Moral Wrongs, Law, and Downtown Tallahassee

Join David as he rides down Monroe Street and into downtown Tallahassee. See Hotel Duval, the Aloft Hotel, Florida Capitol, City Hall, and the historic Bankruptcy Courthouse while David talks about the differences between legal wrongs, moral wrongs, common law and statutory law.

It’s the Technology Stupid!

The United States, indeed the entire world, is undergoing a massive economic and social change that our leaders have failed to recognize.  Two of the symptoms of this change are increasing unemployment and the decreasing value of labor.  These symptoms are not merely the result of economic cycles or government tax rates, but are a more permanent reality of a world undergoing massive transition. Any politician who stands before the people and says that they are going to stimulate economic growth which will create jobs and revitalize the middle class is either a liar or absolutely clueless.

All signs point to words like Disrupt, Shake Up, Challenge, Evolve and Change to symbolize disrupting the status quo with new ideas and technologies
We are going through a massive economic and social change that few seem to recognize.

The reality is that technological changes are displacing labor at an ever increasing rate such that it is foreseeable that jobs as we have known them for the past 150 years are going away.  Economic growth no longer equates to job growth, but to technological investment and implementation.

Don Tapscott, an author and authority on innovation, who I heard give an incredible talk at Legal Tech a few years ago, recently published an article in the Harvard Business Review in which he discussed what he calls the dark-side of the technological revolution. In his article he asserts, and I agree with him, that:

structural unemployment will be the biggest public policy issue for decades.”

Structural unemployment is unemployment resulting from industrial reorganization, typically due to technological change, rather than fluctuations in supply or demand. In other words, it doesn’t go away simply because business picks up. It is static and there is little government can do, short of outlawing technology, to cure it.

Robots welding in a production line
Robots welding in a production line

This concern about structural unemployment was echoed in a lecture by then Lincoln Electric CEO John M. Stropki that he presented at the Chautauqua Institution in 2011. Lincoln Electric is a 120-year-old company located in Cleveland Ohio that is the world’s leading producer of welding equipment. The company is non-union, but promises its workers employment for life. During his presentation Mr. Stropki pointed out that in the past 40 years manufacturing employment in the United States has declined exponentially, but that the percentage of our National Gross Domestic Product coming from manufacturing has hardly declined at all. In other words, we’re producing more goods with less people. He was very candid in his assessment that manufacturing jobs are being displaced by technology and will not be returning. There is simply no tax break or other government intervention that will change this reality.

Tom Worstall, a contributor to Forbes magazine recently wrote an article addressing the myth of the decline in United States manufacturing and wrote:

It is absolutely true that manufacturing as a percentage of the US economy has fallen. But that’s not because manufacturing itself has shrunk, that’s because other parts of the economy, most obviously services, have grown faster than manufacturing. It is also true that manufacturing employment has dropped precipitately. But to decry that while production is still rising is to be most foolish. For having rising output combined with falling employment is generally regarded as a good thing. Labour, workers, are a cost of making something. An input into the system. And if we get more out of the system while putting fewer resources into it then this means that our system is becoming more productive. And another name for the system becoming more productive is that we’re all getting richer.”

I think that Mr. Worstall is incorrect in his assessment that we’re all getting richer. The unemployed workers who make up the rapidly shrinking American middle class are not sharing in the rewards of the increased productivity created by the technological displacement of the jobs. Instead, they’ve been economically and socially side-lined

Thanks to Uber, with a car and a cell phone you can be in the Taxi business.
Thanks to Uber, with a car and a cell phone you can be in the Taxi business.

We are facing the daunting challenge of incredible social and economic change resulting from the end of employment as we have known it for generations. I predict that in the future most people will not have the long-term relationship with employers that we’ve known in the past. Instead, most will be working some sort of freelance/independent contractor, if at all. Consider that technologies such as Uber, Elance, and Airbnb now allow the average person to enter industries that previously took a great deal of capital to enter. Of course, even some of these newly created industries are probably also doomed. Self-driving vehicles are currently in development and will likely displace the Uber driver. I suspect occupations such as truck driver and taxi driver will be obsolete in a generation. Even highly trained technical occupations such as medicine are vulnerable as we develop robotic surgery and computer programs that are already reading imaging reports such as CAT scans and X-rays better than human physicians.

