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. 

Patience and Time

Time. Is there ever enough of it? Perhaps there is universality in time, or it could be relative. I leave that to the quantum physicists out there. One great perspective on Time was simply titled "Time" (Pink Floyd, Dark Side of the Moon, Harvest/Capitol, 1973). The lyrics are incredible, and the older I get the more sense they make. Must be a senility thing? Click the link and read the lyrics, seriously. 

There are reminders there. They focus us on our demise, the fragility of this existence, and the persistence of time. In some part, that is about knowledge and perspective. Floyd notes that about youth:

"And you are young and life is long

And there is time to kill today"

And there is reminder that we can all lose track of tasks and assignments:

"Plans that either come to naught

Or half a page of scribbled lines"

Are we keeping up with the day-to-day? Or, are we persistently falling behind? I recently took a flight and they gave me a cocktail napkin that said something like "the best things start on the back of a napkin." Where are your notes? What of your dreams? How will you confront your El Guapo? The Three Amigos (Orion 1986). 

In my early days at the OJCC, we were struggling with the challenges of the "new" and revolutionary electronic mail. Keep in mind that was 2001, thirty years after the first email was sent. But remember also that email really came into vogue in the 1990s. We were amused, enthused, and at times abused. Email revolutionized the daily joke, enabled keeping up, and accelerated our world.

Then came all the attendant threats and insults. Email was not the problem, it was a tool. It turned out to be incredibly powerful and yet something we had to become increasingly wary of and careful with. As with many tools, we had to revel in its wonders and yet learn to appreciate its shortcomings and threats.

And email intertwined with time. When we discovered it in the 1990s, we loved its speed and ease. After we each sent our first "d'Oh" email, we also lamented that speed and ease. We soon found ourselves sifting through full inboxes. That speed and ease facilitated us sending requests and missives, but it likewise empowered others to send them to us.

I can remember when 100 emails per day was an expected volume. When that reached 200, it was fortunately inclusive of a great many diversions that could be deleted without much thought. The novelty of the daily joke, the casual inquiry or announcement, passed. Social media soon came to replace those. The inanity remained but on different platforms. First with "bulletin boards" and then with an increasingly complex, intrusive, and untenable spirit and intent.

In 2002, when email was relatively new, the OJCC struggled with judges and others who loved the "reply all" button. Talk about a waste of time. There was a period when the IT department disabled some of our distribution lists because of indiscriminate use for innocuous inquiries each followed by incessant and unnecessary "reply all" responses.

One that sticks in my mind was about an EMA provider. The original "to all" message was essentially whether anyone had heard of a named physician. That started a cascade of "nope" responses and a couple of "wasn't he part of _____?" questions. Of course, those "wasn't he" messages started a new cascade of "nope" and then other questions. In a classic avalanche methodology, inboxes were soon overflowing with everything from the innocuous to the absurd.

I was reminded of the old saw regarding pig wrestling. George Bernard Shaw supposedly said “Never wrestle with pigs. You both get dirty and the pig likes it.” If that doesn't encapsulate the breadth of social media, I cannot imagine what would. 

Another email exchange that sticks in my mind occurred close to the end of my time on the Pensacola Bench in 2006. I had sent a message to one of the more seasoned judges about an order he wrote. When I did not hear back from him in a few days, I called, discussed, and put it out of my mind. Two years later, I got a message from Outlook that my 2004 email had been "deleted without being read." At first, that hurt, but when I realized it was two years old it occurred to me that perhaps there was a reason he did not reply to that email - perhaps he never replied to any and just dumped the folder every couple or years?

This all came rushing back to the front of my mind when I opened my email On April 12, 2024. I had received an "unlist" email. We get a couple of those everytime we send out an email blast to our users. The blasts are sent no more than monthly and are intended to steer the community to important happenings or challenges in workers' compensation. I was a bit surprised to see an "unlist" though because we last sent out a blast on April 1, 2024.

I looked again, and the header said I sent out a message "Tue. Apr 10," but my mind rejected that. April 10 was Wednesday. I opened the message and in fact I was wrong. April 10 was a Tuesday, in 2018! I am not sure if the sender just opened that 6-year-old email recently and decided to "unlist." 

