Happiness in An Unhappy Profession

Associate Attorney is the Most Unhappy Occupation

I’m a happy person working in a profession that includes what some have called the most unhappy job in America.  According to an article published on the Above The Law legal blog, the most unhappy job in America is associate attorney.  To be fair, I’m not now, nor have I ever been, an associate attorney.  An associate attorney is a lawyer who works in a law firm as an employee.  The closest I’ve ever come is the almost two years I spent working as an assistant public defender immediately after law school. I loved the Public Defender’s Office.  The work was intense, I was in court every single day, and my co-workers were great.

I really love being a lawyer despite what the researchers say.  Sure, it’s a lot of difficult hard work. Being a self-employed lawyer is risky with lots of ups and downs.  Sometimes it’s heartbreaking because I don’t always win and I argue from the heart.  It always hurts when a judge or a jury rejects an argument that I’ve spent days researching and crafting. I’ve had to learn to pick myself up, shake off the damage, and keep going.

I’m not wealthy, and my income is very modest compared to most lawyers, but I don’t feel at all impoverished. Instead, I feel incredibly fortunate.  I get to work at home a lot where I sit at my desk in shorts and a comfortable shirt with my dog at my feet and my cat occasionally interrupting me with a jog across my keyboard.  I get to work with my wife, who challenges and supports me in every way.  I chose my clients and the cases on which I want to work.   I have complete control over the tools I use from the pens we buy for the office to the software we use.  I even get to choose my working hours and I can take off as much time off as I’d like and can afford.

I don’t really understand being unhappy as a lawyer because I find what we do to be so incredibly interesting.  Legal cases are stories, often imperfect, always fascinating, and always teaching us something about ourselves and the world in which we live.   When I step into a courtroom on behalf of a client, I am privileged to tell my client’s story.  Each case gives me an opportunity to change someone’s life, and sometimes I can even change the rules by which we all play.  I’ve gotten to stand next to people who came to me feeling that no one was listening or cared and I’ve shown my clients that they have a voice and are worthy of respect.  Sometimes I can even persuade people to care about someone they’d overlooked.  My arguments don’t always work, but sometimes, when I’m in the right court, with the right facts, and the right argument, I get to change the world.  To do that once in your life is amazing, but to get the opportunity to do that every single day, is a priceless gift to me.

Public Interest Lawyers Work Hard, But Have the Highest Happiness Rankings

According to the New York Times, another study indicates that the happiest lawyers are public interest lawyers, those at the lowest end of the lawyer pay scale. Public interest lawyers make only a fraction of the earnings of firm associates, and are paupers compared to firm partners, but they’re the happiest of all lawyers.  Clearly, more money isn’t the key. The article speculates that the reason for this difference in happiness is:

The problem with the more prestigious jobs, said Mr. Krieger, is that they do not provide feelings of competence, autonomy or connection to others — three pillars of self-determination theory, the psychological model of human happiness on which the study was based. Public-service jobs do.”

I think there is truth to this speculation. I love the opportunities for self-determination and autonomy that my work provides.  Most valuable of all to me is the connection my work creates for me with my clients, other lawyers, the judges before whom I practice, and the community in which I live.

I didn’t consciously chose the pathway to happiness when I started my legal career.  My life is really a product of happy circumstance combined with what I often see as a somewhat selfish tendency to choose experience over monetary benefit.  I would rather scrape by in a job that I feel makes a difference, than do unfulfilling work that pays a lot of money.  I am also aware that I’m very fortunate because I get to make that choice. So far, I’m happy with the outcome, so I guess I’ll just keep on doing what I’ve been doing.



A Flawed Democracy

We’re in jeopardy of losing our democracy.  This past week the Democracy Index, an international ranking of the health of democracy in world’s nations,  downgraded the United States from a “Democracy” to a “Flawed Democracy”.  University researchers recently concluded in a study that the United States is an oligarchy, that is we’re dominated by the rich and the average person lacks meaningful political power. Despite all of our pledges, flag waving, verbal accolades regarding the wonders of democracy, and declarations of defending freedom to the death, American democracy is on the ropes.  No, Donald Trump is not the cause.  He may be a symptom, but there is plenty of reason to be concerned about American democracy apart from Donald Trump’s authoritarian fascism.

Our government is a system of checks and balances between the three branches: the judiciary, the legislative, and the executive.  In theory, no branch is greater than the other and each operates to keep the other in check.  Only the legislative branch is subject to direct election on the federal level, although on a state level both the judiciary and the executive may also be directly elected.  The federal judiciary is insulated from the electoral process by virtue of lifetime appointment of federal judges by the Executive and confirmation by the legislative branches.

However, recent years have witnessed an accelerating decline of this system of checks and balances. Instead, we are witnessing the rise of what I call the “super legislature”.  Certainly, there has been a lot of scrutiny paid to the use of Executive Orders by the President in the face of congressional gridlock, but if you pay attention to what’s happening at the state level, and then look back at the federal level, you’ll see that it’s not the presidency with which we need to be concerned. It’s the legislative branch, which have become increasingly single party nationally and whose members dominated by big money, where we see the most blatant attempts to overturn our system of checks and balances.

