A friendship formed over a fence

After a week of emotional conversations about vaccines, wealth disparity, and the future of education governance in Vermont, a colleague tearfully spoke on the senate floor. He said he’d been verbally attacked by strangers for supporting the vaccination philosophical exemption. Later that day, a friend of mine who works in the statehouse told me of a pregnant colleague of hers who had been cornered in a bathroom and accused by a complete stranger of poisoning her child in utero by having received a flu shot.

Politics demands an armadillo’s armor.

In the midst of all the drama, I learned that my neighbor in Brattleboro had died after a hard-fought battle with cancer. In quiet moments I could admit that he probably wasn’t going to be able to fight it off, but mostly I wanted to believe he’d beat it, because he was a workhorse, because he was burly, and because he had so many things he wanted to live for.

His death means a political touchstone of mine is gone. During my first term in the Senate, I have often thought of him and what he’d think about whatever topic we debated.

My neighbor was born and raised in Brattleboro, and he’d seen this town and county through so many changes. He would often come over to chat when I was stacking wood or doing yardwork. At times laconic, he had a wry sense of humor, and it was sometimes hard to tell when he was pulling my leg; he could hold a poker face for so long.

We often discussed history, something we both adored. He shared stories about the neighborhood “back in the day”. He appreciated classic cars, restored old British motorcycles, and was fanatical about the Beatles. Despite our different political views, he still strode over to chat and crack a joke. He made an effort to connect, and as the new neighbor, I appreciated the overtures.

During the contentious debate over whether to change current Vermont gun laws, I kept him in my mind and heart as I discussed this issue with colleagues and constituents. After years of conversations in my driveway and across my fence, I had a pretty good sense of how he’d feel about any changes to our gun laws. My understanding of who he was and how he felt as a fiercely proud lifelong Vermonter provided me critical insight into the issue. Any approach to this topic needed compassion and context in the conversation.

The week after the gun vote in the Senate, I worried that we might have a tense exchange under my maple tree. Instead, he chose to talk about what plumber I’d recently hired and whether he thought that had been a good choice or not.

We were—outwardly—unlikely conversationalists. We had strong opinions and often opposing views, but relationships and loyalty were extremely important to both of us. History and personal ties ordered our worlds, providing perspective and connection.

In the statehouse, there is an area of the cafeteria known as the “Republican” section. As I gazed over my colleagues in that corner last Friday, I remembered when I first told my neighbor I was running for office. He said, “No offense. But I won’t vote for you. I am a lifelong Republican.” This was not news to me, nor did I take offense. He didn’t need to vote for me, he’d already shown his respect for me in dozens of other smaller gestures.

When his condition worsened, he told his family and the staff at Dartmouth-Hitchcock: “Tell me when it’s time to go. I sure as hell don’t want to die in New Hampshire.”  Agreed.

 

 

Dying to get in: Natural burial grounds

I never know what I will hear when I walk into my morning committee. This week in Senate Economic Development, Housing and General Affairs, Vermonters spoke about taxing distilled products, producing gun silencers, and internet dating scams. We also took up H. 25, concerning natural burial grounds.

If passed into law, it could provide Vermonters with more choices in how they are interred, avoiding customary manicured cemeteries for more organic alternatives.  In a state with many residents concerned about land management, ecological decision-making, and sustainable practices, it is no surprise that death—and the inevitable decomposition of the human body—would become an area of focus.

In natural burial grounds, a body may be laid to rest in a simple burial shroud or another fully compostable container.  The bill specifies distances from water sources and authorizes the Commissioner of Health “to govern the disposition of human remains” when the deceased had a disease considered a public health concern.  Advocates imagine burial grounds much more untamed than traditional cemeteries, perhaps using trees as monuments instead of headstones. The bodies buried in these grounds would not be embalmed or would be embalmed using non-toxic fluids.

Although there are non-toxic alternatives to time-honored—but toxic—formaldehyde, most embalmers across the country still use a combination of formaldehyde, methanol, and other solvents.  This is because families demand a “lifelike quality” for their loved ones—even in death—and traditional embalming fluid consistently delivers.

From ancient Egyptians to modern-day funeral home customers, we want our dead relatives to appear as they did in life.  As Ed Lins, a funeral director in Flushing, NY told the New York Times several years ago, families want that “everlasting effect.” So although nontoxic alternatives to traditional embalming fluid exist, Lins says, “I wouldn’t embalm a body that is being shipped overseas with it.”

