Hubris and Petulance

There are a great many judges in this world. The idea of a judicial system is reasonably universal, though the stature, dignity, and independence of those display some significant degrees of variety across the globe. 

In the United States, there are something more than 30,000 judges. In such a broad field of people, it is likely difficult (at best) to distinguish yourself. How does one stand out from the crowd?

A suggestion, humbly, would be that there is no reason to stand out from the crowd. The job before us is one in which doing the job, day after day, with humility, consistency, and dedication is a tribute to the serious challenges people face and the critical role that judges play in analyzing conflicts, facilitating discourse, and steering disputes to resolutions.

The purpose of a judge is not to find Andy Warhol's promise. Supposedly, he said that "in the future, everyone will be world-famous for 15 minutes." There is some doubt about that attribution. And, there is some criticism. Comedian Daniel Tosh is quick with that quote and to explain the 15 minutes is an average. He then points out those in the audience who will get "zero for you, you, you, you, zero, zero, zero, zero, zero" so that Mr. Tosh can have far more than 15 minutes in that "average" conceptualization.

Judges are like cooks. Our job is largely to deal with a process that is imperfect. It is said to be an art, more than a science. In fairness, art is often in the eye of the beholder. People actually look at Picasso's work, believe it or not. Not my cup of tea, but that is what makes the world go around. 

Much of the meal is determined by the groceries. If all you bring us is unripe kumquats, banana pudding mix, and a can of spam, you can hardly be shocked when the judge doesn’t conjure a gourmet meal as a result. Ok, you can be shocked if you want to be, but your credibility will take a serious hit.

In the naïveté of our youth, we were all led to believe that such judicial positions naturally attract the best and the brightest. To be a judge, you must have something on the ball, right? In truth, judges are no more likely to be exceptionally smart, than college professors, counterworkers, or floor moppers. There is no inherent characteristic. Much of life comes down to luck and opportunity. 

Thus, appellate judges are no more intelligent or sensical than any other judges. But, at least, they tend to make decisions through a collective and sometimes collegial process. That collective effort and ample reflection time perhaps round off some rough edges in trial decisions they review. Their collective wisdom is maybe less fallible than any individual's? Well, if it makes you feel better to cling to that, that itself has value. 

Our story today is of a Nevada judge. Fortunately, or not, she recognizes her own indefatigable superiority. She is gaining 15 minutes of fame because she has made up her mind, and will not be swayed. She, perhaps sees herself as the “man who can't be moved.” As irrational as it may become, she just keeps repeating "So I'm not moving, I'm not moving." The Script, RCA, 2008. 

No, when the Nevada Supreme Court told her she had erred, and reversed in 2022, she stood her ground. The matter was brought to the Supreme Court a second time, and surprisingly, perhaps, like your mother (“what part of no didn’t you understand?“), the court agreed with itself, and told the judge again in 2023 to follow its previous instructions.

So, perhaps the court delivered clarity and its second iteration. Nonetheless, the judge in Nevada is too brilliant to be swayed by the missives of the states highest court. Convinced, perhaps of the Supreme Court's misconstruction, misinterpretation, or misapprehension, the trial judge remains steadfast in her decision.

Oh, and in her hubris, abstinence, and petulance, she earns 15 minutes of fame.

Not fame for being the calm influence through a difficult trial. Not for being the stoic ear that hears people out despite their feelings. Not for being the diligent decision-maker sorting through competing arguments. Not for the patient and dignified work of the work-a-day judge. 

No, she earns her 15 minutes of fame for being disrespectful, defiant, and disruptive. It is disappointing in this nation of laws, to witness those who flout it. It is worse when those who defy it are the very scholars that have been appointed or elected to uphold it.

Remember, Daniel Tosh? Kudos to the judges who’s lifetime “fame accounts” equal “zero, zero, zero, zero…” But as he mentions, it is an average, and this judge is studiously making up for their fame deficits. 

I have written about this Judge previously. One might recall It's the Appearance (February 2024) in which this judge's social media activities were featured. There she is not necessarily the dignified embodiment of scholarship and decorum. She posted bathing suit photographs on social media. 

That, in itself, is not a sin. I’ve had my picture taken in a bathing suit Admittedly, I have never posted photos of that on social media or elsewhere. There are things in this world worse than me in a swimsuit, but not many. 

But in that instance, this judge posed with friends in a hot tub. Before she was a judge, she was a public defender. Those she posed with in the tub are current public defenders. There is some potential for perceiving ongoing friendships and connections between those attorneys and the judge. Those attorneys and their colleagues appear in court before that judge. 

There is, at least, the potential for an appearance of impropriety in the judge's hot tub escapades. The photos show to some poor judgment and lack of decorum. They are inappropriate and unfortunate.

But, the more recent Supreme Court order is far more disturbing. The hot tub is a problem with intellect, appearance, and the Code of Judicial Conduct. The problem with refusing (twice) to do what the Supreme Court says is petulant, immature, and rebellious.

It turns out, in Nevada, that the Supreme Court apparently cannot tell Judge Erika Ballou what to do. She will not follow the orders of the state's highest court. So, more recently, the Court ordered "District Court Judge Jerry Wiese" to assign the case in question to a different judge.

District Court Judge Eric Johnson apparently proceeded within days as instructed by the Supreme Court. 8 News Now reported that it took this judge mere hours to follow the Supreme Court's decision and directions. Perhaps following instructions is not so hard after all?

Judge Ballou's punishment for not following orders of the court? She has her workload decreased and places the burden of her work on another judge. One of the not famous, workaday judges down the hall who is merely getting the job done each day rather than lounging in hot tubs and ignoring the state's highest court. 

In fairness, it is the trial judge's job to manage a docket. The trial judge is burdened with a myriad of challenges and decisions on a daily basis. It is a difficult job that requires attention, patience, and persistence. In short, it is not the job for everyone. Intelligence? Sure that helps. But in reality, it requires work, dedication, and focus.

Judge Ballou wasted taxpayer money. She exhibits a disrespect for the law. She demonstrates contempt for the state's highest court. There has been an embarrassment to the judicial profession.

If there is a glimmer of positivity, I find it in the miles between Florida and Nevada. It is a small solace, but at least this is not happening here. They say you can learn as much from a bad example as you can from a good one. I am grateful that this lesson is long distance.

So, 15 minutes for Judge Ballou, 15 minutes for Nevada, "zero for you, you, you, you, zero, zero, zero, zero, zero." All of those "zero fame" judges with their heads in the work, with their hearts in the job, getting it done every day and not being famous, good for you. 

Surreptitious Recording

A curious instance of legal misfeasance occurred some time ago. It was brought to my attention just before it was referred to the authorities. The litigation had been ongoing for several years and late in 2022 a motion was made for appointment of an Expert Medical Advisor. About a month later, an EMA was appointed and trial was continued to accommodate the evaluation and testimony.

There was later an objection to the EMA provider. This was premised in part on the requirement for a "conflict of interest" form. The objecting party noted that the form "form was never returned to the JCC according to the Court File." This seems to refer to the OJCC file, merely a lazy reference to "court."

