The Japanese Extreme In Child Custody Considered

No country in the world has a lower divorce rate, or fewer children born out of wedlock, than Japan (despite remarkably low rates of non-barrier contraception use and very late average marriage ages).

When Japanese couples do divorce, litigated resolutions are rare, in part, because the outcomes are so rule driven - absent an agreement of the parties, custody determinations and post-decree payment obligations are very predictable, and the property division rules are at least as clear as they are in the United States (and are almost irrelevant to working class couples with few assets or liabilities).

But, if achieving those ends meant adopting Japanese style child custody laws, and other differences in the Japanese economic and legal millieu that lead to that result (while there is little sex discrimination against unmarried childless women in the Japanese labor market, societal expectations both at home and at work greatly limit the employment participation of married women with children), I'm not sure that many people would be willing to make that tradeoff.

Child Custody In Japan

[In Japan,] Mothers retain custody of the children after divorce in the vast majority of cases, while the non-custodial parent (usually the man) often has little or no contact with the children after the split as joint custody is generally regarded as undesirable in Japan. (One famous case of recent years was ex-prime minister Koizumi Junichiro, who has three sons. After he split with his wife in 1982, he had custody of the elder two sons, who were raised by his sister and have not since seen their mother. She retained custody of the youngest, who was born after the breakup and has never met his father.)

"It's the Japanese general understanding that if they divorce, the noncustodial parent won't be able to see the kid again," says Tokyo divorce lawyer Hiroshi Shibuya, who handles some of the rare cases that are contested. "It's as if the child loses a parent in an accident, as if that parent just dies."

Child support is not normally provided to the ex-wife, meaning she must take on the expense of raising the children herself. This lack of financial support, coupled with little job experience, forces many divorced mothers to move back in with their parents. The result has been an increasing number of divorced Japanese mothers living in poverty regardless of their ex-husband’s financial status.

From here, hat tip to the Red String Comic by Gina Biggs.

As an aside, this isn't a simple matter of "conservatism" regarding family relationships. As best I can tell from Japanese popular culture and non-fiction accounts of living in Japan, few Japanese are a fervently anti-homosexual as many conservative Americans are, although few are as fully accepting of the same sex relationships that deprive parents of grandchildren as the most liberal Americans are either. The Japanese are probably more accepting of adoption and de facto adoption relationships than the average American. Also, there is probably more of a tendency to treat stepsiblings and stepparents are "real parents" in Japan than there is in the United States.

Child Custody In The United States

The American norm in family law (not always honored) is that co-parents remain co-parents of children until they reach adulthood (and beyond, albeit without the same kind of legal supervision). When parents live in the same area, typically the children shuttle between two households spending a couple of nights a week, at least, with each parent. Typically, the arrangement is either an equal number of overnights, or more overnights with a mother who often has a lower income, and modest monthly child support payments until the youngest child reaches adulthood in addition to significant alimony payments in the case of formerly married parents for a year to a few years after a divorce. Often, joint decision making regarding major decisions in children's lives is required.

When never married or no longer married parents live far apart from each other, typically, a significant part of summer vaction and some other long holidays are spent with one parent (typically the father), and the school year is spent with the other (typically the mother), and the child support payment is typically a bit larger.

There are also residual vestiges, in fact, of a now de jure abandoned custody determination consideration called "the tender years doctrine" that preferred the mother of primary custodian of younger children and the father as primary custodian of older children, typically with a divide at about twelve years old. A similar consideration that is sometimes invoked today in American custody cases is the "primary caretaker presumption" that calls for the post-divorce parenting arrangements to mirror those prior to the split up of the parents to the extent practicable, without explicitly invoking the gender of the parent.

Japanese style arrangements are typical in the United States only when an unmarried mother specifically chooses not to identify the paternity of the child as part of a strategy of keeping a father that the mother views as useless or a negative influence out of a child's life, when one of the parents has parental rights terminated for abuse or neglect, or when there is a divorce arising from one spouse abandoning the other, often with whereabouts unknown. More often, it is the dad who is absent, but sometimes, often in cases where the mother has a substance abuse problem, or severe mental health issues, or is in prison, or simply disappears, the mother will be the absent party.

Even in more lopsided cases, typically for good cause described in a contested custody hearing, where one parent has sole decision making authority with respect to the children and the predominant share of parenting time, the other parent is typically granted at least a few days a year of parenting time, perhaps supervised, whether or not that parent wants it. Indeed, absent a termination of parental rights based upon a showing of abuse or neglect by a state attorney in a quasi-criminal proceeding, American judges generally lack the power to entirely deprive a parent of parenting time.

Thus, while it isn't unheard of in the United States for children to lose all contact with one parent, it is almost unheard of for that to happen following a more than momentary marriage of two middle class, respectable people. Likewise, while siblings fairly frequently lose contact with each other if they are left orphans because both of their parents have had their parental rights terminated and they are turned over to the foster care system, it is almost unheard of for siblings to lose contact with each other during childhood in a middle class divorce.

The only kinds of siblings who may infrequently but not too rarely end up without regular contact with their siblings are those where on of the siblings is in juvenile detention, is much older, grown and gone, the siblings are stepsiblings whose parents split up, or the siblings are half-siblings who have never shared a household together.

Analysis

Now, the American way of handling child custody absolutely has downsides to it. A very large share of joint custody arrangements decreed by U.S. courts result in some additional litigation before the children become adults and this system involves a large share of all minors in the United States at some point in their lives. There are few high school classrooms anywhere in the United States that don't include someone, probably several someones, whose parents haven't been engaged in post-decree litigation at some point. Parental incomes (relevant to child support payment amounts) change, and the fact that kids grow up and need different parenting time arrangements as a result is a near certainty.

A surprisingly large share of unmarried co-parents manage to do a better job of being co-parents than they did as spouses or long term lovers (from experience I'd peg the figure at about two-thirds of separated couples with children), and often (perhaps not quite half the time) have better relationships even with each other with more clearly defined and less personal stakes than they had when they were themselves in a relationship. But, this certainly isn't universal. It is hardly surprising that many divorce or never married couples "don't play well" with each other. A minority of truly high conflict couples fighting over their children perrenially can be a judicial management disaster that is extremely expensive and unpleasant for all involved.

It is also well established that the litigation process itself, and the mere fact of the divorce even when the litigation process isn't that traumatic, is harmful to the children involved outside the very worst, high conflict, domestic violence or criminality tinged marriages.

The parental rights and responsibilties decisions are generally made by a single judge with very limited statutory or case law guidance (the "best interests of the child" standard, interpreted in a fact intense manner on a case by case basis, trumps everything else in the ordinary case), whose has absolute judicial immunity in making that decision. which is not mediated by a jury, judicial panel, or meaningful appellate review. Removing a judge from office is often nearly impossible, even if the judge makes many questionable but not reversable decisions in child custody cases. Even getting a judge off the family court docket is often hard, because there are few volunteers for the post within the judiciary.

This process elicits widespread ire directed towards the system in general and the particular judge involved in making the decision, by a large share of all of the parties who feel dissatisfied with the decision that was made and a significant minority of the parties who are satisfied with the decision that was made by the judge. In that context, any disappointing outcome looks like judicial favoritism and bias.

Most Americans would prefer a regime with more predictability and less judicial discretion than the existing regime. But, not at the expensive of determinations that were as lopsided as those in Japan.

While full marriages end easily in the United States, co-parent relationships are very hard to end. We don't call it that, but the American serial monogamy system verges on an almost polygamy system when ex-spouses have shared children. All second spouses of both parties end of having some sort of relationship with the first spouses of both parents at the very practical level of being de facto co-parents of the same children. Children of unmarried and separated parents inevitably have de jure or de facto stepsiblings with whom they must develop relationships of some kind. All the parents and stepparents involved are one complicated extended family.

But, generally, we see the problems of managing these complicated separated and blended family arrangements as an inevitable consequence of the fact that parents can't always manage to keep their relationships together. Americans may argue for measures to discourage divorce in couples with children, or to reduce harm in the family law litigation process, but nobody is arguing that depriving children completely of contact with one of their two parents or their siblings, without a very good, fault based reason is conscionable.

Indeed, increasingly, we are a nation having doubts about even the concept of a closed adoption, where adopted children have no contact with their birth parents. In Britain, controversy is raging over the practical problem of avoiding incest when many children have genetic fathers who are the same undisclosed sperm donor. The modern trend is to see genetic relationships, while not controlling of what the relationship should be, as an undeniable basis of some relationship that gives rise to mutual obligations between all parents and all children.