In my own profession of law, I suspect that we are seeing the last generation of paralegals. Document automation, interactive case management software, and virtual assistants are rapidly taking the place of legal secretaries and paralegals. For lawyers, the prospect is better, but not especially bright. Highly systemized technology driven firms are dominating the market in the areas of Bankruptcy, Social Security Disability, and Personal Injury law – all of which used to the bread and butter of small and solo practices. Additionally, geography is becoming less of an issue in legal practice with electronic court filing, telephonic appearances by lawyers and witnesses (even for trials), and video conferencing all remove the necessity that a person utilize an attorney local to the community where the Court is located.

Jobs help form our identity
Jobs help form our identity

This prospect of employment going away isn’t just an economic change, but a disruption of the social structure that has existed in western culture for generations. Our occupations aren’t just how we make money, but they also provide us with a large portion of our identity, a sense of usefulness and purpose, and create access points to the larger world. Thus, we’re not simply facing an economic crisis, but an existential one as well. The question in my mind as I watch people seeking to lead, such as our presidential candidates, debate the issues is when we will acknowledge the new reality we live in and start working to find meaningful solutions rather than simply looking back towards prior glory days and trying to rework the solutions of the past.


The Women in My Life – Why Gender Equality Matters To Me

 The American Bar Association Journal reported this week that women lawyers earn only 77 percent of the pay of their male counterparts.  The article states that the income inequality exists at all level in the legal profession, from paralegals to judges.  In fact, the article indicates that the higher one rises within the legal profession, the greater the income inequality, with female judges receiving only 71.8 percent of the pay received by their male counterparts.

The Legal Profession is Failing Women
The Legal Profession is Failing Women

 One could argue that as a male I benefit from this paradigm.  I often hear people talking about different kinds of “privilege” such as male privilege, or white privilege and I realize that in these statements, I’m the guy they’re talking about it.  I’m a white male living in a society that has historically been ruled by white men.  On the other hand, I also hold a nursing license and spent years in working in what many see as a female profession.   When I think about those who are important to me, the image of a white male isn’t who first comes to mind.  I think about my wife, a physician and an attorney, whom I’ve seen treated differently because of her gender.  I think about my mother, a woman who raised two children largely alone, while working dead-end jobs as a secretary in what sociologists often call “the girls’ ghetto”.  I think about the many women who have shown me friendship and respect, and who have given me their encouragement and support.  I cannot imagine having the life that I have today without the support and contributions of women.  They have been my teachers, my parent, my bosses, my colleagues, and my friends.  Whatever privilege may exist for me, the injustice that the women in my life suffer causes harm to me too. 

 Granted, our society has made progress on many issues of inequality, but there’s a lot of work still to be done, even in the highly educated professions such as physicians and lawyers.  Through my wife I have met many female physicians and they can all share stories of the disparate treatment they have suffered.  It’s not just an income issue, it’s a form of insidious emotional abuse.  I’ve heard many female physicians and lawyers talk about being accused of being mentally unstable and “not a team player” by colleagues and superiors when they asserted themselves.  I saw one employer purchase new executive chairs for many of the male physicians my wife worked with, while her desk was outfitted with a dilapidated typist’s chair.  When my wife approached her supervisor to ask for a new chair similar to those purchased for the male doctors, she was told that she could have one of the men’s old chairs. 

Justice Ginsburg at Chautauqua
Justice Ginsburg at Chautauqua

 A few years ago, I was walking across the grounds at the Chautauqua Institution, when I came across United States Supreme Court Justice Ruth Bader Ginsburg giving a radio interview in which she talked about the gender discrimination she’s faced in her life and the improvements in the profession for women. Indeed, when one looks closely at Justice Ginsburg’s life it is evident that, despite her immense success, she had to work much harder and sacrifice in ways that her male colleagues did not. Prior to graduating from law school she was demoted in a government job when she became pregnant with her daughter.  Despite being tied for the top graduating student in her class at Columbia law school, not a single New York law firm would hire her and Justice Felix Frankfurter refused her a clerkship based upon her gender despite strong letters of recommendation from the Deans of both Columbia and Harvard Law Schools.   As she established her legal career, she was unusually fortunate to have a partner in her husband who was willing to support her career and to assume more of the homemaker role than most men of his, or even the current, generation.  Her drive to excel and her commitment to work is exceptional. It is said that she returned to work at the Supreme Court the day after the death of Martin, her husband of 56 years. 