But, if you’re not setting out on a multi-week, 180 city, 7 state, funeral procession like slain President Abraham Lincoln, tissue preservation may not be your top concern. Environmental sustainability may trump skin tone perpetuation. Recently, my sister’s hometown of Rhinebeck, NY approved a measure to set aside a portion of their town cemetery for a natural burial ground. Cemetery Committee Chairwoman Suzanne Kelly said they made the decision because of demand. Many people want their burial to part of the natural environment, not set apart from it.

Others want a more economical approach to funereal practices: a burial shroud or simple pine coffin will not set you back the several thousand dollars that an “18-Gauge Steel Love Remembered Casket” will. (Although you can order one online at Wal-Mart for $1,533.33,plus shipping.)

Two Italian artists—Anna Citelli and Raoul Bretzel—invite us to shift our thinking about the dead and how they can live on as part of memorial forests. Their project, Capsula Mundi, entails burying your loved one in fetal position inside an egg-shaped biodegradable pod. As the body decomposes, it provides fertilizer for a tree planted on top of the burial container. Several astute critics have pointed out that, although the containers are beautiful and imaginative, their shape does not best provide nutrients to the trees; a prone body distributes nutrients more evenly.

Natural burials aren’t for everyone; religious traditions and family wishes are often in play when wrestling with death’s mysteries. But Mary Roach, author of bestseller “Stiff: The Curious Lives of Human Cadavers”, reminds us, “We are all nature, all made of the same basic materials… We are no different, on a very basic level, from the ducks and the mussels and last week’s coleslaw. Thus we should respect Nature, and when we die, we should give ourselves back to the earth.”

 

 

Driving Lessons: Race, Poverty, and Traffic Stops

When the sickening footage emerged last week of police killing Walter Scott, I was at a gym in Montpelier watching cable news. The officer, Michael T. Slager, was not in danger; Scott, an unarmed black man, was shot in the back while fleeing. Slager then lied to dispatchers about what had transpired in the minutes before the shooting. He has been charged with murder.

As the newsreel continued its stomach-churning loop, I glanced at the man riding the exercise bike in front of my treadmill. He also watched—both transfixed and disgusted—and glanced away from time to time to shake his head. I finished my run and headed over to talk to him.

“It’s just disgusting what they did to that poor man,” he said through his grimace. We then talked of other recent headline-grabbing incidents, each expressing dismay over the militarization of police forces and the seeming propensity of many officers to escalate basic traffic stops into life-threatening episodes.

“But I don’t think it has to do with race,” he continued. I know my eyebrows arched involuntarily. He said he thought these terrible incidents happened because of bad police training. He argued that police officers were not following protocol and that the job itself possibly attracts people with underlying violent tendencies. I agreed that these factors do probably play a part in the epidemic. But why are we—as white people—so reluctant to accept that race is part of the equation?

Last summer, while running late for an appointment after a very long drive, I did what many drivers do without giving it much thought: I decelerated, glanced in both directions, and slowly rolled through the stop sign. No cars were coming—except for the state trooper who’d just pulled around a bend in the road. Busted!

He pulled me over, and I stammered that I really, really needed to use the bathroom; could I please relieve myself before we continued with the traffic stop? He agreed, and I hurried away to use the bathroom in a nearby shop. Let me be clear—I ran away from the police officer and my vehicle.

Now, I am white, female, and 98 pounds wet. I also look solidly middle class. The officer allowed me to take care of my basic needs before I presented my license, my registration, or any other proof of who I was or the status of my past record. My bathroom break took longer than anticipated because I needed to wait my turn, but the trooper did not come in after me. He waited by my vehicle for my return.

I have blocked out the exact size of the fine; it was substantial. But here’s the thing:  I paid it, and it did not send me into a death spiral of unpaid fines and license revocation. NPR and the Washington Post have both documented how the poor disproportionately lose their drivers licenses because of unpaid tickets for relatively petty violations. Additional fees and surcharges –often many times the cost of the original ticket–wallop poor citizens. And make no mistake: African Americans and Latinos in this country have rates of poverty more than double that of white Americans.

I have the unearned benefits of being white, relatively wealthy, and a woman. Male drivers are more likely to be stopped by police and much more likely to be searched. Women are less likely than men to receive citations for identical violations. And black drivers are 3 times more likely to be searched during a traffic stop.