Or, perhaps, the message was opened 6 years ago and the recipient has been contemplating whether to "unlist?" Some live by the motto that "fools rush in." Elvis, Grammercy Records, 1940. Maybe the sender was worried about hurting my feelings? That's a fool's errand, but don't tell anyone. 

The points here are varied. First, harkening to the many complaints about professionalism I hear lately, if someone ghosts your email or text, call them. Just because you love texts does not mean that they do. Next, imagine getting 200 emails daily. Think first, is this message that really needs to be sent? If so, must it be a "reply all?" Before you answer see Tonight's Plot (April 2023). 

Is it possible one might sit on a message for 6 years and then respond? Certainly. There are all levels and descriptions of technology comfort out there. We are each different, and there will be exceptions to any rule. Is it meaningful when someone deletes your message, ghosts you, or "unlists?" Perhaps, but don't take things so personally. 

But, most important, there is just not enough time. Not enough to squander. Not enough to waste. Not enough to excuse our failure to slow it down, to stop and smell the roses, once in a while. I will be pausing this week to attend the Forum at ChampionsGate. In the words of Bob Segar, "See some old friends, good for the soul." Hollywood Nights, Capitol, 1978. I hope I will see you there.

The 800-Pound Gorilla

Sometimes we struggle with challenges we don’t perhaps fully understand. At times, forces conspire against us, consciously or not. Life is a journey filled with uncertainty, misconceptions, and mysteries. But frequently, the problem is all too clear, an 800-pound gorilla in the room.

The world of work faces a systemic dilemma in the midst of the third decade of the 21st century. Generations have been raised with various values and perceptions that we do not necessarily understand. Some believe that the distinction is somehow starker in the community of workers' compensation, but I am dubious. The fact is generations change, values evolve, and today will never be yesterday. The Next Gen will have as much to lament in forty years as we have today. 

Some believe that part of our workers' compensation challenge is based upon a conscious decision to neither recruit nor train young professionals early in the 21st century. Proponents of this theory argue that increased automation facilitated a minimization of human investment and that the expense of training was consciously and purposely avoided through industrial cannibalism.

Cannibalism? Davero? Si. An industry executive once explained to me that in the late 90s, it became far cheaper in the risk business to lure one’s competitors' employees than to recruit and train your own. Because technology was facilitating productivity and efficiency, the paradigm made sense to some, perhaps to many. Training programs were diminished, career tracks were abbreviated, and automation was leveraged. 

As Sabrina Carpenter so poignantly reminds in Thumbs, EVOLution, 2016:

It never ends till the end, then you start again
That's just the way of the world

Others with similar perceptions believe that the law firms in workers' compensation similarly stopped attracting young lawyers to after the 2001 and 2003 reforms. They lament and blame attorney fee legislation. These scholars rarely address perceptions that the “donut hole" (February 2023)) is experienced widely in America. They do not even attempt to answer the question: if Florida’s reform legislation created the donut hole, how did it do it in other states?

The 800-pound gorilla in the room

For too long, I have listened to pontifications regarding the accidental nature of Worker’s Compensation. There is no arguing with the simple fact few, if any, professionals set out, purposefully, for a career in Worker’s Compensation. This is a destination and a nice one. It is a place we have all benefitted from, learned from, and which a few love. But, it is also a destination that virtually no one set out for. We are accidental tourists here. 

In the end, that is likely the 800-pound gorilla. The challenge is not about this space being livable. It is not about whether one can thrive here. It is not about desirability, functionality, or even money. In the end, it is likely only about knowledge. Knowledge.

The conclusion of Field of Dreams (1989), shows hundreds, or perhaps thousands, of headlights clogging the road, and approaching Kevin Costner‘s farm. The spirits advised him “If you build it, they will come.“ Miraculously, in fact, they did. But that is fantasy. Has anyone ever figured out how those people in the cars ever learned of the field of dreams? It is a fantasy to believe people will spontaneously come. For more on the Field, see Uncle Buck to Ray Kinsela (July 2021).

The 800-pound gorilla in the room.

Today is no different than any other prior era. There is an abundance of young people who are diligently searching for a place in this world. They may have different values, but they are striving for a today, just like we did yesterday. I spend hours with them, they are phenomenal, intelligent, motivated, and worthy. They are not like me, but they are worthy. Unfortunately, to a person, they have likely never heard of the workers' compensation community.

