Remembering Emily Claire Goldman

A Tribute to a Friend and Colleague, Gone Too Soon, Who Made a World of Difference

Graduation season is traditionally a time of hope, inspiration, and advice. Law students who matriculated the first year after COVID lockdowns will soon become bar-takers, hopefully bar-passers, and eventually, if they desire, barred attorneys.

It’s quite a time to be entering the profession.

I struggle with exactly how to guide students I’ve taught or mentored or organized with who will soon be entering the practice of law, especially those interested in immigration law, or in making a positive difference with their training. It feels and is bleak. But it’s not hopeless.

I’ve been thinking a lot about hope while investigating what I believed to be the suspicious death of a friend and colleague. Then I decided more people should know who she was and what she did with her short 31 years on earth, less than ten of which she spent being a law person. So, in an interruption of regularly scheduled programming, I want to introduce you to someone who made the most of her time here, with the hope that it might inspire a few of us to strive toward doing the same. I’m going to tell you about my friend Emily.

When I first met Emily Claire Goldman, she was running the nonprofit she founded and ran, ESG Transparency. She’d already worked abroad as an international human rights lawyer—work she told me had resulted in the persecution and even death of some of her colleagues. Turns out corporations and governments tend to dislike being called out for breaking the rules when there’s a ton of money on the line. Activated by the horrific spectacle of the first Trump administration’s family separations, child border deaths, and detention profiteering, Emily decided to train her formidable human rights lawyering skills—tenacity and creativity being probably the most important—on human rights violations closer to home.

Her theory of change was similar to mine: Make it as expensive and unprofitable as possible to inflict the suffering on vulnerable people by acknowledging how the irreducible demands of U.S. capitalism are built into the immigration system. By making the deportation economy accountable to shareholders and markets using due diligence and advocacy, ESG Transparency aimed to protect immigrants from the predatory drives of Wall Street.

I’d long held similar beliefs about viable pathways to dismantling the deportation machine. The class-action forced labor and wage theft litigation we began filing around the United States in 2014 was built on an economic theory—not a moral or political one. A few of us believed (to the chagrin of many) that if ICE and its contractors had to pay the full costs it takes to operate detention centers and carry out deportations, and if we could show the public and markets how absurd these costs actually are, we could help folks make better collective choices about how to spend finite resources. In other words, if a detention center would become unprofitable through litigation, and if we could replicate that result across enough detention centers, those financing these activities would seek other, more profitable ways to use their capital. Indeed, their fiduciary duties would demand that they do so.

The work had international human rights intersections, to be sure. Forced labor is a hot-button issue in environmental, social, and governance (ESG) corporate accountability movements. Applying the framework of human trafficking to ICE detention, which is what courts in our TVPA class actions were doing, meant creating new potential sources ESG risk for the companies that, at the time, relied on access to cheap capital to continue their expansion. Emily founded ESG Transparency and embarked upon a mission to deploy an ESG analysis to the immigration detention business because she believed corporate accountability would be at least as effective, if not more, as electoral accountability.

In the private prison space, there was good reason to believe this was true. The 2016 release of Sally Yates’ devastating assessment of privately owned, for-profit prisons as being more expensive and less safe for the Bureau of Prisons than federally run ones was sea change. The two publicly traded private prison companies lost nearly half their market capitalization in a matter of days—billions of dollars of perceived value, vanishing in relative instant on the announcement that the facts and the prison companies’ performance, rather than agency capture and a revolving door, had finally guided a contract partner’s decision.

When I deposed the former ICE official who set up Secure Communities before leaving for a private prison C-Suite, he pointed out to me that when he joined the company, its stock was trading in the $30 range. At the time we took his deposition — midway through the first Trump term, it was nearing single digits. From that day forward, I have checked both companies’ stock every day.

Whereas most advocates more familiar with the horrors of ICE’s detention abuses, and the prison system more generally, attempted to use moral suasion to get investors to liquidate their positions in private prison companies, Emily Claire Goldman made the business case for divestment. You see, the companies were, at the time, characterized legally as tax-favored Real Estate Investment Trusts (REITS) pursuant to IRS Private Letter Rulings they used fancy lawyers at fancy law firms to obtain. Some of the representations in their requests for these rulings seemed dubious, but obtaining REIT status meant the companies could get bundled up with other real estate indices and find their way into basically every working American’s portfolio, in the form of an index fund. You might not have liked the companies, but you probably didn’t know you owned a piece of them if you had a Vanguard account. They paid dividends and enjoyed a reduced tax burden, all on the premise that their business was in management and development of real property for government clients. This meant lots of banks, investment brokerages, and retirement funds owned a piece of the deportation machine.

Emily had the insight that if you could demonstrate, using accounting and finance data (i.e., the language spoken by portfolio managers, boards, and fiduciaries), that private prison firms were simply bad investments with huge risk, you could make a business case for divestment. In fact, at the time she published High Risk, Low Reward, investors would have been better off having stowed their money in a shoebox than having it in the companies she profiled.¹ .

It worked. She worked with educators in California to get CALPERS and CALSTERS, the public employees retirement system and teachers retirement system investment funds, respectively, to drop their positions in the companies.

I’ll never forget the day she called me after meeting with one of their boards and told me the news — at the time, super hush-hush, as it wasn’t a done deal yet. Remarkably, private prison Board Member Thurgood Marshall Jr. sold some of his stock in the company the same day. I’ll always wonder why.