The objecting party also noted that the EMA charged a significant fee for the examination and other services. There were allegations that those exceeded what the law allowed. This included a schedule of charges including "$1,000 per hour to read records." Arguments were made of indifference to this fee amount, and allegations of the carrier being "complicit in concurring with this with this knowing violation." There were other complaints voiced regarding the charges for a deposition (another $2000).

To this point, the case was somewhat familiar. There have been various instances over the years in which medical charges have raised questions. The parties elected to instigate a joint call to the assigned judge's office to discuss perceptions of the fee issues. One of the attorneys decided that it would be prudent to record this conversation. There are two red flags in this paragraph.

First, the OJCC staff is not empowered to remedy substantive issues for the parties. There is no valid purpose for attorneys to engage staff except to seek scheduling assistance or advise of challenges or problems. State staff is not who to ask for relief, see Rule 60Q6.115. 

The second red flag is the recording of the call. Any Floridian should have seen that immediately. If you are a lawyer, you should have seen it even sooner. 

So that there would be no denying the recording occurred, the lawyer in this instance embedded a link to the recording in a pleading and filed the pleading with this Office. That lawyer was seeking various relief from this Office, and included this recording link. An important point is that anything filed with this Office is a public record. This pleading, in which the recording is described and linked, is a public record.

Essentially, it is a public record that says "I broke the law, and here is the proof." 

Florida is what is referred to as an "all-party consent state." That means that if a person has "a reasonable expectation of privacy (e.g. not in a public place)" then making a recording of that person without their permission may be a crime. See Recording Phone Calls, and Conversations, a 50-State Survey, Justia.com.

In some instances, violation of the Florida statute, section 934.03 is "a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41." That is problematic. Lawyers, you see, are not supposed to commit felonies (in fairness, no one is supposed to commit felonies). The Bar frowns upon criminal activity. As important, The Rules Regulating The Florida Bar (3-4.3 and 3-4.4) may be of interest in the whole "felony" arena.

The Florida Fourth District Court has noted that "section 934.10, Florida Statutes (2019), ...creates a civil remedy for violations of the Act, including unlawfully recording phone calls without the consent of all parties. See § 934.10(1), Fla. Stat. (2019)." Race v. Mitchell, 357 So. 3d 720, 722 (Fla. 4th DCA 2023), review granted, No. SC2023-0432, 2023 WL 4270985 (Fla. June 29, 2023).

So, perhaps one might face both civil and criminal penalties for recording someone without their knowledge. And if the recording is done by a lawyer, then there could be broader concerns with The Bar. 

In this regard, the actions of staff may be the lawyer's responsibility, see Rule 4-5.3, Rules Regulating The Florida Bar. Potentially, the staff could commit the crime and/or be civilly liable, but the lawyer could face Bar discipline for the staff's actions. Some might successfully argue that same staff is an agent of the attorney or law firm and seek those civil damages from the lawyer under the theory of respondeat superior. 

Making surreptitious recordings of people without their knowledge may be problematic. Admitting to having done so, in a public record filing, is perhaps not the brightest maneuver one might contemplate. The criminal referral in this particular matter did not result in a conviction. Nonetheless, the behavior justifies serious consideration and thought. 

A lawyer prosecuted for breaking the law might run serious risks of penalty. A conviction might even impact the lawyer's ability to practice law. "As guardians of the law, lawyers have a special obligation to honor the law themselves." The Fla. Bar v. Behm, 41 So. 3d 136, 139 (Fla. 2010). See Rules Regulating The Florida Bar, Rule 3-4.3 and 4-8.4(c). 

It would seem untoward at best to record conversations in Florida without the consent of the others on the call. It is an important thought for all, but more so for a licensed attorney. Making a recording is a bad idea. Making a public record admission that you have done so is beyond foolish. 

$1.7 Million Toilet

Some perceive a housing crisis in America. The Supreme Court recently took up a challenge in which some seek to preclude towns or other localities from banning camping on public property. There is a population that believes people should be able to do as they wish, where they wish, and when they wish. From that perspective, the belief is either society provides these people with accommodations or they should be free to camp when and where they choose. Some places have digital maps to help pedestrians avoid the feces on the sidewalks instead of punishing those who do the defecating. Purpose (October 2023). 

An Oregon city reportedly made "it illegal to sleep outdoors in public spaces." When the city enforced that (there was an effect on someone, not merely words), some of those who were punished sought review of the ordinance alleging that it "violate(s) the Eighth Amendment’s ban on cruel and unusual punishment." The argument is seemingly that putting people in jail for breaking the law is cruel and unusual. Or, that criminalizing the unfettered use of public space is cruel and unusual.

Justice Kagan elaborated and suggested that sleeping and breathing are similar. She says that the unhoused (she called them by the pejorative "homeless") have "no place to go." For them, she suggested, "sleeping in public is kind of like breathing in public.” So, is defecating in public like breathing in public? Is exposing oneself in public like breathing in public? What human function is not like breathing?

According to The New Republic, the U.S. Supreme Court seemed reluctant to prevent the operation of the Oregon ordinance. It seems, to some observers, that the Court will not conclude people have unfettered rights to do as they wish, where they wish, when they wish. However, there are those who fear that any acquiescence to any punishment of the unhoused, by the Court, is essentially to "green-light laws that effectively criminalize homelessness" (The New Republic used the pejorative "homeless").

This is interesting because it illustrates a constitutional conflict that is challenging on several levels. In a recent post, I suggested that no constitutional right is absolute. In Conflicting Rights (April 2024), I suggested that there is a persistent friction between the rights of various persons. You are free to have the Roling Stones play for your backyard party, despite it disturbing your neighbors; but, if the music goes on until 02:00, there is a sound argument that the needs/rights of the neighbors may overtake your needs/rights to hear your band.

And that is with the Stones. Imagine instead that it is Miley Cyrus performing in your neighbor's yard. She, after all, comes in like a "wrecking ball." Or worse, Billy Ray Cyrus and his Achy, Breaky, Heart. The horror! 

The unhoused debate is perhaps similar in that the rights of some may abut the rights of others. Do those whose daily labors and taxes support a community have a right to live and work unaccosted in the public areas of their communities? Or, do the rights of the unhoused somehow trump their rights? Is this a ban on the unhoused, or a ban for all people? Under Justice Kagan's analysis, perhaps any of us should be free to do as and when we wish? Time will tell how the Court interprets the appropriate outcome of the friction.

Housing is expensive. Forbes notes that "the U.S. median home price was $412,000 in September 2023." That is a significant amount of money. According to the National Association of Home Builders, the average American home has 2 bathrooms. If one ignores the kitchen, bedrooms, and more, that comes out to about $206,000 per bathroom.

This introduces another issue with the unhoused and a news story from San Franciso (you remember, where feces is on the sidewalks). USA Today reports that city has just opened a public bathroom (no bedrooms, kitchen, etc., just a bathroom). Remember when you could get a "solid gold toilet" for a mere $6 million. Those were the days. Well, the officials in charge of the Noe Valley Town Square recently went to work on a toilet which initially was estimated to cost "$1.7 million with a two-year timeline."

