31 May 2011

U.S. Corporate Income Taxes Lowest In OECD As Share of GDP

The United States is the OECD country with the lowest corporate income taxes as a share of GDP (1.8%) in 2008, despite the fact that it has one of the highest marginal corporate income tax rates.  The paradox is a result of the fact that there are more generous tax credits and tax deductions in the American corporate income tax than in foreign corporate income taxes.  U.S. law generally permits corporations to take tax deductions for capital purchases much more quickly than over the useful life of the purchase and has a generous deduction for research and development expenditures, for example.  The OECD average is almost twice as much as the tax burden in the United States. 

Critics of the importance of this ranking argue that this is mostly a result of shrinking corporate profits following the financial crisis, a crisis that hit the U.S. harder than it did big businesses in other countries.  But, it is hard to argue that the global economy didn't itself take a global hit in 2008.

Another complication in comparing corporate income taxes internationally is that publicly held U.S. corporations generally pay corporate income taxes, then distribute a large share of the after tax profits as dividends and pay individual income taxes on the distributed profits (albeit at a reduced top marginal rate).  In contrast, most countries tax distributed profits either only at the corporate level or only at the individual level.  Thus, the total taxation of corporate income is really somewhat higher than it seems looking at corporate income taxes alone, relative to other countries.  (The magnitude of this effect is small enough, however, that it would still leave the U.S. near the bottom of the OECD and very close to Germany.)  

On the other hand, many closely held entities that pay no corporate level tax in the United States because they are limited liability companies taxed as partnerships or S corporations would pay significant corporate level tax (which would be charged against individual level taxes) in much of the world.  If all of the individual income tax attributable to closely held limited liability entities in the United States were treated as corporate income tax revenue rather than individual income tax revenue in international comparisons, the size of the corporate income tax revenue flow would be significantly higher.

The bottom line, of course, is that it is easier to compare overall tax burdens between countries than it is to compare the burdens of particular taxes, because structural features of different tax regimes can make it appear that there are big differences between tax regimes for accounting purposes that have little economic relevance.

Still, none of these factors are sufficient to support the assertion that U.S. corporate income tax burdens make the U.S. uncompetitive in international business and cost it jobs, which is essentially the argument made by those arguing for lower marginal corporate income tax rates in the United States. Indeed, U.S. international competitiveness seems to be greater for publicly held corporations that are subject to these tax rates than for closely held businesses that have more favorable tax treatment. The U.S. small and medium sized business sector is notably weaker than its foreign competition, while its big business sector is fairly robust.

Parenting, Privacy, Porn and the Internet

If you're tired about talking about the real estate market and soccer leagues, and you want to liven up discussion at a party with people with children of a certain age, talk about how you manage your children's Internet access.

Some parents long for every opportunity to monitor and control their children's access to the Internet. Others take a more lassiez-faire attitude. My wife and I are certainly more relaxed than some, although we do have limits.

The Internet and the Death of Childhood Privacy

From a child's perspective, one of the important implications of the Internet is that it makes it possible for parents to know what they are doing at a level of detail that was previously impracticable.

The Denver Public Schools has a system that allows you to see your older child's every quiz grade, every absence and tardy notation, every homework assignment and pretty much everything else that the system has noted regarding your child in something approximating real time.

While they have the power to put passwords on their library cards, they don't, so that I can manage online book renewals and fill my household role a book return heavy, thereby minimizing library fines which is an area where we have imposed early personal financial responsibility. So, I know what they check out for the library. I can also monitor the e-books and e-audio books that they enjoy.

Netflix keeps track of which streaming media are watched for how long on which days, and which DVDs are mailed and returned. It doesn't take much in the way of investigative skills to figure out who is watching what when. If I wished, I could also impose parental controls on that account.

I could impose parental controls on my children's Internet usage, audit their web browsing histories, and more, if I was so inclined. For the moment, at least, I have the log in information to my children's e-mail accounts (all pseudonymous), so I can see how they write to, how often, what they write and when. It is also child's play to look at my daughter's cell phone and see who she has called and texted when and what was said in the texts.

Since they don't have cars yet and don't have license to wander our urban residential neighborhood very far without an accompanying adult, they can't really come and go from the house without us knowing where they are going.

The old school days when you insisted on looking at your child's report card and snooped in their diary and under their beds now and then look positively hands off compared to what is possible these days. Children roamed small town streets on bikes, food and skateboards with all the freedom of outdoor cats so long as they were home in time for dinner or called from a friend's house to say that they were having dinner there.  Local phone calls on landlines and notes passed on scraps of paper in class were not logged and hard to intercept. Nobody's television kept a record of what was being watched when that parents could review later. Library records weren't available for parents to review at the touch of a key while they were on lunch break. A child who was the first to the mailbox in the afternoon even had a plausible shot at intercepting letters directed to them through the postal service.

Bad Stuff It Is Out There

The Internet is not a rated PG forum. There is hard core pornography easily available for free to anyone savvy enough to write a Google search; some of it could even land someone in prison. This is far different from the days when you have to find someone to buy it for you, brave an inquiring neighborhood shop clerk, or engage in petty theft to see it, and even it wasn't nearly so vivid.

Cyber bullying and sexting are not unheard of phenomena, although they seem to be mostly outgrowths of real life interactions.

Phishing scams rolling in constantly to every web address and cause real financial harm.

A public embarrassment on line has the ultimate global audience and can't be erased by any reasonable means.

One of the biggest differences between controlling parents and those who are more relaxed is an assessment of how much of a risk, in terms of likelihood, seriousness and preventability is involved in these things.

Total Control Isn't Easy

We encourage them to use their computers in public view but they have laptops, they not infrequently have homework that requires computer use (my daughter had an insane amount of educational computer games for a math class last year in addition to the demands of other classes like social studies report and essay writing), and it is frequently best for family harmony if they do their work in their own rooms.

If my children were of a mind to keep secrets, they could in a variety of ways that they have the technical know how to manage if they were so inclined. If they were of a mind to use family credit cards to make online purchases, they could (although we'd know that someone made them when the statements came in each month if we paid enough attention and the purchases weren't sufficiently bland).

Having some sense of what your children are up to much of the time doesn't take much effort. Perfectly reliable monitoring and control is nearly impossible without becoming a real tyrant and consuming vast amounts of everyone's time in the process.

Why We Don't Fear Forbidden Fruit

Honestly, the best weapon in the fight against inappropriate Internet use is boredom. They simply are not interested in pushing the envelope. They'd rather watch the latest Disney drek than media aimed at older viewers. Long minutes of teenagers snogging, or worse, rates as seriously boring so far. Stop action you tube flicks of dancing Barbies to the latest tune from the radio, or cute kittens has more appeal than subversive political or religious messages. My working assumption is that adult material won't be interesting until they are ready, or almost ready for it.

