Thursday, September 29, 2016

Legally Bald

Legally Blonde is a fun movie and the stage musical version is a hoot. I’ve been in enough legal tangles, however, to know that being in litigation is not all fun and games. As an entrepreneur I had to utilize the system more time than I would have preferred to have contracts fulfilled. Put plainly: I’ve sued a bunch of people. I’ve been sued. I’ve won most but I’ve lost as well. Regardless of the outcome the process is not for the weary. The American civil legal system is something to behold: it’s big, it’s cumbersome, it’s lengthy and it embodies the fundamental philosophy that we’re all equal. A good friend who’s an attorney always reminds me: “It’s America. You can sue anybody for anything.” Thanks to Congress that’s more true than ever before.

Congress did something extraordinary this year. It passed legislation during one of the most unproductive sessions in American history. And it did so unanimously. Victims families of 9/11 championed the bill that gives them permission to sue the government of Saudi Arabia for damages for the terrorist attacks their citizen perpetrated on 9/11.


America’s civil legal system allows for financial penalties to be assessed even when the criminal side of the system can’t assess blame. OJ Simpson is a high profile example. He was found not-guilty of the murders of Nicole Simpson and Ron Goldman criminally, but he was held responsible on the civil side and the victim’s families were awarded $33.5 million in damages (of which less than $500K was ever paid).



The victims of 9/11 want to do the same thing. They say: all of the hijackers were Saudi nationals, so the Saudi government should pay damages. The attacks of September 11th were horrible. Terrible. Inexcusable. Nothing written here negates that. But perhaps there’s some context. Victim’s families have been compensated. From the September 11th Victim Compensation Fund overseen by Ken Feinberg “$7 billion was awarded to 97% of the families; the average payout was $1.8 million.” The similarly named but separate September 11th Fund distributed $538 million. World Trade Center Captive Insurance Company spent an additional $1 billion. Nearly $9 billion has been paid in direct compensation. No amount of money can ever replace a lost loved one. Victims of 9/11, however, have been given a lot more than other victims of many other crimes have.


What happens when the Afghan’s, the Pakistanis, the Iraqi’s all decide that the U.S. drones that have killed thousands and thousands of civilians?  American citizens, legislators and soldiers will all be open to being sued.

The law the Congress passed President Obama vetoed because it repealed the long-standing legal principal of sovereign immunity. On September 28, 2016 Congress by huge majorities overrode the veto.  The measure amends the 1974 law that “granted other countries broad immunity from American lawsuits.” Passage occurred without debate, no committee hearings. (That’s the Congress we know and love.) There wasn’t even public outcry – just a small group of September 11th families. We can all understand their pain but putting the U.S. and its citizens at legal culpability for its many acts and intrusions around the world is too high a price. 

If we’re going to be suing let’s have a class action lawsuit again the Republicans in the Senate for abandoning their constitutionally mandated responsibility for refusing to advise and consent on a Supreme Court nominee.

If we’re going to be suing let’s go after the DNC for rigging the primary system against Bernie or go after the RNC for rigging the system for Donald.  

If we’re going to be suing let’s go after the police who are killing unarmed, innocent civilians.

Congress’ override of President Obama’s veto lays America bare and open for like lawsuits. We’re now legally bald.


Thursday, September 22, 2016

Debates posturing

I remember the genteel Presidential debates of the 1980’s and 90’s where the most drama was when a candidate came up with a snappy response that captured the zeitgeist of the moment. “There you go again…” said Ronald Reagan to President Carter, effectively nullifying the issues that his opponent kept bringing up while framing an opinion and judgement. Reagan also used humor in 1984 when he said: “I will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent's youth and inexperience," referring to Vice President Mondale. The gipper was brilliant at negating an issue without being unpleasant. The Debate Commission has made the 2016 upcoming sessions irrelevant, however.

Wikipedia informs: “The Commission on Presidential Debates (CPD) sponsors and produces debates for the United States presidential and vice presidential candidates and undertakes research and educational activities relating to the debates. The organization, which is a nonprofit corporation controlled by the Democratic and Republican parties, has run each of the presidential debates held since 1988.”

The organization is equally controlled by longstanding prominent members of the established parties.  It’s partisan by its nature and its makeup. “In 2008, the Center for Public Integrity labeled the CPD a ‘secretive tax-exempt organization.’ CPI analyzed the 2004 financials of the CPD, and found that 93 percent of the contributions to the non-profit CPD came from just six donors, the names of all of which were blacked out on the donor list provided to the CPI.” It hasn’t improved with time.