After decades of frequent divorce (although it is less common now for middle class families than it used to be), there is still not a consensus on what kind of relationships the people involved should have with each other, how parenting should be arranged with similarily situated families, how inheritances should be handled when people consciously choose to write wills and trusts to distribute their wealthy in blended family situations, or an any other particular substantive or procedural reform of the system.

A minority want to return to the fault based regime that we once had for almost a century between the no divorce era and the divorce on demand era of "no fault", but where "covenant marriages" that include that option are available, they are rarely chosen.

The fact that the status quo is problematic is widespread, but there is little criticism of it that isn't so deeply embroiled in personal negative experiences that one can have much hope that it could be widely applied.

Also, while the Japanese extreme seems harsh and unconscionable even, it is hard to tell if it is really worse. In a society where divorce is so rare, the situation of divorced children in Japan may not be an apples to apples comparison with divorced children in the United States. There is no real consensus means of determining what psychological impact a divorce has on children and no obvious way to compare existing outcomes with counterfactual alternatives.

Geezers In Prison

People, often older people, serving life sentences, constitute a large portion of our nation's prison population. For example, 20% of prisoners in California's overcrowded prison system are serving life sentences.

From 1984 to 2008, the number of offenders serving life terms quadrupled, from 34,000 to roughly 140,000 . . . . One of the fastest-growing subgroups are inmates serving life without the possibility of parole. Those numbers have jumped from 12,453 in 1992 to 41,095 in 2008 and represent the most costly inmates to house as the aging inmates require increased medical care.

Yet, older inmates are much, much less likely to reoffend when released than younger inmates, and the crimes that they do commit when they reoffend show a strong tendency to be less serious than their original crimes.

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995. Five returned to prison for new felonies, none for similar life-term crimes. By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found. . . .

New York now has more than 800 prisoners who are 65 or older, double the total a decade ago. It has no death penalty, though 34 states and the federal government do. Federal prisons held 3,254 inmates age 66 or older in August, up from 1,326 in 2000. From 1985 to 2006 in New York, 72 prisoners released when they were over 65 were returned for new crimes, less than 5 percent.

Of course, we also have insanities like increasing the sentence of a man set for release on parole after seventeen years in prison, for the technical prison system violation of calling family on a borrowed illicit prison cell phone to let family know that he had finally been released on parole. Normally, a technical violation is punishable by the loss of up to 90 days of good time, but in this case it was used to revoke a parole grant that had just been awarded to the inmate, and parole hearings are held only every five years for individuals serving the kind of sentences that this inmate was serving. The decision will cost California taxpayers about $250,000 and exacerbate California's compliance with a federal court order to reduce crowding in its prison system.

Pop More Likely To Produce Violent Crime Than Pot

A new study provides empirical evidence linking heavy soda consumption to violent crime. Similar evidence linking marijuana consumption to violent crime is absent.

Meanwhile, people are starting to ask why President Obama has stepped away from a policy of tolerance towards medical marijuana that is legal under state law.

7 Billion

There are about 7 billion people alive in the world today.  The current growth rate is the global population is about 1.1%, down from more than 2% in the 1960s.  At the current growth rate, the world's population would double by about the year 2075, but the declining population growth rate means that this doubling of populaton will probably never happen and, at least, will happen much later than then.  Current estimates for peak world population are in the vicinity of 10-12 billion people.

I am not a population alarmist.  Population growth is an issue that economic development seems to tame almost universally and automatically even without dramatic government intervention.  People who can know with great certainty that their children will live to adulthood and that they will be able to provide for themselves in their old age have far fewer children.

If you are worried about population growth, promote economic development.

Vote in Colorado and in particular in Denver.

You can still hand deliver your ballots in the 2011 general election in Colorado today and tomorrow at designated elections offices open until 6 p.m. today and from 7 a.m. until 7 p.m. tomorrow.

The locations in Denver, Colorado are:

Denver Elections Division, 200 W. 14th Ave.
Christ Community Church, 8085 E. Hampden Ave.
Harvey Park Recreation Center, 2120 S. Tennyson Way
Hiawatha Davis Jr. Recreation Center, 3334 N. Holly St.
Montbello Recreation Center, 15555 E. 53rd Ave.
Montclair Recreation Center, 729 N. Ulster Way
Scheitler Recreation Center, 5031 W. 46th Ave.
Washington Park Recreation Center, 701 S. Franklin St.

At the state level the only issue is Proposition 103 which would increase the state income tax rate from 4.63% to 5.0% and the state sales tax rate from 2.9% to 3.0% for a number of years, and in exchange increase funding for K-12 and higher education combined (the division of funds is up to the Colorado General Assembly) by about 15%.

Colorado has one of the least well funded higher education systems relative to median state income in the nation, and its funding of K-12 is lackluster.  Due to the mechanics of various federal law, state constitutional, and practical considerations that go into the Colorado state budget, in recessions, higher education almost always takes the lion's share of shortfalls in state revenues and this measure proposes a medium term fix to that problem.  I recommend that you vote for Proposition 103.

In Denver, voters will cast ballots in one five way at large school board race and two school board district races, each with two contenders.  I profiled the candidates here. At stake in the race is the ongoing division in the school board between members favorably inclined to charter schools and other reforms backed by well heeled area business people, and candidates strongly committed to neighborhood schools and concerned that new options undermine these schools backed by the teacher's union.

Denver voters also cast ballots on citizen initiated issue 300, which would mandate that workers in Denver at establishments with 10 or more employees would earn 1 hour of paid sick time/family sick time/domestic violence victim time off for each 30 hours worked up to 75 hours a year (40 hours a year for businesses in their first year).  The Mayor and City Council are against it, fearing an undue burden on businesses.  I'm not convinced and think that it is the right thing to do, and that the additional administrative burden would be modest given the many payroll obligations that businesses this size must already meet.  It works out to less than a 3% pay raise for hourly workers in the city, as not everyone would use the new benefit. Vote yes on issue 300.

Finally, Denver voters decide if the City Auditor should be permitted to appoint his deputy, a referred charter amendment that would slightly reduce the scope of the city's civil service system for one senior position in the auditor's office, rather than requiring the auditor to pick from three civil service board screened candidates for this post.  I think that this is a reasonable change and recommend that you vote in favor of it.

A Year Ago Today Pontiac Died

As we were driving around town this weekend, my son, who is currently fascinated by sporty cars (an affliction known to survive to adulthood in many men), noticed a number of interesting cars with the Pontiac logo and a Sunfire model, which set to me looking into the end of that brand as a result of the GM bankruptcy. It turns out that the last Pontiac was built at the end of 2010, and that the last of its dealers closed a year ago today.

Criminal Defendant Offers Up Creative Legal Theory

Every once in a while you encounter a legal defense from a pro se defendant that not even a $1,000 an hour criminal defense lawyer could have come up with, and this is such a case.

Man Caught Having Sex with Donkey Claimed It Was a Shapeshifting Hooker

In a testament to the fairness of the court system of Zimbabwe, while the man has been charged with bestiality, the Court allowed him to present his defense and he has not yet been convicted. He is undergoing psychiatric evaluation.

Grit Not Enough

Deliberate practice (DP) occurs when an individual intentionally repeats an activity in order to improve performance. The claim of the DP framework is that such behavior is necessary to achieve high levels of expert performance. The proponents of the framework reject evidence that suggests that other variables are also necessary to achieve high levels of expert performance, or they claim that the relationship between those variables and expert performance is mediated by DP. Therefore, the DP framework also implies that DP is sufficient to achieve high levels of expert performance. We test these claims by reviewing studies on chess expertise. We found strong evidence that abundant DP is necessary (but not sufficient) and estimated that the minimum requirement to achieve master level is 3,000 hours of DP. We also review evidence showing that other factors play a role in chess skill: general cognitive abilities, sensitive period, handedness, and season of birth.

From Guillermo Campitelli1 and Fernand Gobet "Deliberate Practice Necessary But Not Sufficient," 20 Current Directions in Psychological Science vol. no. 5 280-285 (October 2011) (Hat tip to Dienekes).