At the conclusion of The Bourne Identity (2002), the old guard is struggling with the challenge presented by their prodigy, Jason Bourne (try to forgive that this great line comes from the villain - spoiler alert, he is not in the sequel). There is some argument as regards dealing with that 800-pound gorilla. One of the senior CIA officials suggests to the other:

"Well, why don't you go upstairs and book a conference room. Maybe you can talk him to death."

The poetry of this statement is palpable. Our analytical side convinces us that we can cipher through our challenges, build, consensus, and conspire against the challenge. Unfortunately, having booked the conference room, we have done plenty of hand-wringing and the problem is still sitting there.

The 800-pound gorilla.

This market will survive. There will always be workers' compensation. Despite the lamentations, it’s entirely likely it will be better tomorrow, even if not the same. And that’s truly the point. It doesn’t really matter if tomorrow looks like today. It doesn’t really matter if we see ourselves in the next generation. What matters is that there is a next generation.

The 800-pound gorilla.

There is a challenge to attract talent. That is being experienced from the highest level to the entry level at entities across the globe. It’s convenient to point to this or to that. It is comforting to blame, technology, the pandemic, or any other cause that is not “me.“ Convenient. Comforting. Useless.

There are a variety of potential solutions. I have been privy to several suggestions. Some plans are more grandiose than others. But to anyone taking action, I say "Kudos to you." I have chosen my path, and write today to invite you to join.

Last week we mailed close to 400 introductory letters to colleges and universities across Florida. These are directed to various undergraduate professors, department heads, and deans. We have high hopes that their students may have an interest in this dynamic career path. Our letter offers a simple introduction to the topic. And we offer, a classroom visit by someone(s) from this community.

We’re not offering placement, recruitment, a job fair, or employment. We are offering information (use the QR code above) on the premise that knowing the truth may bring value. There is a chance we may put you or someone like you in a classroom to describe the opportunities in this community to the young and ambitious that will inherit this world. 

These institutions are full of young people who labor towards a degree, as ignorant to the field of (Dreams of) Worker’s Compensation as I once was. I suffer under no illusions that we will receive 400 responses. I do not think we will speak to 400 students next year. But, the point is to continue striving for those opportunities to introduce this community, these professions, and the significant human need.

The 800-pound gorilla? Those of us in this industry and community know that the challenge is knowledge. The fact is that many of us, had we known this community existed, would have strode into it instead of stumbling, so many years ago. Can we inspire today's youth to stride in? Can we do better than those who preceded us?

If you would be interested in speaking to a class in your area, email me david.langham@doah.state.fl.us. I am making a list and checking it twice. What are your interests? What kind of class would you feel comfortable addressing? Provide your geographic preference and your perceptions of your subject matter or educational track preference(s). 

The 800-pound gorilla? Why can’t it be you?

A Little Teapot

There is an ancient rhyming song that features a teapot. I have heard it many times over the years. It is used as an interactive with children and is quite entertaining. One version ends with the realization that the singer is actually a sugar bowl. 

I was reminded of that when I noted there are various issues that seem to persist in the news. One of note is identification. The news is replete with people's stories of identification. There are those who struggle with that, and rightly so perhaps. Each is entitled to her or his own beliefs in the general sense. If you believe you are a little teapot, I won't argue with you. But, if you start warming someone else's water, then there may be a problem. 

That "someone else's" thought came to me recently when NBC6 South Florida reported on a "Miami  immigration attorney" who was arrested. The story details are a bit sordid, and I will skip the details of the assault allegations detailed there. The bottom line here is that the accused ended up in court. The accused, according to his attorney, is "an attorney." The news station was curious and inquired to find that the accused "is not a current or former member" of The Florida Bar. 

What is an "attorney?" If you graduate from law school does that make you "a graduate" or "an attorney?" The American Bar Association defines attorney as "a licensed professional who advises and represents others in legal matters." But, the ABA is merely a voluntary club that some lawyers join. Merriam-Webster is a bit less specific: "one who is legally appointed to transact business on another's behalf." Well, by that definition you need not even be "a graduate." The Webster definition might include a "power of attorney" or similar delegation. 

The Legal Information Institute up at Cornell says "attorney" means "Someone authorized to practice law; a lawyer. Also called attorney-at-law." So, perhaps not a "graduate," regardless of how many times one "graduates?"