For example, according to the Florida Bar News, there is currently a bill in the Florida legislature, introduced by Republican Julio Gonzalez, to amend the Florida Constitution to allow the Florida legislature to overturn any Florida Supreme Court decision that rules any law to be unconstitutional.  This bill, should it become law, would remove the Florida Supreme Court from its traditional role of having the final say regarding the Constitutionality of our laws.  In other words, the legislature, not the Courts, would get to review the constitutionality of the laws it passes.

In North Carolina, the Republican dominated legislature recently passed laws severely restricting the power of the Governor following the election of a Democrat to that office.  Fortunately, this law was struck down by the Courts. However, I suspect that the North Carolina legislature will engage in a war of obstruction, similar to what President Obama experienced, designed to thwart the will of the voters by making it impossible for the Governor to effectively govern.

On the Federal level we have witnessed years of obstruction culminating in the absolute refusal of Republican Senators to hold a hearing on President Obama’s nominee to the United States Supreme Court. This refusal was not based upon an objection to the nominee, but as a mechanism to prevent the President from performing his duties.

I see this happening in other areas too.  For example, through binding consumer arbitration clauses, the legislature has removed jurisdiction from our courts for the majority of claims arising from consumer transactions with banks, credit card companies, car dealerships, employment contracts, etc.  The profound impact of this was recently seen when the lawsuits of consumers who were defrauded by fake accounts created by Wells Fargo found themselves unable to sue due to arbitration clauses in their account contracts and a federal statute called the Federal Arbitration Act.

I suspect that underlying all of this is a fundamental nationwide deficit of civics education.  According to a study by the Annenberg Public Policy Center, only 36% of Americans can name all three branches of our government.  This lack of even the most basic civics education and understanding leaves voters vulnerable to misinformation during elections and campaigns such as when an ad claims that a presidential candidate is going to raise or lower taxes. (Taxing and spending is controlled by Congress).  Indeed, it often appears to me that most voters ignore candidates for all offices except president, whom they seem to believe is some sort of temporary all-powerful king.

I don’t know how to solve this problem.  It’s always seemed to me that patriotism should demand more than flag waving. It should demand that we educate ourselves and our children regarding the structure of our government, the people we elect, and the work in which our politicians and bureaucrats are engaged.  True patriotism should demand more than claim that all politicians are crooks, because they’re not.  I ran for office a few years ago and it was an eye-opening experience. While I did not agree with the ideas of some of the candidates, I found the majority to be decent people who were interested in the issues and improving the lives of citizens.   Money in politics is certainly a problem, but voter ignorance and apathy is an even bigger problem.  Additionally, partisan voters, who have given over their minds in exchange for allegiance to a political party that they follow like lemmings, make campaigning based upon ideas extremely difficult, because so many minds are absolutely closed and people vote blindly according to party.

In closing, I want to say that whatever the problems we have in our system of government, we need to be careful and to stay true to democratic principles above all else.  If we’re not careful, we can lose this democracy, and I believe that what comes next will be most unpleasant.

The Wind Beneath My Wings At the Florida Bar President’s Pro Bono Award

It was too late when I realized that the suit I’d chosen to wear had a hole in the bottom of the left pocket rendering the pocket useless. I only own 3 suits and they’re all several years old and coordinated with the pair of brown wing-tip dress shoes that constitute my only pair of dress shoes. I’d already discarded one dress shirt as being too threadbare which cost me time and I’d spent a lot of time trying to find the new tie I wanted to wear that suddenly went missing after being in my hand. I eventually located the new tie hiding out in my sock drawer with no idea how it got there. My wife was handing me a collection of things she wanted me to carry since she had no pockets at all. Her cell phone, a lipstick, her ID in a little plastic case, her keys,… it turned out to be a lot of stuff.  I struggled to find places for all the items. My working pocket bulged and I feared that I would soon have no working pockets at all. I also wondered when my wife decided that my role in life was to be a pack mule?

Barbara Takes My Picture on the Steps of the Florida Supreme Court

We were headed to the Florida Supreme Court for a ceremony in which I was one of couple dozen lawyers who were being honored for our pro bono work.  Thanks to a nomination by Legal Services of North Florida, I was to receive the Florida Bar President’s Pro Bono Award for the Second Judicial Circuit. The entire Florida Supreme Court, less one Justice who was recovering from surgery, would be there along with the president of the Florida Bar.  This was my first time inside the Florida Supreme Court and one of the biggest honors I’ve ever received.  My close friend, James Cook, who is one of the best lawyers I’ve ever known, won the award last year, and the list of previous recipients included the names of several other friends and noted lawyers for whom I have great respect and admiration.