As the press release for the study notes:

In one survey of chess players in Argentina, Campitelli and Gobet found that, indeed, practice is important. All of the players that became masters had practice at least 3,000 hours. “That was not surprising,” he says. There is a theory in psychology that the more you practice, the better you’ll do in areas like sports, music, and chess. “But the thing is, of the people that achieved the master level, there are people that achieved it in 3,000 hours. Other people did, like, 30,000 hours and achieved the same level. And there are even people that practiced more than 30,000 hours and didn’t achieve this.”

Campitelli and Gobet concluded that practice is necessary to get to the master level—but it’s not enough. . . . [Also] about 90 percent of the general population is right-handed, only about 82 percent of adult chess players are right-handed.

Establishing a similar point, D. Z. Hambrick, E. J. Meinz show in "Limits on the Predictive Power of Domain-Specific Experience and Knowledge in Skilled Performance." Current Directions in Psychological Science, 2011; 20 (5): 275 DOI: 10.1177/0963721411422061, that general IQ can predict a large share of performance in tasks like piano sightreading, even controlling for hours of practice.

In one experiment Hambrick and Meinz tested 57 pianists with a wide range of deliberate practice under their belts, from 260 to more than 31,000 hours, to see how well they did on sight-reading -- playing a piece from a score they'd never seen before. Those who had practiced more did better. In fact, practice -- even specific sight-reading practice -- predicted nearly half of the differences in performance across the subjects. But working memory capacity still had a statistically significant impact on performance. In other words, regardless of amount of deliberate practice, working memory capacity still mattered for success in the task. . . . Challenging another "experts-are-made" contention -- that beyond a certain threshold, intelligence makes less and less of a difference in accomplishment -- the authors cite a study by Vanderbilt University researchers that looked at the math SAT scores of people with PhDs in science, technology, engineering, or math. Those who scored in the 99.9th percentile at age 13 were 18 times more likely to go on to earn a PhD than those who scored better than only 99.1 percent of their teenage peers. "Even at the highest end, the higher the intellectual ability -- and by extension, the higher the working memory capacity -- the better," says Hambrick.

The result is not surprising (to me), but is important.

Colorado Legislative Districts Update

The trial in the case to set Colorado's Congressional Districts ended on Friday in Denver District Court (a state court of general jurisdiction) with the judge now setting down to produce a map.

Meanwhile, Weld County has filed suit in the Colorado Supreme Court, on the last available date, to contest the state legislative boundaries designated by a state commission charged with drawing them.

Colorado's Inactive Voter Law Uniquely Restrictive

Jonathan Brater, a Law Clerk with the Brennan Center's Democracy Program, wrote me that Colorado is one of just a handful of states that don't mail ballots to all "inactive" voters, and Colorado rushes voters into the "inactive" category faster than any other state.

From here.

Former Western Slope DA Convicted Of Molesting DA Office Employees

The man who was the Republican District Attorney for the 7th Judicial District in Colorado (Delta, Gunnison, Hinsdale, Montrose, Ouray and San Miguel counties, basically the Western Slope to the south of Grand Junction and North of Silverton) when he was arrested in September 2010, Myrl Serra, has pleaded guilty to "criminal extortion and unlawful sexual contact involving three women," felonies punishable by up to twelve years in prison and requiring registration on the sex offender's registry. Sentencing is set for January 19, 2012.

The criminal extortion charges allege that he demanded "sexual favors from women in his office." The sexual contact charges were supported by preliminary hearing testimony in which "one of the women testified that Serra cornered her inside his office in April 2010, grabbed one of her breasts and forced her to touch his genitals."

The matter was handled surprisingly smoothly at the time of the arrest, with the office of Republican Attorney General John Suthers acting in coordination with Democratic Governor John Hickenlooper and stepping in to serve as a special prosecutor of the Republican elected official and an interim DA was appointed.

In Colorado, a District Attorney is elected on a partisan basis from the residents of each of the state's twenty-two judicial districts at the same time as other statewide elected official (in the even numbered years between President elections for four year terms) and reports only indirectly, via budget authorizations, to the county commissioners of the countries for whom he is the prosecutor.

This is not the first time in recent history that elected District Attorneys have attracted notice in recent memory in Colorado. Arapahoe's current Republican District Attorney Carol Chambers (who is also controversial for policy reasons related to her conduct in office and attracted national attention for linking Deputy DA compensation to conviction quotas), was found by the state supreme court to have committted an ethics violation. A recent Republican District Attorney John Newsome for Colorado Springs had a serious drinking problem and was found to have been embezzling petty amounts from his office. A District Attorney Colleen Truden in Aspen was recently recalled over scandals concerning her conduct in office.

This is not to say that appointing District Attorneys' statewide is necessarily a better approach.  Florida, for example, has state appointed rather than locally elected district attorneys and is not known for the good judgment of its prosecutors. 

Indeed, there is circumstantial evidence to suggest that the decentralized nature of the criminal justice bureaucracy in the United States is an important part of the unwritten constitution in the United States that reduces abuses by law enforcement relative to states where the process is more centralized, makes it harder for the entire criminal justice system to be corrupted by organized crime, and limits the need for the legal mandate to prosecute all known crimes that is found in many civil law countries. 

Perhaps the best compromise would be to make the District Attorney an appointed official who reports to local government elected officials, just as municipal law enforcement officers do in the United States.  The lack of accountability to anyone else is part of what makes the position of an elected District Attorney prone to abuse and makes abuses by someone in this position a monumental task to correct in most cases.  (Near total judicial immunity from civil liability for prosecutors further exacerbates this issue.)

CNN v. BBC v. NPR

Seth at Enik Rising (citing Chris Zorn) has a screen shot nails the distinction between the fluff engine that CNN has become compared to the relatively serious new outlet that is the BBC.

Of course, then there is National Public Radio (NPR). Its reporting is more serious in tone and content than even the BBC World Service, despite its effort to diversify with high end sports coverage and somewhat light hearted tech coverage in recent years.

FWIW, I like the depth that NPR offers, even if there are days that I can't bring myself to deal with it and listen to music instead. Now, if only NPR had a more global range of international coverage, rather than focusing squarely on international affairs intimately related to American foreign policy, and dropped the sports coverage, we'd really be getting someplace.

How Stable Is IQ?

IQ has a significant hereditary component and normally when someone has a major difference in IQ test results a few years apart, which themselves show a basically bell shaped distribution, not biased up or down, up to a bit more than one standard deviation in a sample of 33 people who were aged 14 when they started the study and were tested agains four years later, the change is assumed to be due to the inaccuracy of the test.

But, bolstered by MRI scans, a study announced today suggests that a significant share of the difference is due to real differences in teenaged brain development, rather than merely issues related to the testing instrument itself.

The implication, that education in the teen years really does matter and that nuture factors in one's teens can materially impact one's IQ, makes education seem far less futile than it does when one merely look at averages for larger numbers of people that obscure individual shifts in IQ in the teen years, even if they arise from real brain development.

Life Could Be Worse

You could be Asuquo Okon Inyang who had been fired by the British Embassy in Calabar, Nigeria in 1929 and said in this letter asking for his reinstatement:

On opening this epistle you will behold the work of dejobbed person, and a very bewifed and childrenized gentleman. Who was violently dejobbed in a twinkling by your goodself. For heavens sake Sir consider this catastrophe as falling on your own head, and remind yourself as walking home at the moon's end of five savage wives and sixteen voracious children with your pocket filled with nonexistent pounds shillings and pence; not a solidery sixpence; pity my horrible state . . . .

Government Commission Proposes Bad Solution To Non-Problem

A commission on continuity of government, i.e. keeping things running after a terrorist attack, disaster or some other calamity disrupts the functioning of the government, has proposed in a recent report has proposed "changes in federal law to allow the courts to keep working, including creating an emergency court that would function only until the Supreme Court had the minimum six justices it needs to hear and decide cases."

Of course, the U.S. Constitution already provides for this situation by allowing the President to make recess appointments to courts and civil service positions.

[T]he most provocative and potentially troubling issue highlighted in the report is the president's power to name several new justices, or even the entire court, without congressional approval for a period that could last a few months or as long as a year and a half.

The Constitution gives the president the power to make what are called recess appointments, temporary appointments to jobs that otherwise require Senate confirmation. Recess appointments only last until the end of the congressional session and can only be made when the Senate is not in session.

If the appointments are made in good faith and after informal consultation with congressional leaders, the temporary justices could allow the court resume its work quickly.

But the authors foresaw more difficulty if the president were expecting challenges to his legitimacy in office or actions he was planning. In that case, "he might fill a court with recess appointees who would be sympathetic to his point of view. He would appoint the court that might then be called upon to be an independent check on the president," the report said.