Some are convinced that would be quite a toilet. In the end, the city did not pay that. It received a donation that saved it 

"$115,500 on construction, $91,800 in project management fees and $90,000 in architecture and engineering fees"

Yes, you read that right, $90,000 in architectural fees for the toilet. According to Career Explorer, the average annual salary for an architect is about $80,000 and Glass Door says for an engineer it is about $86,000 to $156,000. That is for a year. of work The $90,000 above is for a toilet. Talent.com says a construction manager's salary for a year is about $65,000. Does it take a year to build a toilet? How much is really involved in designing a toilet? Have there been any toilets previously designed that we might just copy?

In the end, the city managed to install a single toilet, with drinking fountain on the outside, for about $200,000. The savings were not accomplished through decreased efforts or material, but through donations of materials. But for the donations, it is likely still about a $1.7 million toilet. The cost of things is beyond preposterous. A single toilet for half the price of the median American home? No one is apparently surprised. 

I previously wrote about a contest to design a new garbage can. These are the Good Old Days (December 2022). That noted a city (coincidently San Francisco again) holding a contest for what would replace its 3,000 street-side garbage cans. The city spent more ($500,000) on that contest than it spent on the recent toilet. It could have had 2.5 toilets, at a ridiculous price, instead of a trashcan contest. One of the entrants in the can contest was a unit that cost $20,000 each. Imagine the hubris that comes with a refuse container at that price. 

The contest concluded with a decision to buy the "Slim Siloutte," a unit that cost less than $19,000 to prototype. The good news is that with mass production, these can be built and delivered for only $3,000 each. According to Mission Local, there was an alternative that cost "only" $630 per unit. Apparently, the city has picked the $9 million alternative ($3,000 x 3,000)(that is equal to 6 public toilets at $1.7 million or 45 toilets at the still ridiculous price of $200,000 each). But, the can replacement may be on hold because of "fiscal constraints."

Comedians have apparently been critical of the new San Francisco toilet. Is there any feeling of fiscal constraint in the marketplace? How many unhoused might have a charitable bed for $20,000? $200,000? Or, how much might taxes be reduced on the rest of society if less were spent on folly and failure?  

The USDA estimates you can feed a person for a day for about $4.00. San Francisco estimates it has about 7,754 experiencing unhousedness. So, perhaps alternative uses of the folly money would be to feed those people, for this many days:

$20,000 can cost = .6 days

$500,000 can contest = 16 days

$1.7 million toilet = 55 days

$9 million replacing waste cans = 290 days

Or, the city could pay someone to scrape the feces off of its sidewalks? Or, it could enforce the law and stop people from defecating on the sidewalks. Or, is it cruel and unusual to punish people for defecating in public?

A challenge may be that those who have money tend to find ways to spend it. Google "city lowers taxes" and see how many news stories pop up. There will be a few stories about decreases in state taxes in the wake of the SARS-CoV-2 pandemic. But, for whatever reason, there are no stories about municipalities lowering taxes. Google "municipalities spending on ridiculous things" and for some reason, there are multiple examples. In fairness, that query returns local, state, and federal folly and absurdity. 

The idea that banning camps of the unhoused, is cruel and unusual is at best anachronistic. See Conflicting Rights (April 2023). Where Justice Kagan gets off the path is not in her contention that sleeping is as fundamental as breathing. The departure from reality is that anyone has any fundamental right to do anything particular in the public domain. There is nothing untoward about building a public restroom, but overpaying for it is senseless. 

Rights Collide (February 2016) in society. That you have a fundamental right to sleep or to breathe does not mean it persists everywhere at every time. I suspect that Justice Kagan would not agree that the unhoused have a fundamental right to do either in her living room or even her front yard. If she believes that they do have such rights, and those people, in fact, do stay with her family, Google has produced no evidence of such accommodation. 

Urinating is a lot like breathing, but we still restrict where people may or may not do so. 

Procreation is a lot like breathing, but we still restrict where people may or may not do so. 

Defecating is a lot like breathing, but many of us still restrict where people may or may not do so (the City by the Bay proves Jung's hypothesis of rules). 

When people are constrained in their activities, fined, or jailed for violating society's laws, is it "cruel and unusual" because their activities are fundamental? May we dictate where people go, exclude them from certain buildings, or constrain their activities there? Is speaking your mind a lot like breathing? As Justice Kagan suggests, is the fundamental test whether one's activity is "like breathing?" Perhaps, or maybe that is an oversimplification?

Why are the rights of some exalted at the expense of others? Who is to make such decisions? Will it be the same people who see no excess in the $1.7 million toilet or the $20,000 (or even $3,000) garbage can? 

Dopey

Dope is not a new topic. In Florida, we await November to see if the people will constitutionally de-criminalize dope. The vehicle for this effort is Amendment 3, and it was cleared for the November ballot by the Florida Supreme Court, according to the USA Today network. They refer to this as "recreational weed." Of course, there is no medical purpose to weed, so "recreational" is all it could be. But wait, stay tuned (see further below).

For other points about dope, see Edibles and Illness (November 2023); and Dope and Heart Disease (March 2024). There are many links in the Heart Disease article. Back in 2021, I addressed the decriminalization challenges and noted that there is a fair amount of disinformation out there about ganja. See Decriminalizing Marijuana (May 2021). There, I recount some examples of unfortunate people who lost jobs because they partook of the dope and ignorantly believed it was "legal."

Of course, marijuana is not "legal" anywhere in the United States. The Federal government has frustrated enforcement of the ban on dope, leading the Federal authorities to look the other way as people illegally sell it on virtually every street corner. States, in turn, have decriminalized the drug on the foundation of "medicinal use," though it is listed as a Schedule I Drug, meaning that the Federal Government considers it "to have no accepted medical use and a high potential for abuse."

There is some very deep hypocrisy in that. If it is so dangerous, why is the Federal Government ignoring the mass production and retailing of Mary Jane? If there is no reason for the Federal Government to enforce its laws against this stuff, why doesn't it own up to this and simply re-classify or legalize weed? The Associated Press (AP) announced this week that the Drug Enforcement Agency will reclassify, but weed will remain a "controlled substance."

The report claims it will move from Schedule 1 (where we find "heroin and LSD") to Schedule III (with "ketamine and steroids"). This is said to be a recognition of the "medical uses of cannabis." The AP story also uses the "L" word repeatedly in referring to the actions of various states in decriminalizing dope.  

Time and again, as noted in the linked articles, people have lost jobs. Often this occurs when they are hurt at work and sent for a drug test. They test positive and are not surprised. The surprise comes when they are informed that weed is illegal and that there are two outcomes:

1. the employee's workers' compensation claim is denied on the premise that the dope caused the accident.
2. The employee is separated from employment on the premise that marijuana is illegal.

The hue and cry is often "but its legal." And no, Virginia, it is not. But "the news says it is!" That is too true. A simple Google search will locate lots of examples. I have attended many seminars at which reasonably intelligent speakers have both exalted the benefits of dope and parrotted the "legal" adjective. They take real umbrage when you point out that they are wrong (in fairness, who doesn't).

So, Florida will soon have a choice. The good folks at Ballotpedia are helping to feed the disinformation, trumpeting that the proposed Florida amendment would "legalize marijuana."

The headline at Politico says similar. As this initiative is pending, there is an intriguing case that the Supreme Court of the United States (SCOTUS) will take up. The appeal is being pursued by a company called Oxymoron Inc. (not really, it is actually "Medical Marijuana Inc.,"), which might be pretty close. The company has been producing and marketing products that are derived from or based upon dope.