I was very honored to receive the Florida Bar President’s Pro Bono Award for the Second Judicial Circuit

The award ceremony was very nice.  It was dignified without being stale.  The presentation of awards to deserving recipients was punctuated by heartfelt sincere speeches on the importance of pro bono work that held my attention without going on too long or becoming too preachy.  I sat with the other award recipients on cushioned benches inside the well, the area between the railing that separates the spectators’ gallery and the bench where the Judges sit.  When the time came for me to receive my award, they called my name and I walked to the podium where I was presented with a large certificate by the Florida Bar president.  He said some nice words to me, and then shook my hand while a photographer took our photo. As I posed for the photographer I could see my wife, Barbara, camera in hand, directly behind him. As previously instructed by the organizers, I went and stood in front of the bench where the Supreme Court Justices were sitting and waited while they presented the other awards. I breathed a sigh of relief that I managed to get through the process without stumbling or forgetting to zip up my pants.

After the ceremony, there was a photo session with all the award recipients that made me feel a bit like a rock star. There were big complex looking cameras wielded by serious looking photographers. There was Barbara too, with my little Olympus, making sure she documented the experience for me. When everyone was done taking pictures, I joined the crowd of guests in the rotunda area where an incredible reception awaited.  I was especially delighted to see that had those little spanakopita bites that are a favorite of mine. Barbara was waiting for me there and proudly introduced me to a gentleman from St. Petersburg, Florida as her award-winning husband.

Later that night, when the festivities were finished and the routine quiet of our lives had once again returned, I thought about the experience of winning this award. It occurred me that the pro bono cases for which I was honored weren’t only my sacrifice.  In every single one of those cases, my wife Barbara, was by my side every single step of the way. She proofread pleadings, helped me strategize, attended Court hearings with me, encouraged me when I was discouraged.  It’s important to note that although they give you awards for the cases you win, there were other pro bono cases we’ve done that we didn’t win, yet she was always there right by my side.  Losing for me is devastating, but she helps me pick myself up every time. She could have objected to my pro bono work since it takes me away from the money-making cases that we depend upon and there have been many times when we’ve had to pinch pennies to get through.  Contrary to what the insurance companies and their paid-for politicians tell you, the vast majority of trial lawyers are not millionaires.  Most of us live precarious lives, investing our own money while taking on other people’s causes as our own, hoping for a fair judge or jury and the skill to navigate the procedural hurtles required to be allowed to tell our clients’ stories.  Such a life wouldn’t be possible for me without the unwavering support of my wife, Barbara, who remains confident in me even when I start to doubt myself.

I hope that I was able to honor my wife and the other women in my life by marching with 14,000 other people in support of women’s rights.

It occurred to me again on Saturday as I marched through the streets of Tallahassee for Women’s Rights in the rain, one person among a crowd of 14,000, how much I owe in my life to the women who have been part of it.  My wife, mother, mother-in-law, step-mother, sister-in-law, nieces, aunts, sisters, cousins, friends, teachers, nurses, doctors, classmates, clients who trust me to be their lawyer,…the list is endless. So much of my passion for justice on behalf of working-class families comes from growing up in a female-led single parent home.  I’ve witnessed the struggles of the women in my life for equality and justice, and I know that while education and economic well-being provide some protection for women, the inequality never completely goes away.  I also know that I wouldn’t be who I am today, or able to do the things I’m able to do today, without the many women who have given me their love and support throughout my life.

I didn’t get to give a speech at the award ceremony, which was probably a good thing.  I don’t think that I could compete with the great words that were offered.  However, I do want to say something, and that’s thank you to my wife and all the other women who have supported me, trusted me, and helped me to pursue my dreams.  Words simply cannot express my respect and adoration for you all.

Trump and Putin – A Grave Constitutional Crisis

What could be the gravest political and constitutional crisis faced by the United States since the Civil War is emerging with the news that the Russian government tampered with the recent U.S. Presidential election for the purpose of aiding the Trump campaign.

The question in my mind is, what happens if evidence is discovered that strongly suggests that Donald Trump was the knowing beneficiary of Russian interference?  What if that evidence shows a coordinated effort between Putin and Trump to engage in criminal activity of email hacking in order to rig or influence the election in favor of Trump? The outcome of such a revelation, and the ensuing conflict, is almost unimaginable to me.  I am not certain that the United States as we know it today would survive such a scenario.

What's next on the chalk boardSadly, Trump does not seem to be at all concerned about the appearance of impropriety in his ascendency to the presidency.  He brushes that entire matter off as ridiculous and instead denigrates the intelligence community as being completely incompetent.  His responses raise my level of suspicion and concern even higher.

It is interesting to note that the founding fathers were concerned about other nations meddling in the elections and the political life of the United States.  This is one of the reasons the electoral college was created.  Consider the writings of Alexander Hamilton in the Federalist Papers 68 where he discusses the need for the electoral college as a protection against a hostile entity orchestrating the election of an incompetent person to the presidency.