A temporary emergency court, set up before a crisis arises, but only coming to life following a catastrophe, would be well placed to deal with urgent court matters in the event the Supreme Court is unable to do its work, the report said.

Any surviving justices would sit on the court along with other judges chosen from a pool. Decisions of the temporary court could be appealed to the Supreme Court, after it was up and running again.

Overall, the report simply has the matter wrong. The status quo system is not seriously broken and doesn't need the kind of fix that it proposes.

First, there are very few matters which the lower courts are not qualified to handle. Every judge in the United States, federal, state and local, is empowered to rule on constitutional questions properly before that judge. The United States is not a country with a specialized "constitutional court." It takes many months and usually years for a case in the lower courts to reach the U.S. Supreme Court, so almost all of the cases on its docket from the time of the emergency until recess appointments expire would be pre-emergency cases. The U.S. Supreme Court has granted certiorari in fewer than a hundred cases a year in recent years, all of which have definitive resolutions that can simply be left standing in the lower courts, just as they are in the 99.8% of cases where certioari is denied by the U.S. Supreme Court now. En banc sittings of U.S. Circuit Courts of Appeal can even provide discretionary review in the interim period of close issues. Some circuit splits on issues of federal law may fester a bit longer than they would have otherwise, but this is hardly a crisis.

Perhaps the weightest issues that are troublesome to postpone are death penalty stays of execution, but the President, in federal cases, or Governors of most states, in state cases, and in all cases the lower court before which the case was pending, would have the authority to stay an execution using the pardon power (or a stay of proceedings in the case of a lower court) to avoid an appearance of impropriety caused by the delay. Abuse of authority in death row cases by lower courts in cases that have already undergone multiple levels of judicial review before reaching the U.S. Supreme Court, is not truly a continuity of government crisis.

As it stands, individual judges of the U.S. Supreme Court can grant stays in cases for particular judicial circuits until the full court can review the decision. A rule allowing those assignments to be temporarily adjusted following the government continuity causing event pending the repopulation of the court is a far more modest way of addressing the issue.

If there is a place for a new law, Congress could pass a law automatically staying the execution of anyone whose case is pending before a court when there is a vacancy in every judicial position with authority to rule on a request for a stay in every court with authority to rule on a request for stay, until such a person is in place and has had a reasonable period of time after being appointed (perhaps a month) to rule on the request.

And, of course, recess appointments to lower courts pose even less of a concern about bias because they are subject to appellate review and don't make a long term impact on the makeup of the judiciary.

Second, in the same vein, the United States Constitution and the Judiciary Act does not allocate very much mission critical litigation exclusively, or even primarily to the federal courts. The vast majority of cases including the vast majority of cases that truly urgently need to be resolved by courts in a continuity of government emergency can and routinely are handled by state courts, and by federal trial courts when state courts lack jurisdiction. There are very few crimes or civil matters that are a priority to handle in a crisis that couldn't be handled in state court if necessary, and the few that are could be handled for a brief crisis period by federal trial courts.

Indeed, the reality of civil litigation in both state and federal trial courts, is that most kinds of litigation can proceed for many months with almost no judicial intervention prior to trial.

Third, the U.S. Supreme Court has an exceedingly small original jurisdiction, hearing perhaps a dozen or so such cases a year, and that jurisdiction is constitutional in nature so it can't be dealt with via a federal law.

If there is a change to be made for continuity purposes, and this indeed would be a minor one, it could be to allow for a majority of remaining judges of the U.S. Supreme Court to appoint a special master to hear cases in its original jurisdiction so as not to delay this perfunctory step that it always takes before the U.S. Supreme Court takes up such cases on the merits (by which time new justices were likely have been appointed).

Notably, the Constitution does not place actions under either the Presidential Succession Act or related to the powers of Congress in the original jurisdiction of the U.S. Supreme Court. Generally, these matters are within the jurisdiction of the U.S. District Court for the District of Columbia and appealled to the U.S. Circuit Court of Appeals for the District of Columbia Circuit (which can conduct an en banc review of a controversial decision of a three judge panel of that court).

Fourth, experience teaches us that a terrorist attack or major national disaster is precisely the sort of thing that causes the public, Congress and the courts to rally around the President rather than providing a really check on the President's actions in any case. So the concern that the balance of power in the U.S. Supreme Court would be thrown out of whack by recess appointees of a crisis period President, for a period of less than two years, leading not to a constitutional crisis, but a political one, are overblown.

Indeed, making a recess appointment is precisely the kind of political act by a President that can restore a sense of legitimacy, normalcy and control to the new administration, setting the nation back on track to the usual constitutional process.

Also, a recess appointment, by deferring a permanent decision until the crisis has passed or subsided somewhat, prevents a long term bias in the courts from arising from a short term crisis. Whatever mistakes the judges appointed on a recess basis making in a year and a half, their biases can be resolved when the recess appointments expire. Indeed, the fact that recess appointed judges will probably be first in line for permanent appointments and do not have lifetime appointments makes them especially sensitive to creating a partisan or biased appearance of impropriety during the crisis because it would sacrifice a shot at a lifetime appointment.

In any case, even if there is a temporary emergency court that is provided for, no federal statute can strip the President of recess appointment power and a judge who is going to stack the court with recess appointments is precisely the kind of President who will pre-empt the temporary emergency court's powers by making those recess appointments. Thus, a temporary emergency court curbs only the powers of Presidents whose power does not need to be curbed.

Fifth, this leads naturally to the fact that a temporary emergency court inevitably would raise all sorts of novel questions of law that would not come up if the system were simply allowed to work without modification. The validity of recess appointments has been litigated and tested over the two centuries of this Republic. The legal issues related to temporary emergency courts have not, so this measure would simply add to the legal uncertainty of an already confusing time. Any special purpose court or institution is inherently less legitimate than one that exists already when the continuity crisis arises.

One of the reasons that courts have power is that the people whose cooperation is needed to give effect to their decisions are used to obeying them and know how they work. For example, specialized human rights courts with thin dockets are often far less powerful in practice than courts such as the European Union's highest court which develops its legitimacy by routinely handling E.U. entity employment and regulatory cases.

In short, a temporary emergency court in lieu of the U.S. Supreme Court for emergencies is simply a very bad idea, in so many ways, and should be abandoned. The status quo isn't broken, although it could be slightly tweaked with adjustment that could mostly be enacted through the rule making process of the courts themselves.

Herman Cain's 9-9-9 Plan Illustrated

The first figure shows that average tax payments go up, on average, for the bottom 80% of households, including the bottom fifth (average income, $10,100) by about $1,700, and for the middle fifth (avg inc: about $50,700) by about $3,200. The average tax payment for the top fifth (avg inc: $273,000) falls by about $23,500.

If you break out the top 1% (avg inc: $1.8 million) and the tippy-top 0.1% (avg inc: $7.9 million) . . . It reduces the tax burden of the top 1% by $300,000 and that of the top 0.1% by…$1.7 . . . million.

From here.

Clearly, based upon his proposal, we can conclude that Mr. Cain is a class warrior for the rich and favors increased federal budget deficits.

Quote of the Day

The case against symbolic Wall Street turns out to be weaker than the one against actual Wall Street . . . since actual Wall Street's firms did specific unethical and illegal things.

Conor Friedersdorf via Brad Delong.

Another Ghost In Denver

There is really nothing all that exceptional about police shooting and killing a robbery suspect who points a handgun at police according to multiple witnesses to the 12:18 p.m. (lunchtime) shootout this afternoon. The robbers did what robbers are known to do, and the police did nothing improper or unexpected when they encountered the robbers and were in hot pursuit.

Except, that is, that I happen to be at the intersection where the shooting took place almost every single week, for a child's music lesson and grocery shopping or coffee while I wait. I've shopped at the liquor store in that plaza and parked my car right where the police fired their shots more than once.

For people who don't know about the shooting, nothing will be different in a few days. But, for me, a perennial news hound who also becomes aware of incidents like these in the course of my work, it is one more ghost on the streets of Denver just in time for Halloween. This new ghost will share space with the fellow whose car was flung off the Alameda exit on Southbound I-25 in an accident, whose family I represented in a wrongful death suit; the woman killed in a domestic violence incident in the parking lot of what is now Whole Foods in Capital Hill; the homeless man who died in his sleep one cold evening on the 16th Street Mall. This list goes on and on and on.

