Good News, The Lawyers Are Coming!
Reflections on the 2024 Cornell ILR School Global Labor Institute Conference
A funny thing happened on the way to launching the world’s marquis piece of business & human rights legislation. The lawyers showed up.
A quick Google search reveals that there are dozens of firms, and no doubt hundreds of attorneys now working on questions of forced labor trade enforcement. And that’s just in private practice! Including in-house counsel, there are easily hundreds, maybe thousands of attorneys whose portfolios now include helping to manage compliance with the suite of forced labor trade laws enforced by U.S. Customs and Border Protection.
As an attorney who has spent most of my career in private practice, this strikes me as both great and unremarkable. When a new law rolls around, any lawyer worth their salt is going to figure out how to help their clients navigate it. We’re lawyers. Born to help!
But every once in a while, I’ll bump into a reminder that some don’t hold our distinguished profession in the same high regard. And suddenly, I’m thrust back in memory, tooling around town on a Saturday morning in my parents’ minivan, listening to Tom and Ray Magliozzi swap bad lawyer jokes (alongside great auto repair advice) on Car Talk:
“What’s the difference between a lawyer and a vulture? Lawyers accumulate frequent flyer miles.”
“Why don’t sharks attack lawyers? Professional courtesy.”
“What do you call a lawyer gone bad? Senator.”
I had one of those moments last week while attending an international labor rights forum hosted by the Cornell ILR School Global Labor Institute in New York City.
I’m out there. Enjoying myself. On a glorious drizzly NYC day. I may have slipped out and grabbed a slice of NY pizza at lunch. Then I’m back, taking notes on trackable metrics indicative of enhanced worker outcomes. Just learning from some real experts on worker rights! When out of the blue, the gloves come off, and a speaker announces “lawyers in private practice are mercenaries!”
Now my first reaction was: look over my left shoulder, then my right. Because in my mind, I’m an international trade attorney. A customs and trade compliance attorney. A late-blooming human rights attorney. In my self-conception, Amal Clooney and I are basically cousins. Who is this about, I wonder. Since it can’t be me.
But then this person went on to cite two grievances in support of their warning, and, well, they hit close to home! They angrily denounced counsel for two different companies that had been named under different forced labor trade enforcement actions—one under Section 307, and another under the UFLPA. These lawyers, the speaker claimed, were directly and intentionally undermining human rights, and they needed to be called out. By name and for shame. And so they were!
Well, that got me thinking. Because delusions of glamour notwithstanding, I’ll admit to being a new human rights lawyer. I haven’t yet committed the 30 fundamental freedoms of the Universal Declaration of Human Rights to memory. Want to quiz yourself? Grab a pen and see how many you can jot down. Then click here to find how you did.
If you guessed that fundamental human rights include freedom from slavery, freedom of assembly and the right to work—and let’s face it, you read a Substack newsletter dedicated to forced labor trade enforcement, so you probably did—you’d be correct!
But would you look at that. There are at least a half dozen fundamental human rights—like, Universal Declaration of Human Rights human rights—that can only be preserved (let alone vindicated) with the help of a lawyer. These include:
The right to recognition before the law,
The right to equality before the law,
Freedom from discrimination on the basis of national origin,
Access to justice,
The right to a fair trial, and
The presumption of innocence
Representing an non-U.S. actor that has been named in an ex parte (that means—while they weren’t present) enforcement action, which denied them the presumption of innocence and without any hearing, let alone a fair one governed by law, in a regime where the moment you’re named, you’re done for … that type of representation isn’t just consistent with the just administration of human rights, it’s essential for it.
Now, based on my subscriber list, I suspect about half my readership is nodding along, maybe even appreciative of this defense. As for the rest of you, I can see the glint in your eyes, and hear the knives unsheathing, so please just hear me out.
In one of the speaker’s cited stories, a company named in a Section 307 enforcement action hired lawyers to advocate on its behalf in Washington. The speaker seemed to actually know a lot about the specific human rights abuses that allegedly occurred on the ground. I’ve read the reporting that led CBP to issue that withhold release order (WRO), and found it horrifying. The speaker had direct knowledge of the workers’ stories, and, well, those stories are incredibly grim.
In the other cited story, a company added to the UFLPA Entity List without any publicly discernable justification hired counsel to challenge that decision. In that case, no one other than the U.S. government knows what’s going on. The company has literally pled not guilty—meaning, they’ve actually filed legal pleadings declaring they don’t know what this enforcement action is all about—and they don’t have any evident path for clearing their name apart from judicial intervention.
It was these legal representations that drew the speaker’s ire. So let’s consider the question. Is it wrong to represent companies in these situations? Is it a violation of human rights to do so?