We aren't terribly afraid of knowledge, even when it is a bit off color. Secrets can be corrosive, and are hard to hide within a family, and maintaining and preserving an inaccurate air brushed view of the world is even harder. We try not to put off questions, and instead to provide the answers to the questions that are really being asked without adding the undue adult emotional baggage than avoiding questions in the interests of the taboos of polite society can. We try to be truthful, factual and bland when the question and the person asking it don't indicate that it is asked, for example, "why are we learning about AIDS and HIV in a 4th grade Family Life class, the required a special permission slip?", indicate that a bare bones answer will satisfy curiosity without a full fledged birds and the bees talk.

If anything, mystery can call attention and interest to subject that tweens and even teen would otherwise find boring and uninteresting. We don't fetishize wine and liquor as forbidden fruits, and talk about the consequences of drinking too much without undue moralizing and without touting a prohibitionists line we don't adhere to. The same applies to material on the Internet that they don't need but don't necessarily want either, if we don't call attention to it.

Google holds the keys to lots of accurate information, as well as lots of mischief, work with them in research related homework projects has helped us to teach them how to distinguish trustworthy and not so trustworthy sources, and there will no doubt be queries in their lives at some point that would be mutually embarrassing for them to ask us that they can get authoritative, accurate answers to over the Internet, just as my generation did from the reference section and non-fiction books in the library. I'd rather that they have the means to get accurate information without asking an adult or letting us know that they are even asking, than not have information that they need at all. Sometimes a question about chlamydia asked because of a concern about a friend really is a question asked because of a concern about a friend. But what adult can help but to leap to suspicions? And, what smart kid doesn't know that they will?

Our main worry is not inappropriate media, or Internet predators. It is Internet and media overload. The limits that we impose have more to do with "how much" than they do with "what" online and media exposure they receive. So long as the number of hours they spend in front of a screen isn't excess, and we do impose limits in that regard, we don't worry much. If they are still reading books, getting outdoor activity, spending time with friends, keeping on top of their homework and so on, a little indulgence is accepted.

Most serious online trouble involves overindulgence. A kid who watches 3 minutes of porn once is not going to be scared for life. A kid who watches hours of it on a regular basis for weeks may get pretty messed up and not realize that this is adult fantasy and not reality. Obsession is more often a problem that knowledge.

In our privacy free online world (so far), sometimes they get caught exceeding the boundaries. Minor transgressions, like a quick check in with an age appropriate online world they have a character in, or a check of an e-mail account, between bouts of homework, are overlooked, although we don't leave them with the illusion that they are putting one over on us. A parental reputation for omniscience can discourage a multitude of sins. Major transgressions are usually punished in kind; watching a movie or playing a video game when you weren't permitted to on Tuesday night may mean forfeiting the chance to do so on Friday after school.

Strategic Reasons For a Light Touch

We try not to be disproportionate in our reactions to a great extent for strategic reasons. We'd like parental discovery of their activities to loom as a lesser tragedy than the alternatives if they get over their head. For example, we wouldn't want them to avoid letting us know about a cyber bully or someone communicating with them inappropriately out of excessive fear of punishment for using the Internet when they weren't supposed to be doing so.

We know perfectly well that we can't hope to be fully informed about what our children do with their friends and their romantic travails as teenagers. But we'd like to think that if the risks of talking to us aren't too high, and questions about their social lives remain as routine and inevitable as our questions about what kind of cake there was at the birthday party and whether it was home made, that we might at least have some sense of who most of the more important people in their lives are these days, and of what those people are like.

Let's face it. Hosting parties for your kids is not simply something that you do out of the goodness of your heart. It is also a part of a comprehensive intelligence strategy to figure out what kind of kids your children choose as company.

At some point, you can no longer choose your children's friends (or eventually, their lovers). But if you keep the door open while remaining basically honest, you can hope to provide some feedback to your child about the people in their lives, for what it is worth, that will be considered as they make their own decisions for themselves. If you acknowledge that sooner or later you will lose control, maintaining credibility becomes more important than bolstering your authority. If you can maintain credibility and stay well enough informed to know when there are opinions to be offered, you don't need hard authority over your children.

Kids have been defying their parents in matters of friendship and love since long before Romeo and Juliet became a classic. The ancient Greeks developed a whole literary genre based upon people ignoring what their betters told them was in their best interests and called it tragedy. But a lot of bridges have to burned before a child ceases to have some preference for parental approval if it is within the realm of the possible, and I'd like to believe that if this card is not overplayed that it can produce beneficial results for all involved.

Who Knows What Approach Works Best?

These observations don't come stamped with a double blind longitudinal study, or the after the fact certificate of approval that comes with kids who somehow managed to do well in the end once they grew up.

Of course, not even couples fully agree how to approach these matters.  My wife is fond of very specific rules that contain the word "never," ideally presented long before the situations to which they apply come up.  Despite, or perhaps because, of the fact that I'm a lawyer, I'm more inclined to generalized character building, talking about situations we encounter in our life, developing a way of thinking about problems, being a role model when I can, and honestly admitting my own shortcomings when I can't.  I don't like to borrow worry and I prefer to take life's challenges as they come.  She sees a parent as more like a law giver dispensing the Ten Commandments of life, while I see a parent as more like a teacher in a liberal arts curriculum or a socratic method law professor trying to get the students to draw their own conclusions from a case.

The combined effect may sometimes be incoherent on the receiving end.  When they do children can arbitrage the approaches to some extent by seeking to be regulated by the preferred parental regime, or can simply do what they wish instead of what they have been told.  What couples (and children) don't face these issues to some extent?  But, because our values aren't that far from each other on the main objectives, we manage.  Maybe we really suck at parenting, but have been blessed with children who were born predisposed to have half decent judgment anyway.  There is really no way to know for sure. But fools rush in where angels fear to tread and in the absence of definitive data you do your best because you have to do make real choices every single day and live with them.

27 May 2011

Lexis Nexis File and Serve Hell!

There are wonderful things about e-filing. You can file documents long after courts close from the comfort of your office. The amount of paper shipped across the country is far less and this removed the drudgery of copying and mailing vast volumes of legal documents to lots of people.

But, it also is utterly incompetent in a variety of common scenarios. For example, the system simply cannot comprehend that a lawyer migth be signing pleadings for more than one law firm at a time, despite the fact that it is permitted and that there are many circumstances where it comes up.

Equally frustrating is their inconstant approach to security. Anyone claiming without any substantiation to be a law firm IT administrator can change the firm, e-mail account and password assigned to a e-file account without even talking to a real human being, and without notice to the old account e-mail address. But, lawyer himself or herself doesn't have the authority to do these things and isn't contacted about them, and must concoct complex and hence difficult to remember passwords to the account.

Friday Quotes

Newspapers are unable, seemingly, to discriminate between a bicycle accident and the collapse of civilization.

- George Bernard Shaw

[B]logs are sort of like puppies. Easy to get one; expensive to maintain one. You can never stop writing and promoting it.