The news story notes that the accused has a website on which he/she states "he has a juris doctorate and an LLM." A quick Google search also revealed that he/she possibly has a PhD or an M.D. Degree. Or, at least he/she self-identifies as "Dr." According to his/her website, he/she "holds five advanced undergraduate degrees in the United States." That is intriguing because the degrees listed include only one undergraduate degree, and not "an LLM," but three. That is a great deal of college. 

The Florida Bar was clear in the news story that "immigration attorneys can be licensed in another state and work in Florida." Thus, the lack of membership in The Florida Bar is not necessarily definitive on any point as regards someone engaged in "immigration." 

One is perhaps left to wonder if the accused is a doctor. In the litany list of degrees, no medical or PhD is mentioned. Then I remembered the issue about this time last year. See I'm a Doctor Too? (April 2023). That post discusses how some feel that lawyers should be allowed to call themselves "Dr." based on their Juris Doctor degrees. How does the public perceive that? When they scream "is there a doctor in the house," could they possibly expect me?

But, the last time we heard from The Florida Bar, it was o.k. for Florida lawyers to call themself Dr. Well, maybe. Even so, that would depend on being a lawyer. Or, is it sufficient that you graduated? I'm a Doctor Too? noted some in medicine that believe earning the degree is not sufficient in medicine, and that the "Dr." should be used only by those with a license to practice medicine. So, should a medical school graduate advertise being a doctor, and merely limit the practice to something permitted for non-licensed?

And then, what if there is a license, but it is not from the state in which you practice? If you have a license to practice medicine in Iowa, is it permissible to hang a shingle in Florida and call yourself "Dr.?" Would the result be any different if you earned a juris doctor degree in Western Michigan and moved to Florida? Could you call yourself "Dr." in Miami? Is this an issue for The Florida Bar, or for some other bar, or if the issue is being a "graduate" is it an issue beyond the pale of any bar?

The facts of this story are at best intriguing. Is there a public perception issue when one self-identifies as "Dr." Does it matter if they do or do not attempt to heat someone else's water? Is it sufficient if someone merely feels doctory? Lawyerly? As the case proceeds, perhaps there will be further word about the status and licensure of the defendant. 

But, in the end, does it matter what the public perceives? Is there a labeling issue that bears examination? At best, intriguing. 

Recriminalization

The news has recently focused on decriminalizing drugs. The British Broadcasting Corporation recently noted that British Columbia is the first Canadian province to do so. It notes that there are many fatal overdoses. That is not news. I have written about overdose for years. There is a growing problem with people putting chemicals in their bodies. Water is wet, the sky is blue, the Browns choke every year. Some truths are unavoidable.

The BBC notes that seemingly each year we set a new record for deaths. In the US the rate reached 112,000 most recently. That is more than died in our entire involvement in Vietnam. I have used that comparison before. I used it in COVID-19, see Desensitized to Death (August 2020). I have used it regarding narcotics, see Opioids, Marijuana, and More (September 2017). People are dying, and there is apparently little that can be done.

Why the fatalistic acceptance? The bottom line is that the vast majority of these people are voluntarily putting chemicals in their bodies. They choose to take significant risk, rationally or not. Some enjoy a release or a trip. For some, unfortunately, it is their last trip. Those who advocate decriminalization are convinced that the problem is not with these decisions but with the "toxicity" of the "street drug supply." 

If these people could instead access pharmaceutical-quality substances, they contend deaths would undoubtedly decrease. But, there are a fair few folks that die each year from overconsumption of prescription drugs. Death can come from drugs of any quality and supply chain. 

The British Columbia (BC) effort is about a year old. It "allows adults to possess up to 2.5 grams of heroin, fentanyl, cocaine, or methamphetamine without being arrested, charged or having their drugs seized" in most instances. The advocates say that drug use "should be treated as a health matter" and not a criminal one. That is interesting.

Apparently, in BC, there are also people who do not want to have drug-deluded people around them. They want to live in a world of picket fences, and Little Pink Houses (Mellencamp, Uh Huh, Riva 1983). They want to live more in the world of Leave it to Beaver than Fear and Loathing in Las Vegas. That seems a bit conflicting. Can we return to the time of simple neighborhoods, manicured lawns, and idyllic existence? Some say all that Hollywood stuff is pure fiction anyway. 

