48 Years Later: Trans and Queer People of Color

OUTLaw

This month marks the 48th anniversary of the Stonewall Riots. Over the past five decades, the queer movement has seen some progress. The Supreme Court has ruled that anti-sodomy laws are unconstitutional and that gay people have a constitutional right to marriage. Yet working-class and poor queer and trans people of color in New York City still face unsurmountable obstacles to living their lives to their fullest potential.

A 2012 report by Make the Road, an immigrant rights organization based in Queens, found that 59% percent of transgender Latinas in Jackson Heights were stopped by police, compared to 28% of non-trans people surveyed, and that 46% experienced physical violence by police. In the last decade, New York City advocates have fought to stop the use of condoms as evidence of prostitution. This practice has led to countless stops and arrests of trans women of color, who are disproportionately profiled by the police to be engaging in sex work.

Circumstances are further complicated by the fact that many participate in sex work for basic survival. Many trans women are fired from their jobs or never hired for failing to “pass” as cisgender by white, heterosexual, cisgender standards. As a result, we are seeing an NYPD practice of officers targeting, arresting, and in some cases assaulting trans women of color for existing while trans. Forty-eight years after the Stonewall Riots, little has changed for low-income transgender women of color in New York City. They face similar issues with police violence, employment opportunities, and access to gender affirming healthcare.

Queer and trans people of color have birthed the modern day LGBT movement—Sylvia Rivera, Marsha P. Johnson, and Miss Major, for example, are trans women of color who were crucial to the Stonewall Riots and to the movements that came after it. The Riots were a response to the NYPD’s practice of arresting drag queens/kings and transgender people for not wearing the articles of clothing that belonged to their assigned sex at birth. Sex working Black and Latinx trans people often faced the brunt of this policing.

OUTLaw, the Law School’s LGBTQ affinity group, will co-host a panel with other student groups that focuses on police profiling of trans women of color as sex workers. The panel will take place at 6 p.m. on Tuesday, September 26, in Vanderbilt Hall, Room 206, and is based on a Legal Aid and Cleary Gottlieb Steen & Hamilton LLP lawsuit suing the NYPD for its discriminatory policies.

Panelists will include Cynthia Conti-Cook, staff attorney at Legal Aid Society; LaLa Zannel, Lead Organizer of the Anti-Violence Project; and Bianey Garcia, Transgender Immigrant Project Organizer of Make the Road New York. Gabriel Arkles, staff attorney at the LGBTQ Project of the ACLU, will moderate the panel.

It is up to all of us—LGBTQ people, people of color, and all our allies—to defend the legacies of the queer and trans people of color who fought for our freedom almost five decades ago. It is equally important to fight for the queer and trans people of color who are fighting today for respect, dignity, and the opportunity to thrive.

Uber and the Death of the “Founder Friendly” Investor

Keith Pulling
Law and Business Association

For years, Travis Kalanick, Uber’s former CEO, seemed to be the personal embodiment of one of Ayn Rand’s fictional heroes: a hard-charging hyper-capitalist who ignored inconvenient laws in the pursuit of vast wealth. But Kalanick now serves as a cautionary tale: after reports of rampant sexual harassment, corporate espionage, and regulatory fraud surfaced, Benchmark Capital forced Kalanick out of his position as CEO earlier this summer, and then sued him for fraud shortly thereafter.

Kalanick’s downfall marks a setback for founder control of start-ups. For years, venture capitalists sought to be founder friendly, and in doing so may have been actively ignoring transgressions (as the fiasco at Zenefits illustrates). The basic reason was that founders would not want to work with investors that had a reputation for treating entrepreneurs poorly. While it might make sense to push a founder out of a company in any one instance, the reputational damage simply was not worth the potential gain on any one investment. This is especially true because venture capital returns are driven overwhelmingly by a handful of companies in a fund—one or two home runs more than make up for dozens of strikeouts. In a system where a single company drives returns for an entire fund, the risk of alienating even a single founder isn’t worth taking. Squeezing a couple dollars out of a failing start-up—by pushing a founder out or pressuring them to change course— is not worth ruining your shot at the next billion-dollar company.