It does have to do with race. And gender. And poverty. What does it say about us that we can’t see this?

 

Who are your loopers?

You wouldn’t enjoy a Hollywood movie without them, but you probably never notice their contributions.  Hired to give scenes lush and complex background noise, loopers work entirely within studios—their voices layered so intricately on the soundtrack that we’re utterly convinced that they’re really on that street,  in that bus, or in that steamy sex scene.

NPR’s Susan Stamberg, reporting on this line of work before the Oscars, explained that loopers record their dialogue while watching a silent scene play out on a screen in front of them. It might be restaurant ambiance, shouts from a crowd, or chit chat on a busy Manhattan street; whatever the setting, Stamberg asserts, the loopers’ work adds critical texture and dimension.

TV sound mixer David Betancourt told Stamberg,”The beauty of it is it enhances the experience of what you’re watching,” he says. “If you watch without all of this stuff that gets filled in, in postproduction, it feels dead, it feels really flat. If it’s done right, you shouldn’t even notice it.”

I’m tickled to know about this wonderful, unseen aspect of the film industry. I now see my own work through a very different lens, and I search for the loopers in my world. Who are the ones almost imperceptibly holding it all together?

In the world of the Vermont Statehouse, it’s easy to get caught up in the outsized personalities and the headline-grabbing cut and thrust of politics. Whether I am in a caucus or committee meeting, or on the floor of the senate, I try to puzzle out not just what’s being said but what is not being said. A look, a gesture, a silence can reveal so much about where the conversation is headed. But this show—at times amusing, frustrating, riveting—would not happen without all our “loopers”, those people supplying the scaffold for the performance.

Each standing committee of the General Assembly has an administrative assistant whose work allows the entire system to function. They schedule all the witnesses, organize documents and schedules, enforce proper protocol, and perform myriad other duties I don’t ever see.  And as Senator Peg Flory, chair of Senate Institutions, often says of our excellent assistant, Penny Carpenter, “She puts up with us.”

I started to absorb the extent to which the legislature depends on these experienced and efficient workers when, after a long, full day, I noticed Carpenter seated on the dais in the well of the House. She worked into the evening during a heated and emotional evening of testimony about a controversial bill. The show—complete with fireworks and explosions—was down on the floor, but she and countless others worked behind the scenes to support the structure that allowed for critical public input.

Without the lawyers of Legislative Council, the analysts at the Joint Fiscal Office, the legislative pages and the staff keeping the statehouse in great shape for thousands of visitors each year—the whole shebang simply would not operate.

I attend dozens of catered events across the street at the Capitol Plaza where legislators meet with trade associations, advocacy organizations, and constituent groups promoting issues most dear to them.  One recent evening, I focused on the hive of wait staff and bussers whose carefully orchestrated dance enables hundreds of us to gather, eat, and learn on a very tight schedule.

One woman stood out that evening because I’d also noticed her at lunch that same day. She hauled an enormous tray of dishes past me; it seems she is always hauling an enormous tray of dishes.  As she bustled by my group, I flagged her down to thank her and to ask her name: Becky.

Please look around: Notice your loopers and then appreciate them.

 

 

 

Finding time for compassion

There’s been a palpable shift in the mood at the statehouse. Fatigue and worry have started to creep into the tenor of floor debates, committee discussions, and whispered conversations in the many alcoves of the People’s House. Chit-chat in the cafeteria now sometimes includes exasperation and impatience at a legislator’s inability to see another’s inherent brilliance and his own obvious idiocy. There is still laughter and collegiality, to be sure, but I’ve noticed that compassion is losing its footing.

In the legislative lounge last week, I overheard a testy exchange about the House debate on the proposed budget. Putting aside the merits of the specific arguments, my attention was drawn to the voice and tone of the participants. The sourness of the remarks made for an unpalatable cocktail of irritation and touchiness; it assuredly would never have actually changed anyone’s mind. But we are all feeling the clock ticking down, and it shows.

I recently learned that perceived time constraints—not surprisingly—shape not just our moods but our willingness to be compassionate. A famous study conducted at Princeton Theological Seminary in the 1970s revealed that personality has little to do with whether we will individually choose to be compassionate; we choose compassion when we believe there’s time to do so.