The Presidential debates are when most voters focus on the candidates and the issues. It is absolutely appropriate that there be an established criteria for inclusion. You wouldn’t want 16 people on the stage (the way the GOP did during their primaries). The CPD in 2000 established a 15% threshold in the polls as the entry point. Seems fair. But it isn’t.

Candidates who do not receive major media coverage will find it very difficult to hit the legitimacy of 15%. More than that – their name should be on the polls that are used. Polls themselves would need to include every candidate. The Libertarian candidate in 2016, Gov. Gary Johnson who is on all 50 state ballots in November and has raised millions of dollars – was not listed on many of the polls or was a secondary question. The final five polls the CPD chose to use an average of did include Johnson, but hadn’t included him all along. CNN’s poll excluded all “millennials” – described by them as voters under 35. Not so fair.



According to Gallup a majority of voters identify not as Republican or Democrat, but as Independent. A majority of the polls used by the CPD over sampled Republicans and Democrats and under sampled Independents. To adequately poll requires time, resources and a balance that most organizations don’t have.

Beyond just popularity six major newspapers and dozens of elected leaders called for Johnson’s inclusion. It was not to be.

What would happen if a third-party candidate was on in the debates? We need to look no further back than 1992. Ross Perot was polling at 8%. Then President Bush (41) was assailing Bill Clinton about his lack of patriotism. The media was agog about the idea of flag burnings and the elder Bush was proclaiming what he’d do as leader of the free world to protect it.  The Democratic nominee went from talk show to talk show talking about his underwear preferences and playing saxophone. 

At the first debate Perot focused the nation on the issues he cared about: debt, deficit and the economy. The next six weeks the campaign changed to become a substantive comparison of three approaches to the economic challenges of the times. Perot’s poll numbers soared into the 30’s and then settled at about 19% for the election itself. The debates were good for discourse, good for policy and ultimately good for democracy as the President who was elected went by the mantra: “it’s the economy stupid.”

What is the CPD afraid of? Their mission states that they were founded to: “provide the best possible information to viewers and listeners” around Presidential elections. Clearly it’s not about fairness and its not about furthering the substantive discussion of issues facing the electorate.

Gary Johnson is a two-term Governor. He served as a Republican in a Democratic state. He was re-elected overwhelmingly. He previously ran for President in 2012 and was on 48 of the 50 state ballots. He and his running mate Bill Weld (another two-term Governor who as a Republican was re-elected in a Democratic state) have raised millions of dollars. The Libertarian Party has been an established political party for 45 years. Thousands of candidates stand for offices at every level of government and there are hundreds of elected officials.


Voters deserve to hear from Johnson. Has he run a perfect campaign? No. Has he misstated some things, forgotten some things, stumbled over some things? Yup. He’s owned every one of those mistakes (unlike other candidates). The bottom line is that he’s a serious candidate and the views that he represents will not be on the stage. That’s bad for America and bad for the world.


All is not lost. In today’s social media and high tech world it’s possible to remedy the CDP’s decision. Put Johnson in a soundproof studio – have him hear the questions and responses and then give him the same time to respond. The networks should then edit in his response for viewers. The debates are important - and not just for posturing.


Thursday, September 15, 2016

Rigged Democracy

September 17th is Constitution and Citizenship Day. Thanks to a 2004 law every educational institution in the America must provide some programming on the history of the day. Having been educated long before the law went into effect, my schools didn’t have a focus on the day that the Constitution was created in 1787, some 11 years the Declaration of Independence. It would take another 11 years to fully ratify it. The Constitution replaced the Articles of the Confederation. It’s a pretty nifty piece of thinking and writing given that it still governs the United States 229 years later. As we move into the final heat of the 2016 Presidential election, the role of the constitution is more important than ever.

Article II clearly states the qualifications for the office: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

That’s it. A candidate for the Presidency doesn’t have to be an expert in anything. He/she need not to have served in public office or done anything other than being born a citizen, be 35 years old and lived in the U.S. for 14 years of those years. That’s it.

The major party candidates seem to have made the 2016 race about why their opponent is unqualified for the office rather than what they stand for. It’s a strategy that has made cable television and internet publishers happy, nearly ruined the value of social media and it’s changed no minds of campaign loyalists.

This isn’t another lament of politics 2016 style. What’s troublesome is the recent narratives from each camp. In August during a particularly difficult time for the GOP standard bearer he announced that if he loses it’s because the system is rigged. “If the election is rigged, I would not be surprised,” he told The Washington Post in an interview.

