New Year’s Resolutions: Attorney Wellness

Geri Sjoquist, Hamline Class of 2002, practices in family law and civil litigation. One of Minnesota Lawyer’s Attorneys of the Year in 2019, Geri has worked as a legal professional for over twenty-five years, primarily at her own firm Sjoquist Law LLC.

The Concept of Interconnectedness

There has been a lot of talk about attorney wellness over the past year. New words and phrases, such as mindfulness, have become commonplace. As we begin 2020, I would like to focus on the concept of “interconnectedness.”

We have all experienced the feeling of malaise that follows from having flu-like physical symptoms, such as fever, fatigue, and nausea. So, the idea that our mental health is woven together with our physical health is not a new concept. This idea of the interconnectedness of our body’s systems was brought to my attention several years ago in a very up-front and personal sort of way.

I was working out at a Crossfit gym at the time and I was finding that after every three to four intense workouts I would experience flu-like symptoms and repeatedly need to spend a few days in bed recovering. This went on for about eight or nine weeks, with my doctor prescribing a new dose of antibiotics with every visit. One day, in addition to flu symptoms, I suffered a very intense earache. The ear, nose, and throat specialist looked in my ear, told me there was nothing wrong with my ear, and asked me if I had a history of migraines. I was shocked. How did he know? How did he know that migraines had been lurking in the shadows of my family tree for generations? Furthermore, the specialist told me it was highly likely that I had never actually had the flu.

While we prefer to pretend that our abilities do not fluctuate and we are capable of being on our “A game” at all times, the truth is that no one is capable of such levels of perfection. Even in professions where there is no room for error—like police work or piloting an airliner—there are errors. Even so, as smart as we all like to believe we are, we nevertheless expect and demand nothing less of ourselves. Add to this our hesitancy, as attorneys, to have candid and forthcoming discussions about our cognitive function because of the fear of stigma and incompetency. Why is it so difficult to imagine that our minds—like our bodies—are likely capable of “having the flu” for a couple days and then fully recovering?

This interconnectedness of mind and body was recognized by pre–modern medicine. Ancient Greek, Roman, and Indian Ayurvedic physicians enlisted the theory of the “four humors” in their healing practices.¹ They believed that imbalances in these four visible secretions of the body caused disease and were often caused by our emotions.² Then, in the seventeenth century, French philosopher and mathematician René Descartes attempted to eradicate superstitions. He planted the seeds of rationalism, laying the foundation for a more rigorous and modern scientific thought in his quest to shake and uproot all beliefs not grounded in what could be known with absolute certainty.³ Like Galileo, he sought to overturn what he saw as the prejudices of the day, first promulgated by Aristotle, who placed a great weight on the testimony of the senses, suggesting that all knowledge comes from the senses.⁴

How Interconnectedness Impacts Our Health

What has been most striking to me has been the realization that we can say very little about what we know for certain regarding stress and disease. Meanwhile, internationally–recognized researcher, Esther M. Sternberg, M.D., has made groundbreaking strides in connecting our central nervous system to our immune system in her book, The Balance Within: The Science Connecting Health and Emotions.⁵ As professionals, attorneys rank high on the list of those most susceptible to burnout. Many refer to it as compassion fatigue. But this burnout can reveal itself not only as psychological stress, but also physiological, such as a flattened cortisol response and inability to respond to any stress with even a slight burst of cortisol. In other words, chronic unrelenting stress can change the stress response itself. And, it can change other hormone systems in the body as well… the effects can be especially perilous for women—recurring and extended episodes of depression result in permanent changes in bone structure, increasing the risk of osteoporosis. In other words, we register stress literally in our bones.⁶

In other words, depending on a highly individualistic and complex mix of nature and nurture, our response to our life’s events (whether they be personal or professional) have the potential to permanently change our biology. Some stress can be invigorating, while other stress might be debilitating. This relationship between memory, emotion, and stress is particularly significant in the legal context and attorney culture where mistakes can lead to harsh results. In the legal profession, often a zero–tolerance environment, people are not inclined to come forward and acknowledge their shortcomings when they risk damage to their livelihoods and reputation.

Interconnectedness—mental health and physical health woven together—should therefore not be discounted in the profession. It is important to not disregard how much our wellness determines our ability to do good work.

Resources

For those looking to improve their well-being in 2020, there are numerous resources available.

The Minnesota Supreme Court has created a web page for lawyer well-being. It includes materials from the Court’s recent Conference, A Call to Action on Lawyer Well-Being.
Lawyers Concerned for Lawyers (LCL) provides a free, confidential Lawyers Assistance Program for Minnesota lawyers, judges, law students and their immediate family members. This program offers help to those affected by alcohol, drugs and other addictions; depression, anxiety and other mental illnesses; stress and other life-related problems; and any condition which negatively affects the quality of one’s life at work or at home. Call 651-646-5590 to talk to a counselor or visit their website for more information.

The Minnesota State Bar Association (MSBA) has a Committee on Well-Being dedicated to helping lawyers and legal professionals thrive in both their legal careers and personal lives. For more information and to join the committee visit their web page.