Social psychologists John Darley and Daniel Batson researched what causes some people to act as Good Samaritans when others choose to turn away from someone in need. The researchers drafted 67 seminarians at Princeton Theological. Some were told to deliver a short speech on why they chose to go to seminary; others would speak on the parable of the Good Samaritan. The students were instructed to deliver their speech in a hall a short distance from the building in which they’d gathered. The researchers planted an accomplice along the path between the two buildings who was instructed to slump over and groan as the seminarians passed by.

Many did not stop to assist the unknown confederate; some even stepped right over the seemingly ailing man. You might assume that the ones who did stop were all the ones about to give a speech on the parable of compassion. Not so. Overwhelmingly, the ones who stopped to help were the ones who felt in less of a hurry. Unknowingly, the students had received slightly different directions. Some were told they were late to deliver their speech. Others were told that the assistant in the other building was ready for them, and the rest were told that they could move to the other building at their leisure.

Only 10% of those “in a hurry” stopped to help. But 63% of those who did not feel rushed stopped to assist, and 45% of those told they were in a slight hurry paused to help. The situation was also a factor. Less than a third of the seminarians who were to deliver a speech on their reasons for entering seminary stopped to help, while more than half of the Good Samaritan speakers stopped.

We often attribute compassionate behavior to a person’s innate capacity for empathy. But this and other studies reveal that situational components have much more of an effect than personality. Social psychologists refer to this as the “fundamental attribution error”—our tendency to give more weight to internal traits to explain another’s behavior in a situation rather than looking to external influences.

What a relief! We all have an opportunity to expand our capacity for compassion. The first step is to become more aware of the external pressures we feel—time and situation—and make a conscious effort to value the human experience over simply being run by the clock.

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Living in a trans world

Recently, I asked an old friend how his daughter was doing. He paused, cocked his head, and replied, “Great! Really great. But our child no longer identifies as a girl.” He told me his child’s new self-chosen male name and described his family’s incredible journey. His unequivocal support of his kid, his belief that it was clearly the right thing, and his acknowledgment that his son was now calmer and happier than he’d ever been as a girl all impressed me. The school had handled the child’s gender identification transition very well. The principal set the right tone and reminded the staff that it wasn’t about them: the student’s needs had to be central to the discussion.

I generally consider myself a good, solid, sensible liberal— sensitive and aware. But at times, I have personally struggled to understand the experience of transgender folks in my community. Embarrassingly, there have been times in my adulthood when I’ve thought, “I don’t get it. How can you know you want to be another gender?” How strange as a gay woman to grapple with this, as I am certain there are many people in my community who think, “I don’t get it. How can you be attracted to the same sex?”  Sometimes we hide in a lack of comprehension. We can all stretch the boundaries of our understanding and acceptance.

Although politicians take considerable heat for “evolving” on particular issues, shouldn’t we all want  such evolution ourselves? To be ever curious? To strive for deeper, broader understanding of another’s experiences?

I recently met a new friend’s partner. As we shook hands, I made an instantaneous determination of her spouse’s gender identity. I assumed her spouse was a woman, albeit a woman more comfortable in rather masculine clothes and a haircut. The gender neutral name offered few clues.  A few weeks later, I referred to my friend’s absent spouse as “she”.  There was an almost imperceptible shift in her facial expression. I asked, “Does your spouse not identify as a woman?” She nodded, I re-sorted the information in my brain, and then I proceeded to repeatedly put my foot in my mouth over the course of a 10 minute conversation.  Thankfully, she demonstrated great patience with me, despite the fact that my blunders likely made her uncomfortable.

Later, I confided in another friend how awful I’d felt about this interaction; I clearly remain squarely planted in binary thinking about gender identity.  A hip millennial, she was gracious enough to talk through the issues with this earnest—but sometimes “old-school”—Gen-Xer and offered some suggestions as to how to be a better ally. Months later, I learned that she, a heterosexual woman, has a boyfriend who was born female.

I strive for compassion and complex consideration of issues, so I am grateful that my friends demonstrate patience as I come up to speed on this one. And as a lawmaker, I am now much more attuned to the ways in which it can be downright dangerous for transgender people in our community.

According to research by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, a staggering 90% of transgender people report harassment, mistreatment or discrimination on the job. Transgender people are four times more likely than the general population to live in poverty, and they experience unemployment at twice the national rate. Alarmingly, 41% of respondents reported attempting suicide; compared to 1.8% of the general population.

Here’s a good first step for all of us in becoming better allies for transgender Vermonters:  Assume there are transgender people at any gathering. Then notice how this simple shift in thinking opens your heart and mind.

