Colorado is one of six states that receive a majority of its tax revenues (52.7%) from personal income taxes, and these are down 25.4% in the first quarter of 2009, from the first quarter a year ago. The state also has no meaningful ability to borrow money without taxpayer approval, and other tax revenues are also down.
The need for social services, however, is up, and the state is state constitutionally prohibited from cutting K-12 education funding. Steep higher education cuts seem likely.
It isn't obvious to me that it is even theoretically possible to cut this Gordian knot within the constraints of actual revenues and the provisions of Colorado's state constitution. At the very least, the state is en route to a dire fiscal crisis.
18 June 2009
Law Quotes Of The Day
A criminal trial is a search for the truth, but the defense lawyer isn't a member of the search party.
-- Protagonist Joel Deveraux, "A Cure For The Night" (2009) by Justin Peacock
A warranty is "a freak hybrid born of the illicit intercourse of tort and contract."
-- W. Prosser, "The Fall of the Citadel (Strict Liability to the Consumer)," 50 Minn. L. Rev. 791 (1966)
Civil Unions Popular With French Straight Couples
French civil unions legislation was enacted to give gay couples many benefits of a status similar to marriage, but the French civil unions were available to both same sex and opposite sex couples and are not a marriage in all but name. They have been popular with opposite sex couples (hat tip to the Will, Trust and Estates Profs blog), for both sustantive and symbolic reasons.
One wonders if the fact that the dominant in France Roman Catholic Church does not permit divorce and imposes clerical sanctions upon those who do end marriages may lead to a preference for civil unions.
A "yours is yours," "mine is mine," property regime with greatly reduced alimony rights can be created in most U.S. states within a marriage with a pre-nup or post-nup, and indeed, is probably the most common type of marital agreement.
But, in practice, it is uncommon for married couples to enter into such agreements unless one or both individuals is much more affluent or likely to be soon, than the other member of the couple, or if one or both members of the couple have at least modest wealth and one or both of the spouses with assets have children from a prior relationship. Even then, marital agreements are probably not a majority practice (although there is no centralized registry of marital agreements to provide exact figures).
One can't change the grounds for divorce in any U.S. state, but in the vast majority of U.S. states (New York State is the principal exception) "no fault" divorce allows either member of a marriage couple to dissolve their marriage more or less at will, and if push comes to shove, a member of a couple who is unable to get divorced in the couple's current state could move to another state and obtain a legally valid divorce there.
In some ways, civil unions in France are the opposite of the covenant marriage concept in the U.S. Instead of creating legal relationships harder to end than conventional marriage, they create easier to terminate relationships. But, PACS are much more popular than covenant marriages.
Thus, about a third of combined PACS and marriages in France are PACS.
In contrast, covenant marriage has been not very popular where it exists in the United States, accounting for just 1-3% of all marriages in the three U.S. states (all in the South) where it exists.
[T]he popularity of the PACS among heterosexual couples is largely explained by the growth of free unions, in which unmarried couples live together. Setting up such households has become a declaration of independence from religion and crusty social traditions -- and so common that more than half the babies in France, including those of PACSed couples, are born out of wedlock.
Moreover, the social stigma once associated with having children outside marriage has largely disappeared. Justice Minister Rachida Dati gave birth to a daughter last month, attracting attention not because she was unmarried but because she refused to reveal who the father was. Ségolène Royal, the unsuccessful Socialist Party presidential candidate in 2007, was an unmarried mother of four.
The relaxation of marriage-related social strictures marks a significant departure from long-established French family traditions, particularly among political figures. As late as the 1980s, then-President François Mitterrand maintained a tight silence -- largely respected by the news media -- about the daughter he had fathered with a longtime mistress.
But even though their arrangements are now socially accepted, unmarried couples living together have found they face financial and administrative disadvantages compared with their married friends. Joint income tax returns can lower the annual bill considerably. Inheritance laws make transferring property to someone who is not a legal spouse more expensive and more difficult. Dealing with the French administration can be an ordeal without legal documents attesting to a place of residence and a social status. . . .