Despite the once rather rowdy reputation of the address at East 14th Avenue and Krameria Street, the neighborhood has gotten a lot safer and has been gentrifying a lot lately. This is an aberation these days. But, crime happens and leaves memories behind long after the physical traces have vanished.

New Article On Unintentional Punishment

I am a long time skeptic of the exaggerated importance given to intent in our civil rights jurisprudence and have long favored instead a "takings" orientatioon to this field. Punishment that arises because "shit happens" (such as due to bureaucratic incompetence) are often as problematic, or more so, than the intentional kind, which in theory can be addressed by punishing wrongdoers. A new law review article by Adam J. Kolber at Broolyn Law School entitled "Unintentional Punishment" in the journal "Legal Theory" addresses a key intellectual reason for this stance. The abstract is as follows:

Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.

In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration because it cannot justify the side effects which necessarily accompany it.

Biking To Work Popular In Denver

In 2010, 2.2% of commuters in Denver biked to work. Only four major American cities had a greater percentage: Portland, Seattle, San Francisco, and Washington D.C. In Portland, about 6% of people bike to work, in the other three the percentage is 3% to 3.5%. The national average is 0.5%. Denver saw a one year jump in commuting to work by bike of 22%.

Obama Politically Tone Deaf On Marijuana

The Obama Adminstration picked this month to make a significant shift on its policy towards medical marijuana, with the U.S. attorneys in California declaring a policy of cracking down even on state licensed dispenaries, and other screw tighening measures aimed at banks and marginal medical marijuana providers in Colorado.

Meanwhile, public opinion towards marijuana is more favorable than it has been at any time in the last 42 years. Most Americans surveyed favor legalizing marijuana and 7 out of 10 favor legal medical marijuana:

When Gallup first asked about legalizing marijuana, in 1969, 12% of Americans favored it, while 84% were opposed. Support remained in the mid-20s in Gallup measures from the late 1970s to the mid-1990s, but has crept up since, passing 30% in 2000 and 40% in 2009 before reaching the 50% level in this year's Oct. 6-9 annual Crime survey. . . . A Gallup survey last year found that 70% favored making it legal for doctors to prescribe marijuana in order to reduce pain and suffering. Americans have consistently been more likely to favor the use of marijuana for medicinal purposes than to favor its legalization generally.

The California Medical Association last week came out in favor, not just of medical marijuana legalization, but of marijuana legalization generally. This is an opinion trend not just limited to a bunch of ex-hippies.

And, those who favor legalizing marijuana and medical marijuana are disproportionately not yellow dog Republicans. About 57% of Democrats favor marijuana legalization as do about 57% of political independents, while just 35% of self-identified Republicans favor marijuana legalization. Support for full legalization is overwhelming among people who might ever conceivably vote to re-elect President Obama, while opposition in concentrated among those who would never dream of casting a vote for President Obama. Given the lack of a difference between Democrats and Independents on marijuana legalization, it is safe to assume that significantly more than 70% of each of these groups back medical marijuana (if the increase in support is proportionate across the board about 80%), while more than 35% of Republicans also favor medical marijuana (if the increase in support is proportionate across the board about 49%).

What in the world is the Obama Administration thinking on this issue politically?

Gasoline Powered Cars Use Electricity Too

Unlike gasoline powered cars, electric cars don't use gasoline. We get that. But, they also eliminate the need for the electricity that was needed to bring the gasoline to market. The amount of electricity required to go 100 miles is about the same as the amount of electricity necessary to bring 3.4 gallons of gasoline to market. So, for cars that are less fuel efficient than 29 miles per gallon, electric cars reduce both gasoline and electricity consumption, and even for more fuel efficient cars, the marginal electricity grid capacity required to support them is often trivial.

Petroleum refineries use a lot of electricity — the Argonne National Laboratory estimates that it takes about 6 kilowatt-hours of electricity per gallon of gasoline. Norby tacks on the electricity used for extraction, refining, and shipping and comes up with a “conservative” estimate of about 8 kwh per gallon. If that’s the case, then a gas-powered car that gets 22 miles per gallon would use about 40 kwh of electricity to go 100 miles. An average electric car, by contrast, would only use about 30 kwh of electricity to go the same distance. In other words, not only does the all-electric car use no gasoline — it would appear to use less electricity, too.

From here

Now, admittedly, lots of electricity is produced with high pollution coal. But, the sources of power for the grid can be changed "painlessly" to the consumer in terms of lifestyle changes or new equipment. As long as the green contribution to the powergrid grows at least as fast as the marginal increase in electricity consumption attributable to electric car usage, coal consumption doesn't increase while petroleum consumption falls.

Once again, the only technological barriers to widespread use of electric cars appear to be a recharging infrastructure and batteries, and progress is being made on both fronts.

Who Are The Top 1%

A breakdown on the professions of those in the top 1% of income shows their rising share of all income with finance professionals surging relative to all others.

Executives, doctors, bankers, lawyers, techies (engineers and computer experts), dead people and people who don't work made up the largest shares of the total (these categories combined made up 7/9ths of the total).

Executives and lawyers doubled their share of national income in a quarter century, bankers better than tripled their share, doctors increased their share by about 50% (as did dead people and people who didn't work).

Congress Provides Little Oversight Of Intelligence

The upshot of a new empirical analysis of Congressional oversight of intelligence functions is that Congress does very little to supervise intelligence agencies. This is troubling because, due to the secrecy of these agencies from the general public, a select subset of members of Congress (and their staff) and the President are the only people in the country outside the agencies with anything approaching an adequate amount of information to provide meaningful oversight to these agencies. The media and lobbyist checks available to address problems in other parts of the federal government are absent or only minimally and partially informed when it comes to the nation's intelligence agencies.

Blackberry Causes 20%-40% of Arabian Traffic Accidents

At least, that is what a natural experiment as a result of a three day Blackberry shutdown in two Arab states would suggest.

Of course, if this was accompanied by security measures in addition to a blackberry shutdown, the natural experiment may not be as clean as it seems. But, provisionally, at least, this seems to have been a purely technical breakdown,, which would support the natural experiment's conclusions.

Nobody doubts that handheld electronic devices can impair driving, and Colorado recently banned texting while driving. But, I don't think that many people would have expected the impact to be so great. Another key fact that may play a part is that the Islamic ban on alcohol, even if it isn't perfectly honored in practice, may significantly reduce the incidence of driving while intoxicated which makes up a very large percentage of U.S. accidents. The fact that not much traffic in these microstates involves long distance trips may also reduce the importance of another major U.S. accidents source: lack of sleep and extremely high speeds. The reduced importance of alcohol and sleep deprivation and extremely high speeds in accidents may elevate the importance of other potential risks, like distractions from electronic devices, proportionately.

Legislative Priorities In Denver and Topeka

In Denver, we recently (by voter initiative) repealed the city ordinance that banned possession of small quantities of marijuana and made the use of city law enforcement resources to deal with marijuana possession under Colorado's statutes the lowest priority and leaving state authorities to enforce its laws if it wanted to deal with this crime.

In Topeka, Kansas, the city council also decided to repeal a city ordinance and deprioritize the use of local resources to deal with another crime that reflected their priorities, which are somewhat different than those of Denver voters:

The Shawnee County District Attorney first decided abruptly that he would stop prosecuting all misdemeanor cases arising in Shawnee County, including domestic violence misdemeanors, because he didn't feel that he had enough money in his budget to afford to make those prosecutions after his office had its budget cut 10% by the county commissioners.

TOPEKA, Kan. — . . . By a vote of 7 to 3, the City Council repealed the local law that makes domestic violence a crime.

The move, the councilors were told, would force District Attorney Chad Taylor to prosecute the cases [at state expense] because they would remain a crime under state law, a conclusion with which he grudgingly agreed. . . .

Eighteen people have been arrested on domestic violence charges since September and released without charges because no agency is accepting new cases. . . . Almost half of the misdemeanors that were prosecuted last year — 423 cases — are domestic battery cases, and most of the rest are shoplifting, drugs and assault.

From the New York Times via the Family Law Profs Blog.

Once again, budgets are driving criminal justice policy, which is not in and of itself such a horrible thing, but it is hard to fathom why, of all offenses, this is the one the Topeka chose to decriminalize to balance its budget. Why not, for example, also decriminalize misdemeanor shoplifting and drug cases, which have also been pushed into its lap?

This case also recalls similar intrastate federalism fights over criminal justice related expenditures in California.

