A Lover of Morocco

My interview with Maghreb Voices on my work in Morocco as a Peace Corps Volunteer.

Sessions DOJ Attacks Gay Rights in Federal Court

Sessions DOJ Attacks Gay Rights in Federal Court

 

The United States Department of Justice (DOJ) under Jeff Sessions has launched an attack on gay rights under the Civil Rights of Act of 1964 in a friend of the court brief filed with the United States Court of Appeals for the Second Circuit, report the New York Times and the Huffington Post.  The filing is remarkable for coinciding with President Donald Trumps' tweets purporting to ban transgender people from serving in the military in a bid to shore up support to fund his planned border wall between the United States and Mexico.

The DOJ filed the amicus brief in the case of Zarda v. Altitude Express urging the court to rule that the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964 does not protect people on the basis of their sexual orientation. Mr. Zarda, a skydiving instructor, had revealed to a client that he was gay, and his employer subsequently fired him when she complained.

The DOJ's gratuitous intervention runs counter to the Supreme Court's growing recognition that discrimination on the basis of sexual orientation is unlawful.  In Oncale v. Sundowner Offshore Services, Inc., the Court ruled that Title VII of the Civil Rights Act of 1964 prohibited same sex harassment. The Court's well-known ruling in Obergefell v. Hodges established the Constitutional right to same sex marriage.

Not only the EEOC but also the Seventh Circuit, not notoriously liberal, have come around to the view that sexual orientation is protected against discrimination in employment. In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit en banc concluded that sexual orientation was protected in two ways. The first is that discrimination against gays is the result of sexual stereotyping.. The courts have struck down discrimination based on gender stereotypes, as in Price Waterhouse v Hopkins, in which Hopkins, despite being the highest grossing associate, was not promoted because she was not feminine enough. Second, the courts have struck down discrimination based on association with persons of a different protected class in cases such as Loving v. Virginia, in which the Supreme Court ruled that the state could not prohibit interracial marriage.

Now Jeff Sessions is so concerned that the Second Circuit will follow suit that DOJ has submitted an amicus in a case which it is not litigating, seeking to persuade the court to uphold outdated pre-Obergefell precedents. Hopefully, the Second Circuit will decline to do so.

Of course, with Neil Gorsuch now on the Supreme Court, the GOP eager to pack the courts with far right judges, and the Congress potentially willing to roll back the Civil Rights laws, the future of the issue is uncertain. For now, however, despite the Influence of the DOJ, it is the courts that decide.

 

No Second Chances?

No Second Chances?

I spend a fair amount of time defending people who have made mistakes. The touchstone of my philosophy of practice is fairness and forgiveness.  I am not blind to the fact that mistakes have consequences, or that there must be accountability for misconduct.  However, rehabilitation is in everyone's interest if it is possible.  Employers invest a great deal in training employees, and employees invest a great deal in creating successful careers that should serve their employers and the greater good.  Thoseinvestments should not be thrown away lightly.

Fairness

At the heart of my practice is the fairness mandated by the Civil Rights Act of 1964, the Americans with Disabilities Act, and and the Age Discrimination in Employment Act.  In many cases, my clients are flawed human beings, and I do not pretend to be otherwise.  That does not obviate the fact that their race, color, national origin, sex, religion, age, disability, or prior efforts to remedy discrimination must legally and morally play no part in decisions regarding their employment, mistakes or not. Too often the law is disregarded in these cases. However, there is recourse at state and local civil rights offices, the Equal Employment Opportunity Commission, and the state and federal courts.

Moreover, penalties should fit the offense. Government employees and union members are typically lucky enough to be afforded some due process before they are disciplined.  In the federal government there are twelve factors that must be considered before an employee is disciplined, known as the Douglas facts after the case of Douglas v. Veterans Administration decided by the Merit Systems Protection Board. I look forward to the day when we abolish employment at will in the private sector and every employee has a fair opportunity to be heard and not fired for no reason.

In the case of applicants for admission to the Bar, every potential lawyer must not only pass the Bar Exam but also must pass the review of a character and fitness committee to ensure that the applicant meets the ethical standards expected of a lawyer, which each state codifies in its Rules of Professional Conduct, usually patterned on the American Bar Association's Model Rules. Criteria for character and fitness vary from jurisdiction to jurisdiction,  One example of the kind of analysis courts engage in is laid out in the decision of the District of Columbia Court of Appeals in In re: Christopher LIndsey Kleppin, which the court considered eleven factors before ruling that Mr. Kleppin could be admitted to the bar despite his prior convictions for possession and sale of marijuana.