But PACS unions are also seen as more appealing than marriage because they can be dissolved without costly divorce procedures. If one or both of the partners declares in writing to the court that he or she wants out, the PACS is ended, with neither partner having claim to the other's property or to alimony. . . .
[G]overnment statistics show, one-sixth of PACSed couples that end their unions do so because they want to get married.
One wonders if the fact that the dominant in France Roman Catholic Church does not permit divorce and imposes clerical sanctions upon those who do end marriages may lead to a preference for civil unions.
A "yours is yours," "mine is mine," property regime with greatly reduced alimony rights can be created in most U.S. states within a marriage with a pre-nup or post-nup, and indeed, is probably the most common type of marital agreement.
But, in practice, it is uncommon for married couples to enter into such agreements unless one or both individuals is much more affluent or likely to be soon, than the other member of the couple, or if one or both members of the couple have at least modest wealth and one or both of the spouses with assets have children from a prior relationship. Even then, marital agreements are probably not a majority practice (although there is no centralized registry of marital agreements to provide exact figures).
One can't change the grounds for divorce in any U.S. state, but in the vast majority of U.S. states (New York State is the principal exception) "no fault" divorce allows either member of a marriage couple to dissolve their marriage more or less at will, and if push comes to shove, a member of a couple who is unable to get divorced in the couple's current state could move to another state and obtain a legally valid divorce there.
In some ways, civil unions in France are the opposite of the covenant marriage concept in the U.S. Instead of creating legal relationships harder to end than conventional marriage, they create easier to terminate relationships. But, PACS are much more popular than covenant marriages.
The number of PACS celebrated in France, both gay and heterosexual unions, has grown from 6,000 in its first year of operation in 1999 to more than 140,000 in 2008, according to official statistics. For every two marriages in France, a PACS is celebrated, the statistics show, making a total of half a million PACSed couples, and the number is rising steadily. . . . Perhaps more important as an indication of how French people live, the number of heterosexual men and women entering into a PACS agreement has grown from 42 percent of the total initially to 92 percent last year.
Thus, about a third of combined PACS and marriages in France are PACS.
In contrast, covenant marriage has been not very popular where it exists in the United States, accounting for just 1-3% of all marriages in the three U.S. states (all in the South) where it exists.
SCOTUS Thursday
* "Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence." The majority opinion and concurring opinions issued with it signal a sharp hostility to post-conviction review. Most notably, Justice Kennedy, whose opinion almost always carries the day on criminal justice issues with a discernable partisan tinge, joined in a concurring opinion stating that any constitutional right to DNA evidence must be preserved at trial and sought in habeas corpus proceedings, rather than a civil rights lawsuit.
Expect a follow up case to determine if a failure to request DNA evidence at trial can constitute ineffective assistance of counsel in some circumstances, rather than constituting a tactical decision as Justice Kennedy found that it did in this case.
This case also solidifies the notion that what is procedurally sensible in a habeas corpus review designed primarily to determine if a defendant's constitutional rights were violated at trial makes less sense in dealing with post-convictiono affirmative exoneration/innocence on the merits claims.
* Voting 6-3, the Court found that "if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal . . . . The Court, however, did not overturn the conviction on charges of insider trading and money laundering, but returned the case to the Fifth Circuit Court for further analysis."
This decision bodes well for other Double Jeapordy cases in the pipeline, but the summary is a bit confusing. What constitutes a "common element" is often not obvious and the 5th Circuit will have to parse that issue on remand. I've previously blogged a cert application in a double jeapordy case out of Washington State involving a jury that convicted on lesser charges without resolving more serious charges, but without being formally hung. Today's ruling may indicate that the Court will look favorably upon the Washington State case.
