nazi state made an accommodation, governing without actually controlling the regular courts outright. They could accomplish their goals with pressure and social prodding to conform. Fraenkel actually described, and Morris explains, that the success of Fraenkel and others in using the court system in the early years of 1933-1935 led the Nazi regime to create special courts of their own. These extra-judicial courts, the political courts, were tribunals apart and existed to express power. As the extra-judicial courts grew, Fraenkel’s goals were increasingly to keep his clients in the shrinking ambit of the legal system – even by confessing to false apolitical crimes to avoid political punishments. The legal system still tried to operate, and Fraenkel achieved success in legal arguments, but by 1938, any independence in the political sphere could not be tolerated. Then Fraenkel had to flee. To Morris, Fraenkel in Nazi Germany poses a dilemma. How did he accomplish as much as he did—as a covert pamphleteer, an overt political lawyer, and a scholar—and still avoid arrest? Morris points out that Fraenkel did not define himself solely as a lawyer; his identity was not bound up in being a lawyer. He saw his profession as fighting the regime. He did this not only as a lawyer but by engaging in socialist political activities, including illegal activities. In doing so, he accepted the risk of death. Fraenkel was a lawyer by day and a political resister by night. Fraenkel understood that the Nazi regime had so corrupted the law that he could not seek protection in procedural rules or substantive laws. The Nazis could change them at whim. He could use the laws and procedures, humor the Nazis, and turn arguments against them, but he owed no allegiance to the law, which defined him as a heretic and treated him as an outlaw. This led Fraenkel to act against legal standards, even with clients. Morris explains that the German legal system, unlike ours, “frowned on lawyers prepping defendants or witnesses for trial.” Yet Fraenkel “counseled clients not only to frame the truth but also, as necessary, to lie. When he could, Fraenkel argued the facts. But he did not rigidly play by the rules when he could not expect fair play, when he defended men and women whose fates were in play.”
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There are not a lot of cases to use as examples; one does not write down what one can be executed for. There are a few, however, and Morris is a careful extrapolator. His own experience as a public defender gives him insight into client relations and an ability to compare and contrast legal systems. Morris concludes, paradoxically, “Ultimately, Fraenkel’s ability to lie distinguished him from other German Jewish lawyers. Other Jewish lawyers feared that, more than anyone else, especially as Jews, they had to meticulously follow all laws, rules, and regulations and could not risk infractions. As lawyers, they could not reconcile illegality with respectability, illegal conduct with honorable comportment, or resistance with bourgeois sensibilities.” This is a controversial claim. Morris argues that Fraenkel had to act outside his professional responsibilities to serve the greater good of justice. It is well and good to profess allegiance to the law, but can one profess allegiance when the rule of law has become a cudgel? It is a dilemma that activist lawyers face. In the United States, law was used in the struggle for civil rights. But what good is the law in a lynching? In Legal Sabotage, Morris has written the definitive study of Fraenkel during a critical period. The book also chronicles the subverting of Berlin and Germany’s renowned legal profession over six years (1932-1938). It focuses on the few years when the hallways of the German legal system reverberate with doors being slammed in Jewish faces, the law courts and offices being made inhospitable, and the laws themselves drafted in the new legal language of hate. Morris provides context but assumes some familiarity with the subject matter. It is not an easy read. The focus on Fraenkel is entirely on his public actions and personae; Fraenkel was reticent to reveal his personal life and tight lipped as to his private thoughts and emotions. Fraenkel’s actions were heroic, but he would be hard to cast as an action hero. The book’s chapters, derived from academic articles, are themed, and some resonate more than others. For historians of the period, though, examining institutions and professions has become essential, and when it comes to the legal system, Morris’s account will be required reading. Jon M. Sands is the federal public defender for the District of Arizona.
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September/October 2021 • THE FEDERAL LAWYER • 77
Chapter Exchange
ELEVENTH CIRCUIT Tampa Bay Chapter Young Lawyers Division Food Drive Thanks to your generosity, the Young Lawyers Division (YLD) received over 600 pounds of food for its donation to the St. Pete Free Clinic. We are thankful to report that over 20 individuals donated items for this drive. A special shoutout goes to Johnson Jackson PLLC, who donated over $200 worth of items for the drive. On July 1, 2021, members of the YLD Committee delivered the food to the St. Pete Free Clinic in downtown St. Petersburg. The committee members reported that the staff at the clinic were very grateful for the food donations. The staff explained how the clinic provides an enormous service to the local community by providing food to their men’s and women’s shelters. The clinic also runs a local pantry staffed primarily by volunteers. On the day the YLD Committee members delivered the food, the staff at the St. Pete Free Clinic explained that over 400 people
would be served by the drive-through pantry. The staff was extremely grateful for this donation, as this number continues to rise. Again, the YLD is thankful for your generosity and looks forward to serving Tampa Bay more in the future.