Forgiveness

Consequently, I found the recent story in the American Bar Association Journal involving a similar story of a former nurse, Tarra Simmons, who had become addicted to painkillers and convicted of drug possession and theft before she attended the George Washington University Law School, my alma mater.  Despite extensive evidence of her rehabilitation, high academic achievement, and the award of a prestigious Skadden Fellowship, Ms. Simmons was denied admission to the Bar in the State of Washington. Her stated ambition is to serve prisoners and the poor, which is what her fellowship funds. Of course, without knowing all the facts and circumstances before the Committee on Professional Responsibility, it is hard to second guess their decision, but the report of this case seems to cast some doubt on it.

Ethical Conduct

Attorneys do not enjoy a particularly good reputation in this country, although the Bar aspires to the highest standard of ethical conduct and attempts to enforce. That, after all, is why there is a Code of Professional Responsibility and a licensing process that requires an examination of character and fitness.  The critical question is whether people who have exhibited character flaws in the past, and in some cases have broken the law, can turn their lives around, become good citizens, and make a positive contribution to the lives of others. To those for whom the answer is a reflexive "no," I ask only that they considered how they would be judged, and whether they truly believe that is is impossible to go and sin no more.

 

 

 

Strong Encryption: A Necessity Not an Option

Strong Encryption: A Necessity Not an Option

Lawyers and anyone else who has a commitment to security and privacy need to support strong encryption, despite the risk of its misuse by unsavory people.  The idea that we can give ready universal access to some people - i.e. law enforcement - and not others - i.e. hackers and foreign governments - is neither practical nor desirable.

If you want to give the government access on demand to encrypted data, you can do it one of two ways.  You can use weak encryption that the government can crack.  Unfortunately, that means that most other competent hackers can crack it as well.  Encryption algorithms are necessarily public.  One of the advantages of this is that you have a large research community working on detecting weaknesses and patching them before they are exploited.  However, it also means that people are going to figure out how to break them.  Putting a weak lock on your house so that the police can get in is not necessarily the best way to keep out burglars.

The other way to address the problem is through a "back door" or universal key.  The problem with a back door or a universal key is that if the wrong people obtain it, they have instant access to everyone's encrypted devices. And once a key hits the Internet, everyone will have it, and you will effectively nullify everyone's encryption in one fell swoop. As one might imagine, this does pose a problem for the security of financial transactions or personal privacy or even lawyer-client confidentiality.

It is foreseeable that terrorists could use encryption to kill people.  It is also true that terrorists can use trucks to transport loads of fertilizer and accelerant and blow up federal buildings.  Yet we do not hold Ford Motor Company liable for Timothy McVeigh's misuse of their truck, nor Monsanto for the misuse of their fertilizer, nor Exxon for the misuse of their petroleum.  Axes are designed for use on trees and need to be sharp; the fact that we need to contend with the occasional LIzzie Borden does not mean that we should keep them dull.

No sensible person would deny the horror of dying in a terrorist attack; there are few more searing moments than watching people jump from the twin towers.  In evaluating risk, however, one must evaluate probability as well as severity.  The fact is that you are more likely to die because your shelf of ornamental law books collapses and crushes you than you are to be killed in a terrorist attack.  We greatly exaggerate the risk of terrorism in light of its spectacular and well publicized consequences; it is a classic example of a fallacy based on emotional appeal and the availability heuristic.  It is the same kind of reasoning that makes people erroneously believe that we are safer in a car than an airplane.

All of life is a matter of playing the odds and evaluating costs and benefits.  In my view, the benefits of secure information and privacy outweigh the remote risk that I might be killed because the police were not able to crack an iPhone of a potential terrorist whom they had identified before the fact and intercepted based on the communications in the phone. Or to invoke Benjamin Franklin's oft-quoted words, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety."

 

 

 

How to Get Your Congressman to Wake Up and Pay Attention!

How to Get Your Congressman to Wake Up and Pay Attention!