“These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

Many states have neutered the independence of the electors by passing laws requiring that they vote in accordance with the outcome of the popular vote in the state.  My cursory review of the limited case law on these statutes leaves me with the impression that the Supreme Court hasn’t seen this as cause for concern.  After all, the electoral college in this day and time is regarded largely as a bizarre artifact whose design and purpose is a mystery to most of us.  Never, in our 240-year history, have we needed the electors to examine the soundness of the voters’ choice. However, we are now facing a situation where it is possible that the electors may need to act to prevent the very harm that concerned Hamilton i.e.: a foreign power controlling the American President.

Of course, there is an incentive for many Republicans to wait until after the electors cast their ballots to deal with this crisis.  Once Trump is in office the remedy changes to impeachment, such as what happened to Richard Nixon during Watergate (note the interesting parallels of criminal election activity in both the current crisis and the Watergate scandal).  Impeachment would remove Trump, but would put Pence into the White House and continue Republican control of the presidency.

The problem is finding a solution that preserves the integrity and confidence in the American presidency.  I believe that the electors should refuse to cast their votes until this matter is resolved, and if the evidence continues to show Russian interference with Trump being more than an innocent beneficiary, then they should refuse to cast their votes for him.

This crisis is bigger than political parties, it’s bigger than policy differences, bigger than the differences that have so recently caused a deep divide between so many Americans.  All eyes are going to be on us as we try to sort out this mess, separating truth from fiction, and determining a pathway forward.  Without great leadership and deep integrity, I fear that the loss of faith in our government will not be survivable for the nation.  Let us all hope that I am incorrect in my analysis.

The Unending Shame of Being Poor

I’ve never forgotten one night, when I was 15 years old, and I crawled into bed. I put my feet under the covers, and then I felt a mouse run up the side of my body. It emerged from under the blankets and with lightning quickness it scampered onto the floor, and out of my room through a round hole in the floor. It left me with a massive dose of adrenaline preparing me to fight or flee, despite the fact that catching or fighting the mouse was hopeless and there was nowhere I could flee for safety.

At that moment, my sense of self changed.  A new identity burned into me, one that’s never left and probably never will.  I was poor.  I came from a poor family, and any illusion to the contrary was forever shattered.  I lived in a house in a bad neighborhood that lacked heating or air conditioning.  A house where rodents  roamed freely.  What people today call “food insecurity” was a part of our daily lives, although I’d never heard the term and wouldn’t for nearly 20 years.  For me, it meant eating a lot of spaghetti and when that was gone making due with popcorn for dinner, wondering if tomorrow there would even be popcorn.

Our cupboards often looked like this.
Our cupboards often looked like this.

My life hadn’t always been like that.  Just a few years earlier I lived in a comfortable house in upstate New York that my great-grandfather had bought nearly 80 years earlier and balanced meals arrived on the table every night.  Then, my grandfather died, and my grandmother began a five-year decline that led to her death, leaving behind massive hospital and medical bills.  The house was sold and we left the small town where my family had lived for more than 150 years.  We went south to Florida looking for a better future. The 1970’s hit upstate New York hard, factories closed, and my mother, burdened by taking care of her mother, missed a lot of days of work and became unemployed in a time and place where employment opportunities were close to nonexistent.  Tired of cold weather, unable to find work, and desiring to flee the disappointments of her life, she packed my brother and me into her Ford Mustang, and like so many others, we left the rust belt for the sun belt.

Florida was not the promised land we hoped to find.  The wages were low, we were completely on our own, and my mother became less functional as the burdens of raising two teenaged boys overwhelmed her coping skills.  She used the remaining money we had from the sale of the New York house to buy a mobile home that was repossessed within a year.   A friend she met in a bar offered to rent her the dilapidated home we lived in until I left school.

Growing up, I was taught that if you were honest and hardworking you would be rewarded with a comfortable life.  This was the unquestioned promise of America that I had been hearing my entire life.  To be poor was to be immoral and lazy, and with that realization came a profound sense of shame that left me wondering what had I done in my 15 years that had stripped me of my morality and industriousness?

It’s been 35 years since I’ve had a mouse in my bed.  Once again, I live in a nice house, my diet is only limited by healthy eating, and I have all the trappings of at least a middle class, if not an upper middle class life.  I’m one of the few who made it, and I do mean few.  I was born intelligent and my early childhood gave me a stability and insight that, along with a lot of luck and assistance from others, would help me recover from my family’s misfortune.

My family, and many of our friends and neighbors, haven’t done as well.  My mother is now retired, has no pension other than Social Security, and spends her days alone in her small apartment watching television and dreaming of her high school days.  When I can coax her out for lunch or dinner, she often spends much of our time reminiscing about her childhood and talking to me about people whom she hasn’t seen in years and whom I’ve never met.  My younger brother left my life several years ago, in a furious torrent of anger he’s carried for far too long, but that I don’t know how to help him with and that I fear will never leave him.  As far as I know, my mother is the only relative with whom he has any contact.