The case involves a worker who was suffering from chronic pain. He self-medicated with a "CBD-rich medicine” marketed by Oxymoron Inc. Apparently, the advertisements were clear that the product was "hemp-based," but also promised that it "did not contain THC, the active ingredient in marijuana."

Well, believe it or not, the worker used this "medicine" and then "failed a drug test and lost his job." He is relying on "the Racketeer Influenced and Corrupt Organizations Act," which is shorthanded "RICO." It was passed to "go after mobsters and others." In case you missed that, let's slow it down. It is a law that was passed to use against people operating criminal enterprises (like manufacturing and selling something that is illegal?).

This is a civil lawsuit and the worker is seeking damages. He believes that the advertisement and denials of THC content were misleading. He is seeking actual damages (what he lost in being fired) and alleges that under RICO he should "get three times the amount of actual damages and attorney’s fees."

The Oxymoron, Inc. group asked a court to dismiss the lawsuit. It sought dismissal of the suit. The District Judge, however, concluded that the loss of work is a "business" loss within the meaning of RICO.

To what extent may this impact the growth, production, and marketing of weed? Is it likely that SCOTUS will conclude that it is appropriate for the producer and marketer of this illegal substance to face consequences for its representations? More importantly

Will those manufacturers potentially face damage if a dopey driver gets fired for an auto accident? What of the dopey business owner who loses a contract due to some Federal Drug-Free Workplace provision? What about if someone loses their job due to lung cancer from the "harmless" weed? And, what of the doctors who are marketing or recommending the ganja? Are they innocent and appropriate, or might a plaintiff name the dope doctor as a co-conspirator?

Do weed producers have liability insurance to protect them from the threat of damages based upon misrepresentation or mistake?

If there are civil damage awards under the auspices of RICO, might a prosecutor somewhere elect to take a RICO shot at criminal charges?

The topic is intriguing. The emotions around Canibus run high. The grass folks will likely be watching this case as it progresses. It is possible that Disney's dwarfs might describe the outcome. Will it be 

1. Sleepy,
2. Happy,
3. Grumpy,
4. Doc, or
5. Dopey?

Another Contract(ion)

Decisions of the Supreme Court of the United States are usually on very broad topics that touch on fundamental elements of rights, obligations, and interactions. There are periodic instances in which that court delves into employment issues, but it is fair to say its forays there are somewhat infrequent. 

In April 2024, the Court quietly rendered Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. ___ (2024). At the outset, it sounds like a reasonably innocuous contract case, but it has significant potential implications for employment.

Arbitration clauses are included in many contracts. Arbitration has been discussed here before, Arbitration News in Workers' Compensation (February 2020); Epic New Prime (January 2019); Is There a Spoon or are We Bending (June 2013). There is a great deal to understand about arbitration, but in a general sense, it is a method of deciding disputes.

A fundamental of such clauses is that the resolution occurs outside of the court system, just as most workers' compensation claims do. That means that there is no jury in the determination of liability or damages. Arbitrators, essentially private judges for hire, make decisions in arbitration proceedings.

Arbitration has long been a hallowed contractual agreement. Despite the right to access to courts, parties have generally been free to make contracts regarding a number of topics, including employment, and to include requirements that disputes will be arbitrated. It is very likely that everyone who reads this has so stipulated to arbitration in some contract they have signed. These are very common in such things as auto purchases. They are also common in labor agreements.

Bissonnette emanates from a labor agreement, a contract. The law generally favors contracts. I tell my classes that contracts make the world go around. My students are generally legal novices whose dreams are not about law school but about business ownership. They envision entrepreneurship and make grand plans. I am hopeful for them and envious at times of their ambition and youth.

The plaintiffs in Bissonnette signed contracts of employment through a collective bargaining agreement. There, they each agreed to operate vehicles and to deliver the products of the employer, bread and cakes, to the marketplace. Their negotiated contracts included clauses that say any disputes under the contract will be resolved through the more rapid and less unpredictable (perhaps) arbitration process.

Arbitration is governed by the Federal Arbitration Act (FAA). This is a federal law that impacts the rights people have to contract as they wish. Not different, perhaps, from the right to include a non-compete agreement in a contract. See The Baby and the Bathwater (April 2024). The Federal Arbitration Act does not cover any "class of workers engaged in foreign or interstate commerce." This is a direct tie to the Commerce Clause, Article I, Section 8, Clause 3, U.S. Const.

There has been a general belief that this exclusion is "limited to workers whose employers are in the transportation industry." Thus, the Act would not apply to someone who worked for ABC Trucking, an interstate transportation company or for XYZ Railroad, or for Bob's Airline. But, the question in Bissonnette is not about a transportation company, per se. It is about a bakery that produces carbohydrate products for our consumption and enjoyment (bread, cakes, etc.). A dispute arose about the employment contract and the bakery successfully contended that their litigation should not proceed because of the arbitration clauses.

The Supreme Court reversed the lower court's (2nd Circuit) conclusion that the bakery is not "in the transportation industry." The facts establish that the workers in this instance in fact transport goods and that some of those goods originated in a different state (that is "interstate" commerce). The net effect of the ruling is seemingly innocuous, but the implications are far broader. The Court noted that it might be possible for a court to determine the "predominant source of commercial revenue." Might that help determine if a business is "in the transportation industry?"

Perhaps that is a relevant test. However, the Court noted that "such a test, however, would often turn on arcane riddles about the nature of a company’s services." There is some logic there. The Court seems concerned in that regard less about the law than about the convenience of deciding the outcome. Is convenience or simplicity the legal test or does it reach beyond the law? Intriguingly, the Court then makes some innuendo by posing questions:

• "Does a pizza delivery company derive its revenue mainly from pizza or delivery?"
• "Do companies like Amazon and Walmart—which both sell products of their own and transport products sold by third parties—derive their revenue mainly from retail or shipping?"

Seemingly ignored is the similar hypothetical inquiry into the volume of cellulose fibers a small rodent might carelessly displace at the moment in time when such displacement is apropos. Hint, the answer is "enough," which is both disappointing and uninformative, much like the hypotheticals in Bissonnette. While that can be addressed on a different day, it perhaps has as much relevance to the questions as the pizza example.  

Nonetheless, the Court saw in these questions the potential for delay and expense in interpreting contracts. It suggested that such questions might require "extensive discovery" into revenue and operations. It raised the spectre of "Mini-trials on the transportation-industry issue," and a resultant slowing of litigation. The possibility was suggested that "All this 'complexity and uncertainty' would “‘breed[ ] litigation from a statute that seeks to avoid it.’” In other words, such a determination would be hard, so let us instead legislate a simpler test. 

The Court, instead, essentially concluded that the "transportation" question is one centric to the worker, not the employer. The bottom line is that "a transportation worker need not work in the transportation industry." The test regarding application of this loophole in the FAA is not the nature of the employer's business, but the nature of the workers' labor. The Court specifically dodged other questions, reversing only on this point.

Thus, there remain issues on remand (for the lower court to consider in light of the Supreme Court analysis). Those include questions such as whether Bissonnette and Wojnarowski (Plaintiffs) are "transportation workers" and whether their work is in fact in "interstate commerce."