There are reported instances in BC of "drug paraphernalia found in parks, and of dogs accidentally ingesting opioids found on the ground." The hobby of some is perceived as polluting the living space of others. The reaction has been to decriminalize the use and possession of drugs. This has been on a local level, with the province (state) maintaining its Laissez Faire.

There is, in this, a NIMBY perspective worthy of consideration. That stands for "not in my back yard." There is a far greater propensity for the acceptance of behavior if it is conducted in someone else's backyard. Your support for loud music at 02:00 may be less if it is in your neighborhood than if it is in mine.

Mellencamp captured the NIMBY well in Don't Misunderstand Me (Nothin' Matters and What if it Did?, Riva, 1980):

Everybody can do what they want

But they just can't do it here

The challenge here is simple. There are those who are intent on using drugs. There are others who do not condone or accept the use of drugs. There is at least some connection perceived between drug use and a spectrum of other problems from property crime to "public disorder." There are issues with homelessness, public health, and more. The two sides of this debate are perhaps destined to never find common ground.

The BBC mentions that Oregon decriminalized drugs. I noted that in Heroin and LSD No Longer Illegal? (November 2020). I questioned then whether other states would follow. It appears, instead, that the Oregon legislature has regressed toward the law and order approach.

That news broke on April 1, 2024, on NBC News. After just over 3 years of "anything goes," the Oregonians perhaps return to criminal penalties. Changing the law won't effect change, it may only enable it. Effecting change will require more than the new legislation. Police will have to be willing to make arrests, prosecutors to prosecute, and juries to be willing to convict. It may be that there are no more convictions next year than last. 

The Oregon motivation in 2020 was to use laissez-faire to "quell a deepening addiction and overdose crisis." Let those who want the drugs have them was the solution. But now, in retrospect, there is a sentiment that Oregon was "too progressive." There is a lamentation that "society wasn't ready for" free and unfettered access to chemicals. That one is intriguing. What would "ready" look like?

The Oregonians leveraged their dope in the new 2020 effort. They apparently dumped "hundreds of millions of dollars of marijuana tax revenues" into "treatment" and "harm reduction." According to the news, "that didn't translate into an improved care network." Some will be surprised that pouring money on a problem did not solve it. Others will point to a parade of other issues that have seen massive financial infusions without expected results. 

Cyndi Lauper, years ago, suggested to us that "money changes everything." (She's Just so Unusual, Epic, 1983). Maybe she was right. Maybe not so much. 

For some reason, Oregon experienced a perception of "spikes in overdose deaths" and some perceived "an increase in homelessness." Hundreds of millions of dollars at least didn't change some things. These societal challenges apparently drove the Oregon legislature to recriminalize these drugs. Critics of the legislation are vocal that the decriminalization was not given enough time. Proponents contend that recriminalization will bring better "treatment and care" for those who choose to use these substances.

So, there will be some who proclaim the futility of a war on drugs. Others will note the futility of laissez-faire and unfettered chemical availability. If no drugs and unlimited drugs are not the answer, is there an answer?

Why does the influx of money for care and treatment not eradicate this drug desire? Is it possible that there might be a few people who do not desire either treatment or care? Might there be a portion of our population that is interested only in being high? Could it be that some people are genuinely desirous of simply consuming chemicals? Before anyone becomes too pious, alcohol is certainly a chemical. Some would say that endorphins, dopamine, and others are similarly so. Does it matter if we buy it or make it ourselves?

The problem remains, people are dying. The sentiment remains and is growing, people want chemicals. The discord remains, there is no easy and clear solution. Will British Columbia follow Oregon back to recriminalization, or will Canada persevere on the path of laissez-faire? Will smaller subdivisions, cities and towns, protect their own and thus encourage emigration to the backyards of others? And as that all plays out, will the decriminalization of dope continue to march forward as if that chemical is somehow different from others?

Nothing to See, Move Along

Artificial Intelligence is back in the news, with a state court judge confronted with the admissibility of a "video enhanced by artificial intelligence." It is a criminal case in Washington state, and there is a familiar discussion in the reasoning that led the trial judge to exclude the "enhanced" evidence. The story illustrates that perhaps we already possess tools to evaluate and assess the impacts of AI in the realm of litigation.