NINTH CIRCUIT Northern District of California Chapter Over 600 people recently attended via Zoom a program co-sponsored by the American Jewish Committee and the Northern District of California Chapter of
Food collected by the Tampa Bay Chapter Young Lawyers Division.
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Northern District of California Chapter: (top left) Elizabeth Lee, San Mateo County Superior Court Judge; (top right) Mark Bennett, director of the Institute for Justice Reform & Innovation at Drake University Law School and retired district judge of the Northern District of Iowa; (bottom left) Professor Justin Levinson, University of Hawaii William S. Richardson School of Law; (bottom right) Judge Bernice Donald, Sixth Circuit Court of Appeals.
the FBA titled “Judging Implicit Bias.” The panelists were Judge Mark Bennett (Ret.), Professor Justin Levinson, and Judge Elizabeth Lee, and the moderator was Judge Bernice Donald.
FIFTH CIRCUIT
they encounter. President McKenna Stone Cloud introduced Judge Isaac and Judge Parker and served as the moderator for the question and answer session.
SECOND CIRCUIT
Mississippi Chapter
Eastern District of New York Chapter In Memoriam: Judge Robert A. Katzmann
U.S. Magistrate Judges LaKeysha Greer Isaac and Mike Parker spoke via Zoom with the student members of the FBA at Mississippi College School of Law in Jackson, Miss. The judges shared with the law students their professional backgrounds and their routes to being appointed magistrate judges and answered questions about their duties and the types of issues
The Eastern District of New York Chapter of the FBA is deeply saddened by the passing of Hon. Robert A. Katzmann, the former chief judge of the Second Circuit Court, on June 9, 2021. Judge Katzmann, who took senior status in January 2021, served on the Second Circuit bench for over two decades. He was lauded for his work ethic, commitment to
Mississippi Chapter: From left: U.S. Magistrate Judge LaKeysha Greer Isaac, U.S. Magistrate Judge Mike Parker, President McKenna Stone Cloud.
civic education, and efforts to help guarantee legal representation to immigrants. Born and raised in New York, the heart of the Second Circuit, he attended college at Columbia University and received his J.D. from Yale Law School. He was a fellow at the Brookings Institute and a law professor at Georgetown University until his appointment to the federal bench by President Bill Clinton in 1999. Called a “visionary” by Supreme Court Justice Sonia Sotomayor, he helped to establish the New York Immigrant Family Unity Project, which eventually evolved into the Immigrant Justice Corps, dedicated to providing competent counsel for immigrants. Together with Judge Victor Marrero, he created the Committee on Civic Education, which serves to make the judicial system more accessible. Among the numerous decisions he authored, he wrote the majority opinion in Zarda v. Altitude Express, in which the Second Circuit Court held that the 1964 Civil Rights Act barred employment discrimination based on sexual orientation. The officers, directors, and members of the FBA extend their sincere condolences to Judge Katzmann’s wife, Jennifer Callahan; his family, friends, colleagues, and law clerks; and all the people whose lives he impacted during his storied career.
September/October 2021 • THE FEDERAL LAWYER • 79
Sections & Divisions
CRIMINAL LAW SECTION
The Criminal Law Section (CLS) recently awarded $1,000 Criminal Law Scholarships to two graduating 3L students. For several years, the CLS has offered the scholarships for graduating 3Ls interested in pursuing a career in criminal law serving the public interest. The interest in the scholarship program continues to be tremendous. The CLS has a newly elected board: E.J. Rymsza, Chair; Charles Curlett, Chair-Elect; Madison Bader, Secretary; Jamiel Allen, Treasurer. CLS membership continues to grow. We will be looking forward to meeting in person for any CLS members attending the convention in Miami in September. The CLS was a co-sponsor of the 30th Annual National Seminar on Federal Sentencing, which was held Sept. 1–3, 2021, at the Tradewinds Island Resort, St. Pete Beach, Fla. The Government Relations Committee has been working with the CLS on providing its respective views on the permanent extension of video conferencing in certain criminal proceedings under the CARES Act.