- Ernie the Attorney

Reflections On Parenting As School Is Out For The Year

Today is the last day of school for my children in the Denver Public Schools (a few schools affiliated with the district have alternative calendars).

Honestly, as inconvenient as it can be to cobble together everyone's new schedules for the summer, it is a joy for the sense of rhythm it adds to life. I spend the majority of of my daylight hours in climate controlled office buildings, and Denver's weather is quirky enough that the conditions when I do venture out don't always give me a clear take on the season.

Like most jobs, my work is amorphous. I have many cases going at any given time and they almost never all stop at once. While I'm often very aware of the date, one month can blur into the next, and one year slides into another. Everything that I do except tax planning has rolling deadlines, not annual ones. I'm not the exception. A colleague of mine I had lunch with this week could figure out what year he started his current employment only in reference to the year that someone in the firm had a child.

Children ground you and give you bearings. Their schools years make your place in the seasons relevant to your life. Their well defined march from year to year is full of landmarks - entering elementary school, hitting double digits in age, entering middle school, and soon enough for me, the teen years, and high school. Life with one or two preschoolers is so very different from having children in school. Life before one of the kids is old enough to babysit has immense logistical differences from life after that point. Their school vacations, their school performances and awards ceremonies, their sports seasons, their report cards and their fund raisers add predictable highlights to the year. Without them to ground us, life might seem to go by in a fugue.

The end of the school year is also one of the dates, along with my birthday, my anniversary, New Year's Day, Valentine's Day, and the anniversary of my first admission to the practice of law that I step back and reflect on what I've accomplished in the past years.

The end of the school year, even more than my children's birthdays, is a day that I treat a bit like those signs that say "X days without accidents." I have gotten the kids this many years into their lives with parents who have stayed married, a stable home and school, and the kind of academic and social progress that they should have at this point. I'm someone who spends a lot of time reminding people of their mortality in connection with estate planning and probate work, and when I'm not doing that I'm often planning for worst case financial scenarios in asset protection planning. I also monitor the nature v. nurture debate on the context of the latest findings of psychologists and psychiatrists and neuroscientists and geneticists. So, I help but to ponder at the end of each school year, "what if I got hit by a bus right now?", how much of doing everything we've done to raise our children so far would stick and what might fall apart? How irrevocable are the benefits we've conferred upon them this year? How set are they on the courses of their lives?

The academic literature on this isn't terribly rigorous, mostly because people who have critical experiences tend to be undersampled.  Basket case parents usually don't adopt and thus, don't end up in adoption studies. Very few twins are separated at birth, because its cruel. Flakes on the brink of survival tend to not volunteer for longitudinal research studies.

There is a lot of literature on on the extent to which traits are hereditary and the point in time when academic achievement gaps start to manifest. This literature offers reassurance to the anxious parent. Statistically speaking, a much larger share of variance between people in a wide variety of traits than people who are not familiar with the literature would expect can be attributed either to hereditary effects, or to "non-shared environment" between siblings which mostly involves things other than the choices that parents can control in raising their children.

But, to be a pessimist and cast a necessary dollop of doubt upon these findings, a great many traits involve gene x environment interactions, and the vast majority of people whose experiences give rise to the estimates of heredity don't experience many major upheavals in their lives. Studies that select subjects based on shared experiences of major upheavals and traumas tend to see bigger environmental effects than studies of the general population that capture people who have experienced these things only sporadically.

For example, the research seems to indicate that the genetic component of IQ is basically a ceiling on a person's intellectual ability in the absence of negative environmental factors that drag someone down. For people in middle class or upper middle class environments that have few of these drags on learning, the genetic component of IQ is quite large. For people who grow up in poverty, the shared environment impact of poverty on family members which varies a lot depending upon the parenting present that can mitigate or aggravate these environmental drags on learning are far more important as a source of variation from one person to the next, than a person's peak genetic potential IQ which is very hard to achieve when one is in poverty.

Not all traits in a child's development are in formative periods at the same time either. The genetic and environmental influences of IQ have pretty much run their course by the time a child heads to middle school, if not sooner.  Most children have clearly left the path that includes anger management problems and disruptive behavior by then as well.  A tendency towards anxiety manifests extremely early, as does gender identity (i.e. viewing oneself as male or female, regardless of one's body or sexual orientation).  A child's capacity to delay gratification also appears to manifest quite early.

There is some psychological literature that indicates that middle school and high school are critical ages in terms of how a person will function later in life in intimate relationships. A nasty divorce or betrayal of trust by an adults through sexual relationships with a kid at that point in life can undermine a kid's willingness to make the commitments and have the trust needed to avoid stumbling blocks later in life in those relationships.  But, few people end up spending their lives with their middle school, or even high school, sweethearts.  Some people are more resilient than others in the face of trauma.  Some young people who are made into child soldiers or gang members will be forever stone cold, while others can be restored to some semblance of normalcy if intervention happens soon enough and their reentry to society is managed well.

There is anecdotal evidence that people tend to keep whatever hairstyle and fashion preferences they adopt in their early twenties for the rest of their adult lives.

For parents the goal posts keep moving. Just when you can be confident that you have finally cleared the hurdle of getting your kids on the right track in life in one thing no matter how much you screw up later, there is some new critical developmental hurdle to clear.

Of course, this isn't exclusively a parent's responsibility. Kids make good and bad choices in their own lives that start when parents no longer have effective absolute veto power over what they eat for lunches and snacks and continue well into adulthood. Academics and opera singers have critical developments they need to make in their career specialties that will influence the rest of their lives greatly, well into their thirties, long after most have left the nest. For political staffers and lawyers and management consultants and investment bankers and doctors, one's first few years on the job are typically when you develop your professional specialty, which can be very hard to predict based upon your generalized education before that point. Some people who move to a new country as adults will adapt fairly gracefully, even if they never entirely lose their accents, while others fail to thrive or "crack" psychologically at that point. A choice of a life partner can change who you become.

For better or for worse, my own tendency is not to second guess what I've already done very much - it is what it is, but to fret over how secure what has already been accomplished will be in the future and one what developmental issues are not yet set strongly for children of the same age and gender as mine. I'm sure that there are other ways of looking at it, and some are probably better than mine. But, these are the kind of yardsticks that come to mind almost involuntarily.

Similarly, it is hard for me to stay focused on what my children do well and could perhaps advance further doing, as opposed to focusing on the issues that they struggle with but need to master. Focusing on the negative can be discouraging to them, but every time I see an issue come up for one of my children that is a struggle, I hear a clock silently ticking away in my head. Is it too late to make real progress in dealing with this? And, of course, there is joy in simply seeing children cease to become abstract possibilities and become their own distinctive individuals on their own paths in life. Each time that they take one fork instead of another in life you can develop a better feel for the kinds of paths they will take in life as adults and who they are becoming. Is he outgoing or introspective? Will she be a tomboy or a girl who is all sugar and spice? How tall will they grow? What are their academic strong and weak points? How do they treat their friends?  What lessons are they learning from me by example?