I suggested as much previously. See AI is a Tool (October 2023) and A Fool With a Tool (January 2024). The theme there is that AI shares similarities with various evidentiary challenges. It is a new challenge, but not so dissimilar.

NBC News reports that there are issues of interpretation and extrapolation in the use of AI. The resulting video or photograph produced by artificial intelligence is not a mere reflection of a thing, person, or occurrence. The AI product is an interpretation of "what the AI model 'thinks' should be shown." That is, it is an interpretation or translation. The Washington court took issue with that.

There is the obvious challenge with the interpretation. But, in fairness, translation has existed in legal proceedings for generations. It is common for a witness to testify and for that to be filtered through another human being, a "translator." We have seen many challenges with that. Some translators are adept at "word for word" and others are "not so much."

We have all experienced translations that were interpretations in which words and phrases were parsed, paraphrased, and clarified or explained. Instead of a word-for-word "translation," we have seen an extrapolation or explanation. That is perhaps a matter of expediency or may result when there is no exact word or phrase in English.

I have heard translators testify that there is no exact corresponding English. I have heard them describe colloquialisms, slang, and other challenges. There are regionalisms, dialects, and more that may influence how an input is perceived and then what the output (translation) is. Is an AI program so different? Well, perhaps.

The Washington judge was, in some part, critical of the translating, but was also seemingly unimpressed with the foundation for the visual evidence. He criticized the program's "opaque methods to represent what the AI model 'thinks' should be shown." That is not criticism of what is produced or shown, but of the process and how it functions; how well we understand how it functions.

The judge's analysis regards a novel and challenging technology, yes. But the analysis of the court was not novel. It is an analysis that every trial judge has confronted and one for which various evidence codes and rules have already prepared us. The judge weighed the probative value of the evidence against the potential for undue prejudice. That happens daily in trials and hearings across the country.

The Washington court concluded that the AI-enhanced material here had a significant risk of prejudice. In excluding it, the court concluded "admission of this Al-enhanced evidence would lead to a confusion of the issues and a muddling of eyewitness testimony." In short, it was more prejudicial than probative.

In addition, the judge expressed concerns about the foundation. That is explanation of the AI process, tools, and programming. Anyone might question how the AI makes decisions, what alterations or changes it makes, and how those are reflected in the end product. In short, it is not "that" we see Forrest Gump standing next to a long-dead ex-president, but "how" the computer placed, postured, and reflected that image.

The judge concluded that striving to understand that process(es) would perhaps involve forensic testimony and expert testimony. This was characterized as potentially "lead(ing) to a time-consuming trial within a trial." That is a deep dive exchange of evidence about the programming, the methodology, and the process. And yet, that also happens every day in trials and hearings across the country.

Such "trial(s) within a trial(s)" are not novel. In various disputes, there have been such diversions or detours on many occasions. They are necessary whenever a new technology or technique finds its way to litigation. Those hearings are about exploring foundations, assumptions, and innovations. 

They are necessary to probe the foundations in a variety of instances. The entire point of the Daubert analysis is such inquiries and deep dives before evidence is admitted. See Daubert in the Courtroom (August 2019) and Daubert's New Day (May 2019).

This ruling is not about AI, but about foundations. The ruling is about how and whether computers will be used to interpret evidence and to produce "enhanced" or "interpreted" output. The specifics in Washington involve a cellphone video that might establish a "self-defense" avoidance.

The resulting video, however, is not a reflection of the events. It is an interpretation of the events. Prosecutors objected and explained that the results were "predicted images rather than reflect(ions of) the size, shape, edges, and color captured in the original video." Thus, they objected and the judge agreed. It was perhaps important that the software company that was used advocated against the use of its Hollywood tool for litigation purposes.

The result is not novel. To be admissible, a photo or video must accurately reflect the actual circumstance or occurrence. That is foundational. The evidence here did not support that the AI production did that. The evidence suggested that there were parts removed and parts added. The result would be the same if a paper photo was trimmed with scissors and adjusted with a sharpie.

The outcome is the same. Only the means of altering the image is different. The ruling is not about AI. The ruling is about evidence. That happens every day in thousands of rooms coast to coast. Nothing to see here people. Move along.