The Inelegance of Grief and Vulnerability in the Seismic Age of Trumpence

How is a person to act when the first rumblings of seismic shift begins and s/he realizes s/he is standing on shifting sand rather than bedrock?

Having lived in California or Washington for nearly thirty years of my life, I have experienced many earthquakes, most so small that I barely took a pause ("Meh, that's like a 3.0 and I've GOT to get this laundry done"). A few - the Loma Prieta and the Northridge quakes, in particular - were doozies ("Oh, Sweet Lord, is this the day and place where I die?"). 

My one comfort during those bigger - dare I say, "bigly" - earthquakes was that at least I was on solid, if rocking ground. If I made it to a strong doorway or under a solid desk that could withstand the weight of falling debris, I knew I would be okay.

But for folks whose homes and work and and schools and lives were built on landfill (the approximation of equity in property development and urban design) they found out quickly, brutally, and totally just how illusive the security for which they paid dearly truly was.

These days, I've been thinking a lot about earthquakes, given the preponderance of seismic imagery in analyses of the Trump Electoral College victory. And I can't think of a more apt metaphor for the pace and scale of the threats, and the importance of situatedness in determining one's perception and vulnerability to those threats.

I am reminded of this video by Brent Kooi, who was a missionary in Chiba City, Japan, a few hours away from Fukushima when the earthquake struck.

Elsewhere, Mr. Kooi has stated that he was able to stay calm in the crisis because he did not know the scope of the damage further north. What I find striking, however, is not his calm but rather the reactions of some of the others in the video: both the dog and the Japanese citizens at 0:40. While Mr. Kooi admits to feeling disoriented as he continues to meander towards the train station, while recording the liquefaction of the park, the people at 0:40 waste no time leaving and the dog sounds like s/he is having none of it. It's not until 2:26, after noting the rapid expansion of the fissures, the sprouting of lakes where there was once lawn, that Mr. Kooi admits to feeling "a little nervous" because, oh yeah, the park is built on landfill.

It's personally hard to reflect on the seismic nature of the coming age of Trumpence and not react like the people at 0:40 or holler like the dog. Over the last few years, I've noted regional insurgencies and wretched Supreme Court decisions that have made it very clear that core human and civil rights, necessary for a successful free and fair democracy, are not bedrock rights for anyone who isn't straight, white, wealthy, or evangelically Christian. And now, the candidate who campaigned peddling contempt, ridicule and hatred for The Other, is queuing up a Cabinet full of hateful True Believers determined to enshrine their white supremacist, heteronormative, Inquisition-style Christianity into every chamber of government and into the highest law of the land for at least a generation.

How am I to act when the first rumblings of seismic shift begin and I realize I am standing on shifting sand rather than bedrock?

I know there are many who believe that the best way to react is to follow Mr. Kooi's example: stay calm in the crisis; make note of the changing landscape; look to the reactions of others as guidance for how best and when to react; don't panic; and don't disturb others with your nervousness. 

That's a lot to ask these days when the fissures of injustice are undulating and threatening an era of constitutional and humanitarian liquefaction.

Not only does it ignore the messiness of grief and legitimate fear. It fails to create space for the very productivity that it requires. How does a vulnerable person create a plan to alleviate that vulnerability without engaging those who may be inconvenienced but who purport to "empathize"? That's not a rhetorical question. That's my dilemma. If I follow the example of the dog and loudly announce my concerns, I am histrionic in my personal life and unprofessional at work. If I follow the example of the people at 0:40, I am uncommitted. 

I and others more immediately vulnerable (e.g. Muslims, Hispanics and sexual minorities) are now profoundly inconvenienced by the need to create exit strategies that may pull us away from homes we love, communities we enjoy, and work that inspires us.

And resolving those two inconveniences -- the one for those adapting to the liquefaction of their human and civil rights; the other for those on higher, more stable ground who want to help but also need the vulnerable to function as if they too are on stable, unchanged ground -- is a conundrum that many communities and workplaces will need to resolve.