A founder friendly approach is best exemplified by Facebook and Snapchat, both of which have shareholder structures that give Mark Zuckerberg and Evan Spiegel, their respective founders, near total control of their companies. Uber had a similar structure: Kalanick and two close allies held shares that carried extra votes, giving them effective control of the company. For this very reason, shortly before his departure, Vox ran an article arguing that Kalanick could, if he wanted, remain at the company, “no matter how bad things get.”

Kalanick’s departure thus raises two questions. First, if Kalanick maintained control of the company, how was Benchmark Capital able to force him out? And second, even if they could dispose of Kalanick, why was Benchmark willing to ruin its founder-friendly reputation?

The first question has no easy answer. As a legal matter, so long as Kalanick retained control of the Board, he could remain CEO. And yet, he left, so there must have been some non-legal forces at work. Kalanick was likely motivated by a mix of greed and shame. Greed because if he thought the continued bad press from his presence was harming the company, then Kalanick’s own shares were worth less so long as he stayed on. Shame because no one likes to see their name associated with national scandal for weeks on end. One upshot of this is that in addition to more formal legal mechanisms such as shareholder voting and lawsuits, the market and social norms have a role to play in corporate governance.

The second puzzle is easier to solve: Benchmark sued Kalanick in order to salvage their investment. Venture capitalists seek to preserve their reputation as founder friendly in order to maintain access to the next generation of founders, to preserve their shot at the next Facebook. But Uber is the next Facebook; it was a once-in-a-generation investment, and protecting its value at this point is worth the potential reputational damage. And, given the extent of Kalanick’s misdeeds, there’s a chance that reputational damage will be minimal: the next generation of founders may blame Kalanick, not Benchmark, for the entire ordeal.

The question for founders and investors going forward is whether the Uber debacle marks a reversal in decades of Silicon Valley practice, or whether Kalanick’s behavior was so egregious—and generated so much media pressure—that the case remains an anomaly. The S&P 500’s recent decision to exclude Snap, because of their voting structure, suggests that there is a broader movement in the markets to exert pressure on founders. If that is so, Uber is not an exception, but rather the most high profile instance of investors slowly taking back control from founders.

Aspiring Defenders of Justice Should Acknowledge Chimpanzees as Legal People

Julie Bontems
Environmental Law Society

Hercules and Leo were born and raised without family, confined to a basement lab, drugged, prodded, and held in perpetual captivity in a research facility at the University of Louisiana. Hercules and Leo, two male chimpanzees, have never known freedom. Instead, these sensitive and highly intelligent beings have lived to serve human purposes since birth.

“These are autonomous beings, and the worst thing you can do to an autonomous being is to confine it, to deprive it of its bodily liberty,” said Kevin Schneider, Executive Director of the Non-human Rights Project (NhRP). Schneider’s organization hopes to relocate Hercules and Leo to a sanctuary where they would have space to move freely and interact with fellow chimps.

So, how do we protect these evolutionary relatives of ours from mistreatment? The answer may be the old common law writ of habeas corpus. Schneider and other attorneys at NhRP argue that chimpanzees should be granted legal personhood, which would compel courts to protect basic rights for these animals, including bodily liberty and autonomy.

Schneider and his colleagues are not arguing that chimpanzees are human people, nor that they possess the same emotional and mental capacities as humans. But legal “personhood” would entitle chimpanzees to certain rights which all humans enjoy, regardless of intellectual or emotional capacity.

Of course, the argument for granting legal personhood to nonhuman animals is novel, which may explain why courts hesitate to grant Hercules and Leo a victory. So far, the NhRP has suffered a series of defeats, with the New York Supreme Court Appellate Division First Department’s ruling against them on June 8th.

Some important legal minds oppose granting legal personhood to nonhumans. Professor Richard L. Cupp of Pepperdine University filed an amicus brief in opposition to NhRP, which the Court cited in its June 8th decision. Professor Richard Epstein, now of NYU Law School, has also publicly opposed granting legal personhood to chimpanzees, debating Steven Wise, founder and President of NhRP, on this very issue as early as 2000 on C-SPAN.

“There are many human advocates for animals, but no animals who can speak for themselves… in the end, people like Steven Wise want to stop medical experimentation on chimps – and I’m sympathetic to that – it doesn’t mean I think animals have rights,” said Epstein.