Secretary Clinton says in speeches reported by The Washington Post that Trump is “'temperamentally unfit’ to lead the most powerful nation in the world. … Donald Trump’s ideas aren’t just different — they are dangerously incoherent. They’re not really ideas, just a series of bizarre rants, personal feuds and outright lies.” President Obama, major GOP leaders and columnists all over have echoed the narrative that Trump can’t serve in the position he seeks.

I’ve previously written that Clinton’s attempt to nullify Trump with the same tactics that 16 other GOP hopefuls tried unsuccessfully to do is a risk. I’ve previously written that Donald Trump’s elementary school tactics are an embarrassment to the political process and to the country. I think all of this is bad form, bad politics and bad for the nation. But it’s Democracy and we’ve got what we’ve got until November 8, 2016. America will survive this election cycle.

What happens in January 2017? This will continue to be a divided country. With the candidates indicating that Armageddon is around the corner if their opponent is elected – there is little hope that anything could change. Being divided is tough enough – but not having faith in the electoral system or stating that the candidate is unfit is potentially devastating. It undermines the basic tenet that make democracy possible: faith in The System.


In 2000 when the conservative Supreme Court justices ruled for George W. Bush – then Vice President Al Gore fully endorsed him and asked his followers to support the new President. Gore didn’t say the system was unfair – though he could have. He didn’t say the decision was hypocritical – though he could have. He put the nation first and his concession speech was probably his best speech ever.  He said: “Our disappointment must be overcome by our love of country. … We put country before party.”


We celebrate the 229th anniversary of the writing of the Constitution. It is what makes America great. Let’s hope that Mr. Trump and Mrs. Clinton put country before party to keep democracy alive, vibrant and relevant to these Divided States.

Thursday, September 8, 2016

My 9-11

I’m an early riser. I get to the gym somewhere between 4:30am and 5:00 for my exercise routine. I’ve been doing it for a long time so it’s just part of my day. Fifteen years ago I lived in Los Angeles and I had finished my workout and went back to my house – the one I had bought just a few months before. My usual practice was to jump in the shower, make breakfast and start client work. It would not be an ordinary day.

It became clear to many that “The United States is under attack” after the second plane crashed into the World Trade Center. I don’t remember it being that clear – there was confusion as to whether it was a second plane or whether reports from the first plane were just getting through to authorities since they were so close together. After the plane crashed into the Pentagon the reporting indicated that more planes were headed to other seats of government – the White House and Congress. A full scale panic hit the airways.

I was living thousands of miles from the attacks. I had family in New York and outside of D.C.. Systems were down and it wasn’t easy to get information. By mid-afternoon California time, however, the daisy-chain of communications passed word that we were the fortunate – we didn’t have immediate family in harms way. In the days ahead I would learn of classmates and acquaintances who did perish – and so many friends who lost people close to them.


That night a production of a one-man play that I had produced was scheduled to go on at a local college. “The Versus of Ogden Nash” told the life story of the celebrated American poet and writer through his own words, letters and poems. It was performed by the plays author Peter Massey. We had received a number of wonderful reviews, had a sold out run in LA and at that time were now doing a touring version of the show. The immediate issue came up: Do we cancel?

  • The school we contracted with wanted the show to go on but gave us the option of canceling. We just had to decide quickly.
  • The students on campus had nothing to do as most other events were suspended.
  • The city of Los Angeles and the surrounding county put out suggestions that people should not travel unless absolutely necessary, but there was no outright ban.

We opted to do the show. Peter came out before the show started to speak with the audience. He said: “Thank you for being here. Thank you for letting us be here on this horrible day in our history. Why are we doing the show? This is a lighthearted look at Americana – and we are not inclined to laugh today. That’s ok. Live theatre allows us to feel and we want you to feel.” He went on to eloquently extol the necessity of live theatre in the face of terror.

The show hit its mark and nearly a quarter of the audience stayed to talk among themselves and with our team afterwards. We connected lives at a critical time and provided a way for the community to engage with each other. It gave me hope.
That optimism didn’t last.  

The surveillance state emerged in the last decade and a half to such prominence that what was once science fiction by George Orwell has become reality. Cameras capture American’s nearly every move. Our digital footprint from grocery purchases to paying tolls are all captured.

The concept of “innocent until proven guilty” is an anachronism as guilt is now assessed and then defendants must prove their innocence. There’s even an entire court system that is secret that is now in place to handle terrorist related charges. Defendants are not accorded attorneys and a minute number of warrants are denied. It’s largely classified and secret.

