I, Lawbot

We never see the parties of a case. All we do is hear lawyers talk. We never see a single real human being.

-- Judge J. Harvie Wilkinson III of the 4th Circuit (a quick correction was issued to the statement made during a panel discussion).

Protesting In Iran

A quick skim of the news reveals a couple of things that are likely to be true:

(1) Both leading candidates were within the orthodox mainstream of Iranian political thought on political issues, despite the fact that they had serious disagreements with each other. Neither the incumbent nor the challenger was a Western pawn.

(2) There was probably genuine, large scale election fraud (although it is possible that the winner would have won anyway by a slight margin if the process had been conducted properly).

(3) Protesters pointing out the fraud are likely to be put down, perhaps brutally, with the support of Iran's Supreme leader, who functions in practice a bit like a constitutional monarch, by the existing regime from which they have no real appeal.

Suppose that you know that the fraud happened, and know that protesters are likely to be punished for pointing out this fact. What is the best course of action, assuming that your real policy preference is for clean democratic elections?

On one hand, not protesting makes the fraud's success a self-fulfilling prophecy, and undermines the credibility and effectiveness of the electoral machinery politically. A major protest can create an incentive for a more honest process the next time, and bring to bear what little international influence is available, even if it doesn't change the outcome this time. But, a major protest could also create an incentive to maintain a tighter grip to prevent the public from seizing control from the regime in the future.

On the other hand, being labeled as a political dissident in an authoritarian state which may be on a liberalizing track anyway, may reduce your ability to bring about future political change at a more portentous moment.

Juvenile LWOP Clemency Smokescreen?

Susan Greene at the Denver Post suggests that it is likely that Colorado Governor Bill Ritter's special panel convened to review juvenile life without parole case in the state is likely to recommend clemency for none of the three dozen people serving life without possibility of parole sentences in Colorado for crimes committed while they were under age eighteen, and that Ritter is likely to follow this recommendation. She further suggests that this was the plan all along, as telegraphed by a law enforcement heavy set of appointments to the panel.

The legislature has abolished this penalty for juveniles in the state prospectively, allowing parole to be considered after forty years, but provided no relief to those currently serving these sentences.

Governor Ritter argued in the abstract that one can't always govern in a way that makes your base happy in a recent all day interview of Colorado Public Radio's Colorado Matters program, and a refusal to grant clemency in these cases would mark yet another instance of making decisions that weren't well telegraphed with the public and mark a serious break from his Democratic party political base.

Aircraft Carriers As Targets Revisited

The good news is that the U.S. Navy has a plan to defeat almost all plausible military threats to U.S. aircraft carriers, and not many opponents with the means and inclination to do so.

The bad news is that some of those defense (most notably anti-submarine warfare), often don't actually work in realistic training exercises and "gotcha" peacetime international military encounters in real life whose results have been made known to the public.

When the lives of thousands of U.S. sailors, tens of billions of dollars in military hardware, and defeat in decisive military encounters are at stake, a plan that doesn't work reliably is problematic.

Avoid Using "Garnishee" As A Verb

A "Writ of Garnishment" is the legal means by which a creditor forces someone who owes a debtor something to pay it to the creditor instead. Usually, a writ of garnishment is directed to a bank or employer and designed to secure a debtor's bank account or wages.

Some people say that one can "garnish" the wages. Others prefer to say that one can "garnishee" the wages (a verb usage). The word "garnishee" is also used to refer to the person, usually a bank or employer, upon whom a writ of garnishment is served by the creditor (a noun usage).

The noun usage of the word "garnishee" is widely accepted and is used in Colorado's state judicial system sanctioned forms. The verb usage of the word "garnishee" is a decidedly minority usage (disfavored by a margin of 675-11 in one computerized legal research search, with one citation implying that "garnishee" is incorrect), that should be avoided.

Noted law professor and blogger Eugene Volokh has some good insights on teaching usage and pronunciation generally in an recent essay on the subject, which closely tracks my own views on good grammar pedagogy.