Libertarians Against Democracy

Michael Lind writing at Slate does a Yeoman's work cataloging the strong anti-democratic thread in libertarian political thought, and by almost all of the most famous libertarian icons, many of whom were personally involved in setting policy under dictatorial regimes.

Home Ownership Affordability At 40 Year Plus Record

For the first time in more than thirty years the median monthly rental payment is the same as the principal and interest part of the median monthly mortgage payment. This is because mortgage payments have fallen from a high bubble level to something close to the pre-bubble norm since 2005 due to falling home prices and lower interest rates, while median rents have steadily increased almost every year for the last thirty years.

The median mortgage payments excludes some costs of home ownership that are included in rent, like property taxes, homeowner's insurance allocable to the structure, major maintenance costs, and home buying up front costs like closing costs and down payments that are typically greater than the security deposit and rental application fees paid by renters. So, renting isn't really no less expensive than owning.

But, the relative price of owning relative to renting has fallen in half in just half a decade. The median mortgage payment to median rent ratio was 3:1 in 1981, 1.5:1 in the mid-1990s, 2:1 in 2005, and is 1:1 now.

This is even more remarkable when you consider that stricter credit requirements and falling homeownership rates (from a near peak in homeownership rates of around 70% around 2005 to something close to 65% now) have made the ranks of those who are paying mortgages more elite, something you would think would lead to higher, rather than lower median mortgage payments. Also, the drop in homeownership has come almost entirely from the two-thirds or so of homeowners who have mortgages, not the one-third or so who own their homes free and clear. So, the proportion of people who pay mortgages now is down more than 10%. This is quite a bit more elite.

The trend in rents is equally puzzling. It certainly isn't surprising that rents have gone up as the number of people who are renting relative to the number of people who own homes has risen (an increase of roughly 1/6th from 30% of the population to 35% of the population), as new construction has ground to a halt (although presumably, more single family homes and condominiums have gone from being owner occupied to rented, picking up some of the slack), and as more affluent people who in prior years would have been homeowners revert to being renters. The surprise in the median monthly rental payment trend is that it has been rising so relentlessly over the last thirty years without any regard to prevailing economic conditions.

While the trendline for owner occupied homes has jumped up and down like the stock market, rental price trends have not changed in the slightest, despite the fact that they involve an identical commodity (sometimes the very some residence). In the time period from 1981-2011, there have been wild shifts in homeownership rates (which impact median renter income), interest rates (which impact rental real estate costs), housing prices (which impact rental real estate costs), the inventory of rental real estate, and more. The numbers are nominal rather than inflation adjusted, and at a glance actually seem to show a more gradual trend than inflation which is known for its ups and downs with the business cycle, perhaps offering proof that prices (or at least residential rents) are sticky in the rental market despite the fact that rental properties turn over and are subject to market discipline much more often than owner occupied properties. Alternately, this regular market discipline may be what makes this market, that determines a market price for a much larger percentage of the total inventory each year than the owner occupied home market, less variable.

Nominal median rents have not quite tripled in the last thirty years, while the consumer price index has risen by a factor of 2.49 in that time period. So, real rents are actually up a little less than 20% over the last thirty years - an increase of about 0.6% per year (an increase of about $4 for next year's rent relative to this year's rent after inflation for a median renter paying the current median rental income in 2011) on an annualized basis, which is pretty close to the thirty year trendline for working class incomes.

My intuition is that median rents are roughly tracking 20th percentile incomes which have been quite stable over the last thirty years - barely keeping up with inflation, rather than the variety of supply based factors that have influenced mortgage pricing. In other words, it appears that median rents are largely demand driven (i.e. driven by the ability of prospective renters to pay), while median mortgage prices are largely supply driven (i.e. driven by housing costs and interest rates), and that demand side factors have been more stable than supply side factors over the last thirty year period.

Viewed this way, the real story that we are seeing now is not rising rents, which are actually remarkably stable after adjusting for inflation and long term trends in median renter income, but falling mortgage payments caused by the housing bubble collapse and falling interest rates. It hasn't been this cheap to buy a home in a very long time, and tougher underwriting standards have prevented people from taking advantage of the more affordable prices and driving them up again.

Indeed, given how high median mortgage payments were relative to median rental payments in 1981 (an admittedly somewhat odd year when stagflation ravaged the economy), housing affordability may be at quite a bit more than a thirty year record right now. A look at housing affordability data going back to 1970, makes clear that housing affordability is at a more than 40 year low right now, surpassing the record set in 1972. It certainly isn't unreasonable to guess, however, that we are at a 45-55 year record for housing affordability.

And, as I've remarked before, before post-WWII government interventions in the mortgage market through the GI Bill, Fannie Mae and Freddie Mac, and the mortgage interest deduction, it was much harder to obtain a residential mortgage than it is today.

It may very well be cheaper to buy a home, for those who have the down payment and credit rating and regular income and low debt ratio to do it, than it has ever been in the entire modern history of the United States, although I wouldn't rule out a more affordable moment for returning veterans buying small Levittown style houses in the 1950s suburbs (historical statistics have their limits because it is hard to know how to compare situations like do it yourself house raisings on homesteaded properties and pioneer do it yourself shacks).

Data Mining In Sweden

Almost no place in the world outside Scandinavian countries like Sweden, have such comprehensive and massively cross-indexed dossiers on their citizens. For a social science or public health researcher, this is heaven.

Neuroskeptic notes a recent example of a study demonstrating a link between both bipolar disorder and schizophrenia and creative occupations (visual artists (photographers, designers, etc.) non-visual artists (musicians, actors, authors) and academics (university teachers)) in both the individual with that condition and their relatives as distant as first cousins.

Bipolar people and their relatives are more likely to be in creative professions, confirming the stereotype.  Relatives of people treated on an inpatient basis for schizophrenia, but not the individuals themselves, were likewise more likely to be in creative professions.  The odds ratio for being in a creative profession due one of the conditions is about 1.5.  Creative occupations were slightly less common in people who experienced unipolar depression and their relatives.   Unipolar depression reduced one's odds of being in a creative profession by 5-10%.  IQ was a bit lower in inpatient mental health patients and a bit higher in creative professionals.  The mental health condition-creative occupation link was even stronger after adjusting for IQ.  

A comprehensive health records data base derived from the national health care system, census records showing occupation, age, and family relationships, and military IQ test records for men (who have mandatory military service), and the huge national database, gave the study a sample size of 200,000 people with unipolar depression alone, and 100,000 people treated for bipolar or schizophrenia over a 30 year period that includes every single person who ever received treatment for any of those conditions in the entire country for the entire study period. The control group was every single adult in Sweden in that time period.  It is the ultimate in comprehensive data sets that are very rich in information for every single data point. This study looks at heredity without genotyping, but there is also a considerable amount of genetype information in the health care database that I've seen used in other studies.

Of course, the downside is that the government knows a huge amount about you and has it in a form that is relatively amenable to being used in a coordinated fashion. If any government is to be trusted with that information, it is probably the Scandinavians, who have some of the least corrupt and most competent civil services in the world. A relatively homogeneous population compared to places like the U.S. or India, also helps build trust that allowing this information to be collectivized will produce data that is used for the good of everyone. But, it isn't hard to imagine how this information might be abused in a government that operated the way that American governmental bureaucracies do.

To the extent that Americans are like Scandinavians with respect to the matter studied, this is great. They get all the Big Brother privacy costs, and we still get the benefits of stunningly comprehensive public health and social science studies. To the extent that Americans aren't like Scandinavians with respect to the matters studies, this is less good. We avoid the Big Brother privacy costs, but in exchange, have lower quality data and have to rely on relationships established with data that may not hold true in our own populations, thus leading to lower quality decision making.

Ultimately, I think the technology is going to sooner or later drive us towards the Swedish model. We will ultimately give up privacy in exchange for the knowledge that comes from wider availability of the data that is collected for useful purposes. Privacy, like an oil based economy, seems likely to be a temporary luxury and historical outlier that is sandwiched between the vast stretch of history when neither internal combustion engines powered by oil nor privacy was available (because people lived in small communities where everyone knew everyone else's business), and the future where we will run out of oil and technology will triumph over efforts to maintain privacy.

Sooner or later, rather than hiding our personal shortcomings and flaws through privacy, we will have to learn to acknowledge them and tolerate them in ourselves and others more than we do today.