Sometimes you can get ahead of yourself. My dear wife has been obsessing about where our children will go to college since they were in pre-school, although this urge has been tamed a little over time. I'm less like a "tiger dad" and more like someone reading all of the Harry Potter books from start to finish and impatiently driven by pure curiosity to see what ends up in the epilogue, perhaps at the expense of the joy of the journey, without as much emphasis on having any particular ending.  We each only have one shot for each child and we can only do our best and strive to improve.

26 May 2011

What Is Your College Major Worth?

A new study from Georgetown University assembles data on the earnings experience of college graduates with various undergraduate college majors. Unsurprisingly, there is great variation in earnings prospects between different college majors, with the highest earning majors dominated by engineers, and the lowest earning majors predominantly centered in the caring professions.

The data are parsed by race and ethnicity, gender, and industry. It helpfully includes not just median earnings, but also 25th and 75th percentile earnings, percentage employed, the extent to which people with particular college majors end up in particular industries and occupations, and the likelihood that individuals with particular college majors will go on to earn graduate degrees and the economic premium that they receive from doing so.

Merit v. Money In College Attendance

At the University of Michigan, more entering freshmen in 2003 came from families earning at least $200,000 a year than came from the entire bottom half of the income distribution. At some private colleges, the numbers were even more extreme. . . . [A]t Amherst. . . 22 percent of students now receive federal Pell Grants (a rough approximation of how many are in the bottom half of the nation’s income distribution). In 2005, only 13 percent did. Over the same period, other elite colleges have also been doing more to recruit low- and middle-income students, and they have made some progress. . . . [But] a Georgetown University study of the class of 2010 at the country’s 193 most selective colleges. As entering freshmen, only 15 percent of students came from the bottom half of the income distribution. Sixty-seven percent came from the highest-earning fourth of the distribution. These statistics mean that on many campuses affluent students outnumber middle-class students. . . .

[M]any of the most capable low- and middle-income students attend community colleges or less selective four-year colleges close to their home. Doing so makes them less likely to graduate from college at all. . . only 44 percent of low-income high school seniors with high standardized test scores enroll in a four-year college, according to a Century Foundation report — compared with about 50 percent of high-income seniors who have average test scores. . . .

[T]op colleges gave no admissions advantage to low-income students, despite claims to the contrary. Children of alumni received an advantage. Minorities (except Asians) and athletes received an even bigger advantage. But all else equal, a low-income applicant was no more likely to get in than a high-income applicant with the same SAT score. . . .

The United States no longer leads the world in educational attainment, partly because so few low-income students — and surprisingly few middle-income students — graduate from four-year colleges.

From the New York Times.

Amherst's efforts (which increased financial aid and replaced loans with grants for working class and middle class students) and the fact that even low and middle income students with good grades and standardized test scores have greatly reduced college attendance suggest that the gap in selective college attendance and in college attendance generally is driven to a great extent by financial need, not just the fact that children of smart successful people tend themselves to be smarter than their peers on average.

College campuses would still have student bodies from families that are far more affluent than the population at large even in the absence of alumni preferences in admission and financial need barriers. But, the low rate at which low and medium income families who are academically strongest attend college makes clear that we do not have a meritocracy and are wasting much of our nation's precious academic potential.

These facts drive my inclination to favor heavy funding of scholarships that are based on a mix of financial need and merit, rather than across the board per student subsidies, as an approach for public support of higher education at the state level.

A large share of the benefit of state funding for higher education benefits families that are already very affluent and can afford high tuitions without support from state taxapayers. Also, another large share of state funding for higher education in the form of tuition subsidies is devoted to students whose weak academic preparation for college leaves them unlikely to succeed, and a very large share of these students either swiftly drop out, or have mediocre academic performance and learn little they didn't come into school knowing.

In contrast, working class and middle class students who have the academic ability to prosper in selective institutions of higher education are often pressured by short term financial pressures to forego educations that would help them prosper and improve their socio-economic status, and would help the state and the nation make better use of its available supply of human capital. The evidence that these students would have a high likelihood of graduating, have good academic performance while in school and acquire a lot of genuine increased knowledge in the process, while enhancing their life chances and economic productivity is overwhelming. The evidence that it is financial need that is the main barrier to higher education for these students, much of which is recited above, is also solid. The current system does not provide these students with the level of financial support necessary to be meritocratic.

One of the least painful ways to change this lack of meritocracy would be to concentrate funds currently handed out indiscriminately to lower in state tuition for all at public institutions of higher education to provide grant aid to students with strong academic ability and financial need, rather than using those scarce public funds less efficiency to subsidize students from high income families and students whose marginal academic performance and standardized test scores to date indicate that they are likely to benefit less from higher education.

For example, if subsidies were denied to in state students from the top 25% in affluence in the current student body and from students in the bottom 25% in academic ability (two groups with not all that much overlap in raw number terms), the per student state subsidy for the remaining students could be roughly doubled, greatly increasing the affordability of higher education for academically able students, with no change in overall higher education spending.

This change in policy would probably actually increase the number of degrees awarded by public institutions of higher education, because increased enrollment and graduation rates for academically able students with financial need would probably have more of an effect than the decline in the number of academically marginal students who still manage to graduate and in the number of affluent students who decide not to go to college due to the absence of a state subsidy.

Of course, more funding for higher education may still be necessary. But it may be easier to secure public support for this spending when it is clear that it is being spent only to help those students who have both financial need and strong academic ability, and hence is more likely to produce economic benefits for the society at large.

Also, rather than assuaging our collective consciences by believing that we are doing a favor to academically marginal high school graduates admitted to open enrollment college and community colleges with state subsidies knowing full well that they are very likely to drop out in a year or two, possibly with student loans to pay and no degree to help them pay for those loans, we need to look harder at what kinds of programs and assistance for these kids would be more likely to produce results for them, particularly for those students who aren't inclined to enter military service, which has historically been one of the main American institutions providing a structured start in life to kids who aren't college bound.

25 May 2011

Parental Rights For The Other Man

Men who father a child during an affair with a married woman have the right to seek a role in the child's life, the Kentucky Supreme Court has ruled [4-3]. In an emotionally charged decision that critics say will undermine marriage, the court reversed centuries of common law and its own 2008 ruling that held such children are presumed to be the offspring of the woman and her husband.

From here referring to this ruling.

The only think I find surprising about the result on the merits, once paternity has been established notwithstanding the non-conclusive presumption that children are the offspring of the woman and her husband, is that it was so controversial, and an examination of the opinion reveals that the issue framed by the newspaper in the quote above wasn't the real issue before the court anyway.