To be poor in America is the live on the outside, to be judged as the cause of your own misery.  The judgments are predictable and all are shaming:  If only you didn’t: take so many sick days, waste your money, drink/smoke so much, have cable TV, drop out of school, have so many kids, eat so much sugar, etc.  The problem is, all these behaviors that the poor get judged for are so often the product of being poor in America.

America's poor routinely go without dental care.
America’s poor routinely go without dental care.

The consequences of being poor in America are life limiting if not outright deadly.  Of my family of origin, I’m the only one who still has my own teeth.  Dental care wasn’t something my relatives could afford. Have you ever wondered why inexpensive denture companies tend to be found in poorer neighborhoods?  It’s often much cheaper to have your teeth pulled than to pay the cost of fixing long-neglected dental problems.  One friend from High School,  got lucky with his dental care.  A woman hit him while he rode an old motorcycle to and from work and he used the insurance money to save his teeth, but most aren’t that fortunate.  It’s not just dental care; my relatives struggle to obtain basic healthcare.  Even when they have insurance, the costs of co-pays add up quickly when you must visit your primary just to get a referral to a specialist who then wants to run tests, all requiring co-pays. Continuity of care is often nonexistent as insurance panels change or my relatives change jobs or experience unemployment.  This lack of continuity destroys the trust necessary for a good physician-patient relationship resulting in people simply ignoring medical advice.  So many of the poor people I knew growing up have become morbidly obese, not because they’re lazy gluttons, but because the inexpensive food available in our grocery stores and fast food restaurants is profoundly unhealthy.

Even education, something that should be a pathway to freedom, is full of pitfalls for poor families.  Public schools in poor neighborhoods fuel the school-to-for profit prison pipeline.  Student loan debt incurred to pay for over-priced trade-schools or fly-by-night private college educations that don’t lead to higher paying jobs leaves many with a lifetime of government sponsored debt for having tried to improve themselves.

The worst thing though, is the shame carried by America’s poor.  Father Greg Boyle in his book Tatoos on the Heart describes it well:

“The principle suffering of the poor is shame and disgrace. It is a toxic shame — a global sense of failure of the whole self. This shame can seep so deep down.”

Father Gregory Boyle and me.
Father Gregory Boyle and me.

I get this on so many levels because to some degree even all these years later I still live with elements of this shame and likely always will.  When I see a poor person, I see my own image.  I see the shame that wounds the spirit of my friends and family.  What I can’t see is how to cure it.  One reason why I practice consumer rights law is because it gives me opportunities to restore dignity to those who carry the shame of their poverty.  The law doesn’t favor poor people and in so many ways I feel it’s rigged against them.  However, sometimes I’m able to take up a cause that for a moment restores dignity to my clients and I hope gives them the strength to carry their burdens a little more lightly as they go forth in their lives. When that happens, both client and lawyer are restored.



United States Supreme Court – A Court Diminished

David Abrams in front of the US Supreme Court
David Abrams in front of the US Supreme Court

The United States Supreme Court, once the most prestigious court in the world, has been reduced to a politically gerrymandered court by the Republican Senators’ refusal to even review President Obama’s nominee and Donald Trump’s pledge to pack the Court with political ideologues, guaranteeing rulings he sees as politically beneficial. Trump will have little difficulty keeping his promise given the Republican majority in the Senate.  I do not expect the Court will recover from this harm within the remainder of my legal career or lifetime.

The framers of the Constitution envisioned a Court that would be as insulted as possible from the political process. The first and most famous case ever decided by the Court, Marbury vs. Madison, was rooted in the idea that the Court is immune from political restructuring. The Court rejected an expansion of its jurisdiction by Congress through the political process and held that jurisdiction of the United States Supreme Court is established by the Constitution.  The Court’s authority, like the Court itself, is beyond the political process.  Judges do not serve at the pleasure of the President or Congress; they have lifetime appointments.  This principle of law has been incredibly important in American jurisprudence.  Neither Congress nor the President can remove or expand the Court’s jurisdiction in response to the political winds of the time, nor can they retaliate against a Judge or the Court for rendering a politically unfavorable decision.

The role of the Court in protecting the freedoms of and ensuring justice for the American people cannot understated.  Removing bigotry, prejudice, and injustice from American law has rarely been achievable through the ballot.  Desegregation, repeal of miscegenation laws, removal of literacy tests for voting, privacy rights, the right of counsel for people accused of crimes, the right to be free from unlawful search and seizure, the right of married couples to use birth control, and the right for same sex marriage were all achieved at the Supreme Court and would have all failed if put to a vote.  Strict textualists, such as former Justice Scalia and those whom I expect Trump will nominate, insist that rights which are not explicitly stated in the Constitution do not exist.  They disagree with the perspective of Justice Douglas who wrote that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” Griswold v. Connecticut, 381 U.S. 479, 484 (June 7, 1965). In simpler language, there are rights that are not explicitly stated, but are implied in the text, such as the right for a parent to raise and educate a child, including sending a child to a religious school rather than a public secular school.