Survival strategies for vulnerable people in the Age of Trumpence are not something that can be gradually evolved in wonderment at the rapidly changing terrain. And their genuinely empathetic but inconvenienced neighbors and colleagues who are less vulnerable to Trumpence priorities have a right to try to maneuver through the transformation with calm. 

I wish I had the answer. I suspect it begins with authentic heart-to-hearts between the vulnerable and the inconvenienced, focused on discerning mutually beneficial pathways towards continuity where possible, and towards escape where necessary. But those heart-to-hearts must be predicated on a shared understanding that while there are always tremors with change, seismic tremors (like the rise of a President openly allied with white nationalists) are different. And the discovery that some principles once believed to be bedrock are in fact landfill in the early stages of liquefaction is a living nightmare.

Holiday Gift Guide for Anti-Fascists in the Age of Trumpence #GrabYourWallet #SmallBizSat

If you didn't so much as vote for Trump as hurl a Molotov cocktail of rage at the current economic system, and are now finding yourself perplexed and appalled by the explosion of hate crimes emboldened by the flame you helped start, then this gift guide is for you.

If you are a progressive, unsurprised by the explosion of hate crimes leading up to and following the election, and are therefore inclined to throw a Molotov cocktail at your friends and family who voted for Trumpence, then this gift guide is for you.

You see, there are many thousands of companies that demonstrate better ways of doing business than the exploitative, discriminatory and often illegal approach favored by Trump. And the collective power of holiday spending can help draw attention to these exemplars.
If we value the fair treatment of workers, neighbors, and contractors, it's not enough to just boycott the Trumps, we need to also support those companies that treat their workers well, support equitable local economies, and operate as responsible environmental stewards (but at the very least, skip New Balance).

You can find excellent options here, in the B Magazine directory, or you can buy from locally-owned and locally-sourced companies as a way of creating a stronger local economic impact in your community.

For your beloved who looks with horror upon the kitchen, gift them with GrubHub gift cards. And while you prepare your holiday meals, consider using flour, butter, wine and cheese from these companies (note: A to Z's Pinot Noir is quite tasty and pairs addictively with many Cabot cheeses).

If you're not in a benevolent gift-giving kind of mood (believe me, I get it), and would rather support organizations that assist those most vulnerable to the incoming administration's priorities, then by all means, reallocate your holiday spending to make donations to those organizations.

But here's the thing, since calling someone out directly as a bigot or heterosexist doesn't work, perhaps using the gift as an opportunity to create empathy might. If you choose a mission-driven donation in lieu of a physical gift, try not to do it in spite. Realize this is a teachable moment between you and your beloved. For example, if you make a donation to the Trevor Project, include the personal story of another person you love or respect (note: get their permission first OR choose someone whose sexual orientation is already known).

Remember Dr. King. He wasn't all kumbaya, rainbow character love, he was an astute economic strategist who understood that civil and human rights are intricately connected to economic priorities and opportunities. When he was killed, he was supporting a workers' strike in Memphis, calling for a boycott of discriminatory Memphis stores, factories and banks and preparing for the interracial Poor People's March on Washington. This was when he became truly dangerous to the ruling elites. It was fine when King and other modern civil rights leaders insisted that overt white supremacy was anathema to the country's moral authority in the rapidly changing world of the Cold War and decolonizing black and brown nations. But when King began with increasing fervor to connect racial injustice to economic predation, he "had" to go.

I'm not suggesting that engaging in guerilla gift-giving will result in That Cousin passing you the mashed potatoes with a side of anthrax. Rather, I am saying that you should be prepared to have your guerilla gift-giving used as Exhibit 1 in the case that you are petty or are a socialist whiner who lacks empathy (even King was accused of being tone deaf, impatient and heartless towards white people). Give anyway. And if - unlike me and others who have experienced racist vitriol and are therefore less inclined to be magnanimous towards those who have gloated about Trump's White America since the election - you can give your guerilla gifts with love, please do it. For love of the best that America can be, for love of your community and for love of your beloved.