INTERNATIONAL LAW SECTION
During 2021, the ILS started quarterly webinar programs for the International Courts Program to engage experts working in and around the International Court of Justice (ICJ) and other international courts and tribunals. We sponsored the following programs:
Feb. 22, 2021: Keeping Jurisdictional Boundaries Straight at the ICJ, the UNCITRAL, the ICC, and the PCA, With Hon. Mimi Tsankov, Rachel Rose, and Hon. Linda Murnane This quarterly topical webinar program engaged experts working in and around the international courts and tribunals about jurisdictional boundaries surrounding the ICJ, the United Nations Commission on International Trade Law (UNCITRAL), the International Criminal Court (ICC), and
the Permanent Court of Arbitration (PCA). This program was aimed at young legal professionals and highlighted selected cases, legal community initiatives, and employment opportunities at these international bodies aimed at giving program participants a useful set of skills that will make them competitive in the hiring process, and, once hired, ensuring that they have the right “toolbelt” to be successful in their international court roles.
April 21, 2021: International Business Transactions, With Professor Dr. Frank Emmert and David Wemhoff This webinar discussed the fundamentals of international business law, applicable conventions, and good practice tips. The presenters discussed the general legal and commercial framework for international business transactions examining different commercial models and the various levels of juridical regimes around the world; the basics of creating and interpreting international sales contracts, especially the use of INCOTERMS; payment and financing contracts, including an overview of letters of credit, bank guarantees, and other payment arrangements; shipping contracts, with an emphasis on bills of lading; insurance contracts; and the various means of dispute resolution.
June 25, 2021: International Law Section: The FBA Is Accredited to the UN ECOSOC—What Does This Mean for Members? How Can Members Participate? With Michele Forzley, Rachel Rose, and Bruce Moyer In 2020, the FBA was accredited to the UN Economic, Social and Cultural Council (ECOSOC). This session provided information about what this means for members and the association, and how to participate in ECOSOC as an FBA member. The session also addressed FBA policies and policymaking relevant to member participation in ECOSOC.
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July 23, 2021: Private International Law Bodies and the Panel of Recognized International Market Experts (P.R.I.M.E.) in Finance, With Hon. Mimi Tsankov, Hon. Elizabeth Stong, Jeffrey Golden, Professor Louise Ellen Teitz, and Linda Strite Murnane This webinar explained to law students and younger lawyers how private international law bodies play a role in dispute resolution. It examined how the bodies reduce legal uncertainty, help private parties manage systemic risk, and provide a forum for creating an authoritative body of law to resolve private matters. It covered P.R.I.M.E. Finance and its role in resolving disputes related to derivatives and other complex financial products.
Aug. 11, 2021: The Use of International Law in Domestic Courts and International Tribunals, With Robert “Bob” Pauw This webinar focused on the use of international law in U.S. domestic courts and at the Inter American Commission on Human Rights (IACHR). The presenter discussed the exhaustion of domestic remedies, the procedure for bringing claims to the IACHR, and the enforceability of decisions issued by international tribunals. Although under the Constitution, international law is part of “the supreme Law of the Land,” courts and agencies may be reluctant to follow requirements of international law. Often, international law is not directly enforceable in U.S. courts, and it can be difficult to convince courts and agencies to follow international law norms. The webinar discussed how, in spite of these difficulties, international law may be useful for purposes of constitutional and statutory interpretation, and ways to facilitate consideration of international law by courts and agencies. The IACHR cases that were discussed involve removal proceedings under U.S. immigration law.