American flag, US constitution and a judge's gavel symbolizing the American justice system or the Judicial Branch of government ( Judiciary )That the Constitution and the Supreme Court allow rights to develop in response to our collective experience rather than through the nearly impossible political process of Constitutional amendment is one of the great strengths in our legal system and has allowed our nation to remain a leader in human rights. As Alan Dershowitz postulates in his book “Rights from Wrongs: A Secular Theory of the Origins of Rights”, human rights do not come from G-d, or nature, or even from logic.  Instead, they come “from human experience, particularly experience with injustice.  We learn from the mistakes of history that a rights-based system and certain fundamental rights…are essential to avoid repetition of the grievous injustices of the past.”  In other words, rights come from wrongs and are recognition of those wrongs. A great example of this is found in the Constitution itself where the framers included a right contained in the Third Amendment prohibiting the government from forcing people to quarter troops in their homes during peacetime.  This is not a right most of us would consider putting into the Constitution if we were writing it today.  Indeed, there has never been a Third Amendment case brought to the Supreme Court.  This Amendment exists as a relic of the experience of the framers and their fears based upon that experience.

Sadly, I greatly fear that the era of the Court standing between the people and the government as a neutral arbiter of the rights secured by the Constitution is over.  For the first time in our history we may see the United States Supreme Court moving in reverse where, rather than finding emerging rights, the Court will remove existing rights from the people.  More importantly perhaps, I fear that, due to the political games that have been played by the Republicans in the appointment process, the United States Supreme Court has lost the moral authority and diversity of thought it once possessed.  The Constitutional vision has been undermined and unfortunately the Court, and likely the American people, will suffer.

Is Segregation Returning to Campus?

Atlantic Monthly reports that the University of Connecticut has opened a dorm specifically for black men. At a community college outside Chicago courses are being offered that are limited to only black students.  In California, at Pitzer College, conflict has erupted over the issue of black students advertising for roommates stating that only people of color were welcome to apply.  Are these efforts evidence of colleges and universities doing what is necessary to meet the needs of black students, or are they a new form of segregation?  The answer depends upon who you ask.  Supporters of the separate courses and living accommodations say that they’re necessary to create a safe environment and supportive environment for black students.  Critics say that, regardless of the motives, separate classes and accommodations are a step backwards and a revival of the segregation that it took our nation so long to outlaw.

Legally, these programs raise what I see to be interesting and challenging questions.  Courts view classification based upon race as suspect and subject to strict scrutiny review. Generally, you have to have a compelling interest and a narrowly tailored intervention when making any kind of a race based classification where any form of state action or commerce is involved.  I suspect that a single race dorm may not pass constitutional muster with the Courts regardless of the justification.  However, specialized programs designed to promote academic success for students from disadvantaged backgrounds may be an easier sell.

Is the idea of a non-white dorm for the purpose of creating a safe space for students of color completely ridiculous?  As a white male it is very tempting for me to say “absolutely”. Honestly, I find the idea that someone might want a safe space away from me to be somewhat offensive. Additionally, I am certain that an attempt to create a white’s only dorm would be universally condemned, a condemnation that I would fully support.  But when you think about it, maybe it’s not so ridiculous. Certainly, we have a long tradition of single gender dorms.  Sober dorms are becoming popular on campuses as more young people find themselves struggling with substance abuse problems.  Some campuses have kosher dorms or kosher dining halls.  We have entire institutions that cater to a single gender, or students from a specific religious background.

One issue that comes up for me as I think about these issues is the difference between programs that are directed towards the needs of students coming from diverse backgrounds, and those that exclude or limit participation in those programs based upon definitions of race or ethnicity.  For instance, a university can have a kosher dining hall that is open to all.  A school can offer classes in Latino history or issues that are open to all. A school can have a program to promote success of students from disadvantaged backgrounds, which can include white students from economically deprived communities.  A dormitory for a specific race, while I understand that desire for a “safe space”, seems to me to be a step backward and leaves me questioning whether or not the needs of students of color can be met in a way that doesn’t take us back to the era of segregation.

Our nation had a century-long unsuccessful experience with separate but equal.  Time and time again our Courts and other branches of our government tried to make segregation work based upon the premise that somehow you can make separate equal if you just tweak right.  It was only after failing time and time again that our Courts gave up and declared that separate could never be equal.  Of course, there is another possibility that may exist.  While it may be true that separate can never be equal, if proponents of segregated housing and classes are correct, then integration may not be equal either.

Lastly, one has to recall that one of the fundamental purposes and values of a college education is exposure to the larger world and a challenging of one’s beliefs and perspectives on the world.  Is this purpose and value lost when we deliberately create an environment that allows students to avoid people and ideas that make them uncomfortable? Perhaps, more importantly, do safe spaces become places where students reinforce each other’s prejudices.  Consider the report in the Washington Post where a Jewish student of color attended one campus conference that purported to be a “safe space” and found herself confronted with holocaust denial and anti-Semitism that sent her running from the event in tears.