Requiem for an American Dream

When I started this blog, it was after accepting that my long and circuitous journey towards becoming an academic was derailed, and I needed to re-chart my course.

Last month, I began drafting a post the week after my birthday. I'd learned that a high school friend (the first boy I ever loved) had died tragically. And a few days later, a college friend died after a sudden, fierce and ultimately futile battle with cancer. Questions of mortality and purpose intermingled with grief for two of the kindest and most decent people I've known. And I was plunged deep into introspection.

In the days that I have been drafting this - tapping a few letters, sometimes words, deleting, and gradually needing fewer pauses to remind my lungs to function - I have reconciled with the demise of my delusions about the state of the country of my birth.

My American Dream has long been to finally settle on some land in a rural spot within a half day's drive of an international airport. My mind's shameless cosmopolitanism would finally reconcile with my agrarian progressive heart and I would establish our family's farmstead bed and breakfast some place in rural America that would welcome our presence, and respect this dream.

But in light of last week, my encounter with Trumpence, and the litany of indignities and threats piling on to my black, brown, Muslim, Jewish, Asian, Latinx, and queer friends and acquaintances, I've decided to rechristen my American Dream as my North American Dream.

I've decided to resume the journey of emigrating to Canada, something I've explored off and on for over a decade. And for that, I've been accused of being histrionic. Of being a quitter. Of never really being an American anyway. Of being naive. Of simply not doing enough.

I've been told that now is not the time to walk (or sprint) away. It's the time to grieve through volunteering, strategic donation, and consistent self-care. It's the time to stockpile Plan B and lean in, just a little bit more. It's the time to celebrate the glimmers of hope that also manifested on Tuesday (see 1, and 2). Now is the time to lead and testify and build bridges to those who want me and mine gone my neighbors and listen with an empathy they clearly lack for Others. It's the time to give hate a chance.

But here's the thing: at best, all those exhortations sound like Hamilton's Aaron Burr chatting revolutionary strategy with General Washington, and at worse, they are the knight reassuring the pawn.

I will continue to lean in to support the development of communities that support businesses that implement more positively impactful practices (an aspect of my current work that I deeply enjoy) and I will lean in to advocate for more equitable distribution of economic opportunity to regions beyond the coasts and large cities. But I will not lean in to place my head in the guillotine and become a martyr. And Hell will host the Winter Olympics before I knowingly gamble with my daughter's safety and options. Staying put feels - and with each passing day, looks - like a risky gamble.

Before Tuesday's results and the racist encounter I experienced on Thursday, if I unexpectedly encountered a person as I rounded a corner, I would respond with a chuckle and a greeting, my default reaction for ALL people. Now I go through my day with a heightened vigilance, uncertain whether I am truly, fundamentally safe. My trepidation isn't reverse racism, it's the law of averages. More than 53 million overwhelmingly white Americans voted FOR a candidate who promoted white supremacist views and violence against his detractors. They voted for a man who would rather me and mine weren't here, in the land of our birth, investment and homes. And many millions more didn't bother to vote to keep him and the hate he enthusiastically celebrates at bay.

I'm not the fighter I used to be. For my daughter and for my aging heart, I seek Safe Harbor in a sanctuary where I can mourn, heal, regroup and thrive.

But I also want to understand: 

How have Canadians made diversity and immigration "work," especially in rural and exurban communities?

Sure, I could just stalk the British Columbia OARH online, and dive deeper into reading about Canadian history to glean what I can learn. But, as a former study abroad alumna and a card-carrying cosmopolitan geek, I prefer immersion. In the US we like to talk a good game about how we are the exemplars for the world but on this point, we are a cautionary tale and clearly have a lot to learn.

Crowdsourcing #A2J: Some thoughts on @CrowdDefend & the strategic use of #collcons & the #sharingeconomy

Yesterday, I learned about the launch of CrowdDefend, a new platform combining crowdfunding and impact legislation. This appears to be a desperately needed tool for leveling the playing field, first for socially important litigation and second (perhaps) for private lawsuits in which a monied party uses or threatens to use litigation strategies to bully the other party into submission (by either dropping the case or settling). It is an important companion piece to low-bono, pro-bono, and law school legal clinic solutions.