Consent, Appropriation by Manipulation, and the 10-Year Challenge: How an Internet Meme Complicated Biometric Information Privacy

In 2019, a viral Internet meme called the “10-Year Challenge” flooded social-media newsfeeds, asking users the question: “How hard did aging hit you?” Users responded by sharing side-by-side photographs of themselves from 2009 and 2019 with their followers. While the challenge spread across social-media platforms, commentators began speculating about the challenge’s origins after a writer for Wired magazine published an op-ed questioning whether Facebook used the challenge to train its facial recognition technology. The op-ed argued that the challenge, while seemingly harmless, could provide Facebook with a sufficient dataset to train its facial recognition technology on age progression. While Facebook denied playing a role in generating the challenge, the op-ed poignantly observes the chilling possibility of tech companies using manipulative tactics to compel disclosure of otherwise private information.

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Autonomous Vehicles: Regulatory Challenges and the Response from Germany and UK

The looming dominance of autonomous vehicles has an impact on well-established areas of human activity such as the architecture of the cities and the transportation system. At the legal front, laws at the national and international level have become obsolete as technological changes have created new realities. At the same time, such technology
development is challenging long established principles of privacy, tort law, civil liability, criminal law, and insurance law.

Nowadays a number of countries, like Germany and the UK, have adopted legislation to allow the operation of autonomous vehicles, while others have been more reluctant. Lawmakers, in their effort to meet the fast technological pace, face a number of challenges. The question is how they decide to solve them.

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My Brother’s Keeper: Using the Intelligence Toolbox on Domestic Terrorism

I remember the morning of April 19, 1995. I was seven years old and confused by the rubble that consistently flashed across my television. Words like “Oklahoma City Bombing” hung in the air, and Timothy McVeigh became synonymous with evil. I remember the morning of September 11, 2001. I was thirteen years old and confused by the rubble that consistently flashed across my television. Words like “9/11” hung in the air, and Osama Bin Laden became synonymous with evil.

Recent decades have forced the intelligence community to monitor pendulum shifts in various expressions of terrorism. The early nineties raised questions about foreign terrorism as Al-Qaeda took responsibility for attempted bombings at the World Trade Center. The mid-nineties raised questions of domestic terrorism with the Oklahoma City Bombing. The pendulum returned to foreign terrorism after Al-Qaeda attacked U.S. embassies in Kenya and Tanzania in 1998, and, of course, the World Trade Center in 2001.

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The Immigration Judiciary’s Need for Independence: Breaking Free from the Shackles of the Attorney General

President Donald Trump’s strict immigration policies display the need to evaluate the country’s judiciary proceedings on immigration. How exactly do immigration courts function compared to civil or criminal court procedures? In short, the immigration courts are controlled by the executive branch of the United States government.

This note functions as a call to Congress to develop legislation that would make the immigration court system into an independent Article I court. The current system is broken, and it is time for the immigration courts to become an independent Article I court to eliminate unjust decisions based on policy rather than the merits of the case. In the past, Congress has created several Article I courts using its constitutional power with examples being the tax and bankruptcy courts.1 Additionally, the Federal Bar Association has drafted proposed legislation to create an Article I immigration court because there is a consensus that the current immigration court system is broken.2 We have reached the tipping point.

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If You Can’t Beat ‘Em, Reform ‘Em: Expanding Oversight of Privately-Operated Immigrant Detention Centers

In October 2019, Governor Gavin Newsome of California signed a bill barring the state’s department of corrections from entering into or renewing contracts with private corporations to run state prisons and immigrant detention centers beginning January 1, 2020. Citing a lack of oversight and an improper weighing of profit maximization over livable conditions, California will completely ban the incarceration of inmates in privately-run facilities from 2028 onward. Of the 9,000 individuals currently detained in California’s privately-run facilities, approximately 4,000 are immigrants in Immigration and Customs Enforcement (ICE) detention. Illinois, Nevada, and New York imposed bans similar to California’s. It is estimated that as many as seventy-three percent of immigration detainees are housed in privately-run facilities nationally. This means that the beneficial impact of this legislation will mostly be seen by immigrant communities.

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AI Entities as AI Agents: Artificial Intelligence Liability and the AI Respondeat Superior Analogy

Artificial Intelligence (AI) based entities are already causing damages and fatalities in today’s commercial world. As a result, the dispute about tort liability of AI-based machines, algorithms, agents, and robots is exponentially advancing in the scholarly world and outside of it. When it comes to AI accidents, different scholars and key figures in the AI industry advocate for different liability regimes. This ever-growing disagreement is condemning this new emergent technology, soon to be found in almost every home and street in the US and around the world, into a realm of regulatory uncertainty. This obstructs our ability to fully enjoy the many benefits AI has to offer us as consumers and as a society.
This Article advocates for the adoption and application of a strict liability regime on current and future AI accidents. It does so by delving into and exploring the realm of legal analogies in the AI context and promoting the agency analogy, and subsequently, the respondeat superior doctrine. This Article explains and justifies why the agency analogy is the best-suited one in contrast to other analogies which have been suggested in the context of AI liability (e.g., products, animals, electronic persons and even slaves). As a result, the intuitive application of the respondeat superior doctrine provides the AI industry with a much-needed underlying liability regime which will enable it to continue to evolve in the years to come, and its victims to receive remedy once accidents occur.

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