Frankly, I can’t see how creating segregated spaces promotes tolerance and acceptance among students. Instead, I can see it working reinforce the divisions that separate individuals and groups.  If this is the case, I have serious doubt that the students will emerge from these schools with the skills needed to survive in the increasingly pluralistic world they will soon graduate into.








A Dog’s Love – The Price of Admission

Nine years is a long time, unless you’re looking back in hope of recapturing lost moments, then it can seem like only an instant.  Yesterday, nine years after I first met him sitting contentedly in a cage belonging to a dog rescue organization, my dog, Matzah. died.  I’m left in a house that suddenly seems too quiet, missing my best friend as I look at the empty spot on the floor where he would sit happily while I spent hours writing blog posts and legal briefs.  I keep asking myself where the time went and how did all those years pass so quickly?

Rescue dog Mazel and my dog Princess 1998
Rescue dog Mazel and my dog Princess 1998

I’m no novice when it comes to dogs.  I got my first dog, a German Shepard with one ear that flopped down and one that stood up straight, named Queenie, for my twelfth birthday.  Queenie saw me through my adolescence, my first job, and into my first marriage.  She stayed with my mother when I left home, but she will always be my first canine love.  My next dog, Princess, a yellow Labrador retriever who swam like a fish, came to me as a very young puppy. She and I were together through a divorce that left us living together in a rented bedroom. Together we survived nursing school, a nursing career, a short-lived tech career, and the start of law school. Then came Hershey, a chocolate lab with bad hips, skin allergies, and a tendency to lock himself in the bathroom and start howling in the middle of the night.  He survived because of an affectionate personality that made all his other defects and short-comings forgivable.

For the past nine years there was Matzah, a Rottweiler mix, with an extra toe on each foot, and the most laid back disposition of any dog I’ve ever known.  Matzah was up for just about anything: a walk in the woods, a car ride, a trip to visit relatives, a day spent hanging out at the house. His only limit seemed to be riding in a kayak (we tried, and he demonstrated his displeasure by jumping overboard, swimming to shore, and seating himself next to the car while he waited for us to paddle back).

There have been others along the way. Rescue dogs who found their way into our home and into our hearts. Our house, like our hearts, has the scars of many dogs.  There are dark spots on the floor where a dog once peed, scratches on door frames, smudge marks on windows, and never ending dog fur flowing across the floor no matter how diligently we sweep.  For years, dogs have outnumbered the people in our house.  Each has been special, giving us far more than the food, shelter, and occasional belly scratch they receive from us.  They forgive us our grumpy moods, late feedings, and bringing cats into the house.  When we go away for days and weeks at a time they celebrate our returns as if we were heroes returning from a lunar landing.

Yesterday, I held my precious Matzah as the veterinarian gave him the injections that would end his suffering and wondered how many times I can sign up for the heartbreak that is almost inevitable when you give your heart to a dog?  After all, I’ve been at this long enough to know how it’s most likely going to end.  Yet, I know that when the time is right, there will be another, and possibly another after that, depending upon my own mortality.  I know that while heartbreak is the price of admission to a dog’s life, the experience of receiving a dog’s love and trust is one of life’s greatest gifts.  The time will pass quickly, much more quickly than we like, but that is simply the way of things.  Sharing your life with a dog is making the best of that time no matter how fleeting. It is well worth the cost of admission.

A special note of thanks to Matzah’s vertinarian, Dr. Pridgeon, at Westwood Animal Hospital.  Dr. Pridgeon provided excellent care for Matzah since the day we adopted him.  

Leaving Utopia

Awaking to our final day of our two week stay at the utopian community of the Chautauqua Institution, I am confronted by the now familiar news of seemingly unnecessary killing of black men by law enforcement officers, of protests, and now of the killing of police officers in protest to those killings.  As much as I love the peace and tranquility of Chautauqua, I am eager to get back to the non-utopian world of my life in the larger outside world, despite the conflict and dangers that  lurk there.

As I think about the conflict that is erupting on our streets, I can’t help but feel that the legal system I work in has contributed to this problem by failing time and time again to deliver justice to the most vulnerable in our society.  Too many times our courts have turned away empty handed those who have been harmed at the hands of law enforcement, while making excuses and carving out legal exceptions to the law.  Too many times our elected lawmakers have weakened our justice system by choosing to build prisons rather than invest in struggling communities ,and have responded to problems such as addiction by mandating some of the world’s longest prison terms rather than offering treatment.  Too many times those in power, or those seeking office, have cultivated the seeds of hatred and bigotry by invoking images of fear and prejudice in order to distract attention away from failed public policy and their own lack of vision or direction.

Our leaders need to deliver something greater than sanctimonious speeches and calls for civility while they continue to turn away empty handed the vulnerable who have been harmed.  Within the legal system, our prosecutors and judges need to recognize that justice has to mean more than retribution, and that real harm can occur in the absence of monetary loss.