I would like to respectfully share a couple of thoughts based on my own experience personally lobbying Congressmen and other legislators on behalf to the Montgomery County Civil Rights Coalition, the National Employment Lawyers Association (NELA), discussions with my father, who spent several decades as a lobbyist on Capital Hill, and my own brief experience years ago as a intern on both sides of the aisle with Senator Carl Levin and Representative William S. Broomfield. Here are some suggestions:

If you find yourself in Washington, visit your Congressman's office on Capitol Hill and meet with the Chief of Staff and possibly even the Member. Particularly if you are a constituent from out of town, I guarantee that a staff member will be happy to speak with you. According to my father, 10 minutes with the Washington staff is worth 20 with the member.

Don't neglect your state senators and delegates. State law can't conflict with federal law, but, for example, state civil rights laws often have a much farther reach, better remedies, and more access to the courts than federal law. Also your state representatives may have better access to the Congressman than you; my newly elected Congressman spent years as a state senator.

Attend events at which your Member or state legislator is appearing. You would be surprised by the fact that they are not always well attended, and you never know when you might be able to get in a word or two.

Donate to the national NAACP and ACLU, but don't forget that they have local chapters across the country which are always hungry for volunteers.

Coalitions of local organizations are very powerful. I once had an opportunity to meet for an hour with Congressman Chris Van Hollen's staff and for about 20 minutes with the Congressman himself to discuss national security issues and surveillance as part of the Montgomery County Civil Rights Coalition in his district, which includes representatives from a number of state and local organizations, including the ACLU. All politics are local.

Don't neglect organizations who might have a different point of view on other issues. My father used to say that the Congressman had to think very hard when he walked in the door as the company lobbyist accompanied by the union lobbyist when both had the same position. Most of us do not have the clout of a Fortune 100 company and the United Auto Workers, but don't neglect people like the Chamber of Commerce and local congregations. Maybe they won't respond, but maybe they will.

The National Employment Lawyers Association (NELA) has a lobby day every year in which groups of lawyers meet personally with members and their staffs for about 20 minutes.

According to Jack Sinclair, my former Congressman's AA, a contribution, no matter how small, gets you on the Member's list of contributors. Members notice if you are both a contributor and a constituent. It does not hurt to volunteer on the campaign either.

If you can find a substantial donor or even better, a fundraiser, a handwritten note approving an enclosed news article can have a real impact.

If you call your Congressman, don't just leave a comment with the receptionist, tell them that you have a question you would like to ask the relevant staff member.

I hope these ideas are helpful as people try to advocate for our rights as citizens and those of our fellow citizens.

I welcome and encourage people to make other suggestions.

The Razor Edge of Truth at Trial

The Razor Edge of Truth at Trial

In my experience, people often do not think of law as a particularly creative pursuit. As Daniel Webster famously observed, "If he would be a great lawyer, he must first consent to become a great drudge."  It is not hard to conjure up an image of the hapless wretch poring over contracts surrounded by crumbling, dust covered, leather bound tomes, even if nowadays it is more often late nights in the pale blue glow of the flat screen.  The dreary life of the law student leads to the dreary life of the highly paid corporate serf, trapped in a maze of rigid statutes and stale precedents.

Trial lawyers get a little more credit for flash, even if all too often it comes with a certain seedy undertone.  But all of the quick tricks in front of the TV jury, the product of a one-hour police investigation and a few quick conferences, fail to capture the depth of thought, preparation, and practice necessary to conduct a successful jury trial.  Too often the common perception of the trial lawyer is a person who is slick rather than sage.

How refreshing it is, then, to come across a trial lawyer's manual that combines a thoughtful approach with a brisk style that dispels both stereotypes.  Pat Malone's Fearless Cross-Examiner breathes new life into the most critical and dramatic element of courtroom practice, cross examination.  He abandons the hoary flim flam of misdirecting the witness and then hiding the ball until the lawyer can safely address the jury after the hapless witness steps down.  Malone shows how this approach is not only dishonest but also ineffective; the great cross examinations he cites break all the "rules" that have been hammered into generations of law students.

Malone takes a more thoughtful and principled approach, one designed not only for greater effectiveness in the courtroom but also for restoring the reputation of cross as the "greatest legal engine ever invented for the discovery of truth." 

