21 June 2017

Vivid Facts Win Cases

In a recent U.S. Supreme Court decision over whether the Patent and Trademark Office should have the right to ban offensive trademarks, one of the most powerful arguments cited repeatedly in the Court's opinion by Justice Alito was an appendix to an amicus brief from the Washington Redskins which listed myriad really offensive trademarks that the Patent and Trademark Office had already held could be granted registration.

These vivid facts, by example, which the Court was left to its own devices to weigh and interpret, made it obvious that any application of the offensiveness standard was arbitrary. This list also strengthened the case that it would make no sense to adopt the government's argument that registration of a trademark rendered that trademark government speech which was entitled to greater regulation than other kinds of speech.

This brief is a great illustration of an important concept in persuasive legal writing. Often, vivid facts can be as powerful in which side wins or loses a case as legal precedents and statutory interpretation arguments. Certainly, vivid facts don't always work. But, even when they don't, they will often, at least, lead to a heartfelt dissent supporting your argument because they won someone on the bench over to your client's side of the argument.

A U.S. Demography Recap

As of 2008
A summary of the facts derived from census data and vital statistics reports in the U.S. as of 2008 lays out the facts demonstrating an inversion of lifetime fertility trends with the affluent having more kids rather than fewer.  
For example, African-American women have had fewer lifetime births per woman than white women in the U.S. since 2002 (although African-American women tend to have their children at a significantly younger age).
Fewer families whose incomes fall in the bottom 10% of the population are having three or more children: 33.7% of such families had at least three kids in 2006, down from 39.8% in 1990, according to Census surveys. 
By contrast, the wealthiest families are having more children. In 2004, an estimated 41.3% of the wealthiest families had at least three children, much higher than in 1995, when an estimated 29.3% of families earning in the highest income bracket (that year, $300,000-plus) had three or more kids. . . .
By age, fertility is up dramatically for women aged 30 and up, and down significantly for women under 30, since 1990. The teen fertility rate has dropped by about 33%, it has dropped by about 12% for women in their early 20s, it has dropped by about 4% for women in the late 20s, it is up by more than 15% for women in their early 30s, it is up by about 50% for women in their late 30s, it is up by about 60% for women in their early 40s and it has roughly tripled for women in their late 40s. 
Fertility rates have dropped only slightly for Cuban-American, non-Hispanic white, and Asian-American women, but have dropped greatly for other Hispanic women, black women and Native American women. 
Multiple births are up almost 50% since 1990, with a disproportionate share of that growth among triplet and higher order births, and among non-Hispanic whites, both of which indicate an impact from fertility treatments. 
In terms of lifetime births per woman the trends are as follows (by ethnicity) with 2013 date from Tables 13 and 14 here.

1980 - 1.8
1990 - 2.0
2000 - 2.1
2004 - 2.1
2013 - 1.9

1980 - 2.2
1990 - 2.5
2000 - 2.1
2004 - 2.0
2013 - 1.9

American Indian, Eskimo, Aleut:
1980 - 2.2
1990 - 2.2
2000 - 1.8
2004 - 1.7
2013 - 1.3

Asian or Pacific Islander:
1980 - 2.0
1990 - 2.0
2000 - 1.9
2004 - 1.9
2013 - 1.7

1980 - NA
1990 - 3.0
2000 - 2.7
2004 - 2.9
2013 - 2.1
Since 2002, black fertility has been lower than white fertility, reserving a long term trend. 
As of 2006, the higher a woman's family income the more likely it is that she is childless, so the trend towards high income families with large families is offset matched by the large number of high income families that are childless. Of the poorest women 39.4% are childless, of the most affluent (75,000+ of family income) 47.9% are childless.
As of 2008:
Overall birth rates in the U.S. hit a record low in 2002, and have rebounded only slightly since then. The recent peak was in 1990, which had the highest birthrate for the period from 1972 to the present. The birth rate declined by roughly a third from 1960 to 1972, presumably as a result of improved contraception, continued to decline until 1976, rebounded slightly until 1990, declined slowly until 2002, and then has slowly rebounded again. Part of this change is also an echo of the baby boomers. 
Infant mortality has declined almost every year for decades, dropping about 75% since 1960 and more than 25% since 1990. 
Divorce rates have declined steadily since 1981 to reach the lowest level since 1970 in 2006, after rising from 1960 or earlier until then. But most or all of the decline in divorce rates since 1981 is attributable to a declining marriage rate over the same time period, which is at the lowest level since well before 1960.
Since 2008 - Many fewer teen births especially for non-whites and diverging marriage trends
Since 2008, the trend has continued. I’ve written blog posts touting all time lows for U.S. teen births in most of the years since then.
For example, there were about 1,030 children born to mothers aged 15 to 17 in New Jersey in 2014, a rate of 5.8 per 1,000 girls aged 15-17 down 15% from 2013 and down 78% from a peak in 1991.
Birth rates are down a whopping 51 percent among Hispanics age 15 to 19 since 2006, and down 44 percent among black teens, according to a survey of census data by the Centers for Disease Control and Prevention. Teen pregnancy rates among whites also fell by a third.”
The previous year, I noted that teen births had declined at an annual rate of 7% per year from 2007 through 2013. 
This plays out against a background of dramatic divides between those with more and less education in the timing of when they have children and their marital status. The average age of a woman when she first marries (currently 27) had grown higher than the average age of a woman having her first child in 1989. The average high school educated woman has a first child two years before marrying while an average college educated woman has a first child two years after marrying. 
“73 percent of black children are born outside marriage, compared with 53 percent of Latinos and 29 percent of whites. And educational differences are growing. About 92 percent of college-educated women are married when they give birth, compared with 62 percent of women with some post-secondary schooling and 43 percent of women with a high school diploma or less” 
The likelihood of divorce is also extremely different between women with college degrees and women with only high school educations:
“the divorce rate among college-educated women has plummeted. Of those who first tied the knot between 1975 and 1979, 29% were divorced within ten years. Among those who first married between 1990 and 1994, only 16.5% were [divorced within ten years].
At the bottom of the education scale, the picture is reversed. Among high-school dropouts, the divorce rate rose from 38% for those who first married in 1975-79 to 46% for those who first married in 1990-94. Among those with a high school diploma but no college, it rose from 35% to 38%.”

20 June 2017

Happy Summer Solstice!

It is officially summer.

Moderate Brain Damage Common But Not Universal In Serial Killers

Most serial killers have brain damage, but several prominent ones (e.g. Ted Bundy, Jeffrey Dahmer, and John Grady) did not. Those that do have brain damage do not have the most severe cases of brain damage, probably because that would critically impair their ability to plan and execute complex behavior.

We know that traumatic brain injury (TBI) is extremely common in the most difficult inmates. My guess is that those serial killers who do not show signs of brain damage are individuals who were born psychopaths, but who have escaped brain damage from trauma.