While those seem like factual challenges, the reader will remember that there is little, if any, "interstate" left in the commerce clause. A raft of decisions rendered since Wickard v. Fillburn, 317 US 111 (1942) have demonstrated not the least dignity or respect for the qualifying "interstate" language in the constitution.

The effect of Wickard and its progeny is that any commerce conducted by anyone who has ever seen, heard of, or dreamed about another state is "interstate commerce." While those decisions are short on logic and long on hyperbole, they are the law, and the reach of the federal government, affected by the Commerce Clause, is seemingly boundless despite the seemingly reservation language of the Tenth Amendment.

The Baby and the Bathwater

The Federal Government last week enacted a regulation to deny people the right to contract in the United States. The right to contract has long been recognized in America, and the loss of it may have significant implications for investment and competition in the market. There are a variety of potential implications and imports. While some are reasonably apparent, others may be less obvious.

The issue of non-compete agreements is not new. They have been around for many years and have been applied in a great many industries and occupations. I wrote a piece recently about a bill in the 2024 Florida Legislative session that focused on the effect on medical practices. The federal action likely impacts any such debates of contractual rights.

To be clear, no law has been passed and signed. An administrative agency has decided that people do not have the right to contract as they deem appropriate. This will renew discussion of the New Deal, the Lochner Era, and the Supreme Court. Lochner was referenced recently in CS/CS/HB 433. According to the folks at Cornell University

Freedom of contract is the ability of parties to bargain and create the terms of their agreement as they desire without outside interference from the government. It is the opposite of government regulation.

Make no mistake, there are a great many constraints on the freedom to contract. The Fair Labor Standards Act (FLSA) is a ready example. It constrains work hours, pay arrangements, and provides protections regarding minors. It is a federal law, enacted by your elected representatives, and signed by an elected President.

On April 23, 2024, the Federal Trade Commission issued a rule. This bans the use of non-compete agreements nationwide. The announcement boldly asserts that this is intended for "protecting the fundamental freedom of workers to change jobs, increasing innovation, and fostering new business formation." There are a variety of statistics in the FTC announcement, and bold conjectures about how this broad federal ban will increase wages, spur innovation, and create new businesses.

In effect, according to the FTC, most of the world's problems are related to the freedom to contract. By eliminating it, the FTC has likely saved the world from Armageddon. That is perhaps a bit pejorative and hyperbolic. The FTC reaction is seen as response to a perceived prolferation of non-compete agreements. One instance noted in 2016 involved hourly employees of a sandwich restaurant.

According to CNBC, the New York prosecuted the restaurant's "use of noncompete agreements with franchisees in New York." Essentially, the agreements reportedly "barred departing employees from taking jobs with competitors...for two years after leaving the company and from working within two miles of" the company's restaurants.

The New York attorney general characterized the constraints as "unconscionable.” He focused upon the wage rates and the vulnerability of such workers. The potential for "limit(ing) mobility:" and "bully(ing)" were both noted. The New York example concluded with an agreement in which the restaurant would stop using or enforcing those agreements.

The New York example has received a fair amount of news coverage, before and after the FTC conclusions last week.

The implication is reasonably clear. There are contractual arrangements that evidence (1) overreach, (2) adhesion, and (3) coercion. It is possible for a variety of clauses in any contract setting to be onerous to the point of unenforceability. It is notable that few such potentials rise to the call of being prophylactically forbidden. In this example, forbidden by administrative action rather than legislation.

Is there any viable reason for precluding a minimum-wage worker from competing with your business? Is there some secret process or recipe that the worker might indiscriminately share or duplicate? The answers here are likely axiomatic.

Is there any viable reason for precluding a CEO, CFO, CIO, or CAIO from competing with your business? How about an engineer or chimist involved in your revolutionary process or discovery? Are there any employees that possess critical and highly proprietary information regarding process, recipe, or similar?

One might notice that such noncompetes have been highly common in the sale of a business. This is not an employee/employer setting, but a buyer and seller setting. If your name has been associated with a particular industry, trade, or profession in a town that might have value. If your practices have been effective or even revered, that might have value. Above and beyond the value of the "sticks and bricks" of your business, might it be worth more because your name and reputation are associated with it?

If you built Gucci, Ford, or Disney is part of the company value your name? Is it different if it is "Bob Jones Chevrolet" at sixth and main? When the owner sells that business, might they seek a price that includes recognition of that name? Would you pay more to buy Ferrari because you get to trade on the name "Ferrari?" Will you pay more if Enzo is allowed to build a factory across the street and start making other cars there that are also named "Ferrari?"

Is the FTC action limited to the employee/employer? Is it troublesome to the broader context of non-competes? Is it an overreach of Administrative action, or a legal extension of the broad impact of federal law? Will if be viewed through the lens of Lochner, or will the perspective be different? There are, perhaps, a variety of questions that will remain to be answered in the wake of this new rule.

The FTC noted in its announcement that the "banning of noncompetes will lead to new business formation" and "higher earnings for workers," "lower health care costs," and increased innovation, The only assertion missing is that banning these agreements will likely mean an end to global warming, hunger, the common cold. Their cited conclusions are so compelling that no one could possibly make an argument in favor of such agreements.

Therefore, "existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date." That is, existing contracts will be unilaterally altered by the operation of the administrative agency. The "existing noncompetes for senior executives" are allowed to "remain in force," but "employers are banned from entering into or attempting to enforce any new noncompetes, even if they involve senior executives."

The experts in government have concluded that the loss of this contract freedom will not harm those who have utilized it. It provides brief explanation of how alternatives such as "Trade secret laws and non-disclosure agreements (NDAs)" will fully protect employer's "proprietary and other sensitive information." It notes that NDAs are so effective that "over 95% of workers with a noncompete already have an NDA." One might wonder, if they are so effective, why would anyone ever use both?

It is perhaps simple to see that there are many occupations and settings in which such contracts might be inappropriate, onerous, and unfair. That is true of many contracts and their terms. One might as well find it simple to see that there might nonetheless be various occupations and positions of trust that might well benefit from such agreements.

Regardless of how one might feel about the bathwater, there is perhaps room to consider the effect on the baby? Time will tell, but there is a reasonable chance that this regulation may see a courtroom or two before the final word. 

Conflicting Rights

There was an interesting story circulating recently regarding college students. They spoke their truth, stood their ground, and suffered results that upset and offended them. One can reach personal conclusions about whether the world is in a good place, which side of debates appeal, and whether or not to take actions. That is all within the confines of your personal discretion.

These students apparently attended Barnard College and chose to join "disruptive anti-Israel protests on Columbia University's campus." The New York Post reports that the officials at Barnard began sending "warnings (to students) that they risked being suspended if they did not leave the encampment" on the Columbia campus.

This is an important point, the students were provided a warning that consequences were coming. The President of Columbia University noted that she "authorized the (New York Police) to crack down," and reportedly "at least 108 protesters ended up cuffed and slapped with trespassing summonses" the next day. There was notice and there was an opportunity to take action (leave).

One of the students made the news, perhaps because of posts on social media. She complained that she was arrested, "suspended, and evicted from housing by Barnard" College. The story seems to stress that the student got out of the police system at 02:00 in the morning. That is not the best time of day to be on the streets.