His approach requires the lawyer to align himself with basic, generally accepted principles, well-known to lawyers under the rubric of "rules of the road."  The strategy is to confront the witness with a rule that he must embrace or look foolish and then demonstrate how that rule has been violated.  Malone's nuanced approach requires a choice among strategies, sometimes with a bit of mix and match.

Confronted with an adverse witness, one can attempt to coopt him by bringing him around to one's own point of view. This idea of using the adverse witness to build one's own case runs directly contrary to the conventional wisdom that the sole purpose of cross examination is to discredit a witness.

Of course, when a witness will not be persuaded to come around to one's own point of view by gentle persuasion, sometimes he must be shown the error of his ways.  Malone, however, refuses to be boxed into a strategy of petty contradiction based on peppering the witness with leading questions until the lawyer can pounce on some minor error or lapse of memory.

Fundamentally, Malone has too much respect for the jury to engage in such petty gamesmanship.  He is after bigger quarry.  if the jury is going to see through the expert for hire or the recalcitrant opponent, he needs to expose fundamental bias or self-interested contradictions.  Malone understands that people, juries, are interested in truth.  They will forgive error, but can be terribly intolerant of dishonesty.  Peeling away layer after layer of lies can be accomplished by any number of methods: demonstrating that a witness is not qualified or even that his experience does not bear on the subject at hand, that his self-interest has biased him, that he is contradicted by generally accepted authority, or even that he has tailored his more recent statements to suit his objectives at trial.

Whichever method Malone selects, he is focused on telling the jury a clear and coherent story with a cogent point at the end.  Not for him leaving the point of the cross until the closing argument, when the story is a distant memory.  Malone is playing the high stakes game of giving the witness room to talk and an opportunity to be heard, a game that can only be won by careful planning and creative insight directed at substantial goals.  The jury needs to get the big idea, not the petty point.

Very much a how-to book for lawyers, this tightly written manual could nevertheless be profitably read by aspiring law students or even people who are simply interested in the mechanics of how the drama at trial unfolds. Highly recommended.

 

 

International communication and domestic understanding: A Moroccan and American forum on the role of the press at home and abroad.

International communication and domestic understanding: A Moroccan and American forum on the role of the press at home and abroad.

I am making a point of attending (and modestly sponsoring) the Moroccan International Media Forum at the National Press Club Building this September 28, 2016. The event, featuring a diverse list of speakers from both the United States and Morocco, promises a window on cross cultural communication between the United States and a key ally in the Arab world.

At a time when immigrants, especially Muslims and Arabs, are being publicly vilified across the United States, an examination of intercultural communications at home and abroad is important to our understanding of the role of immigrants in our own country.  As the Washington Post reports, people "who are most skeptical about immigration . . . are also the least likely to actually encounter an immigrant in their neighborhood."  Just as we need to better understand the world, we need to better understand ourselves, especially the role of our minority and immigrant communities.

Owing to my personal history as a Peace Corps volunteer in Morocco, I tend to be particularly interested in outreach to the Moroccan community.  As Professor Brian Edwards documents in a recent book, Morocco (our oldest treaty partner) is both historically friendly to the United Statesand and increasingly alienated by recent American political trends.  In examining communications strategies in and between the two countries, the forum seeks both to strengthen the bond and avert the potential rift between the two countries.

Morocco is a country of fascinating contrasts. For example, although Morocco has its own history of antisemitism and discrimination against its formerly numerous Jewish population (as do many other countries), it is also noteworthy that the government has attempted to take a constructive role in resolving conflict in the Middle East and has generally tried to protect the rights of the Jewish community.  With respect to communications within Morocco, the country has expressed a commitment to increased press freedom since the accession of the current king, but this commitment has been severely undermined by recent politically-motivated criminal trials of a number of journalists.  A forum on international and domestic communication within and between our countries promises to address issues important to our understanding of ourselves and the world at large, especially an area of the world in which Americans currently have a heightened interest, both positive and negative.

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Political correctness is a problem?

Political correctness is a problem?