Member Spotlight † Denotes New Member Denia Angelino BreeAna Coleman Megan Diefendorf Amarachi Ihejirika Breyon Love Ashley Miller Nathan Moelker Majeedah Murad Shannon Walker
Vermont
FIRST CIRCUIT
THIRD CIRCUIT
Vanessa Carballido Amanda Miller Anabel Rodriguez-Alonso* Leslie Silverstein
Emily Bryant-¡lvarez Garrett Moritz Stephanie Riley
First Circuit At Large
Hon. Raymond L. Acosta Puerto Rico
Bridget Asay Stephanie Greenlees Paul Van de Graaf
Western District of New York Sabrina Salituro Vincent Parlato
Delaware
Middle District of Pennsylvania
Rafael Lopez-Rivera Javier Micheo-Marcial Marivanis Miranda Tomas Roman
Anthony Cox, Jr. Chase Defelice Jeff Paladina Magda Patitsas Julian Truskowski
Maine
New Jersey
Massachusetts
FOURTH CIRCUIT
Alison Briggs Ari Castel Leonard Kesten* John Maynard* Kevin Mosier Gregory Noonan Patricia Rapinchuk Lindsey Ross Katherine Soule
Rhode Island
Robert D’Alfonso, III Michael D’Ippolito, III Natalia Friedlander John Fulweiler Christopher Haze Ellen Saideman Etie-Lee Schaub
SECOND CIRCUIT Second Circuit At Large Samantha Chase Scott Lenz
District of Connecticut Kevin Meisner
Eastern District of New York Crystal Cummings Roman Galper Matthew Pate
Southern District of New York Camille Bent Luke McGrath Alex Pappas Bertha Rodriguez Kadeen Wong
Mark Niedziela
Fourth Circuit At Large Diane Abato Jonathan Fahey Luke Gentlesk Joshua Griffin Rupa Russe Brittany Shipley
Eastern District of North Carolina Jim Melo Paul Sun*
Hampton Roads Courtney Hanna William Monroe, Jr Elisabeth Moore
Maryland
Gerald Collins Brett Cook Jasmine England-Caesar Harry Gruber Brittany Jones Tamesha Larbi Christopher Lundy Jessica Martz Megan Micco Brandon Moore Kristi O’Malley Tyra Robinson Alicia Shelton David Sommer*
Middle District of North Carolina LaShaunta Jones Jennifer Van Zant
Northern Virginia Michael Barnsback Allison Klena Charles McAleer, Jr* Laurin Mills William Pauls Sonya Sacks John Thomas, Jr* Tessa Tilton Corey Tisdale
New Orleans
John Danyluk Thomas Domonoske Laura Kistler
Laura Alexander David Beck Rhakeem Brown Mary Bubbett Jackson Sheri Corales Mark Cunningham Tori Howze Shannon Kippers Lynn Luker Alex Rothenberg Lynda Tafaro Ian Taylor Lee Williams Caitlin Zetzmann
South Carolina
San Antonio
Richmond
Thomas Keegan, II Jenn Leffew
Jessica Alatorre
Julie Balovich Kyle Batson Amber Farrelly Vienna Gerlach Mark Sanchez William Simmons
Western District of Virginia
Southern District of Texas
Western District of North Carolina
Thomas Bondurant Caley DeGroote Scott Jones Dathan Young
FIFTH CIRCUIT
Fifth Circuit At Large Gregory Burts Yvette Changuin Richard Collins Jade Davis Kate Embry Jesse Frank Meredith Harrison Joseph Hart, IV Franklin Hoffmann Michael Latimer Stephanie Poucher Juan Renteria Wade Russell Allison Simkins
Austin
Robert Alden Michelle Fernald* Marisa Giles* Sara Janes*
Baton Rouge Mark Barbre* Hayley Franklin Martin Golden
Dallas
Paulette Miniter
El Paso
Sergio Garcia* Noemi Lopez
Mississippi
Autumn Breeden Pope Mallette J. Mayo, Jr.