The common law presumption of paternity in a marriage couple is centuries old, but that presumption has rarely been interpreted as being a conclusive one and has very rarely been applied in cases where it is obvious at birth (e.g. because a child is of mixed race or the husband was away at sea or at war for the entire period when the child could have been conceived) that the child is not the genetic offspring of the mother's husband. Usually, people don't look beyond the presumption and there is no duty or expectation that married couples will affirmatively establish whether or not husbands are cuckolds, even were there are good reasons to be suspicious. In the absence of scientific testing in cases of same race fathers, where the wife continued to have sex with the husband during the affair, however, which made up most of the cases when the common law presumption was developed, there was no reliable evidentiary way to overcome the presumption, and a version of this common law approach that captured the effect of this rule but not the reasoning behind it was codified into the archaic laws of Kentucky.

So, the real controversy in the Kentucky case (notwithstanding the spin given to it by the newspaper quoted above) for five of the seven judgges was really over whether the presumption of paternity in the case of a married couple was conclusive or merely evidentiary, given the archaic language of Kentucky's family law statutes that replaced the common law in this area of law. Kentucky's past precedents which were less than clear on the issue because a 2008 decision on a similar issue produced a consensus on the outcome but not on the legal justification for that outcome. The statute gives courts jurisdiction over paternity matters in cases of children "born out of wedlock." One past interpretation of that statute reached this result by reasoning that an affair interrupted "the marital relationship" even in the absence of a divorce or physical separation, by breaking the vow of monogamy. The Kentucky Supreme Court this week took a more direct approach, holding that defines the term "born out of wedlock" in relation to a child to refer to "a child whose mother, married or not, is not married to the child's biological father" without regard to the condition of the mother's marriage.

The new rule will make it unnecessary to procure in future legal proceedings of this kind the kind of evidence considered by the trial judge in this case to the effect that:

Appellant married R.S. on October 9, 1999. They have lived together ever since. They slept in the same bed, regularly engaged in sexual intercourse, and prior to 2008 had one child, whose paternity is not at issue. From August 2007 through the spring of 2008, Appellant was involved in an intimate and secret affair with Real Party In Interest, C .H .E., who was also married but was in the process of divorce. Appellant and C.H .E. had sexual intercourse on numerous occasions between October 2007 and March 2008. Throughout the affair, however, Appellant and her husband continued having sexual intercourse on a regular basis.

According to Appellant, the affair began because her marital relationship was troubled. She professed her love to C.H .E. and told him that she wanted to leave her marriage to be with him. He professed his love for her. She lied to her husband about her whereabouts when she was with C .H .E ., and she lied about the reason his phone number often appeared on her phone bill.

In early 2008, Appellant discovered she was pregnant. By March of 2008, she decided to end the illicit affair, but admits that she did not clearly communicate that to C .H.E . Instead, she continued to have frequent, nonsexual contact with him. She met some of his family members and kept him informed about her prenatal medical care: Appellant's husband remained unaware of the affair. He testified that had they not been having regular sexual intercourse, her pregnancy would have been a "huge problem" that he would have addressed immediately.

On September 8, 2008, Appellant gave birth in Kentucky to a baby girl, N.R.S. Two weeks later, she and C .H .E. arranged for a DNA test to determine if he was the father of N.R.S. The DNA test revealed a 99.9429% probability that C.H .E . was the baby's father. When C.H.E. expressed a desire to acknowledge his daughter and to be a part of her life, Appellant informed her husband of the affair.

On October 14, 2008, C.H.E. filed a paternity action in the Kenton Family Court pursuant to KRS Chapter 406.

After this decision of the Kentucky Supreme Court, everything in the recitation of facts set forth above that is not in bold would have been excluded from testimony on the grounds that it was not legally relevant. Like "no fault" divorce, this innovation will save the husband, mother, genetic father, lawyers and judge hours of uncomfortable testimony about the sex lives and feelings of married couples and adulterers, will bring increased certainty to the law, will fit more squarely with modern views of what is just and fair, and will generally dispense will court hearings on that issue of paternity entirely - the real trial will take place in some genetic testing laboratory based entirely on scientific principles that are far more reliable than court testimony in this situation, rather than the ordinary court evidentiary process.

The notion that someone who is an established parent of a child is entitled to participate in the parenting of that child, absent of finding of unfitness, is a bedrock principle of family law in every U.S. state and probably has constitutional dimensions at this point. Also, given that it is common place in modern society for people who are not married to each other and may each be currently married to other people to co-parent a child, it is not as if this situation poses any special difficulties for family courts or societal institutions that deal with parents and children to handle.

What did the dissenting judges say?

The Chief Justice's dissent was lawyerly, and addressed the conclusiveness of the presumption, stating in the pertinent part:

The General Assembly could have adopted substantially the same
definition by incorporating into KRS 406 .011 the language proposed by the drafters of the Uniform Act on Paternity (1960) : "[a] child born out of wedlock includes a child born to a married woman by a man other than her husband." But it chose not to; instead, it explicitly "includes" in KRS 406.011 "a child born to a married woman" as a child born out of wedlock only "where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child ." See J.N.R., 264 S .W.3d at 590-91. And while use of the term includes might otherwise signal an illustrative rather than exhaustive term, I believe that the legislature's refusal to adopt the broad definition proposed by the Uniform Act on Paternity draft evinces a clear legislative intent contrary to the majority's interpretation. Given that KRS 406.180 states that KRS Chapter 406 only applies to births "out of wedlock" and that the legislature chose not to adopt the definition of born out of wedlock that the majority adopts today, I do not agree with the majority that the trial court had subject matter jurisdiction simply because a paternity action was purportedly filed under KRS 406.021.

Perhaps changing mores and the advent of DNA testing call for a
different approach than the one the legislature chose in decades past . If so, the legislature should undertake that broad policy debate. But I do not believe it is proper for this Court to amend the statutes by construing them in a manner contrary to the legislature's clear intent.

The Chief Justice does not engage, perhaps because it was not adequately briefed, or perhaps because the dissent was a lost cause anyway, the constitutional argument that his proposed reading of the statute denies the father of the child a constitutional right to be recognized as a parent and to be involved in the parenting of his child absent abuse or neglect.

The other two dissenting justices on the Kentucky Supreme Court wrote a short opinion that was weak on the law, weak on the facts and classic cases of pounding on the table with characteristic Appalacian bluster and evangelical moral outrage. They also raise another issue. In their view, the problem is not necessarily that the presumption that a man married to the mother is conclusive, but that a challenge to that presumption can be raised by someone other than the man married to the mother. Thus, they want to allow a cuckolded man to have the right to challenge paternity, but also the right not to have the paternity of children of his wife, whatever their genetic ancestry may actually be, contested by "the other man." They state in their short opinion:

We vigorously dissent under the same banner for which we wrote in J.N.R. v. O'Reilly, 264 S .W.3d 587 (Ky. 2008). In essence, we hold strongly that only partners to marriage have the standing to question the legitimacy of children born during their marriage. Interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle. The majority here deals with only one child. We speak for the thousands of children yet unborn . For centuries, the institution of marriage has "been the rock in the shadow of which children are born, shaded, protected, and nurtured." Id. at 599 (Cunningham, J., concurring in result only). Our extended comments in the J.N.R. case will be left to speak for our refusal to stand quietly by as the legal institution of marriage is surrendered to the funeral pyre of modern convenience and unanchored values. We refuse to bow down to the "Gods of the Market-Place ." RUDYARD KIPLING, THE GODS OF THE COPYBOOK HEADINGS (1919) . Who is right and who is wrong in our debate will be left to the long view of history.