Terrorism As Lupus

Minor, thwarted, threatened or conceivable terrorist acts can do more harm in the "auto-immune" reaction in our society that they spawn to prevent them from happening in the future, than the acts themselves.

Taxes And The Financial Crisis Rediscovered

My paper at this summer's Law and Society Conference in Denver talked about the tax causes of the Financial Crisis. Others have since released papers making similar points, which in the academic world, which values replication of results, has virtues.

The IMF and academic paper in question, like my paper, focus on the biases of the tax code towards excess leverage and executive compensation schemes that give executives an incentive to take excessive risks with someone else's money.

More generally, and I am pleased to see that the Obama administration's non-tax proposals are not immune to this idea, I think that there is public policy virtue in encouraging a more "robust" economy through both regulatory and tax policy. It is proven very difficult to develop policies that encourage consistent unbroken growth or full employment. But, a more modest and perhaps attainable goal is to take as a given that our economy will experience booms and busts, and then create incentives that reduce the harm associated with busts by removing incentives to engage in excessive leverage and risk taking, and to perhaps even encourage or require greater equity cushions and conservative approaches to risks.

In addition to tinkering with tax incentives to incur debt, removing tax incentives to establish "heads I win, tails you lose" executive compensation packages, like stock options, re-examining carry forward and carry back rules for losses makes sense. Post-hoc, loss carry backs look like classic Keynesian stimulus payments. You get a tax refund of taxes paid in prior years because the current year was unsuccessful. But, looking forward, the prospect of not being able to carry back losses creates a stronger incentive to avoid taking risks that could incur losses so bad that there is no surviving entity to carry losses forward to once they are incurred. If carry backs are not permitted, there is an incentive to reduce profits in current years if that can reduce the risk of a "terminal loss" in a future year.

Another area that deserves attention when trying to make our economy more robust is the bankruptcy process and the way that business transactions interact with it. The economy is better off if we can prevent "chain reaction" bankruptcies, where the demise of one firm that has made bad decisions threatens other firms. The Obama plan addresses this at a regulatory level. But, there are other ways to make it easier to let bad businesses fail without taking down other businesses.

One possibility might be to favor trade creditors, i.e. short term credit extended for reasons other than long term investment decisions in the ordinary course of business, over long term investment creditors, who bear a closer resemblance to stockholders. Trade creditors often receive better deals in bankruptcy than they would otherwise be entitled to receive, because their continued happiness is necessary to the survival of an ongoing reorganized company, even under current law. They also tend to be far more numerous than long term investment oriented creditors. A large firm will often have thousands of trade creditors and dozens of long investment creditors (treating bond issues with a identical rights and a single bond indenture trustee with authority to act for everyone purchasing the bond as a single creditor).

Another might be to rethink the preferences in favor of non-purchase money secured creditors (strengthened in the most recent bankrutpcy reforms in 2005), which our bankruptcy system designed to serve publicly held companies with most unsecured debt is ill equipped to deal with, which was highlighted in the Chrysler bankruptcy, and recent retail bankruptcies.

A third might be to shift the balance between base pay and bonus pay for employees. Small business owners, senior executives of larger enterprises, and sales staff typically receive small base pay packages and big bonuses, designed to allow compensation to adjust to available cash flow. But, almost everyone else in the American economy typically receives an inflexible payroll check as almost all of their compensation. In contrast, a typical employee working in a large Japanese company is compensated more like an employee at an American investment bank, with a large percentage of compensation received in a rather flexible in amount annual bonus that serves as a combination profit sharing/cash flow management tool. In a typical year, this may be two to four months of base pay, in a good year more, in a bad year less. Companies with this kind of compensatioon package are less succeptible to failing by virtue of failing to make payroll in a bust year, and hence make the entire economy more robust.

Last Century In Vogue

For a while, it seems that I couldn't turn around without seeing Steampunk, a mix of Victorian and science fiction sensibilities (tales available for your iPod here), or the genuine 19th century dramas of Laura Engles Wilder's Little House books, which my children so adore (just as their mother did before them). These days, however, for whatever reason, the pervasive era of the moment seems to be early 20th century.