Eastern District of Michigan Margaret Costello
Knoxville Joe Mullis
Memphis Mid-South Christopher Freire Daniel Vazquez
Northern District of Ohio Jeff Hastings Gabriel Kauffman Amanda Knapp Deneen LaMonica William Mooney Joseph Muska Nathan Nasrallah Rachel Richards Sarah Schneider Ethan Weber Charlie Wu Maria Zirbel
Nancy Johnson Samy Khalil Drew Padley Ryan Patrick John Pearson Bernard Roan Jimmy Rodriguez
Western District of Michigan
SIXTH CIRCUIT
Roberta Holzwarth* Crystal Johnson Martin Syvertsen
Sixth Circuit At Large John Beason, III Danielle Easton Joshua Evans Molly Kindness Amy Maldonado* David Thomas
Chattanooga Ray Johnson, Jr Lance Pope LeAnna Wilson*
Cincinnati-Northern Kentucky, John W. Peck Beth Bryan* Derek Freitas Ali Miller Christy Muncy Katherine Neff
Columbus
Matthew Borgula Emily Rucker
SEVENTH CIRCUIT Seventh Circuit At Large
Central District of Illinois Alivia Hatten
Chicago
Ali Abtahi* Beth Alpert Spelios Bacoyanis Amanda Burns Peter Deegan, Jr Horace Draa, III Edwin Esmenda Maya Ewing Lisa Kpor Jordan Wilkow
Indianapolis Cindy Cho Bob Wood*
Davide Cugini David DeVillers Chandni Patel William Robinson David Roper Christopher Wager
Lafayette/Acadiana
Dayton
P. Michael Mahoney (Rockford, Illinois)
Sara Benson Elaine Brooks Sangmi Kim Derek Muncy
Gary Russo
Northern District of Indiana Jonathan Slabaugh
Shannon Cervantes
September/October 2021 • THE FEDERAL LAWYER • 81
Southern District of Illinois Alex Boykin
EIGHTH CIRCUIT
Eighth Circuit At Large Michael Everett Sheila Greenbaum Nicole Lemon Alexandra Meyer Karla Santiago Jennell Shannon
Nevada
Margaret Lambrose Julius Ray, II Patrick Reilly
Northern District of California Joseph Faucher Jean Joseph Amie Miller Glenn Olsen Catherine Reagan
Iowa
Orange County
Minnesota
Oregon
Timothy Jacobs Samuel Audley David Camarotto Anabel Cassady Michelle Christy Sanjiv Laud Matthew Leighton Douglas Micko Andrew Page Bernadette Senyana James Ventura
St. Louis
Sheila Brennan Samuel Moore Beth Orwick Nancy Thomas Marie Woodruff
NINETH CIRCUIT
Nineth Circuit At Large W. Jamiel Allen Mary Pat Barry Daniel Belcourt Anna Danielian Luci Davis Aaron Garcia Mack Jenkins Jesus Mosqueda Avi Rutschman Tarek Shawky
Alaska
Michelle Nesbett
Hawaii
Tara Buckley Rafael del Castillo Carisa Duffy Erika Gustin Jeffrey Miller
Idaho
Jon Evans Michael Moore
Los Angeles
Lance Aiumopas C. Moze Cowper* Michael Garcia* Anthony Lewis Daniel Nardoni Grecia Perez Alexander Porter Saura Sahu* Jamie Shepherd Michele Weiss Yan Zhao
Fred Slaughter
Katherine Heekin Wilson Jarrell Jennifer Nelson Rachel Sowray
Phoenix
Payslie Bowman Jessica Brown Marsha Cotton Jonathan Litster Frederick Petti Benjamin Pruett Zachary Schroeder Kenneth Withers
Sacramento Chi Soo Kim
San Diego
Jessica Agatstein Nathan Andersen Brian Attard Madeline Baker Amanda Bray Lauren Cusitello Kaitlyn Forbes Saige Gallop Mason Goodman Rebecca Heywood Molly Humphreys Kayla Huynh Francesca Jenkins Patric Lester John Mysliwiec Stefano Riznyk Raquel Rotman Aude Ruffing Roxana Sandoval Vivian Sapthavee Matthew Springmeyer Matthew Vazin Carson Williams
Washington State Derek Conom Kayla Stahman
TENTH CIRCUIT
Tenth Circuit at Large Tyson Raymond Alice Walker*
Colorado
Kelly Corcoran Terry Seiple, Jr Danielle Touart
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Kansas and Western District of Missouri Branden Bell Benjamin Donovan Robert Hutchison Sean McGivern Jeffrey Wilson
Northern/Eastern Oklahoma Weston Cox Caroline Lindemuth
Oklahoma City Tosha Birmingham Julie Ezell Samuel Merchant Kelly Offutt
Utah
Brandon Bourg Cassandra James R. Klein
ELEVENTH CIRCUIT Eleventh Circuit At Large Jeremy Ches Anna Cross Lawrence Dentremont Michelle Estlund Alise Henry Inga Londeree Brieonna Ramos Robert Rowe Ahmad Yakzan
Atlanta
Benton Mathis, Jr Alex Sistla Mitchell Stockwell
Birmingham John Barnett
Broward County
Farah Bridges Constantine Economides* Randall Katz
Jacksonville Sean Granat Margaret Miller
Montgomery
Larry Golston Benjamin Maxymuk Wilson Miles, III
Orlando
Quannisha Allen Alan Apte Amelia Baisden Cristian Cantillana Sarah Doolittle Asia Evans Luis Guzman Delino Miller Julien Maynard Soleg McWilliam Lauren Robertson Matthew Smith Sergio Torres Wilbert Vancol*
Palm Beach
Chelsea Hackman Pamela Hankerson
South Florida
Casey Amaya Mary-Lou Bretthauer Tanya Brinkley Jadea Deahl Ariana Fajardo-Orshan Aimee Ferrer Ayana Harris* Vanessa Johannes David Karp Mario Marin Niki Namazi Isabella Otruba Veronica Oviedo Daria Pustilnik Landon Ray Melissa Respeto Alice Sum Stephanie Vazquez