And it also illustrates the expanding application of the ethics of care at the heart of the outcomes-oriented sharing economy, which strives to use transactions as a means of developing a more equitable, just, sustainable and resilient society. With CrowdDefend, that ethic can be taken to another systemic level, improving social justice outcomes in our case law.

Okay, so maybe that's a bit of an overstatement for a two-day old startup, because CrowdDefend is currently an invite-only crowdfunding platform. BUT it is a perfectly reasonable statement if one takes the long view and CrowdDefend figures out how to last.

Nevertheless, as a legal eaglet and Reinvent Law devotee, I have some concerns, chiefly: what if the campaign owners (the folks who launch a case crowdfunding campaign) are the attorneys of record on the case? Some of my anxiety below is admittedly the pre-emptive nail-biting of a newbie; hopefully, as CrowdDefend evolves and grows, some (if not all) of my concerns will be rendered moot.

• Privilege, Confidentiality and Trial Publicity. Any lawyer who ends up using CrowdDefend as a campaign owner will need to pay extra attention to the attorney/client privilege and confidentiality requirements in Model Rule 1.6 (c): "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

• Attorney commentary about the profession. Imprudent discussion of the counsel or judges involved in a case could also land the attorney in hot water, per Model Rule 8.2 (and maybe 3.5 a wee bit).

• Justice or Advertising? While CrowdDefend is focused on the justice needs of clients, I wonder if it might not run the risk of becoming a form of attorney advertising deemed "undignified" by some jurisdictions. There are bound to be some attorneys who will reference their use of CrowdDefend in advertising material about their professional services and the strategies they will pursue to help their clients. The problem may arise (and perhaps should arise) when the attorney has more skill for launching a campaign than for raising funds for his clients' case. And if the attorney is the campaign owner, rather than the client, then the ethics can become especially hairy if the attorney offers levels of "perks" as authorized in the CrowdDefend Terms of Use. Provided the perks don't amount to coupons or gift certificates for the attorney's professional services, then they shouldn't be considered "advertising" under the current Model Rule 7.2, but using CrowdDefend would, nevertheless increase the attorney's professional visibility.

• Fee-Sharing. CrowdDefend charges campaign owners a flat 7% fee on funds generated through the campaigns.  Model Rule 5.4 always surfaces in discussions around law firm capitalization and ownership, and here it has bearing on the actual cases. Does that fee constitute a kind of fee-sharing arrangement since the total amount paid would vary based on the amount of money raised (with the balance going towards covering the attorney's litigation costs)? Or would that 7%fee be considered an incidental expense for the matter?

Presumably the lawyer(s) would have their clients' informed consent prior to using CrowdDefend for their case. But one of the "perks" of donating to a CrowdDefend case, according to CrowdDefend's marketing, is that the donor will receive updates about the crowdfunding campaign and the case.

Certainly, it is possible to provide updates that are largely procedural rather than substantive because attorneys do that all the time, in compliance with Model Rule 3.6. But imprudent management of case information online could have such significant consequences (including the loss of privilege protection) due to the reach of the internet and information caching online.

If ever there were an innovation that lays bear the logic and timeliness of Lucy Jewell's call to develop a participatory legal culture around professional ethics, CrowdDefend is it. Donors and interested parties may well want more insight into the human story of the legal professionals and not just the case parties, but as things stand now in most jurisdictions, if an attorney's analysis of the other counsel or the judiciary is found to denigrate the profession in some way, that attorney risks some degree of professional sanction.

Well, my hands are good and wrung. But I am still convinced that CrowdDefend is a welcome, necessary and potentially transformative resource for access to justice. Despite my totally premature concerns, I look forward to hearing more about how CrowdDefend grows, evolves and improves social justice outcomes in our legal system and our case law.