 

 

Loretta Lynch: Memories of Anita Hill

I generally am not one to hold a grudge. Rancor is unproductive and occupies room in my personality better given to more positive, hopeful emotions. Nevertheless, after 25 years I still haven’t forgiven Orrin Hatch for his conduct toward Anita Hill during Clarence Thomas’s confirmation hearings. He and his colleagues on the Senate Judiciary Panel—all male and all white—were utterly flummoxed by the complexities of race, gender and sexual harassment.

I am not alone. Kate Phillips, writing for the New York Times’ political blog The Caucus, recalls that men of the Senate Judiciary Committee “too easily dismissed Ms. Hill’s accusations” and “did not allow the testimony of other women who might have corroborated or helped buttress her account to prove a case of sexual harassment.”  Instead, Hatch, Arlen Specter, and Alan Simpson characterized Hill as a perfidious scorned woman; while Joe Biden, chair of the committee, erroneously opined that he had to give Thomas “the benefit of the doubt”.  As Jamie Stiehm—writing for US News and World Report— asserts, this was not a criminal trial, as Biden implied, but a confirmation hearing for a lifetime appointment to the highest court in the land. Perhaps a bit more due diligence was in order.

A quarter century later, the Senate Judiciary Committee is slightly more inclusive: Democratic Senators Dianne Feinstein (CA) and Amy Klobuchar (MN) offer a more nuanced and sophisticated vision of how gender affects politics. But there is still not a single African American Senator on the committee, nor is there an African American woman in the Senate.

Loretta Lynch cleared the Senate Judiciary Committee in late February by a vote of 12-8. She has been waiting for a confirmation vote from the full Senate since then—longer, according to President Obama, than the last five Attorney General nominees combined, despite the fact that Lynch—a supremely qualified federal prosecutor—has the backing of law enforcement.  Even Rudy Giuliani said that Lynch was so competent as to be “overqualified”, and Louis Freeh—former FBI director—asserted that her reputation “is just stellar”.

What gives?  I was relieved when Minority Whip Senator Dick Durbin finally gave this battle’s subtext more concrete shape and form: likening Lynch’s wait to that of another African American woman’s plight when she was told to sit at the back of the bus. Durbin fumed, “It’s unjust. It is beneath the decorum and dignity of the United States Senate”. Former “maverick” John McCain immediately castigated Durbin for insinuating that race was a factor in Lynch’s exceptionally long wait for an up or down vote on her nomination.

Is race the only factor in the sandbagging of Lynch’s confirmation? No. Some argue this a proxy battle between the GOP and their longtime nemesis Attorney General Eric Holder.  Some contend it has more to do with President Obama’s executive orders on immigration, which infuriated many Republican Senators. Is it Democratic objections to the GOP’s anti-abortion measure slipped into a bill to combat human trafficking? Senate Majority Leader McConnell’s now using Democratic objections to freeze Lynch’s confirmation vote.

But to argue that race has no part in the discussion is either completely disingenuous or colossally myopic. Of course race has something to do with it. Of course gender has something to do with it. More than two decades after Anita Hill’s grilling in that Senate chamber, not many African American women have had high profile positions on either side of the aisle.

Anita Hill—years after the Thomas hearings—wrote in a NY Times Op-Ed, “I will not stand by silently and allow him, in his anger to reinvent me.” May Loretta Lynch use those words as a beacon through the current maelstrom.

We are the 85%

We should all be heartbroken about the assassination of Russian reformer Boris Nemtsov. Nemtsov—a principled, charismatic opposition politician who once served in Boris Yeltsin’s government—was recently gunned down while walking near the Kremlin. As The Economist pointed out, “The area is infested with video cameras, police, security services and secret agents charged with protecting Russian president Vladimir Putin.” Despite the extreme security, Nemtsov’s killers clearly believed they would evade capture, leading many to suspect that the Kremlin either directed the killing or gave tacit assent to it.

Nemtsov, clear-eyed about both his situation and the growing climate of violence in Russia, wrote last year, “The Kremlin is cultivating and rewarding the lowest instincts in people, provoking hatred and fighting. People are set off against each other. This hell cannot end peacefully.” Several days before his slaying, he was targeted in online posts: “Nemtsov is a national traitor. Execute the traitor!”

What a repugnant and horrifying end for a man who was considered by many to be the epitome of decency and honesty. How can I exact any meaning from his grotesque and cynical killing sitting in my snug home 4,500 miles away?