Yellowstone Won't Wipe Us Out In The Near Future

The geologists, at least, unlike the economists, have some good news for once. The Yellowstone Caldera, despite repeatedly exploding into a supervolcano more castastrophic than anything on earth short of a comet, is not poised to destroy life as we know it in the Rocky Mountain West, something my son was recently curious about and we discussed.

[T]he Huckleberry Ridge eruption of present-day Yellowstone Park about two million years ago. . . was more than 2,000 times larger than the 1980 eruption of Mount St. Helens in Washington. . . . The Yellowstone eruption is one of the largest super-volcano events in history and it has happened several times. Other super-volcano sites include Lake Toba in Sumatra, the central Andes Mountains, New Zealand and Japan.

[D]espite its explosive history, it doesn't appear that Yellowstone is primed for another super-eruption anytime soon, though the slow process of volcanic uplift is taking place every day.

"The uplift of the surface at Yellowstone right now is on the order of millimeters. . . When the Huckleberry Ridge eruption took place, the uplift of the whole Yellowstone region would have been hundreds of meters high, and perhaps as much as a kilometer."

From here.

Indeed, the timing is right for climate impacts of the Huckleberry Ridge eruption to have triggered the first Out of Africa migration by hominins, specifically, Homo Erectus.

Sports Riches Don't Last

[A]pproximately 60 percent of NBA players enter bankruptcy within five years of exiting the league. For NFL players, that level stands at 80 percent.

From here.

Of course, it goes without saying that NBA and NFL players do not retire when they are old men, and that almost all have at least some college education.

Cain's 9-9-9 Plan Is A Middle Class Tax Increase

GOP Presidential candidate Herman Cain's 9-9-9 tax plan is pretty simple. It increases the tax burden of families making $50,000 a year dramatically, while greatly reducing the tax burden on people making $1,000,000 a year.

What part of this is a good idea and why is it popular with Republicans?

Perhaps he took his 6-6-6 cue card and accidentally held it upside down.

Serotonin Gene Impacts Response To Moral Dilemas

A new study, described here, shows that people with different versions of a gene related to the way the brain handles the neurochemical serotonin (5-HTTLPR) evaluate moral dilemas differently, even though the gene didn't have an impact on moral evaluations of unambiguous situations. People with two short versions of the gene tended to respond to situations emotionally, those with two long versions of the gene tended to favor utilitarian greatest good for the greatest number resolutions, and those with one of each tended to come out in between the other genotypes. People on SSRI (selective seretonin reuptake inhabitors) drugs exhibit changes in their moral judgments (also here) similar to those caused by a difference in this genotype. Other genes that influence serotonin, such as the MAOA gene also appear to influence behavior on a similar dimension.

Note that it isn't clear that one or the other version is "better" overall. Consider the following abstract:

Converging evidence suggests that the short allele of the serotonin transporter gene polymorphism increases risk for a variety of psychological disorders, including depression, anxiety, and alcoholism. Thus, the short allele is typically considered the “risk” allele, and findings related to the long allele are rarely discussed.

However, upon closer examination, findings associated with the long allele of the serotonin transporter gene share striking similarities with findings from studies of psychopathy. Here, the parallels between findings associated with the long/long genotype and findings associated with psychopathic traits in the areas of neuropsychology, psychophysiology, hormones, and brain imaging are reviewed. It is suggested that the long/long genotype may be a potential risk factor for the development of psychopathic traits.

Andrea L. Glenn , "The other allele: Exploring the long allele of the serotonin transporter gene as a potential risk factor for psychopathy: A review of the parallels in findings," Neuroscience & Biobehavioral Reviews Volume 35, Issue 3, January 2011, Pages 612-620 doi:10.1016/j.neubiorev.2010.07.005

Marshmallow Test At Age 4 Predicts Behavior In 40s

A person's ability to resist temptation, tested at age 4 when five hundred children were told they could get two marshmallows if they could wait fifteen minutes before getting the second one, has once again proven to have lifelong predictive power, this time forty years later with 59 of the original subjects, now in their mid-40s.

The middle aged adults were given a new, age appropriate test of impulse control involving refraining from pushing a button in a laboratory test in response to images displayed on a computer screen, and those who had willpower at age 4 also had it in their 40s, while those who did not have it then didn't have it later. Functional MRI scans of half of the subjects showed that resistance to temptation was related to activity in the brain's frontal lobe.

The study is one of the most notable elements of a larger effort to identify stable cognitive traits that are largely independent of IQ that impact a person's life chances in the modern world.

A cluster of traits, with one end of the scale associated with the Big Five personality trait of conscientiousness, and traits such as willpower, self-discipline, grit, initiative, personal organization, and what Steven Hsu has called the "W" factor for work ethic, have found themselves juxtaposed against the mental health condition ADHD, and traits like novelty seeking, impulsivity, and tendency to procrastinate. The way that psychologists define these traits isn't identical, but there seems to be heavy overlap between them. See, for example, prior posts here and here, here, here, here, and here.

The dopamine systems and components of the brain involved in one seem to overlap heavily with those involved in another.

Increasingly, it is becoming clear that these traits are congential or fixed in early childhood, possibly with a strong hereditary component, and are stable throughout life, although the way that they manifest at different points in a person's life varies. Whatever its etiology, the trait seems to be fixed, at least absent concerted and highly exceptional intervention, before kids even start first grade. Early childhood and elementary educators may hope to intervene and change this, but certainly for high school teachers and adults, people pretty much are what they are going to be and it seems likely that it isn't much more possible to change this trait appreciably at that point than it is to change someone's IQ at a comparable age. Indeed, impulsivity seems to be pretty stable at ages 3-4, while children may be twice as old before their tested IQs are really stable.

What Magical Powers Do These People Possess Over The PTO?

Whenever I file a trademark application with the United States Patent and Trademark Office that is marginal in its eligibility because it is generic, the USPTO always gives me a resolute "no."

But, some people apparently have better luck, such as the IT company that managed to get a trademark on the terms "gadget" and "website gadget" which were recently invalidated in a suit against Google.

Cases like these cast real doubt on the prudence of giving trademarks presumptive validity, supposedly justified because of advanced USPTO review of the marks.

Wall Street Pay Has Surged Over Last Thirty Years

Wall Street professionals have been rapidly increasing their incomes relative to everyone else. In New York City:

It shows that the average salary in the industry in 2010 was $361,330 — five and a half times the average salary in the rest of the private sector in the city ($66,120). By contrast, 30 years ago such salaries were only twice as high as in the rest of the private sector.

Financial professional income fell from the previous year, as a result of the financial crisis, in 2008 and 2009, but never below 2005 levels. There is a big increase in financial professional income from 2009 to 2010, bringing their compensation to above 2006 levels. The peak was in 2007.

The financial sector in New York City took more of a hit in employment than in pay:

The overall financial services sector was disproportionately hit by the financial crisis. The sector employs just 12 percent of the city’s work force, but accounted for one out of every three jobs lost in the recession. Some (not all) of those jobs were regained, but the comptroller’s office says the industry “is likely to experience significant job losses over the course of the next year.” In particular, the securities sub-sector of financial services “could lose an additional 10,000 jobs by the end of 2012, which would bring total job losses in the industry to 32,000 since January 2008,” the report said.

The bottom line question is what economic fundamentals, if any, justify this surge in banker pay? Or, is the surge a product of market failure?

Keynesian Economics Works

Krugman has a nice, short summary of the empirical evidence supporting Keynesian economic models. His core points, which are supported by Keynesian economic models but not leading alternative macroeconomic theories:

1. Budget deficits don't send interest rates soaring when unemployment is high.
2. Prices are sticky.
3. Monetary policy can move output and employment.
4. Austerity plans cause economic contractions.
5. Fiscal expansions (i.e. stimulus spending) in the 1930s lead to economic expansion.

Naturally, his Keynesian recommendations are basically that the Federal Reserve have an expansionary monetary policy without worrying unduly about inflation, and that Congress and the President devote more money to stimulus spending and stop worrying about the budget deficit.

Notably, cuts in civilian government employment, especially school teachers, have been a major drag on overall employment in the last two years. Government austerity plans in the United States, what Krugman calls "Hoover" style policies, are having a material negative effect on the health of the American economy.

Commercial Real Estate Loans Driving Bank Failures

CRE loans accounted for $365 million, or 82%, of the total nonperforming loans at failed banks in September. Within that group, commercial mortgages fared the worst making up $199 million, or 45%, of the total nonperforming loan pool, while construction and land loans made up $166 million, or 37% of the pool.