Some people seem to think that "political correctness" is a problem in this country.  After all, even after three centuries of Native American genocide (Cherokee Nation v. State of Georgia), African American slavery (Dred Scott v. Sandford), segregation (Plessy v. Ferguson, but see Brown v Board of Education), immigrant exclusion based on race and nationality (Chae Chan Ping v. United States), internment camps (Korematsu v. United States), police coercion (Miranda v. Arizona), and discrimination in jobs (McDonnell Douglas v. Green); housing (Shelley v. Kraemer), public accommodations (Heart of Atlanta Motel v. United States);  personal relationships (Bowers v. Hardwick), and even marriage (Loving v. Virginia, Obergefell v. Hodges), why should all these people be so damned sensitive?

We have real problems in this country, including unemployment, debt, income inequality, racism, war, homelessness, poverty, crime, addiction, global warming, and lack of education. "Political correctness," a.k.a. common decency and respect for people who are mostly not as privileged as the hypersensitive, overprivileged white Anglo-Saxon Protestant population of this country, is not one of them.

 

Government and Media Stumble on Keeping Data Safe

Government and Media Stumble on Keeping Data Safe

Nice article from the Washington Post, but as usual governments and the media are behind. As anyone who is paying attention knows, length is only one variable in creating entropy, and randomization (as opposed to patterns) is also important. See, for example, Diceware.  In addition, the RANDOM inclusion of special characters, numbers, capitals, upper case and lower case increases entropy by creating a greater number of possible choices. Best password practice, as I understand it, is to use a long, random word password (see again Diceware) to protect a password manager (e.g. LastPass, 1Password, or KeyPass) which contains long, unique, computer generated passwords -- difficult to parse and virtually impossible to memorize - coupled with two factor authentication. No wonder it is so easy to hack the government.  Of course, there exist better alternatives to passwords altogether, such as SSH keys, but these are generally not widely available to individual users on typical workstations.

Not to mention that any sane person would use strong encryption for storage and communications, but inexplicably, manufacturers are just beginning to build it in and most people are not sane. For secure communications, one is probably much better off using something like WhatsApp than email, but we really can't get away from email, can we? Especially for archival purposes. (For email encryption, I offer my clients Virtru, S/MIME, and PGP.) My top choices for storage of date online are Tresorit and OneDrive for Business, in that order. (My personal impression is that Tresorit is more secure but OneDrive for Business is (generally) more convenient, since it integrates seamlessly with Microsoft Office). Of course, it doesn't really much matter in some ways, because all of our personal data is already in the cloud anyway, so much so that marketers can tell a woman is pregnant even before she is aware of it. See Dataclysm.

What was Donald Trump's lawyer thinking?

What was Donald Trump's lawyer thinking?

Quite apart from raising a question about the flexibility of Donald Trump's relationship to the truth, an article in the Washington Post also raises questions about the ethics of his legal team.  According to the Washington Post, Trump justified his lawsuit against New York Times reporter and Trump biographer Timothy O'Brien because it would cost the reporter money to defend:

In a brief statement this week, Trump said he felt the lawsuit was a success, despite his loss.
“O’Brien knows nothing about me,” Trump said. “His book was a total failure and ultimately I had great success doing what I wanted to do — costing this third rate reporter a lot of legal fees.”

Trump: A True Story, Washington Post, Aug. 10, 2016 (last accessed Aug. 10, 2016)

I don't have any idea who Trump's attorney is, but it would be a shame if he is still in practice. Attorneys who bring frivolous lawsuits mainly for the purpose of driving up the other side's attorney fees and expenses are violating both the law and professional ethics. Moreover, the court has the power to make the attorney pay for the other side's excess fees and costs:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

18 U.S.C. § 1927.

Moreover, the Bar also prohibits the filing of frivolous lawsuits:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

ABA Model Rule of Professional Conduct 3.1.

Maybe Donald Trump knew no better, but his lawyer should have.

Dragged Away by Wild Horses

Dragged Away by Wild Horses

It is a commonplace in the legal world that your firm, and presumably your clients, measure your worth by the number of billable hours you generate.  According to the American Bar Association (ABA), partners in law firms are expected to log 2,500 billable hours a year, which amounts to working 50-60 billable hours per week. 