Beyond the legal debate, Hercules and Leo’s case highlights a pressing moral issue, especially as the public awakens to the intelligence of many non-human animals including chimpanzees, whales, and elephants. What separates a fully sentient, naturally autonomous animal from, say, an emotionally or intellectually stunted human being who is nevertheless fully deserving of bodily integrity and freedom?

“What is it about humans which entitles us to protection, but which excludes these animals from that protection, when you can absolutely prove scientifically that animals have remarkably complicated cognitive abilities?” posited Professor David Wolfson, adjunct at NYU Law and partner at Milbank, Tweed, Hadley & McCloy, and who has dedicated much of his pro bono career to animal advocacy.

For those of us who came to law school to protect the vulnerable, wrestling with this question should be a priority. As aspiring advocates for the most oppressed among us, we cannot limit our compassion to humans without serious inquiry into our preconceptions of the bases for rights and freedom – we cannot be advocates for justice without asking about Hercules and Leo.

What is Government of the People?

Gavin Mackie
NYU Law Democrats

In some respects, the United States has come a long way from 1863 when President Lincoln delivered the Gettysburg Address. Lincoln proclaimed a “government of the people, by the people, for the people,” yet only a certain class of white males was allowed to vote and to comprise the government at that time. After decades of persistent advocacy by women and people of color, Lincoln’s vision slowly expanded, and a much broader segment of “the people” gained the right to vote. At the same time, some of those in power have consistently found new ways to restrict access to the franchise.

Often, states turn to redistricting to prevent people from voting. Common schemes concentrate citizens of certain ethnic or racial groups together in a single district, disproportionately limiting the number of representatives they can elect. Other plans dilute voting power by dividing these communities into multiple, majority-white districts, guaranteeing their votes are always outweighed by white votes. Whatever the method, the effect of these race-based redistricting schemes is to reduce, and in some cases eliminate, the ability of the marginalized communities to elect candidates of their choice and to be represented in government.

Some of the worst racially gerrymandered districts are overturned in court. Last term, the Supreme Court addressed redistricting cases from Virginia and North Carolina. Often, gerrymandered districts are upheld despite disproportionately impacting minority communities because these efforts are legal as long as they can be explained on non-racial grounds, though the Supreme Court will hear a case on this issue next term. Whatever the outcome of that case, the issue will ultimately need to be addressed through Congress.

Redistricting is not the only way that states target the voting rights of minority communities. One of the most visible efforts in recent years is an increase in restrictive voter ID laws, which require people to obtain specific forms of government ID before voting. Other efforts include limiting early voting and restricting the days on which early voting occurs. These laws disproportionately affect people living in cities and low-income communities by forcing them to allocate scarce resources to exercising their right to vote. Most states restrict the rights of convicted felons to vote, often for years after they have served their sentence. All of these measures disproportionately affect communities of color.

Just as efforts to restrict voting rights have continued and changed, the resistance has never stopped and is continuing to grow louder. President Obama, along with former Attorney General Eric Holder, has announced a new initiative focused on redistricting reform. Democratic lawmakers have introduced a bill in the House that would require all states to appoint an independent commission for redistricting. Jason Kander, former Missouri Secretary of State, started the organization Let America Vote to combat all manner of restrictive voting laws. Their leadership, as well as that of countless grassroots organizations, provides us with a focus to channel our concerns into collective action.

If we are serious about government of, by, and for the people, we must make a conscious effort to ensure that all people have a voice in that government. To honor that commitment, we cannot let the powerful decimate voting rights for political gain, or restrict ballot access to perceived political opponents. This problem can only be partially solved by the court, and political pressure will be vital to pursing this vision. With the Party of Lincoln once again in control of the federal government, we must continue pushing each other to fulfill his vision for all people.

Robots and Robes: Automation and the Future of Legal Work

Jack Solowey
Staff Writer

Law students are accustomed to job competition. With the advent of technology like JP Morgan’s Contract Intelligence software, said to perform 360,000 hours of loan agreement interpretation in seconds, and with fewer errors than humans, we can now safely add robots to the ranks of our competitors. While existing technology threatens to automate nearly half of the labor market, according to a recent McKinsey & Co. paper, the high-level judgment at the heart of legal practice should protect the profession from complete automation.