* Ruling 5-4 held that: "It is up to the worker to prove that age was the decisive factor in the action taken by the employer, even if there is some evidence that the worker’s age was one factor behind the move. Juries in Age Discrimination in Employment Act cases . . . may never be told that, if there is some evidence of age bias, the burden then shifts to the employer to prove that the action would have been taken anyway."
This ruling appears to be a genuine change in the practical standard of proof in these cases. "Decisive factor" seems more stringent than the requirement that age be a "but for" factor under prior law. It also seems to offer employers the best of both worlds, with pre-trial standard amendable to favorable rulings in motions for summary judgment, and a trial standard that tends to sway juries towards defendants. It would not surprise me to see Congress once again amend the discrimination laws to overrule this decision in favor of employees (one of the very first laws signed by President Obama overruled a recent SCOTUS decision on the statute of limitations in employment discrimination cases), particularly because the basic structure of the analysis is similar to that in all discrimination claims.
* Ruling 7-2 held that "the bankruptcy court that had approved a settlement of one facet of the reorganization plan for asbestos maker Johns Mansville Corp. had the authority to block some lawsuits filed years later dealing with that part of the plan."
The Court has ten argued cases left to release opinions in before SCOTUS goes on summer vacation, the next batch coming Monday. Tea leaf readers can start to make some meaningful predictions about how the straggler cases will come out based upon judicial opinion assignments to date. End of term decisions tend to be close and significant.
From SCOTUS Blog.
Expect a follow up case to determine if a failure to request DNA evidence at trial can constitute ineffective assistance of counsel in some circumstances, rather than constituting a tactical decision as Justice Kennedy found that it did in this case.
This case also solidifies the notion that what is procedurally sensible in a habeas corpus review designed primarily to determine if a defendant's constitutional rights were violated at trial makes less sense in dealing with post-convictiono affirmative exoneration/innocence on the merits claims.
* Voting 6-3, the Court found that "if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal . . . . The Court, however, did not overturn the conviction on charges of insider trading and money laundering, but returned the case to the Fifth Circuit Court for further analysis."
This decision bodes well for other Double Jeapordy cases in the pipeline, but the summary is a bit confusing. What constitutes a "common element" is often not obvious and the 5th Circuit will have to parse that issue on remand. I've previously blogged a cert application in a double jeapordy case out of Washington State involving a jury that convicted on lesser charges without resolving more serious charges, but without being formally hung. Today's ruling may indicate that the Court will look favorably upon the Washington State case.
* Ruling 5-4 held that: "It is up to the worker to prove that age was the decisive factor in the action taken by the employer, even if there is some evidence that the worker’s age was one factor behind the move. Juries in Age Discrimination in Employment Act cases . . . may never be told that, if there is some evidence of age bias, the burden then shifts to the employer to prove that the action would have been taken anyway."
This ruling appears to be a genuine change in the practical standard of proof in these cases. "Decisive factor" seems more stringent than the requirement that age be a "but for" factor under prior law. It also seems to offer employers the best of both worlds, with pre-trial standard amendable to favorable rulings in motions for summary judgment, and a trial standard that tends to sway juries towards defendants. It would not surprise me to see Congress once again amend the discrimination laws to overrule this decision in favor of employees (one of the very first laws signed by President Obama overruled a recent SCOTUS decision on the statute of limitations in employment discrimination cases), particularly because the basic structure of the analysis is similar to that in all discrimination claims.
* Ruling 7-2 held that "the bankruptcy court that had approved a settlement of one facet of the reorganization plan for asbestos maker Johns Mansville Corp. had the authority to block some lawsuits filed years later dealing with that part of the plan."
The Court has ten argued cases left to release opinions in before SCOTUS goes on summer vacation, the next batch coming Monday. Tea leaf readers can start to make some meaningful predictions about how the straggler cases will come out based upon judicial opinion assignments to date. End of term decisions tend to be close and significant.
From SCOTUS Blog.
Subscribe to:
Posts (Atom)