Southern District of Georgia Christopher Lomax*
Southwest Florida Dennis Kohlhoff, Jr
Tallahassee Brian Rich
Tampa Bay
Adeel Bashir* Matthew Bedan Ed Gruchacz Jacob Hanson Benjamin Lazarus Wilma Metcalf Jeanneth Miranda Florise Neville-Ewell Kristin Norse* Jennifer Rex Natalia Reyna-Pimiento
D.C. CIRCUIT Capitol Hill
Stephanie Hemmert Brenda Baldwin-White*
District of Columbia Kathleen Arsenault Dana Busgang Ofelia CalderÛn John Connolly Mark Cottrell* Dan Cron Gregg Garrison Daniel Gespass Kathryn Kitren Fischer Abdel-Rahman Hamed Benjamin Messer Cynthia O’Neill Kelly Phipps Bradley Preamble Diana Ray Kyle Scherer Ryan Sciortino
District of Columbia Circuit At Large Yvonne Cockram Elizabeth Goldstein Safiya Hamit Courtney Mallon Briana Tellado
Federal Bar Association Application for Membership The Federal Bar Association offers unmatched opportunities and services to enhance your connections to the judiciary, the legal profession, and your local legal community. Our mission is to strengthen the federal legal system and administration of justice by serving the interests and the needs of public and private federal practitioners, the federal judiciary, and the public they serve.
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The FBA - for your career; for a lifetime THREE WAYS TO APPLY TODAY: Online at www.fedbar.org; by fax (571) 481-9090; or by mail: FBA, PO Box 79395, Baltimore, MD 21279-0395. Questions? Contact the membership department at (571) 481-9100 or membership@fedbar.org. Applicant Information (Please print legibly and complete both sides of the application)
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Membership Categories / Professional Chapter Affiliations / Sections and Divisions National Membership Levels
Professional Chapter Affiliation
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FBA membership includes one professional chapter membership. Any local chapter dues are indicated next to the chapter name. If no chapter is selected, you will be assigned a chapter based on geographic location. *No chapter currently located in this state or location.
Members of the association distinguish themselves when becoming sustaining members of the FBA. Sixty dollars of the sustaining dues are used to support educational programs and publications of the FBA. Sustaining members receive a 5 percent discount on the registration fees for all national meetings and national CLE events. Private Sector Member Admitted to Practice 0-5 Years..............................m $170 Member Admitted to Practice 6-10 Years ...........................m $235 Member Admitted to Practice 11+ Years ............................m $285 Retired (Fully Retired from the Practice of Law) .................m $170
Public Sector m $150 m $215 m $245 m $170
Active Membership Open to any person admitted to the practice of law before a federal court or a court of record in any of the several states, commonwealths, territories, or possessions of the United States or in the District of Columbia. Private Sector Member Admitted to Practice 0-5 Years..............................m $110 Member Admitted to Practice 6-10 Years ...........................m $170 Member Admitted to Practice 11+ Years ............................m $215 Retired (Fully Retired from the Practice of Law) .................m $110
Public Sector m $85 m $145 m $175 m $110
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Associate Membership Clerk of Court Associate Clerk of a Federal or tribal court who is not admitted to the practice of law ..... $0 Foreign Associate Admitted to practice law outside the U.S. ........................................................ m $215 Law School Associate Faculty Advisor of Law School Student Chapter .............................................. m $0 First year student (includes four years of membership)* .............................. m $50 Second year student (includes three years of membership)*........................ m $30 Third year student (includes two years of membership)*............................... m $20 One year only option ......................................................................................... m $20 *These law student associate memberships include an additional year of FBA membership upon graduation.