Common practice, however, sometimes flies in the face of common sense.  If your lawyer is billing for 60 hours a week, particularly at the absurdly high rates charged by large firms, then you should be seriously questioning the value you are getting for your money.  According to Chris Bailey, the author of the book the Productivity Project, optimal productivity peaks at 35 hours of work a week. In fact, according to Bailey, studies have shown that after 55 hours a week, particularly over several weeks, productivity per hour approaches zero. Bailey, Productivity Project, at 97-98.  Moreover, people chronically overestimate the time they spend working, so if your attorney is billing 60 hours week, you have to wonder first whether your attorney is padding the bills and second, even if not, what you are getting if you are billed for those 5 hours on the tail end.

The goal of every client should be to get the best result possible at the least possible cost.  The question is not only how hard your attorney is working for you but also how well your attorney is working for you.  Focus on the results your attorney is getting rather than the hours your attorney is expending, unless it appears that your attorney is billing you for excessive time to get those results.  Remember, however, that legal work requires not only skill but diligence, and diligence should be compensated in the legal profession just as in any other occupation. But if your attorney is not working reasonable hours, taking breaks, and using his or her vacation, he or she should be. Otherwise, you can expect your attorney's performance to tank.

To be fair, the number of attorneys who practice in a way that maximizes their productivity, myself included, is probably vanishingly small.  However, this week I am taking my four-day summer vacation amidst the clean beaches and wild horses of Assateague Island, where I will be slurping fresh, cheap Chincoteague Oysters when I am not lying in the sun.  In four days, however, I expect to come back recharged and able to represent my clients more vigorously than ever.

 

 

#SomeStatisticsMatter

#SomeStatisticsMatter

It is a bit of a cliche that bigotry in America is the result of ignorance.  Sadly, this is very true when it comes to the overwhelming incomprehension of statistics on the part of supposedly educated Americans. This is not a segment of society without educational opportunities, this is the middle class. Don't get me wrong, I can barely calculate the median and the mean, much less something as elementary as the mode or standard deviation. I am embarrassed by my level of statistical knowledge, although I certainly know that I am not alone. See, e.g. Statistical Education of Teachers, Chap. 8.  Of course, some statistics are irrelevant, and many statistical studies are clearly badly done. Moreover, any minimal understanding of statistics necessarily includes an understanding of its limits.  This, however, does not vitiate the essential importance of at least a sense of the importance of statistical reasoning.

Even I understand that #SomeStatisticsMatter, whether it be the gross disparity in racial discrimination in the United States, the civilian body count in Iraq, the annual automobile and firearms death toll in the United States, the global prevalence of malaria, the infinitesimal possibly that any one of us will be the victim of a terrorist attack, or that your local Big Box retailer can figure out whether a woman is pregnant before she does.  Unfortunately, even minimal appreciation of statistics takes work, whereas people find concocting intuitive narratives to fit even random facts comes quite naturally. See generally Daniel Kahneman, Thinking Fast and Slow.

The gross tidal wave of emotion coupled with a complete ignorance of the mathematical reality of life does as much to explain the misplaced sense of grievance of the white American population as anything. And their choice to be ignorant is deplorable. We all need to do better, but some of us need to do better than others. Doing so is essential to becoming a more just and more knowledgeable society.

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Only 1 in 5 women make it to partner in Big Law

Discrimination in Law

Having sued law firms for sex discrimination in the past, I know from personal experience that firms discriminate against women. Recently my experience was confirmed in an article in the National Law Journal (subscription required).

According to the NLJ, only one in five women in Big Law firms makes it to partner, although there is a wide spread among firms and practice areas. Employment lawyers (fortunately but perhaps not surprisingly) have the highest representation of women, whereas Intellectual Property firms have the lowest.

Discrimination in science starts early

While IP firms attribute this deficiency to a low representation of women in science, there is good statistical evidence that discrimination in science and technology starts from the bottom up and is rife not only in scientific professions but also in education.

As the New York Times has observed based on scientific studies at Yale University, low numbers of women in science are entirely a matter of cultural bias, and yet myths of disparities in innate ability persist:

As so many studies have demonstrated, success in math and the hard sciences, far from being a matter of gender, is almost entirely dependent on culture — a culture that teaches girls math isn’t cool and no one will date them if they excel in physics; a culture in which professors rarely encourage their female students to continue on for advanced degrees; a culture in which success in graduate school is a matter of isolation, competition and ridiculously long hours in the lab; a culture in which female scientists are hired less frequently than men, earn less money and are allotted fewer resources.

Interestingly enough, bias against women in science was as common among female scientists as among male scientists.