Most of us will never face violence of this magnitude because of our views and our willingness to share them. There is always some risk, sure, when we speak out.  We may feel we’ll lose our jobs, be tagged as a “troublemaker” or jeopardize close relations with friends and neighbors. But the perils most certainly pale in comparison to being gunned down in the shadow of the Kremlin.

And yet, it is difficult to criticize, even politely. It is extremely uncomfortable to raise questions that supervisors, managers and other colleagues would prefer we let wither on the vine. But the rotten fruit lingers even when we choose not to name it.

Margaret Heffernan, author of “Willful Blindness: Why We Ignore the Obvious at Our Peril”, discusses this phenomenon in two popular TED talks: “Dare to Disagree” and “The Dangers of Willful Blindness”. Whether it’s Enron, NASA’s handling of the Space Shuttle Columbia, or the global financial crisis, one common denominator is that the organizations in which tragedies were incubated did not allow for a free flow of criticism. Heffernan argues that organizations “don’t think well”. She explains, “And that isn’t because they don’t want to; it’s really because they can’t. And they can’t because the people inside them are too afraid of conflict.”

In an oft-cited study published in 2003 by NYU researchers Frances Milliken, Elizabeth Morrison and Patricia Hewlin (who is now at McGill), 85% of employees surveyed reported that on at least one occasion they felt they could not raise an issue of concern to a superior. Even more startling, nearly 50% said they generally did not feel comfortable raising concerns. Heffernan conducted similar interviews overseas and got the same results. It is not an American phenomenon; it is a human one.

Members of organizations the world over fear they will damage complex work relationships or will be disciplined if they speak up. Businesses, schools, non-profits and, of course, governments, do not benefit from a culture of “Yes” men and women. But there are strong disincentives for voicing concerns.

If you lead an organization, please take a moment to examine whether you systematically solicit unfiltered feedback from your workers: through an ombudsman, a designated gatherer of feedback outside the organization’s hierarchy, or simply a system for anonymous, honest feedback. It can be simple. Reportedly, The Body Shop gives all new employees a red envelope they can use to report concerns anonymously. The red envelopes go straight to the top.

Boris Nemtsov died for free speech. Surely, in his honor, we can do better.

 

Vermont versus the trolls

In Norse and Scandinavian folklore, trolls are often depicted as ugly, mean, dim-witted creatures that emerge from their caves at night to menace unsuspecting humans. In some cases, Scandinavian geographic features like boulders are attributed to trolls: The trolls turn to stone when exposed to sunlight.

Similarly, patent trolls, when exposed to the light of day, reveal their essence: They hurl shameless, unsubstantiated accusations in an attempt to shake down large and small Vermont businesses and even our tiny non-profits. Fortunately, Vermont’s first in the nation anti-patent trolling law—“Bad Faith Assertions of Patent Infringements” passed in 2013—casts critical light on idle threats directed at Vermont businesses by these trolls.

As Attorney General William Sorrell testified before the U.S House Subcommittee on Commerce, Manufacturing, and Trade in April 2014, the patent trolls’ modus operandi is the bogus demand letter. One “patent assertion entity”, misleadingly named Innovatio IP Ventures, LLC, sent over 8,000 letters to American companies to extort money from businesses they claimed violated a wi-fi technology patent. Of the 8,000 that received letters threatening imminent legal action, only 27 ultimately had legal action taken against them regarding patent infringement.

MPHJ Technology Investments, LLC, sent bullying letters to 75 Vermont businesses and non-profits—including two organizations that serve developmentally disabled Vermonters—but never actually sued any of them. It simply sought a fast buck from businesses and non-profits that feared lengthy, expensive litigation. Nationally, MPHJ sent 16,000 of these harassing missives, yet only sued five businesses.

Sorrell explains the strategy: “[T]here is clearly a volume-based model of patent enforcement that involves sending large numbers of demand letters with the aim of extracting a relatively small licensing fee from many targets.” And these trolls often take aim at businesses and non-profits that do not have the assistance of in-house legal counsel nor money to retain patent counsel.

According to Timothy Lee of the Washington Post, Vermont’s fight against the trolls began with the efforts of Vermont attorney Peter Kunin who represented an ad-hoc group of Vermont businesses seeking relief from frivolous lawsuits. Legitimate patent defense cases are designed to protect businesses whose patents are intentionally and directly threatened. But trolls have directed a tsunami of sham patent infringement cases at businesses and non-profits who may accidentally infringe on patents.