ESG Transparency was the implementation of a singular theory of change by a 20-something lawyer with the good sense to follow the money, and the brilliance to execute on a well-crafted strategy.

"California public employees took a stand and made their voices heard after learning that their retirement savings were propping up the very companies that have played a critical role in the migrant abuse crisis, as well as mass incarceration, and the school-to-prison pipeline," said Emily Claire Goldman, founder and director of the ESG Transparency Initiative, whose Educators for Migrant Justice campaign was behind pushing CalPERS to divest.

As part of a larger and much older campaign, it helped lead to a cavalcade of popular demands which ultimately resulted in the functional debanking of both companies by Wall Street. This created a debt crisis that led them to suspend their dividends and de-REIT. It meant capital became much more expensive, and demanded renegotiating of potentially firm-ending debt payments at much less-favorable rates, with the threat of bankruptcy looming over the horizon.

Divestment isn’t something Emily invented. There’s a long and rich tradition of using it as one tactic in a larger set of strategic means of social change—from bus boycotts to apartheid. But coupling the court decisions coming out of a variety of cases challenging the deportation machine with a clean business case, aligned with and contributory to popular political and social narratives was something she did in a uniquely effective way, especially for one single, underfunded, overworked, really stressed out person.

If you want to know whether your strategy is having the effect you predicted and hoped for, you can usually rely on the targets to tell you.

In announcing the STOP W.O.K.E. Act, Florida Governor Ron DeSantis specifically named his intent that the law would prevent something like the debanking of a private prison company in response to ESG concerns:²

“Those activists cannot implement those policies through the ballot box. People don’t want to abolish prisons, people don’t want to abolish ICE, people don’t want to defund law enforcement, and so they try to do it through the backdoor by basically kneecapping some of these companies,” DeSantis said.

The point here is she was so effective at her mode of change that it prompted Florida and others to outlaw it. Quite the proof of concept. As we think about all these “anti-woke” law firms and policies, I turn to the Stop WOKE Act, and the complaints that this mode of change involve “using your economic power to enforce a political agenda.” Yes: It’s most definitely Elon’s demonstrably brilliant ideas that led him to become de facto leader—not his economic power. I’m sure he’d be there if he were Just Some Poor Dude.

Emily died in a fatal car accident at 31 years of age while she and her pup were driving home to her family’s house for Christmas. Her life was cut short by senseless tragedy. Her memory lives on in the people who knew her around the world, some of which I met only after she died and we resolved to figure out if she was murdered by any one of the corporate wrongdoers she cost billions of dollars by using law, courage, creativity, and perseverance to challenge. I miss her spirit in these times. Always filled with a combination of indignation and care, rage and joy, hope and hard-nosed realism. Always willing to go it alone if that was the right thing to do, but also knowing how much better it is to go it together, even if our numbers are few.

Nobody gave Emily permission to be a human rights lawyer. Nobody signed off on her creating the Educators for Migrant Justice campaign—and more than a few establishment types in the nonprofit industrial complex really resented her for doing so and took credit for some of her work, which is far more expansive and impactful than I have discussed above. She just decided to do it, because she believed that she could. She had a skillset, a family who loved her, and a sense of self-possession and belief that humans can work creatively to interrupt harm and change the world. I take comfort knowing her mom was able to endow a fellowship in her honor at her alma mater law school - American University’s Washington College of Law - where young lawyers might follow her path. We need it now, just as we needed it then.

Nobody’s going to give you permission to make the change you want to see in the world. You’re definitely going to have to work and play well in community if you want to make it happen. But if you’re waiting for someone to tell you it’s okay to be creative, to try something new, or to do something nobody’s ever done before, you’ll be waiting for an eternity. Trust yourself and your north star, even if others don’t. Center your intentions, be diligent, and lift others up as you’re moving, rather than worrying about others taking credit for the fight. This is, quite obviously, easier said than done.

Find a mentor you respect and trust and reach out to them. Don’t be offended if they don’t respond immediately: The most inspiring people are some of the busiest right now. Then teach someone else what you know. Connect with people in the work, and make room for them to be imperfect, because you’re never going to be perfect, either. Don’t lose sight of the horizon, but take the time to savor the sweet moments of provisional, temporary, wild success. No win is forever. No ground you take from unjust systems of power will go unchallenged. So build as you move. And don’t give up.

Rest in Power, Emily.

1. Ironically, their stocks still aren’t where they were during Obama. But that’ll change soon, thanks in part to Obama’s neoliberal legacy of legitimizing for-profit detention expansion for “felons, not families,” and its enduring, toxic echoes today

2. Thing is, we did implement that agenda at the ballot box, and we won, despite a coup attempt. First in the 2018 midterms, where Abolish ICE actually helped (rather than hurt) take back the House. Then in the 2020 Presidential and Congressional election, where Joe Biden relied on abolitionists’ demand to halt using all private prison companies for federal purposes to keep the House and win the Senate. Turns out, he was just a soulless lying politician who fooled everyone who voted for him on that basis into thinking he could be trusted before obliterating the party that put him into power and delivering Trump a second term. Biden ensured, by breaking his promise, that the business case for private prisons improved significantly. He and everyone around him who enabled his senescent governance delivered the power of a deadly mass detention system to the very person voters took it away from. But I digress.