The residential real estate loan category had $61 million in nonperforming loans, representing 14% of the total nonperforming loan balance at the failed banks[.]

Only 4% of nonperforming loans were not real estate loans of some kind.

From here.

Colorado Congressional Districts Coming Soon

A two week trial to set Colorado's Congressional Districts for the next decade begins today in Denver District Court (the state trial court of general jurisdiction in the City and County of Denver). Colorado's General Assembly, which has a Republican controlled state house and a Democratic party controlled state senate, failed to to produce a map for the seven Congressional disticts allocated to the state that reflects the population shifts of the 2010 census, so the judge starts with a clean slate. The state school board and CU Regents are also elected from districts identical to the state's Congressional Districts. A ruling is expected about a year before next year's 2012 federal election.

Realistically, absent a really aggressive map drawing by the judge, this is very likely to be the final word and to be upheld on appeal. A bipartisan commission draws state legislative districts, but the Constitution allocates the duty to draw Congressional districts to state legislatures.

Pinker On Violence

Steven Pinker's big insight is that he see a long term decline in the amount of violence, of all kinds, that humanity experiences. His latest book is "The Better Angels of Our Nature." He is one of the foremost authorities making an empirical case that the progress of civilization is a meaningful concept. But, it is also possible that some of what he is seeing is selective marshalling of evidence. Gene Expression has devoted a couple of posts in the last few days to his thesis.

Capitalism Is Still Broken Until We Punish Downside Losses

The CEO of Gannett, Craig Dubow, is quitting for health reasons, but his golden years will be very comfortable: He stands to collect as much as $37 million in retirement and disability benefits. During his five years as CEO, Gannett’s stock price dropped from $72 to $10, and the company laid off hundreds of journalists, including people I know to have been very good journalists. I’m pretty sure that none of the fired journalists received a $37 million retirement package. I’m not even sure if collectively, all the journalists fired by Dubow’s company received $37 million.

Via The American Conservative, ultimate factual source here.

The economists are right. Incentives matter. But, in our current self-dealing big business culture, executives have reasonably great incentives from stock options to foster upside gains, but don't significantly bear downside losses so they are prone to taking the kind of risks that sooner or later destroy a company.

Some of the solution could be pretty straightforward. Pay executives the bulk of their compensation not in stock options, but in stock that they cannot dispose of until their tenure is over.

Foster Kids Frequent Identity Theft Victims

About 10%-30% of foster kids are victims of identity theft, compared to 4% of the general adult population. Often, they discover this only when they become adults and have no family resources to assist them in dealing with the issue. Colorado is among the states that has been a leader in addressing the problem, with mandatory credit checks for foster kids before their are emancipated, and on September 30, President Obama signed a law that will help the rest of the nation catch up. But, this is just one more in a litany of episode that seem to indicate that the entire foster care system is deeply flawed.

Abuse, including sexual abuse, of foster children is widespread. Many foster kids crash and burn upon reaching adulthood, since as the recent case of a teenage Denver girl who spiraled downhill and ended up homeless and dead in a park not long after leaving the system. These kids aren't being given a decent change at the financial support that they need to pursue further education.

Of course, the failures of the foster care system are not necessarily an endorsement of the orphanage system that it replaced. Foster kids who commit juvenile crime also seem to do better with trained foster parents than in juvenile lockups. One possibility might be to reduce the need for foster care by giving families more economic resources before they fall apart, since child neglect is also the handmaiden of poverty in the United States.

Almost by definition, foster children have, on average, had parents who weren't able to function and early childhoods that featured abuse or neglect. So, this is not a group of children who had great life prospects in the best of times. But, we could hope for a system that does not harm and provides more support to a group of highly at risk children than we would to children who have had upbringings unlikely to include neglect or abuse, unlikely to include totally dysfunctional parents, and likely to involve a continuing source of parental support in an era when most young adults don't leave the family home or cease to receive economic support from family for years after turning eighteen.

Shouldn't kids who were screwed over badly at least once, and deprived of their parents by state action in most cases, be entitled to an extra break, rather than held to strict libertarian standards of total self-sufficiency from the moment that they become adults?

Care for foster children makes up a trivial share of the total welfare system cost, yet they are among the most blameless for their own plights, so a more generous approach might be appropriate.

Household Income and GDP Diverge

Chart via the Calculated Risk story linked below

In Colorado, and nationally, the recession, measured as the period during which GDP declines, ended in 2009, but household income continued to fall during the so called recovery and the growth in employment from its low point has been slight.

Between June 2009, when the recession officially ended, and June 2011, inflation-adjusted median household income fell 6.7 percent, to $49,909, according to a study by two former Census Bureau​ officials. During the recession — from December 2007 to June 2009 — household income fell 3.2 percent.

The combined drop in household income, nationally, has been 9.8% for the recession and "recovery" combined. Unemployment fell from 9.5% to 9.2% in the recovery period.

It isn't entirely clear where the GDP growth is going. But, it isn't trickling down to households, so perhaps corporations are making gains instead.

The linked story doesn't make it clear, but the study referenced is actually about median household income, which makes its causes a bit more clear. The middle has been continuing to suffer during the "recovery" at the expense of those who are better off.

Jefferson and Taft Unorthodox

Neither Presidents Jefferson nor Taft adhered to common Christian orthodoxies.

Denver and Pueblo To Mail Ballots To Inactive Voters

Colorado Secretary of State Scott Gessler's request for a preliminary injunction preventing county clerks from sending ballots to validly registered voters who haven't cast a ballot in the last two years, despite the fact that state law does not require them to do so, has been denied by a Denver judge. The decision is merely preliminary, but like many preliminary rulings is probably more important than a ruling on the merits.

For most purposes, the 2011 election is one particular to each locality, particularly in Denver. School board elections and a Denver voter initiative related to paid sick leave requirements don't impact the rest of the state. But, the ruling makes it likely that something on the order of six thousand more voters in heavily Democratic Denver, and additional voters in Pueblo, will vote on Proposition 103, which increases the state income tax from 4.63% to 5.0%, and also rounds up the state sales tax, and earmarks the money for public education (K-12 or higher ed), an increase of about 15% over current spending. In a close election, this could easily make the difference between the defeat and passage of Proposition 103.

Gessler has been roundly criticized in Colorado and nationally for his efforts to prevent validly registered voters in Colorado from gaining easier access to ballots they have a right to cast anyway in the absence of clear statutory support for his stance in Colorado's election laws.

The ruling is another win for what academics call the Democracy Canon, which is the idea that laws should be interpreted to broaden rather than narrow the sufferage.

Unemployment Still Bad

Via Calculated Risk.

A third of the 4.5 million unemployed workers in the United States have been unemployed for a year or more; 45% of the 9.1% of the work force that is unemployed have been unemployed for at least six months and are no longer eligible for unemployment benefits (if they ever were eligible). Percentages of the population that are part-time for economic reasons (i.e. partially unemployed) remain near record highs as well. And, neither of those factors include people who are not in the workforce because they have given up trying to find a job. The less educated, as usual, are harder hit.

About 103,000 jobs were added to the economy in September, but that is just half the number needed to provide jobs to new entrants to the workforce as the nation's population gradually grows.

More generally, while some jobs are being created, we are nowhere near digging out of the hole created by the financial crisis. At year end, this will be the longest sustained period of net employment loss of any post-World War II recession.

Thirty four months after the employment recession started and 19 months after employment hit bottom, we still have 4.8% fewer jobs in the United States than we did when the employment recession started. Employment has been this far below pre-recession levels for 31 straight months. The only other post-war recession that every had that much of a jobs loss was in 1948 and it was at that low point for only a single month.

No other recession in post-WWII history has ever added jobs so much more slowly than it lost them in the way that we have seen in the recession from which we are trying to recover. Since it took fifteen months for the U.S. to lose jobs to reach the employment levels we are at right now, it will surely take longer than that, given current trends, to recover those jobs. This means that we will still have net job loss until sometime in 2013 at the earliest, and if we wiped out the net job losses from this recession by the end of 2014, we would still be beating the current employment recovery trend.

This is definitely bad new for President Obama's re-election campaign, which hinges on voter attitudes in November 2012 and the economy even four months from now is a fairly strong predictor of election outcomes.

Personal bankrupcies are down somewhat from last quarter but still at the levels seen prior to the Bankruptcy Reform Act of 2005.