The student complained that she was "forced to stand outside the Barnard gates for an entire hour waiting for someone to let me in." She was dismissive of the "Barnard Public Safety" officials characterizing their actions at 02:00 as "going above and beyond." She was afforded 15 minutes, during which she "haphazardly packed &...left." She felt that time was insufficient or perhaps "evil."

But, the student made choices. Her choice resulted in some school employee being awake and available at 02:00. She may not realize it, but most businesses do not have a full staff on duty at 02:00. Is it possible that more than one student needed the attention of that night-shift staff? She lamented she had only 15 minutes, but was that because the same staff needed to accommodate another suspended student who was likewise waiting at the gate for her or his turn?

The student is upset. Her rights to freedom of expression have been constrained. But, there are rules.

The school faculty is reportedly upset. Their committee has drafted a resolution of censure. The professors believe that there should not be constraints on protestors, rules, or detriment. One might wonder if they would feel the same if the protestors were ignored and someone was hurt. Would the faculty financially back the payment of damages to the injured? Would the faculty explain to an injured student or family members why it was wise to ignore published policies and accede to the protestors' unfettered and violative behavior?

No. It is unlikely. That does not suggest that they should not express their views. The faculty has the same freedom of expression as anyone else, whether expressed individually or in the comfort of some crowd.

The resolution of the faculty expresses some belief that it is the faculty that runs American education, and they view enforcement of published school policy as an attack on academic freedom. They collectively view enforcement of school policy as an "assault." 

“President Shafik’s violation of the fundamental requirements of academic freedom and shared governance, and her unprecedented assault on students’ rights, warrants unequivocal and emphatic condemnation,”

There are perhaps broader issues than enforcement of school policies and enforcement of laws.  

To be clear, freedom of expression is guaranteed in the Constitution. That is not questioned. But, the Court has long held that this right is not absolute. I am free to speak my mind, but not in your living room. That exact scenario recently played during a dinner at the private home of a law school dean at some school out in California. It turns out that even in California they "cannot condone using a social occasion at a person's private residence as a platform for protest."

In this same vein, the folks at Columbia University elected to enact "time, place, and manner" constraints on speech. In a study released in March, the school noted that "there also have been repeated violations of the rules on protests." The report concludes that there are three critical points about protests. The right to protest must be protected, but the protests must "not interfere with the rights of other(s)." And, finally, there is an interest in "combating discrimination and harassment." To meet the three, the school established a place on campus for protests, and it defined the hours during which protests could be held. 

The protest noted above exceeded what was allowed by the owners of private property (Columbia). The president of the school issued a warning to the protesters. They chose to ignore her. The president informed the students that suspension could occur. They chose to stay. The president apparently afforded them 24 hours to leave. They did not. They were arrested. They were inconvenienced. But not because anyone is evil, because they chose to stay.

There is a right to free speech in this country. According to some, the U.S. does not rank in the top cohort for protecting expression, finishing in 2024 behind such countries as Denmark, Switzerland, and Jamaica. But, the U.S. is reportedly number 3 in the world for "valuing free speech the most." You have every right to say what you want. I am doing so here. 

The tendency seems to be perspective-oriented. Those who protested and ignored saw "evil" and oppression in the schools' reaction(s). They feel mistreated and disrespected. They could have easily left the private property and demonstrated instead somewhere in a public forum. Is it the "what" of protesting or is the "where" the critical point? Is it the message, or the defiance?

Those who own the premises (Columbia) see a group violating policy, trespassing, and potentially creating a dangerous situation for themselves and others. They see an obligation to provide security for their premises and their guests. They likely fear the potential of someone being hurt, and suing them for not protecting them or following their own rules. 

Is there a right or wrong? Is there a good or bad?

The point is that the property is private and the owners have rights. The protesters are entitled to their right to express themselves. The two sacrosanct rights collide in this situation. See Rights Collide (February 2016). And as I write this John Cougar Mellencamp resonates through my brain. His lyrics encompass all three of the important lessons from this story.

He delivered Don't Misunderstand Me on Nothin' Matters and What if it Did (Riva 1980)?

"Everybody can do what they want, But they just can't do it here"

You may protest. You may "do what you want." However, that is not an absolute right. Your rights may abut someone else's. The Constitution protects both your right to expression and their right to private property. When they conflict, someone is going to lose. You cannot have your opinions on someone else's property. This is not an afront to your rights. It is a compromise recognizing both rights. 

Mellencamp included the Authority Song on his Uh-Huh album (Riva/Mercury 1983). This one had the line 

"I fight authority, authority always wins, Well, I fight authority, authority always wins"

And there you have it. In the end, authority always wins. When confronted by the police you will need to follow their instructions. Even if their instructions are insulting and inappropriate. That has happened, according to the British Broadcasting Corporation (BBC). Certainly, the instructions described in that story are distasteful and wrong. But, the target followed police instructions, was not arrested, and then took to social media. He was vindicated in the end. 

Thus, the police may sound irrational, illegal, or simply wrong. And, you get to explain their failings later, in court, to a judge. You can take to the court of public opinion later. But, in the moment, the police are the authority, and following their instructions will likely be the best and safest course. There are no absolutes, but disobey the police at your peril. In the moment, the police always have the upper hand. 

Finally, turning back to Don't Misunderstand Me, Mellandcamp concludes

"You say that I lack maturity, Stop actin' like a child."

When your actions or inactions result in consequences, remember that you chose them. When the property owner says leave, you leave. Right or wrong can be sorted later. When there are consequences for your actions, put that blame on you. The property owner here gave warning. A full day later, it took action. You were inconvenienced not by their action, but by yours. There is no gain in calling names ("evil"). "Stop actin' like a child." 

Sir Isaac Newton was a bit deeper philosopher than Cougar, well perhaps. He noted in his third law that "For every action, there is an equal and opposite reaction." That is a near absolute. Don't follow directions, suffer consequences. Take action (protest, ignore warning), expect a reaction. Sure, the reaction may never come. But that does not mean you can be surprised when it does. 

There is no reason not to have principles. Whether one agrees with a protestor or not is never the issue (unless they are promoting or exalting violence - "fighting words"). Principle is admirable, regardless of whether anyone agrees with you. Disagreement and opposition are no reason to abandon your course. Being arrested for standing up for your beliefs is not wrong or inappropriate. 

But do not mistake your absolute right to stand on principle with any freedom to not suffer consequences. Grown-ups know this. Young people will learn it through one path or another.

CS/CS/HB 433

On April 11, 2024, Governor DeSantis signed CS/CS/HB 433. That designation, as we have noted previously, has meaning. The "CS" reflects that the bill that was signed is not the same as the one that was introduced in the House of Representatives. The "CS" stands for "Committee Substitute," and since this bill has that twice in the name there is evidence of significant effort and alteration between filing and passage. What eventually passed is the second "Committee Substitute." 

The "HB" is noteworthy also. That tells the reader that the bill originated in the Florida House of Representatives, that it was a "House Bill" ("HB"). Too often, the press refers to bills in shorthand, mentioning only the number. More often, the reader can count on more specialized or focused publications to note which chamber originated a bill. See the coverage on Business Insurance (BI).

The popular crux of this new law, according to BI is that it:

"prevents local governments from establishing, or requiring employers to establish, heat exposure requirements that are not otherwise required under state or federal law."