Although the patent system is federal, Kunin sought a way to confront the patent trolls through state law. He notes that questions about patent ownership are usually litigated under state law, and state law often regulates the sale and licensing of patents.  Working with legislators, Kunin crafted a legal theory under Vermont’s Consumer Protection Act. Explains Kunin, “If a troll makes a threat in bad faith, that is a violation of state consumer protection laws.”

Vermont leads the nation on patent troll protection, and although other states are now coming around to this important issue, we must be better about trumpeting the unique protections we offer. When a business considers where it will locate, patent troll protection could be an important tool in this courtship. We need to broadcast our singular standpoint: We protect our businesses from the bullies.

Whether it’s our great success in the Captive Insurance market, our innovative farm-to-plate programs, our stellar breweries and distilleries, or our internet startups, we must move beyond just marketing our breathtakingly beautiful bucolic backdrop.  Other substantive considerations make Vermont the right place for business.

As Paul Ralston—former Vermont representative and owner/founder of Vermont Coffee Company in Middlebury, Vermont—told me recently, “We must get the word out.” A recent Wall Street Journal article about how patent trolls sap our economy did not mention Vermont’s significant leadership on this front.

Trolls beware: Vermont’s put you on notice.

 

Our courts in crisis: Justice delayed is justice denied

“They need to take their cuts like any other agency.” I’ve heard this sentiment many times since arriving at the Statehouse in January. We are in the midst of an acute budget crisis and searching for funds absolutely everywhere. Although I understand the feeling of desperation behind the opinion, the incontrovertible fact remains: Vermont’s judiciary is not an “agency” of the executive branch. It is the critical third branch of our government, and its role is vital. The judicial branch counterbalances the power of the executive branch, protects minority rights against majoritarian tyranny, and safeguards equal access to justice.

As a former history and civics teacher—and the child of an immigrant whose father was murdered in the Holocaust—I am sincerely troubled when average citizens do not understand the role of the courts. I feel even more concern when some of our elected officials do not grasp the fundamental division of governmental powers set forth in our state constitution.

During our legislative orientation, Vermont’s Supreme Court justices told new legislators about the many challenges Vermont’s court system faces due to chronic underfunding.  I doubt Chief Justice Paul Reiber and Associate Justice John Dooley thought they’d need to explain the role of the courts to us.

In one uncomfortable moment, a newly elected legislator told a lengthy story about vandalism and theft in his hometown. Clearly exasperated, the representative interrogated the justices as to what they could do about it. Taken aback, Justice Dooley replied, “You do realize we’re the Supreme Court? We don’t arrest suspects. That’s the role of local law enforcement.”

Several minutes later another rep asked the justices whether they’d heard more 4th Amendment cases due to the expanded opiate drug trade in Vermont. Someone called out, unabashedly, “What’s the 4th Amendment?”

Now, I am not generally into “gotcha moments” related to civics or history facts, although admittedly they can amuse when we are at our basest selves.  What troubles me is not simply that some elected officials do not know that the 4th Amendment deals with unreasonable search and seizures. This lack of knowledge—combined with a fundamental misunderstanding of the role of the courts and the erroneous notion that the judiciary is an executive agency— has me quite alarmed. I dread that we are headed for a constitutional crisis in Vermont. I am not alone.

Many within Vermont’s legal community fear that it is only a matter of time before the state is sued for violating a citizen’s right to access the courts for redress of wrongs. The heading of Article 4 of our state constitution is unequivocal: “Remedy at law secured to all”. We are all entitled to justice provided by courts “promptly and without delay”. But that’s not the experience of most folks who need our state’s court system.

For years we have asked our courts to do more and more with fewer and fewer resources. We have slashed budgets under the misleading title “vacancy savings”—the preposterous practice of “saving” money by not filling a judicial vacancy. The cases do not go away simply because there is no judge to hear them.

Now Vermont’s judiciary has been told to cut another ½ million dollars from its budget. This goes beyond the tipping point, folks. We are haplessly skidding towards the precipice that Chief Justice Warren Burger warned us about over four decades ago when he said that “to maintain the fabric of ordered liberty”, a free people must have a sense of confidence in the courts. Delay and inefficiency, he argued, drain away any faith we have—even in a just judgment. And the chilling end result is that average folks “come to believe the law…cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.” A dire prediction indeed.