National Membership Dues Total: $ __________ Sections - optional communities by Practice Area m Admiralty Law ..............................$25
m Indian Law ...................................$15
m Alternative Dispute Resolution ..$15 m Antitrust and Trade Regulation... $15
m Intellectual Property Law.............$15
m Banking Law ................................$20
m Labor and Employment Law ......$15 m LGBT Law.....................................$15 m Qui Tam Section..........................$15 m Securities Law Section .................$0 m Social Security.............................$10 m State and Local Government Relations......................................$15 m Taxation .......................................$15 m Transportation and Transportation Security Law ......$20 m Veterans and Military Law..........$20
m Bankruptcy Law...........................$25 m Civil Rights Law ...........................$15 m Criminal Law................................$10 m Environment, Energy, and Natural Resources ......................$15 m Federal Litigation ........................$20 m Government Contracts................$20 m Health Law...................................$15 m Immigration Law .........................$10
m International Law ........................$15
Divisions - optional communities by Career interest m Corporate & Association Counsel (in-house counsel; corporate practice) ..... $20 m Federal Career Service (past/present federal government employee............ N/C m Judiciary (past/present member or staff of a judiciary) ................................ N/C m Law Student Division ........................................................................................ N/C m Younger Lawyers* (age 40 or younger or admitted less than 10 years) ...... N/C m Senior Lawyers* (age 55 or over) .................................................................... $10 *For eligibility, date of birth must be provided.
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Nevada m Nevada New Hampshire m New Hampshire–$10 New Jersey m New Jersey New Mexico m New Mexico New York m Eastern District of New York m Southern District of New York m Western District of New York North Carolina m Eastern District of North Carolina m Middle District of North Carolina m Western District of North Carolina North Dakota m North Dakota Ohio m Cincinnati/ Northern Kentucky-John W. Peck m Columbus m Dayton m Northern District of Ohio–$10 Oklahoma m Oklahoma City m Northern/ Eastern Oklahoma Oregon m Oregon Pennsylvania m Eastern District of Pennsylvania m Middle District of Pennsylvania m Western District of Pennsylvania
Puerto Rico m Hon. Raymond L. Acosta/ Puerto Rico–$10 Rhode Island m Rhode Island South Carolina m South Carolina South Dakota m South Dakota Tennessee m Chattanooga m Knoxville Chapter m Memphis Mid-South m Nashville m Northeast Tennessee Texas m Austin m Dallas–$10 m El Paso m Fort Worth m San Antonio m Southern District of Texas–$25 m Waco Utah m Utah Vermont m Vermont Virgin Islands m Virgin Islands Virginia m Northern Virginia m Richmond m Roanoke m Hampton Roads Chapter Washington* m At Large West Virginia m Northern District of West Virginia–$20 Wisconsin m Wisconsin Wyoming m Wyoming
Professional Chapter Dues Total: $ ____
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Federal Bar Association Calendar of Events
SEPTEMBER 2021 SEPTEMBER 8
Transportation Security Law Forum Responding to Evolving Threats to Transportation Security | Part 1 SEPTEMBER 8
Targeting Big Tech: The Antitrust Push Against Big Tech SEPTEMBER 9
Immigration Law Section: Introduction to Federal Court Litigation SEPTEMBER 9
Northern District of California Chapter: Litigating Before Magistrate Judges in the Age of Zoom SEPTEMBER 10
Central District of Illinois Chapter: Representing Vulnerable Individuals SEPTEMBER 13
Washington State Chapter: Open Monthly Meeting SEPTEMBER 15
Transportation Security Law Forum Responding to Evolving Threats to Transportation Security | Part 2 SEPTEMBER 16
Qui Tam Section: [VIRTUAL] False Claims Act Today – District of Utah SEPTEMBER 22
Civics Day
SEPTEMBER 23–25
2021 FBA Annual Meeting & Convention Miami
Visit Fedbar.org for more information.
SEPTEMBER 23
[VIRTUAL] FBA Board of Directors Meeting SEPTEMBER 24
[VIRTUAL] FBBC Board of Directors Meeting SEPTEMBER 25
[VIRTUAL] National Council Meeting SEPTEMBER 30
Qui Tam Section: [VIRTUAL] False Claims Act Today – Western District of North Carolina SEPTEMBER 30
Section on Taxation: Update on Cannabis Tax Compliance, Structuring, and Examination Issues
O CTO B E R 2 0 2 1 O CTO B E R 1 1
Maryland Chapter: 11th Annual FBA Maryland Chapter Golf Tournament O CTO B E R 1 5
New Mexico Chapter: Indian Law Seminar
APRIL 2022 APRIL 28–30
2022 Leadership Summit
SEPTEMBER 2022 SEPTEMBER 15–17
2022 FBA Annual Meeting & Convention – Charleston, SC