We’ve failed to create justice for the women in our society. As a nation we’ve failed to pass the Equal Rights Amendment.  The law theoretically doesn’t allow discrimination by race, but discrimination by gender is allowed.  Too often, we’re silent in the face of blatant sexism and gender discrimination.  I’m watching the campaign of Hillary

Ted Cruz Perspective on Women
Ted Cruz’s Perspective on Women

Clinton in which the double standard for women is on full display.  Secretary Clinton’s gender is being exploited by her Republican opponents such as Ted Cruz, when he announced to the press that Hillary Clinton deserves a spanking like his 5-year-old daughter.  (I pity the child growing up with such a father).  Despite my being a Bernie Sanders supporter (although I’m also perfectly happy with Hillary Clinton as the candidate), I can’t help but shake the feeling that many on the left who reject Hillary Clinton are doing so for gender related issues.  

Sadly, it’s not just men who perpetuate this double standard, but many women have been so indoctrinated into the concept of gender inequality, that they go along with it too.  So many times I’ve seen women attacking other women for standing up for themselves or for being successful.  I’ve watched female nurses go out of their way to deliberately make life difficult for female physicians. I’ve been in the ER and have seen my wife have to fight to gain access to an exam room after being called into the ER to care for a child at 2:00 am, while the nursing staff bends over backward to accommodate the male physicians.

I don’t know how to fix this, but we’ve got to work on this problem that continues to permeate American culture. As a lawyer I’ve fought for the right of pregnant women to make their healthcare decisions.  As a man, I don’t make comments on which women are sexy and which aren’t to my guy friends as we walk down the street.  I do my best to show the women whom I encounter in my life respect, and to create relationships and an environment based upon mutual respect and dignity.  I recognize that I probably don’t always do this perfectly, but this is where gender discrimination impacts me the most as a white male.  I want to be able to have equal relationships with the women in my life.  My simply treating women as equals isn’t sufficient because that doesn’t establish a right for the women in my life, but makes it a politeness or courtesy that I bestow upon the woman and continues the unequal power dynamic. I don’t want their choices constrained by their gender or societal judgment.  Gender inequality might create an opportunity for me to be an ally, but it also creates a barrier to our finding connection as equals, and that’s a loss for both genders.



This is an old piece that I wrote a decade ago, but it still holds true to this day.  I’ll bet this rings true for a lot of other husband’s and wives.

There are days when I become convinced that my wife married beneath herself. Forget about the fact that she’s a valedictorian and I never finished high school. Ignore the difference in our economic statuses. Also, ignore that she’s a physician who married a nurse. I really think the reason she married beneath herself is that she notices things and I don’t.

I was reminded of this fact during a telephone conversation we had this morning. She’s been working out of town for the past couple of weeks, which has left the house and animals in my care. I gather she draws little comfort from my watching over things by the fact that she regularly asks me about things like whether or not I fed the cats or have even seen the cats. Usually when she’s gone, I get a list reminding me of things to be done, and other tasks that I suspect have been added for the distinct purpose of “keeping me out of trouble”. Granted, I did adopt a Rottweiller once while she was away, but I’d hardly consider that “trouble”, so I really don’t know where she gets that idea. Besides, I was engaged in the task of buying dog food at the PetsMart at the time I agreed to adopt the Rottie.

Before I digress any further, let me get back to this morning’s phone call. One of the items on the current list is to wash the curtains. She says there’s dust on them and that this is not a good thing. I suppose she’s correct and not wanting a second divorce, I tried to accommodate her by taking down the curtains and washing them. She asked me about my progress on this task during our morning telephone conversation today and I told her the curtains had been washed and I put them back up in the kitchen and the bedroom. It was at this point that she told me we didn’t have curtains in the bedroom. I argued that we must, since there is a curtain rod, and they look right hanging there. She then pointed out that we have two windows in the kitchen and when I thought about it, realized this was probably true. I guess I’d just never noticed whether or not there were curtains in the bedroom or a second window the kitchen.

Of course, she notices other things that I miss. There was the debate about whether or not we have a medicine chest in the bathroom. I said no, she said yes. I knew we have one of those big mirrors affixed directly to wall, so I figured no medicine chest. She actually noticed that there was one hanging on the side wall in the bathroom. I pointed out that it was on her side of the sink, so how was I supposed to know it was there. She just rolled her eyes and said something about me being oblivious. I’d argue this is an unfair characterization and speculate that lots of people don’t know they have medicine chests in their bathroom.

As for the curtains in the bedroom, I ran out to Target this afternoon and bought curtains for the bedroom windows. I think they look really great, although I didn’t really measure before I bought them (who knew?), so they might not be quite the right size. I wonder if she’ll notice?

Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?