As a general rule, people get upset about lawyers defending bad guys. I get that. Like most lawyers, I went to law school to promote justice, not sabotage it. But the point of having a legal system is precisely to ensure that it doesn’t function like a court of public opinion (or worse, a legislature), where the threshold for prosecution is both incredibly low and easily manipulated. There’s actually a term for the notion that, as a free and fair democratic society, we should prefer the injustice of under-enforcement to the injustice of over-enforcement. It’s called Blackstone’s ratio. Ben Franklin is known for his particularly dramatic rendering of it (“better 100 guilty Persons should escape than that one innocent Person should suffer”). Oh Ben.
But he’s not wrong! And you know who agreed with him? John Adams. And Dostoevsky. And Maimonides. And Moses. And the Prophet Muhammad. (Thanks Wikipedia.)
This POV is not without its dissenters, former Vice President Dick Cheney being a notable exemplar. Interviewed in 2014 by Chuck Todd about a report that 25% of the CIA’s detainees in Guantanamo Bay allegedly turned out to be innocent, “Are you okay with that margin — ” Todd asked. “I have no problem as long as we achieve our objective,” Cheney said. “I’d do it again in a minute.”
To my dear friends across the aisle in the worker rights activist community: don’t be like Dick. Stand on the side of the great faith traditions, the Anglo-American legal tradition, the founding fathers, and failing all that, at least the Universal Declaration of Human Rights. Legal representations in the context of forced labor trade laws are not a threat.
But since you brought it up, let’s go ahead and have a quick chat about the ethics of legal representations.
Lawyers all know that sometimes the very best advice you can give a client is to take the plea deal. And sometimes your client says no, they want their day in court. And sometimes your client says, no, I want you to lean on the mayor and the city council to try and get the charges dropped. And sometimes your client says, here’s a few million bucks, go grease the skids and make this all go away.
As lawyers, we are fortunate to have a code of professional ethical conduct to keep us on the right side of the most egregious harms. Then, among the choices that are legally permissible, the question that every lawyer has to ask herself is how am I going to get my client to the best result? Necessarily, different lawyers will have different views on that. Different clients will too. The facts and the law of each specific case plays a pretty significant role as well.
Personally, I tend to think that the quickest and most effective path back from being named in a WRO is to transform the working conditions in your enterprise, and conduct comprehensive remediation of past labor exploitation. Recent history of WRO enforcement would back me up on that. But in a lot of forced labor trade enforcement, especially under the UFLPA, where rumors, speculation and conjecture rule the day, evidence of complicity in wrongdoing has proven much harder to locate. (Half the time, CBP can’t even find merchandise with a supply chain link to northwest China, let alone one linked to actual forced labor.) No matter what challenge my clients come to me with, I aim to give them the best advice possible. That the advice I dispense will be ethically-oriented, given the sensitive and important subject matter, is a no-brainer.
To me, the speaker’s ire at the involvement of lawyers in defending rights under the law is indicative of a curious psychological phenomenon I’ve observed in several instances afflicting longtime advocates for worker rights. Namely, that after chasing one form of economic justice or another for so long, often with so little to show for it, they’re hardly able to process their newfound success.
These good people have decried labor rights abuses in the global economy for a generation or more! They’ve gone to battle over basic protections for workers. Promoted decent work. Empowered worker voices. And still, when they gather, they tell self-deprecating jokes about their heroic appetite for being on the losing side of every battle. And sometimes, I want to grab them by the shoulders and say: wake up! Don’t you realize what you’ve done? You made it illegal to trade in slave-made goods.
For the first time in the history of the world, through a gift of your forbears and through your steady advocacy, there is now a jurisdiction where it is illegal to trade in slave-made goods. Moreover, you managed to direct that law at the largest instance of state-sponsored forced labor since Soviet gulags peppered the Siberian tundra. You have a role in stewarding not just a law, but one of the most consequential laws in the history of global trade.
One of my favorite comments from the Cornell ILR event was that “the era of private supply chain regulation is behind us.” Never mind that private supply chain “regulation” is an oxymoron (if it’s privately overseen, it isn’t regulation!), the point is incontestable. And if private supply chain governance is behind us, that means the laws—and the lawyers who advocate beneath them—are here to stay.
Now, if rubbing shoulders with enough lawyers to populate an ABA conference isn’t your idea of a good time, I hear you. And if you’re worried about whether the law can withstand the increase push and pull that will result from all this tension and advocacy—if you fear that a zealous representation or two could crush this nascent enforcement apparatus—I won’t disabuse you of that concern. Because I too fear this law is not capable of holding the weight of expectations that have been placed upon it.
But the solution isn’t to name and shame lawyers, bless your heart, lol. Because lawyers aren’t brands; lawyers are shameless! (How shameless are they? They think a bill of attainder is an achievement badge for the lawyer with the most collections!) The solution isn’t to pen op-eds harping on companies to play along with the je ne sais quoi of anti-forced labor vibes.
The solution is to take the law more seriously, not less. And I’ll give you a clue. Grapple with what role you really want lawyers to play, and what role they are playing. At the end of the day, that is one of the best indicators of the impact the law is having on corporate behavior.
Someone at the Cornell event asked a question in reference to the biblical notion of needing new wineskins for new wine. I couldn’t have said it better myself.