If we sort jobs as routine vs. non-routine and cognitive vs. manual, routine manual and routine cognitive jobs are currently the most vulnerable to automation. Daron Acemoglu of M.I.T. and Pascual Restrepo of Boston University found that in routine and manual manufacturing, involving repetitive, labor-intensive processes, “for every robot per thousand workers, up to six workers lost their jobs.” The authors were surprised by the inability of openings in other sectors thus far to offset these losses.

Legal practice includes both routine and non-routine cognitive work, and the former is poised for increased automation. A 2016 paper by Dana Remus of UNC Law and Frank S. Levy of M.I.T. estimated that full implementation of existing automation technology would reduce lawyer hours by 13%.

Job reduction in routinized sectors of the law is, however, projected to be offset by increased demand for highly skilled, non-routine legal work requiring creativity, wisdom, and emotional intelligence, such as counseling clients, negotiating deals, and devising arguments.

Humanistic traits like imagination and empathy have been held up by thinkers like M.I.T.’s Erik Brynjolfsson and Andrew McAfee, authors of The Second Machine Age, as skills that won’t easily be replicated by machines. Jobs that require them – like counseling and caregiving – are thus said to be refuges for human capital.

More pessimistic observers, however, note that even jobs as EQ-intensive as physical therapy have been performed by an Xbox Kinect motion sensor and a monitor. Combine that technology with facial recognition software already said to detect pain in children, and it is possible to imagine that client-service professions will not be completely safe from automation.

There may yet be a domain, however, with no substitute for human work: value judgments.

Imagine the classic ethical thought experiment of the trolley problem. In this scenario, you are at the switch of a runaway trolley. If you do nothing, the trolley will hit one set of innocents, such as a group of schoolchildren. If you choose to act, your only option would be to flip the switch and divert the trolley into other victims, such as a group of senior citizens. Reasonable people disagree about the moral course of action or inaction here. Only the internal scales of our ethical preferences can answer such unsettling problems.

Autonomous vehicles like self-driving cars that are involved in accidents will face real-life versions of the trolley problem. Where decision parameters for identifying the optimal mid-accident route are programmed, they will necessarily entail ethical choices: is pedestrian safety weighted more highly than driver safety? Is the sheer number of pedestrians the criterion for choosing a collision course, or will factors like age, to the extent discernible, matter? Will programs opt for or against “playing god” – will a car stay on a higher-casualty collision course that involves fewer adjustments to its current path?

A recent panel at venture capital firm Andreessen Horowitz’s a16z Tech Policy Summit projected that making these moral judgments before decision parameters can even be programmed will create a new industry of “ethics as a service.” Consultants could advise engineers on how heavily to weight criteria such as predicted number of casualties in their self-driving software. While the field could create openings for moral philosophers, as bioethics did, the general analytical ability and specific fluency in concepts of duty, negligence, and reasonableness should create roles for lawyers as well.

Where local, state, and federal governments address the life or death consequences that will inevitably flow from programming self-driving vehicles, the core trolley problem dilemma will remain disconcerting. As authorities craft vague regulations to sidestep uneasy tradeoffs, lawyers will need to fill gaps and advise programmers on how to comply.

Defining parameters is a field where lawyers have a comparative advantage. Applying that skillset to value judgments may create billable hours well into the automated future.

Foster Care is a Reproductive Justice Issue

Carmen Tellez
If/When/How

The right of families to live together and the right of children to be raised by their parents are at the core of society, yet these rights are routinely violated in the name of children’s well-being. Just as disproportionate and discriminatory policing leads to mass incarceration of young men of color, entrenched racism and classism in the child welfare system leads to disproportionate numbers of Black and Latinx children entering foster care. The discriminatory removal of children from their parents’ care and the excessive policing of how poor parents raise their children are pressing issues that demand a response from reproductive justice advocates.

Reproductive justice is a framework developed by feminist organization SisterSong in the mid-1990s to expand the mainstream reproductive rights movement’s singular focus on the legal right to end a pregnancy. Instead, reproductive justice considers how different power structures, like race, class or immigration status, affect a person’s ability to determine their own reproductive future. In addition to the legal right to abortion, people must also have the right to raise their children in healthy communities, with social and economic support, and free from the fear of violence from individuals or the state.