It will be interesting to see how this decision plays out in the next election for Kentucky Supreme Court seats in this religiously conservative state: "The Court has seven justices, each of whom is elected for an eight-year term from one of seven geographic districts in non-partisan elections. The justices' terms are staggered; they do not all run for election in the same years. The justices choose one of their number to serve a four-year term as chief justice[.]"

The Chief Justice (from a district that includes Bowling Green, Kentucky) and the lead author for the other dissenting opinion face the voters in 2015. The concurring judge to the other dissenting opinion faces the voters in 2013 in the 7th Supreme Court District, which consists of 22 counties in Eastern Kentucky. Three justices in the majority face voters in 2016 and the other faces voters in 2015.

24 May 2011

Crime Down In 2010 (Fifth Year In Row)

Crime levels fell across the board last year, extending a multiyear downward trend with a 5.5 percent drop in the number of violent crimes in 2010 and a 2.8 percent decline in the number of property crimes.

Year-to-year changes released Monday by the FBI in its preliminary figures on crimes reported to police in 2010 also showed declines in all four categories of violent crime in 2010. All categories for property crime went down as well. . . .

Violent crime last increased in 2005. Property crime last rose in 2002.

The FBI reported that violent crime fell in all four regions of the country last year — 7.5 percent in the South, 5.9 in the Midwest, 5.8 percent in the West and 0.4 percent in the Northeast.

From here.

Yesterday's new showed divorce rates down in Colorado. Teen pregnancy continues to hover near all time lows.

Also in the news, and possibly one explanation for the shift was the results of a new survey showing that the percentage of children ages 3-17 diagnosed with ADHD had increased from 5.7% for 1997-1999 to 7.6% for 2006-2008.

The economy can't explain the decline. The regional trends don't match immigration trends. Incarceration rates have been relatively stable in this time period. But, one thing that has changed and drives a disproportionate share of the year to year variation in crime, is the changing drug scene.

Domestic meth production is dramatically down. Illegal use of prescription drugs is up. A significant share of the illegal marijuana market has shifted to the legal medical marijuana market. Cocaine use isn't particularly high. There has been a pretty dramatic increase in legal use of drugs for mental health conditions.

One way to read the recent trend is that a lot of people who used to be self-medicating with illegal drugs supplied by a rough and tumble world of gangs and organized crime are finding chemicals to address their problems through distribution channels that don't drive street crime to nearly the same degree and provide a much more predictable product.

An alternative and not necessarily inconsistent possibility is that we are reaping the benefits of a long economic boom from the early 1980s until 2007, interrupted by only relatively brief and mild recessions. People may commit crimes on impulse, but a lifestyle that leads to commiting serious crime with little hesitation and routinely committing less serious crimes is decades in the making. A long period of relative plenty may have narrowed the pool of people who were in dire poverty as young children and became more predisposed towards crime as a result.

A third possibility is that technology is making it harder and less profitable to commit many crimes. People carry less cash. Cars have more anti-theft devices. Bank robbers and rapists are more likely to get caught. The decline in meth was driven by more strict control of the ingredients that go into it.

Whatever the reason, it is hard to deny that it is good news.

23 May 2011

What Drives Court Dockets In Colorado?

The 2010 Annual Report of Colorado's Judicial Branch, as usual, is one of the best empircal descriptions of what is going on in the state courts. This year is notable for including beter data about hearings, as well as "trials" than previous years.


Colorado's superior jurisdiction judicial branch courts are its District Courts, which are unified in most of the state, but in Denver are divided between the District Court, the Denver Probate Court and the Denver Juvenile Court. The Denver District Court also has a number of special responsibilities that do not involve a separate court as the venue for cases involving state government that are localized to the capital. Seven district courts have divisions that double as "water courts."

Colorado's primary inferior judicial branch courts are its County Courts. Outside Denver, these are identifical, but in Denver the County Court also doubles as a municipal court where ordinances are enforced. Small claims court is a division of the County Courts. All of these courts, except for the Denver County Court, are part of the state judicial system with judges appointed by the Governor. Denver County Court has a hybrid city and state status.

Crimes other than ordinance violations are prosecuted by District Attorneys, who are locally funded and elected from a judicial district but are formally considered to be state employees.

Ordinance violations at the county level are generally prosecuted in county court by country attorneys (a position distinct from the District Attorney that mostly is responsibile for representing county government as in house counsel in civil matters).

Ordinance vilations at the city level are generally prosecuted in municipal courts that municipalities may established by city attorneys. Municipal courts are regulated by state law, by have judges appointed by the city, are administered by the city and are not part of the comprehensive state record keeping system in place for state courts. In practice, it is common for the same person to be a municipal judge for multiple municipalities, and/or to be both a part-time county court judge in a rural county and a municipal judge at the same time. State law limits the magnitude of the criminal sanctions that can be imposed for ordinance violations (basically limiting the punishment to that available for less serious state misdemeanors) and provides for the appeal of municipal court judgments to the state courts, in a manner typical to that of other appeals for courts of record with lawyer judges, and with a trial de novo in the case of municipal courts not of record. There are 273 municipalities in the State, but not all of them have municipal courts and very few of them have a full time municipal judge. The lion's share of municipal court cases concern traffic violations prosecuted via municipal ordinances, although they also include a smattering of ordinance violation cases.

Non-lawyer judges are permitted in rural county courts and in municipal courts not of record, but in practice, there are no more than four non-lawyer judges in the state courts and very few who preside over municipal courts.

Trials, Hearings and ADR

There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.

There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).

There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn't necessary capture the full number of active litigations in these cases.

There were 183 mental health hearings in District Court: 49 for involuntary committment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.

There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.

In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.

In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.

These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren't the moral equivalent of a final bench trial in a case (e.g. schedulinng hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).

Compared To Case Loads

District Court Civil

There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.

Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee's office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.

Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don't produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.

These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court's work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.

There were 30,236 cases of other types on the District Court civil docket in the state.

About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial

About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many "paperwork intensive" cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.

Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.

This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases.

District Court Criminal

There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).

Probate Filings

There were 12,189 probate filings in Colorado in fiscal year 2010.

Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved "estates." All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.

Denver's Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver's Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor's claims, and hearings related to accountings in probate and guardianship and conservatorship estates.

Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court's office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.

In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.

County Court Civil

County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.

This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).

Court Sponsored Mediation

The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.

For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.


On the civil side, courts are primarily institutions in which people invoke their rights and provides a formal forum for official notice and communication between parties involved in a claim; court imposed dispute resolution in civil cases is by comparison almost a side proposition, particularly in cases where the gravamen of the action is to secure compulory means by which to collect a contractual or quasi-contractual or government agency imposed debt.