That is accurate. But, the breadth of the bill is greater. The bill has notable implications for business, and therefore for the people that are employed at a business. In that regard, it may be important that some businesses are physical locations (buildings) at which work is persistently performed. But, there are other businesses in which employees travel to some locations to perform various services.

Thus, a business here in Paradise might have employees who travel down the highway on a given day and install new street lights in Jacksonville. A business in Miami might put employees on a flight to Paradise where they will represent a client in court. There are an almost infinite breadth of potential scenarios and combinations in which work might be performed in one or various locations.

A particular employer might be in the first paradigm, where the employees come to a particular building and work throughout the day. But that employer might have such an office in Christmas, another similar to it in Elfers, and yet another in downtown Couch. Yes, those are all real towns in Florida. The last one sounds comfortable, but who knows?

A significant portion of CS/CS/HB 433 is uniformity in pay requirements across Florida. There is, of course, a federal minimum wage that is part of the Fair Labor Standards Act (FLSA). Many workers' compensation attorneys are aware of that law because a work accident can bring scrutiny on earnings. After all, benefits are based on an "average weekly wage." A work accident is frequently the first time a worker discusses earnings with any advocate on their behalf.

The FLSA affords some deference to states, and Florida has enacted laws to implement both the FLSA requirements and to effectuate state wage and benefit requirements. States can mandate a "minimum" higher than the federal rate. See the NPR coverage of California's latest mistake. This is a great example of both federalism (the state and national governments dividing or cooperating in various regulatory functions), and the expansive view of the 20th century regarding the Constitution's Commerce Clause (particularly in the "post-Lochner" era).

So, it is important to note that CS/CS/HB 433 will prevent local governments (counties, cities, towns) from forcing "wages or employment benefits" decisions on the "vendors, contractors, and other parties" that do business with them. That is not a new idea. The federal government's history includes various examples where it forced policy change by mandating how its vendors and contractors operated their businesses. Essentially, they were free to do business as they pleased, but to contract with the government they were forced to comply with the government's preferred feelings or methods. 

Local government in Florida will be limited in any method of preferring some vendor or provider on the basis of whether that business does or does not have wage, fringe, or other benefits that are more or less consistent with the ideals, proclivities, or feelings of the local government, or more succinctly its leaders.

CS/CS/HB 433 also addresses the potential for disparate regulations regarding employee "heat exposure protections." The law will prevent local government from regulating employers regarding "heat exposure requirements" other than those "required under state or federal law." Thus, the "heat exposure requirements" for employees of a company will be the same whether their workers are in Orlando today or have driven from there (Orange County) into Altamonte Springs (Seminole County).

In other words, there will be uniformity across Florida. Local government will not be able to create distinct regulations that could result in a patchwork of regulations. A supervisor can care for employees without asking "what county is this?" There will be critics of this. Some will lament that the bill eliminates the "Miami-Dade...proposal to require 10-minute breaks in the shade for every two hours for any construction and farm workers outside." See USA Today.

However, the new state law relies on the regulations that have been approved by the Occupational Safety and Health Administration (OSHA). There are a great many who believe that the OSHA regulations and requirements are both sufficient in this regard and are "the best practices" in terms of worker protection. Those regulations apply in all counties and states. 

The new state law will maintain uniformity. The manager of a crew will not need to pay attention to whether a particular location is in this county or that, this city or the county that surrounds it, etc. The manager can maintain focus instead on the working conditions, the federal "best practices, and the safety of the employees. This should facilitate the workplace and the work. 

That said, the bottom line to humans is that we are all different. If a worker needs rest, or feels symptoms, the worker should voice that concern. The OSHA regulations are to guide the employer and have significant value in the management process and workplace safety. But, in the end, it is only the employee that knows how they feel. Workers must communicate that in the interest of their own safety. Employers must remain receptive and address those concerns when raised. 

Forum 2024

The forum 2024, was an amazingly rapid progression of commitments, conversations, and conclusions. I write today, in an attempt to encapsulate portions of the experience. I was privileged to speak with an assortment of attorneys, vendors, and claims professionals. There is an incredible diversity in the attendee population. Some are more gregarious and welcoming than others. 

From the perspective of a claimant's attorney, I heard concerns, focused on client, perceptions, business management, and competition. Perhaps none of these may necessarily concern those who have deep community roots, established referral sources, and business experience. 

However, there are definite concerns for the young and ambitious. As critical, there seems to be concern about the depth and usefulness of educational resources available regarding those topics. Essentially, where does a young lawyer go to learn particular skills? In the back of my mind, while listening to these comments, the word "mentorship" just kept repeating.

To some extent, similar concerns are voiced by youth on the defense side. However, they are additionally focused on topics such as cyber security, contractual relationships, and client competition. In short, there are similarities, and yet differences, both in the breadth and depth of their perceived challenges. I wondered if the absence of business management curiosity was attributable to working with larger firms.

Albert Einstein came to mind Thursday morning as I took the stage for Emerging Trends. For a few years, I have been privileged to kick off Track 2 with this panel discussion. It is an honor to take the stage with Mr. Leopold Garcia, Miss Kimberly Syfrett, and Judge Jacquelyn Newman. No, none of us or our topic makes me think of physics. They make me think of relativity. 

As I sit on stage, striving to contribute, I persistently find that 50-60 minutes pass with incredible speed. I can only imagine that Einstein’s theory of relativity is born out significantly in this environment. There’s no doubt in my mind that hour, which seems like minutes from the stage likely seems like an eternity to the poor attendees struggling to follow my mental meanderings.

Nonetheless, they attend. We had a great turnout this year. We had the opportunity to discuss mentoring, personal contact with opposing counsel, attorney fees, stipulations, professionalism, and more. It was an hour packed with perspectives. 

Time and again at such seminars, I am concerned that we are preaching to the choir. But, there is never any harm in providing feedback and reminders to even the most experienced and adept. There are pitfalls in the workers' compensation community. 

I was struck in 2024 with the number of younger community members that attended. There has been a dearth of young folks in the last decade, but a focus on their evolution and development more recently. I was pleased to see that more firms are bringing their team to such opportunities, and integrating the newer folks into the community. 

I was struck by the opposite conclusion as well. There were a lot of really aged folks in the crowd (like me). We are yesterday and headed toward being last week. I remained concerned that we are not doing enough to pass the torch as we approach the inevitability of slowing down ourselves. 

If the torch passing is to be successful, it is the responsibility of the aging. We cannot expect the young to pick up the torch once we eventually stumble and drop it. We have to pass it. That means stepping to the back also. That means getting out of their way. It means supporting, encouraging, and facilitating more and doing less. Some of us old folks struggle to step out of the limelight, but we must. 

See The Donut Hole (February 2023), The 800-Pound Gorilla (April 2024), A Social Media Post (February 2024), and A Reminder of the Value of Mentoring (September 2016). 

In one endearing moment, I spotted two lawyers engaged in an earnest conversation down the hall from the predominant gathering. I jokingly asked if they were resting up, and the response was immediate and succinct - "mentoring." I don't know who was mentoring who. 

The older might have been passing on experiences and knowledge. The younger might have been demonstrating how to make technology work. The point is that mentoring can easily be a two-way street. Despite their extent of experience, we can learn much from the young. Despite our age and mileage, we can teach them much as well. 