Conclusion

It is not hard to see that if a general cultural bias pervades both law and science, it is reasonable to conclude that cultural bias pervades our culture, certainly an unsurprising conclusion to many women.

Employment lawyers alone cannot reform the culture, but at least they can help level the professional playing field.

Rapper Educates the Oxford Union on Global History

The last time I heard Taylor Branch, the author of the three volume biography of Martin Luther King, speak, his theme was the erasure of the the Civil Rights Movement from modern consciousness and the sanitization of a small revolutionary movement into a cuddly, generalized and comfortable lovefest in which children of all colors play together. This is history as fairy tale.

In this hour and a quarter address to the Oxford Union, Akala, also known as the Shakespeare Rapper and founder of the Hip Hop Shakespeare Company, addresses the Oxford Union on the erasure of Africa from global history. (Somehow I could not help but notice that he appears to be one of only two people of African/Caribbean ancestry in the rooom.)

His wide ranging discourse includes discussions of African contributions to science and mathematics, the sprawling medieval empires of Mali and the Almoravids, the brilliant 800 year history of El Andalus (now Spain), and the tantalizing possibility that Africans arrived in the New World centuries before Columbus, perhaps even by the legendary fleet of Abu Bakr.

While African discovery of the Americas may be speculative based on available evidence, Akala's larger point is that a historical assumption of African inferiority by the majority of European historians in modern times has been strongly influenced by confirmation bias. For example, "scholars" have reasononed along the lines that the pyramids are an extraordinary achievement, black people are not capable of extraordinary achivement, therefore the pyramids must not have been built by black people, despite descriptions of the Egyptians to the contary by such authors as Aristotle and Herodotus.

Akala's most telling illustration of modern historical bias is the common British attribution of the singlehanded abolition of slavery to William Wilberforce with little or no mention of the seminal role of the Haiti's successful slave rebellion against their French masters. His most shocking anecdotes are the "barbequeing" of African Americans as a spectacle for public enjoyment throughout most of America's history.

All of which is to say that there is much more to global history than the narrow Eurocentric version we are commonly taught in high school. Akala articulates a much more inclusive and nuanced version of history than that with which we are familiar, in which Africans and their descendants are edited out except when they are portrayed as slaves.

Principles Professional and Personal

Principles Professional and Personal

Any civil rights law practice requires lawyers to embrace what we have in common and to reconcile our differences.  No civil rights practice can operate without a recognition of certain fundamental principles of freedom and equality, and every lawyer must be willing to put aside, to the extent possible, his or her own prejudices, biases, and predilections, and yet remain true to his or her convictions.

Kids' Clocks and Presidential Priorities

In a classic case of false equivalence, the Washington Post writes that in a recent viral video, an African American youth named CJ Pearson “shredded” the president over the decision to invite Ahmed Mohammed to the White House. Mohammed brought a clock to school and was arrested on the pretext that it was a “hoax bomb.” Pearson went on to criticize the president for lighting up the White House in rainbow colors after the Supreme Court issued its decision upholding the right for gays to marry and alleged that the president had encouraged the shooting of police officers. Pearson concludes by accusing the president of being “incompetent.” Bold words for a thirteen-year-old.

Trust Us, We're Lawyers

As Gallup attests, it is a well-known fact that lawyers are among the least trusted occupations in America. Part of this no doubt results from a toxic combination of stress and temptation. By some estimates, lawyers have some of the highest rates of depression, substance abuse, and suicide in the country. The business model in both large firms and small firms is unstable. Couple these facts with normal human frailty and management of a lot of other people's money, and it is not hard to see why lawyers are susceptible.

Law Firms Don't Get to Discriminate . . .

There is an old lawyer joke that labs have decided to experiment on lawyers rather than rats because lawyers are more common, the lab assistants won't become attached to them, and there are some things that even a rat will not do. Contrary to this little bit of folklore, however, the law and the Bar do set limits on what lawyers are allowed to do, whether the client wants them to do it or not.

Are Racists Crazy?

"Race" is an idea so deeply ingrained that we must confront our prejudices based upon it, but we can also recognize and embrace it as not simply a source of division, but also a paradoxical source of cultural richness through diversity.

© Charles Williamson Day, Jr., 2016. All rights reserved.

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