Cases involving bona fide disputes over liability in civil cases, the analysis of which makes up the bulk of the training of new lawyers, makes up a very modest share of the litigation docket. Moreover, a very large share of all of those litigated cases with disputed liability involve extremely ordinary contract terms and claims and defenses, or tort suits for simple negligence in utterly pedestrian fact scenarios (e.g. car accidents and slip and falls).

Lenders, landlords and government agencies make up the vast majority of plaintiffs, and a very large share of the rest of the cases are domestic or quasi-domestic in nature.

Where there are bona fide disputes, they frequently involve cases where the existence of an event giving rise to liability is not seriously contested, but there is legitimate dispute over the appropriate remedy, mostly because the facts are muddy and the law (e.g. in domestic relations cases or in non-economic damages cases) does not provide a definitive answer even in cases where the facts are known with absolute certainty.

Courts, of course, have authority to adjudicate a far, far wider range of disputes, but the exceptions make up a surprisingly small share of the docket relative to the bread and butter component of the docket.

20 May 2011

Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

The Wisconsin Supreme Court had declined to find a life without possibility of parole sentence unconstitutional in the case of a fourteen year old convicted of first degree murder, a ruling relevant to Colorado because it also has young juveniles serving life without possibility of parole sentences.

Colorado Compared

The issues are not strictly parallel to those in Colorado, however.

In the Wisconsin case, the trial court had the authority to impose a lesser sentence and declined to do so based on the particular facts, circumstances and mental capacity of the defendant. The crime of conviction also involved personal involvement of the juvenile in the killing.

In Colorado, a juvenile tried as an adult and convicted of first degree murder was automatically given a life without possibility of parole sentence (the death penalty was unavailable) without regard to the facts, circumstances or mental capacity of the defendant, and the judge had no ability to either mitigate the sentence or to make a determination that the juvenile was not eligible to be tried as an adult (a decision vested solely in prosecuting attorneys under Colorado's direct file law at the time). The only role that a judge and jury had in determining the sentence was to determine if the juvenile committed the crime of first degree murder, which in Colorado, includes criminal liability as a participant in a crime that causes a death even if the juvenile was not actually personally involved in the murder itself.

Given the wide deference that judicial determination of facts relevant to sentencing is given on appeal, it was therefore far harder for the juvenile in Wisconsin to make an "as applied" challenge to the constitutionality of a life without possibility of parole sentence than it would be to do so in Colorado. Notably, in death penalty cases, non-discretionary death penalty sessions that do not allow juries to individually weight aggravating and mitigating circumstances where a conviction authorizes the death penalty are not allowed, and there is at least some case law that seems to say that just as "death is different," that "juvenile life without parole" is different.

Thus, the only part of the Wisconsin precedent that is really directly applicable to Colorado as persuasive authority is its finding that the United States Constitution does not categorically prohibit the imposition of a life without possibility of parole sentence upon a fourteen year old for first degree intentional murder.

Specifically distinguishing young juveniles was something that might have been relevant to the "unusual" part of the cruel and unusual punishment analysis because only a small portion of juveniles sentenced to life without possibility of parole sentences are young juveniles and fewer states permit these sentences to be imposed on them, either directly, or because they are not eligible to be tried as adults for that crime. But, the Wisconsin Supreme Court, a conservative leaning court by most accounts after the more conservative candidate narrowly won its most recent highly contested judicial elections, chose not to find this sufficient grounds to find that Wisconsin's statute was categorically unconstitutional.

The Larger 8th Amendment Legal Context

In  general, states have very wide discretion to set sentences for criminal offenses committed by adults and juvenile offenders.

This decision comes against a fairly well tested backdrop of precedents on the constitutional boundaries on criminal punishment under the 8th Amendment protection against cruel and unusual punishment and some other constitutional provisions with similar effects.

The federal constitutional issues, although not any other issues raised in the Wisconsin case, could be appealed to the U.S. Supreme Court, which has held unconstitutional a Florida statute that imposed a life without parole sentence in cases that do not involve murder or "crimes against the state" (e.g. treason and espionage) as a violation of the Eighth Amendment protection against cruel and unusual punishment as incorporated to apply against the states under the Fourteenth Amendment to the United States Constitution.

The U.S. Supreme Court has prohibited the use of the death penalty for cases that do not involve murder or "crimes against the state" or for juveniles under the age of eighteen or for the mentally retarded.  For example, it held that the death penalty was not permitted for the rape of a child.  It is not entirely clear to me if the death penalty is constitutional in cases where proof of a murder is not required by is strongly presumed under the circumstances (e.g. a kidnapping where the victim has not been released alive but not been established to be dead), something that is permitted on the statute books in some states but has never been tested under currently applicable constitutional law to my knowledge.  No one is currently on death row for such an offense in the United States, but the justification for such laws is similar to the justification for the death penalty in cases involving "crimes against the state" like espionage.

The U.S. Supreme Court has also held, however, that felony-murder convictions as we as murder convictions based upon personally killing someone or soliciting a murder are eligible for the death penalty (although the role of the person involved is something that a sentencing jury may consider when it decides whether or not to impose a death penalty for a first degree murder), and the U.S. Supreme Court has ceased to make a distinction between young juveniles and older juveniles in eligibility for the death penalty, something that it had done under prior law. The certiorari decisions the U.S. Supreme Court made in its juvenile life without possibility of parole case from Florida had seemed to indicate that at least some justices found a distinction between young juvenile and older juveniles to be meaningful, but it ultimately did not reach that question in that round of cases.

Corporal punishment other than the death penalty, and methods of imposing the death penalty, are at least constitutionally suspect in some cases, particularly if it foreseeably results in, a gratuitous and unnecessary infliction of pain. Similarly, rape as a form of legally authorized punishment by the state is probably unconstitutional. There is also a separate part of the law of cruel and unusual punishment that pertains to the conditions of a sentence of incarceration rather than to the length of the sentence. The most actively litigated controversy in this area is the extent to which long term solitary confinement imposed in the discretion of a prison warden is constitutional. To date, no federal constitutional precedents that I am aware of place clear boundaries on this practice, but it is attracting increasing legislative and judicial attention.

I am not familiar with constitutional precedents on a minimum age at which adult criminal punishments are constitutional.  Most states observe some lower bound and exercise discretion to refrain from doing so in a large share of cases where it might have the constitutional authority to do so.  But, there is probably some point at which, for example, a life without possibility of parole sentence imposed for a murder committed by a very young juvenile, perhaps a six year old, would be held to be cruel and unusual.

Furthermore, the constitutionality of a non-discretionary life without parole sentence for an adult convicted of first degree murder, whatever its character, has been upheld in hundreds, if not thousands, of cases. Similarly, no serious challenges have had success challenging life sentences where there is a possibility of parole, or long sentences for a term of years, for either juveniles or adults for anything but the most trivial offenses when committed by non-recidivist offenders. I am not aware of any case law that addresses the question of whether a juvenile's criminal record is relevant to the 8th Amendment constitutionality of a very long sentence for a fairly minor crime committed as an adult, in part, because few states do this in practice. 