Another endearing moment was at the Wednesday afternoon meeting of the Workers' Compensation Section Executive Council. I was pleased to see some younger folks sitting at the Council table. Not enough, but seemingly more than in the recent past. I was also encouraged to see even more of those lawyers in the audience. Their presence speaks to the future and their perception that involvement in this community has value to them. 

In summary, we are doing better today than we were five years ago. We are reaching some of the next generation and developing engagement. But, we are not doing enough. Possibly we will never do enough, but we need to focus this community on doing more than we are. In that, we need to focus more in this community on doing more. 

For me, the Forum concluded Friday morning with the Statewide Nominating Commission voting to nominate nine judges for reappointment. I am pleased both in those judges seeking reappointment and in the Commission's nominations. I am hopeful that the Governor will agree with the Commission's conclusions!

AI in Your Hand

Nasa explains "terminal velocity":

"An object which is falling through the atmosphere is subjected to two external forces. One force is the gravitational force, expressed as the weight of the object. The other force is the air resistance, or drag of the object. The motion of a falling object can be described by Newton's second law of motion (Force equals mass times acceleration -- F = m a) which can be solved for the acceleration of the object in terms of the net external force and the mass of the object."

That is a great education. But in simpler terms, there is a limit to how fast that object will fall, When the drag equals the weight, the object transitions back to Newton's first; the velocity becomes constant. That speed, whatever it happens to be for your object, remains constant until "acted upon by some external force." In the case of the falling object, it is too often the earth itself that is that external force. When the falling object strikes the earth the fall ends, and the velocity reduces from "terminal" to zero. It is, as they call it, a "full stop."

The same can be true regardless of our direction. The forward velocity of an aircraft is dependent on the same algebra in which the coefficients of thrust and drag are combined to calculate the forward momentum. When the two are equal, then there is terminal velocity and equilibrium. Any movement is limited by the physics and states of equilibrium are extant subject to Newton's first.

The old men in the gallery are getting restless. I can hear them now "Isn't this blog about workers' compensation?" It is. Well, it is until "acted upon by some external force," at which time time equilibrium is disrupted. Thus, we move in a new direction because of the application of that force. Newton (1643-1727) was perhaps no Copernicus (1473-1543), but he was no slouch. In reality, everything is subject to Newtonian analysis, including workers' compensation and the occupations that manage it. 

The point is that we get on a course, influenced by the core factors of thrust and resistance (drag). This is true for a person, community, practice, industry, society, and more. We are each subject to the influences of that outside force. It may increase our personal velocity, hinder us with greater resistance, and exert lateral pressure that alters course. It may be positive for us (a tailwind) or negative (job elimination, passing of a colleague, etc.). In a simplified, single-variable example it is reasonably easy to accept.

The challenge is that life is not single-factorial. The world does not stop when a colleague passes. Each life (industry, practice, etc.) is on its trajectory at a given moment. Each is being acted on by a variety of external forces at each moment. Each is in a state of equilibrium, though neither equal nor absolute. And any of those external forces can change in the next moment, to the benefit (thrust) or detriment (drag) or merely change (course).

While we are each organisms of amazing complexity, we are also each part of a variety of greater amalgamations that thus are necessarily even more complex. Those are each part of still greater amalgamations. Each organism and amalgamation affects and is influenced by other organisms and amalgamations, their velocity, gravity, and effect. 

There has been so much discussion of artificial intelligence. Make no mistake, it will impact every body in motion (every life progressing today). It will produce extreme effects on some, dragging some people, occupations, and positions to a stop and accelerating others beyond the velocity previously thought possible. It will create thrust, create drag, and alter perceptions and effects of both in various circumstances.

As an "external force," it will be exceptional and noteworthy. How noteworthy? That will depend on the object, and its current state of mass, acceleration, mass, and thus velocity. The wind of change may not be expected to be uniform, consistent, or equal. Those who would make predictions might want to remember Niels Bohr ("it is difficult to make predictions, especially about the future."). 

Change is coming. AI has been discussed for years. It broke onto the shores of our collective consciousness about a year ago with Chat GPT. That debut seemingly pushed the rapid availability of a collection of competitors. Suddenly, the world was confronted with the incredible potential of a new, pervasive, and pernicious "external force."

I recently overheard a conversation about human achievement, perhaps "debate" is a better characterization. Essentially, it was about the "greatest" innovation of humankind. What single invention has changed the course of human existence the most?

Good arguments were made for the binary computer, the smartphone, mass production, and the internet. Each has changed us. But a more introspective member of that group advocated for the wheel, domestication of livestock, and pottery (the ability to transport and store liquids for consumption/sustenance). Those are more fundamental, earlier, and are certainly important.

Between those two groups, there is a parade of other great advances. Think of pasteurization, inoculation, refrigeration, internal combustion, nuclear fission, and more. Each of the items named has been a disruptor, an "external force" that has changed the course of each member of the existing population.

Similarly, each has altered the foundation from which the next generation of a population will begin. Those born into a world without computers had to adapt to their changes (external force). Our courses changed. Our children, born into a world of computer ubiquity, set their initial course fully accepting, even assuming, the impacts. The result of that change is part of their course at inception. The change impacts them, but they appreciate or notice it less.

AI will be no different in that regard. The change will be more systemic than some prior innovations. AI will have permeating influence and effect across a spectrum of occupations, operations, and processes. And thus, there will be a cumulative effect. And, regardless of any object's mass (I don't care how big you are) or its velocity (I don't care how determined your direction), AI will impact you, even if only through its effects on those around you, your suppliers, service providers, etc.

The best movie reference that comes to mind? AI is simply Everything, Everywhere, All at Once (A24, 2022).

When? Well, the time is coming. AI is already in use. Many use it every day without recognizing it. It has begun to seep into our lives in ways as innocuous as the grammar checker that reviewed this post (it wanted me to change that to "who reviewed," but really? AI is not a who, at least not yet). But, the impact is growing. 

Recently, Yahoo explained the new AI Pin. It is part of the coming revolution. This is like a smartphone in some ways, but it is worn. It is always connected to the net, fed by the many cell towers around us. It can be talked to and will project answers onto your hand (no screen necessary). And it formulates answers using AI.

But it is an infant. the author of the Yahoo article struggled to explain why such a device is worthwhile. She says that she "get(s) so caught up in pointing out its problems" that she is distracted from explaining its abilities. The final outcome of her ownership experience has not been so positive. She cannot be said to be a fan of this new toy. That reminds me of a friend who bought a TRS-80 computer in the 1970s and soon came to realize it was only really good for playing games. Don't judge the trip by the first few miles.

There will be early adopters and early endeavors like this pin. There will be innovations, failures, and successes. All will exert force on your course and velocity. 

Change is coming. We will each see a Newtonian effect from AI itself and its impacts on the bodies and institutions that surround, support, and affect us. If you are ready, AI will come. If you are not, AI will come. How fast? How perniciously? How permanently? You can answer that as well as anyone. Sure, the "experts" will hold forth. Remember the president of IBM (one of the early computer innovators) predicted "I think there is a world market for about five computers." Experts can be wrong. Sometimes spectacularly so.