People often assume that removal of children from their families occurs only in cases of serious abuse. That is not true. Many allegations against parents are based solely on neglect. Oftentimes, the “neglect” in these cases is simply the act of raising children while poor. For instance, parents who are unable to afford childcare have found themselves accused of neglect after leaving their children on their own for even very brief amounts of time, while others are hauled into family court proceedings because they live in unsafe apartments that are chronically neglected by unresponsive landlords.

Removing children from their parents because of poverty solves no problems. Instead, it causes psychological harm to the children and families involved. Rather than focusing on policing parents, the child welfare system should focus on providing robust social supports for families living in poverty. Achieving reproductive justice requires protecting marginalized communities’ right to raise their families in safety and dignity.

Parents who have previous involvement in the foster care system and find themselves pregnant face a number of threats to their reproductive autonomy. These women may rightfully worry that if child welfare services finds out they are pregnant, they will try to remove the infant to foster care. This fear can cause women to avoid getting the prenatal services necessary for their health and the health of their unborn child for fear of losing that child to foster care. Blocking women from accessing reproductive healthcare services for fear of state involvement in their parenting choices is a grave violation of their reproductive autonomy.

The child welfare system has immense power over families. This power is mostly wielded against low-income families of color. Securing the physical, mental, economic and spiritual well-being of women—the objective of the reproductive justice movement—requires changing the child welfare system such that it no longer strips low-income women of color of their right to parent free from state intrusion.

Rikers Will Close, but No Time Soon

Victoria Wenger
Prison Reform and Education Project (PREP)

On June 22, New York City Mayor Bill De Blasio released a 51-page report detailing the city’s intention to close down the Rikers Island jail complex. In his letter introducing the plan, the Mayor conceded that the effort to close down Rikers facilities will be no “quick fix,” but rather a “long and difficult path,” which is projected to take as long as a decade.

The Mayor’s intent to close the notorious jail complex was first announced in late March. Celebration by those leading the campaigns to close Rikers dissipated as details of the protracted plan were revealed. Organizers and impacted community members contend that the plan does not show enough urgency to eliminate abuses on the island or offer sustainable alternatives to ensure the rights and safety of detained people.

IMG_2585
Victoria Wenger

“New Yorkers at Rikers – mostly black and brown – continue to suffer in deplorable conditions and face routine human rights abuses,” said Glenn E. Martin, president and founder of JustLeadershipUSA and a leader of the #CLOSErikers movement, “Changes must be made to ensure that people detained at Rikers are in a safe and humane environment until closure is possible.”

The ongoing process to close Rikers Island, and the simultaneous mobilizing efforts to expedite its closure and address the needs of people detained there in the interim, provide unique circumstances for New York City law students to engage with criminal justice law outside the confines of lecture halls. Law students in the United States, and certainly those at the multiple law schools in the New York metro area, are required to take a criminal law course as part of the core doctrinal curriculum. Yet these courses, often taught exclusively through the study of prior court decisions, rarely explore the lived experiences of criminal defendants beyond the brief facts written in case holdings. NYU Law students in particular have the opportunity to bridge this divide by working directly with people who are currently, or were formerly, incarcerated at Rikers.

In collaboration with the Urban Justice Center’s Mental Health Project, NYU Law students can interview people who have been placed in solitary confinement, record their statements, and present them to the NYC Board of Corrections.

“I can’t imagine being beaten by officers, chained hand and foot to a table for four hours a day, and often being denied essential medication, while awaiting trial on an isolated island with no one to see or hear my cries for help,” said Shaina Watrous, a rising 2L at NYU Law. “For the young man awaiting trial, who I interviewed through PREP’s Solitary Confinement Project, this horror was his reality.”

Other law students can learn about the hurdles people face following incarceration by working in partnership with students at St. Francis College in Brooklyn who were formerly incarcerated and are now pursuing undergraduate degrees. And any student can follow, learn from, or even lend support to, the #closeRIKERS campaign.

Unless current plans change, Rikers Island will remain open during the full duration of law school for any student beginning their legal education in New York City this year, and for years to come. While the need to close the infamous jails remains urgent, the process towards that end provides a unique opportunity to learn from the experiences of people who continue to be detained there. The decade ahead is a critical time for people within the legal field to learn from those most impacted by it.