The country has been on a war footing for fifteen years, spending trillions of dollars even though Congress never technically authorized War. President Obama in the past 7 and a half years has bombed 40 countries. He continues to maintain a personal kill list – deciding who lives or dies – while having instituted a drone program that has assassinated thousands and had a far ranging impact on civilians.

The TSA was formed shortly after 9/11 to better secure the aviation system. By their own metrics they have failed at a rate of 96% of identifying outlawed items. Today Americans virtually undress and agree to have an x-ray type image taken of their body while rude workers paw through their belongings just to have the privilege of going from point a to point b. Traveling you’re assumed to be a threat.

The melting pot that makes America strong, vibrant and interesting is dissipating.  Immigration changes from Bush 43 through Obama have now resulted in record deportations.

America is a divided country. The anger and differences between political parties is as virulent as I’ve seen and experienced in my lifetime.

It didn’t have to be this way. And, in fact, it wasn’t. For the first weeks to a month after the attacks President Bush, Congress, religious leaders, secular leaders alike all calmed the nation. Retaliation was not the primary conversation. Healing and understanding and building bridges between our differences was. We spent time and energy being with each other and not fighting. The same thing we experienced in a microcosm after our performance was becoming part of the culture.


Then the wars started, the economy crashed and polarization has become the norm. As we mark fifteen years since the attacks that took 2,977 I mourn not only their passing, but the loss of the America we could have been.

Thursday, September 1, 2016

Riding Danger

The old expression “it’s like riding a bike” refers to a task or project that once learned always stays with you. If you get the balance of centering your gravity on two wheels while pedaling and not falling down then no matter how long it’s been the idea is that you revert to that balance whenever you get back on a bike. I haven’t tested the concept. The last time I was on a bike that wasn’t stationary in a gym hearkens back to the early 1990’s. Since then no matter what city I’ve lived in I have become the one bicyclists love to hate. At the risk of becoming a social pariah among many – I hereby declare my wish that bikes get banned from the roadway and remain for recreational use.

I live in Boston. Founded in 1630 it’s one of the oldest cities in the United States. Many of the sidewalks are laid with brick – and often when they become too unsteady to walk on the brick is replaced…no concrete or asphalt here. The streets are narrow. I traded in my Honda Accord when I arrived for the more compact Civic just to be able to navigate. I’d probably be better served in a Fit but I doubt I’d fit in one of them. My point is that this city is a city of narrow streets, unstable walkways and a pedestrian class who see traffic signals as suggestions. It’s no place for bikes.

Cyclists have been killed and there are many accidents. According to the Boston Globe’s 2015 report 13 people have been killed while riding in the past five years. “Figures kept by Boston Emergency Medical Services show an average of about 520 fatal and nonfatal [bicycle] crashes annually in Boston from 2010 through 2014.”


Inevitably the blame game begins. Cyclists who are required to follow the same rules of the road as motorized vehicles often don’t. They weave and bob through traffic. They complain that drivers don’t pay attention, encroach on the bike lanes afforded to them and when parking drivers don’t look before opening their doors. As with most things there’s plenty of blame to go around. (There's also the issues that cyclists don't pay for the roads while drivers do.)



Jeff Jacoby a columnist for the Boston Globe wrote last year wrote: “Vehicles weigh thousands of pounds, operate at 300-plus horsepower, and are indispensable to the economic and social well-being of virtually every American community. Bicycles can be an enjoyable, even exhilarating, way to get around. So can horses, skis, and roller skates. Adding any of them to the flow of motorized traffic on roads that already tend to be too clogged, however, is irresponsible and dangerous.”


He continued: “According to the latest Census Bureau data, more than 122 million people commute each day by car, truck, or van. Fewer than 900,000 bike to work. Do the math: For every cyclist pedaling to or from work, there are 136 drivers. Add the passengers who commute by bus and streetcar, and that ratio is even more lopsided. When it comes to urban transportation, bike riders play a trifling role — literally less than a rounding error. Far more people walk to work.”





It’s not unique to Boston. When I was in Los Angeles this summer there was an ever increasing number of cyclists on the streets. California passed a law in 2014 requiring motorists to give bikes three feet of space.

South of LA in Long Beach they have taken a different approach. Bicycle lanes are physically separate from the road that cars used. The lanes are painted in a separate color and there are concrete barriers preventing the two from mixing. In the short time I was there it seemed to work and make sense. Old cities like Boston just don’t have the physical space to do that. Newer cities like Los Angeles are already overcrowded with vehicle traffic.


We may never forget the intuitiveness of riding a bike. But we should remember that city roads are for cars.