Right at the cusp of it all is Sarah Ellerton, whose newest webcomic, Dreamless, in collaboration with the writer behind the contemporary melodramatic love story webcomic Marry Me, is the stunningly compelling love story of an American girl and Japanese boy psychically bound to each other around the time of World War II. Ellerton's other, older webcomic in progress, is the romantic steampunk drama, The Phoenix Requiem.

Also hot in webcomic land are a Tarzan/Indiana Jones era effort called The Meek, and the Sound of Music era nun tale, Sister Claire. Pregnant Nun. Holy Crap.

Meanwhile, my two children have rediscovered the Melendy Quartet by Elizabeth Enright (featuring The Saturdays, The Four Story Mistake, Then There Were Five and Spiderweb For Two) about a large family raised by a single dad just outside New York City in the 1940s. They are also just departing an exploration of the Chronicles of Narnia by C.S. Lewis, likewise set in the war years, and are still in their waning days of a great love for Paddington Bear, another English delight for children set just as little later in time, the creation of writer Michael Bond and illustrator Peggy Fortnum. Mid-20th century girl detective Nancy Drew has also made it into the reading cycle.

Our father's day trip to Royal Gorge, itself an enclave of the early 20th century past with its 1929 bridge, 1931 inclined railway, old fashioned passenger rail line, 1969 cable car and the trappings and feel that have imprinted on the place in its founding era, recalled The Moon By Night, by Madeleine L'Engle, a chronicle of a cross-country camping trip (including Colorado's Mesa Verde) in the early 1960s that is the immediate sequel to her novel Meet the Austins, which the children loved. Meet the Austins is one of those short, simple, clean stories of emotional grief that proves that people don't have to be advanced in age to have intense emotions and respond to them. The Moon By Night is young adult fare, featuring a first romance, so my youngest may not appreciate it quite as much. Emotions like grief, friendship and sibling love seem to come to fruition sooner than romantic love. But, both my children seem to have a keen love of the slice of life storytelling from other times and places that I didn't acquire until much later, so they may yet enjoy it.

Anyway, Royal Gorge isn't quite a kitschy as nearby Manitou Springs (something that is a testament to the power of its awesome and striking natural features), although it has some of the same Route 66 flavor. It also has a more international draw (Japanese tourists, in particular, seem to be out in force across Colorado lately, for that matter). It is ideal, at any rate, as an outing for elementary school children, who are neither to young nor too teen hormone infused to put themselves in peril, and not so cynical and jades that they discount the mild thrills and tame amusements (like a mini-zoo and classic carousel) that it offers.

The other fascination for me, although it didn't capture the kid's interest at all, with Cañon City, is the queer coexistence the place offers between being just one more quaint rural Colorado town near a decent reservoir and camping areas, and its legacy (it was the home of the territorial prison even before Colorado become a state) and present as one of the largest prison complexes in the nation, a dominant piece of the local economy (which has incidentally welcomed the prospect of more prisoners from Guantanamo Bay, Cuba). One of the other guests at Royal Gorge (which incidentally, is a city park, not a state or federal one), proudly wore her federal bureau of prisons t-shirt and remarked obliquely while being sassed at by her young son that she'd had worse things said to her by worse people. One suspects that the overabundance of motels in the area for its size reflects not just summer "tour the West" traffic, but also an all year around parade of family members visiting loved ones in prison.

Cañon City also has one more institution that completes its complex retro tapestry, Holy Cross Abbey, and its accompanying winery. The Abbey, founded in 1886, closed in 2006, and its boarding school closed in 1985. Before reaching its final destination, it periodically migrated across the state, from Breckenridge to Boulder to Pueblo. It conjures up Harry Potter-like images of what it must have been to study and live in its 200 acre estate (more acreage, in fact, that the Royal Gorge park). One also wonders if any prison guards felt the need to retire to the Abbey, either as monks or lay occupants, to come to terms with the seemingly inescapable parade of violence, abuse, injustice and wasted lives encountered during their service.

Perhaps it is fitting that Cañon City is an enclave of the past, as many of its institutional residents have never encountered our world in its more modern state, and this may help those who visit them interface with them.