I don’t have all the answers, nor do I know all the questions that need to be asked.  What I do know is that there remains much good in our country and that we have the potential to be better tomorrow than we are today.  Our concept of justice can become richer than it is today, but for that to happen we need to let go of our fear of each other, stop vilifying those who live on the margins, and seek kinship with our neighbors wherever and whenever possible.

Stanford – Part Two: FSU Pike case and What the Victims Tell Us About Justice

When I wrote the post on the Stanford rape case last week I finished the posting with a feeling of incompleteness.  For some reason I feel compelled to write more about this topic, to finish the thought, story, or whatever it is that I’m actually writing.

I first came to live in Tallahassee in January 1988.  Shortly after I arrived, the local newspapers exploded with the case of young woman, who while intoxicated, was sexually assaulted by 3 members of the Pi Kappa Alpha fraternity.  There are many parallels to the Stanford case.  The participants were all students, all intoxicated, and the defendants all claimed that the victim consented.  I see the FSU case as more egregious because it involved multiple assailants and the fact that when the sexual activity was finished the defendants dumped the unconscious young woman in the hall of another fraternity house and then called the police in an attempt to frame the other rival fraternity. Also, it appears that the other fraternity brothers helped cover up the evidence and came to court in mass to support the accused.  The case was in the headlines for the next several years and the Pi Kappa Alpha fraternity was kicked-off the campus for many years.

In the FSU case, known as the Pike case, the defendants all entered into negotiated plea agreements that spared them criminal convictions and prison time. One defendant was ultimately convicted and sent to prison following his violation of probation by failing to check-in with his probation officer. In the decades that have followed, it does not appear that any of the young men involved ever committed another sexual assault or were involved other criminal activity despite what we would now consider a very lenient sentence.

In researching the FSU case I came across an article about the victim in that case, and I was really touched by the young woman’s words because they echoed what the victim in the Stanford case said in her letter to the court. The young woman from the FSU case has really struggled in the years since the night of her attack.  According to the article there have been PTSD issues and trips to alcohol rehab. How much of this is from her rape experience isn’t clear, but what is clear is that her experience with our legal system did little to help her with healing. Indeed, what she describes in the article about the judicial process came across to me as a second victimization.  The most private areas of her life were invaded and exposed to the public, her integrity and honesty were questioned, and she was forced to relive an experience that she had great difficulty recalling and was traumatic for her.  Sadly, she never got the one thing that she feels would have helped her the most – an apology from the young men.  My reading of the article left me with the impression that the apology and the attendant reaffirmation of her dignity is much more important to her than the degree of retribution imposed by the courts.

When I read the letter by the Stanford victim I saw this sentiment echoed.  She felt victimized by the process, angry at the defense attorney, and disappointed at the lack of apology from the young man.

I have been the attorney representing the accused in sexual battery cases and I have been that lawyer who has had to cross examine the alleged victim of a sexual assault. I get how they feel. It’s one of the reasons I didn’t pursue a career in criminal defense law.  I know that my cross examinations can be brutal, especially in a case where the only evidence is a dispute of consent. Many of the alleged victims whom I have had to cross examine were children whose testimony is easily influenced and whose memories are often very unreliable.  I also know that my cross examinations have revealed false claims and saved innocent young men from the stigma of a conviction.

Most sexual assault cases do not involve strangers, but people who are relatives or friends.  Many involve egregious violations of trust that destroy relationships and families.  It often seemed to me that what our legal system treats as criminal activity is really something beyond that for the parties involved.  Whether I won or lost my clients’ cases, I never felt that our system did much other than leave the people involved even more hurt and angry.  I know that those cases, more than any others I’ve worked on in my career, took a toll on me and left me feeling very conflicted about my participation.

In a criminal prosecution the accused and the accuser have almost no opportunity for reconciliation.  One of the first orders issued by a judge when considering bail for a defendant is to order no contact with the victim.  If a conviction occurs, a court will almost always order that a defendant have no contact with the victim.  There is no opportunity, even if desired by the accuser, for the parties to ever have a conversation about what a happened and to find reconciliation. Courts impose these restrictions in an effort to protect the accuser.  Granted, these days a victim can address the court during sentencing, but as evidenced by the Stanford victim’s statement, that doesn’t provide the conversation that she needs to happen.

I want to suggest that, perhaps, we need to consider whether or not victims will be better served in these cases if we were to offer some sort of a non-judicial option for resolving these cases.  What if we offer the accuser a choice in how their cases would be handled and a greater voice in the goals of the case?  What if we offer resources to the victims that will help them over the long-term to rebuild and improve their lives? In both the Stanford and FSU cases, both women spoke of their desire that their cases create change in their assailants.  What if, instead of retribution, the goal of these cases wasn’t simply to determine guilt and punishment, but to make a meaningful positive change in the lives of both the accused and the accuser?

In closing, I want to say that I have tried my best to write with sensitivity and compassion about this subject while also offering a different perspective.  I have also tried to stay true to the legal scholar’s obligation to question and examine how our system works and how it can be improved. Our current approach has failed for too long and isn’t creating the sense of peace and resolution needed by those involved.