Cases under California's three strikes law have established that a life without possibility of parole sentence, even for petty theft, when committed by an adult who has been convicted of two prior serious (but non-violent) adult felonies, is not an unconstitutional violation of the 8th Amendment's protection against cruel and unusual punishment.  Very long sentences, although not life sentences, for minor first time drug possession convictions, have also been upheld as constitutional.  The only practical limitations on criminal sanctions for minor offenses are procedural - a right to a jury trial (in cases where a sentence could be to more than six months of incarceration) and of indigent parties to an attorney (if incarceration can be imposed as part of the sentence) must be available if sentences of a certain severity are a possibility upon a conviction.  As a general rule, an individual can be arrested and detained briefly consistent with the constitution, even for petty offenses for which incarceration is not available as a sentence upon conviction.

I know of no cases that have found that a sentence to prison for a term of years for one or more offenses that is so long that it amounts to a life without possibility of parole sentence is unconstitutional, although it makes logical sentence that this would be the case in some very long juvenile sentences for offenses other than murder or "crimes against the state" (e.g. a sentence of 120 years in prison without possibility of parole until 90 years have elapsed for a rape committed by a seventeen year old defendant).

A few cases have found unconstitutional criminal statutes that impose a longer sentence than the sentence imposed for an unequivocally lesser crime or an identical crime committed by someone with another constitutionally irrelevant difference in status under the equal protection clause of the 14th Amendment, rather than under any sort of proportionality principal of the 8th Amendment. But, those cases has largely involved idiosyncratic fact patterns.  Somewhat meaningful limitations on the size of punitive damage awards in civil cases relative to the amount of compensatory damages awarded have also been imposed as a matter of constitutional law in some circumstances.

Finally, there is a great deal of jurisprudence under the federal criminal code and U.S. Sentencing Guidelines over what sentences within the statutory maximum sentence authorized by a jury are "reasonable" or in contrast, constitute an abuse of discretion by a judge and does not adequately justify a departure from the sentencing guidelines.  These cases have invalidated sentencing decisions that are well within the boundaries of statutory maximum penalties for offenses that have been held to be constitutional, but also sometimes invalidate sentences for being too lenient.  But, these cases are questions of statutory interpretation rather than constitutional limitations on sentencing.

One of the most controversial parts of the U.S. Sentencing Guidelines jurisprudence is the part that has upheld the constitutionality of judicial consideration of acquitted conduct or uncharged conduct in imposing a sentence less than or equal to the statutorily authorized sentence for the crimes of conviction.  So, for example, someone with no prior criminal record convicted of a low level felony larceny count that might ordinarily garner a short sentence of incarceration (perhaps a year in prison) under the U.S. Sentencing Guidelines can constitutionally be given the maximum sentence available for someone with a long criminal record and large dollar value theft under that offense (perhaps twenty years in prison), if the judge believed that the individual also murdered someone, even if the jury acquitted the defendant of that charge.

In principle, the largely unrelated line of cases imposing limits on conduct that can be subject to criminal sanctions at all also imposes constitutional limitations on criminal sentencing, but these limitations are mostly unrelated to the line of cases related to cruel and unusual punishment.  Notably, the U.S. Supreme Court has declined, for example, to prohibit criminal defamation statutes in circumstances where civil liability for defamation would be permitted.


Of course, Governors of states that impose juvenile life without possibility of parole sentences, and the President in the case of federal juvenile life without possibility of parole sentences, can commute a life without parole sentence to a lesser sentence or pardon the individual and have them released from incarceration. These decisions are not bound by precedent in any way.

Colorado's Governor Ritter convened a new panel to advise him on juvenile clemency and grant a few instances of clemency based upon its recommendations, but including two juvenile life without possibility of parole sentences in Colorado. The weight of the decision on the other cases currently rests on Governor Hickenlooper's shoulders for the several dozen juveniles serving these sentences in Colorado (no new juvenile life without parole sentences can be imposed in the state; newly sentenced juveniles convicted of first degree murder are eligible for parole after forty years).

A Criminal Justice Catch-22

Ezell Gilbert is now before us asking to be relieved of the consequences of a mistake we made in his direct appeal in 1998. He told us then that the District Court was wrong in sentencing him substantially more harshly based on that court’s decision that carrying a concealed weapon is a crime of violence. We rejected his argument, and affirmed his sentence of more than 24 years. United States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). We did this on a record containing the District Judge’s clear statement that the sentence was longer than he would have imposed, but for the then-mandatory Sentencing Guidelines. Id. at 1372–73. It turns out, of course, that Mr. Gilbert was right and we were wrong. Carrying a concealed weapon is not a crime of violence. We said so, belatedly for Mr. Gilbert, in United States v Archer, 531 F.3d 1347 (11th Cir. 2008).

The effects of our mistake are quite dire for Mr. Gilbert, insofar as his
properly calculated (and advisory) guideline range would today be 130–162
months, or approximately 11 to 13 years. As I write this, I understand that he has already served more than fourteen years in prison. And yet the majority opinion tells Mr. Gilbert that the laws and Constitution of this country offer him no relief.

From the dissenting opinion of Judge Martin from an en banc ruling of the 11th Circuit in an appeal of a U.S. District Court denial of a habeas corpus petition.

The majority opinion by Judge Carnes (at the same link) opens with the following:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced. Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed. . . . The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes. For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.

Gilbert had a prior criminal record as a drug dealer, and the sentencing was conducted on the basis of plea bargain that stipulated that "his statutory sentencing range was ten years to life imprisonment on the crack distribution count and not more than five years on the marijuana distribution count. . . . Gilbert’s base offense level was 32 because his distribution offense involved at least 50 grams but less than 150 grams of crack." His lengthy and serious criminal history produced a sentencing guideline sentence about twice what appears to have been anticipated by either party because one of his prior convictions for unlawfully carrying a concealed weapon was treated as a violent rather than a non-violent offense.

The majority makes much of the fact that Gilbert received many instances of leniency in his prior run ins with the criminal justice system and could have faced a mandatory life in prison sentence if the prosecutors had chosen to take a fairly strong case to trial rather than plea bargaining. Basically, the majority argues rhetorically, although not really legally, that bad people like Gilbert deserved to suffer from judicial mistakes anyway, and gets to benefit from mistakes made in his favor, so judicial mistakes of law aren't worth correcting when they prejudice him.

In contrast, as Gilbert's lawyers see it, the basic problem is that he got a sentence twice as long as the one that he had bargained for (and of course, it bears noting that this long sentence was only made possible by laws imposing hysterically long sentence for dealing crack cocaine in small quantities that the Congress has since disavowed.)

The 11th Circuit is one of the most conservative of the U.S. Court of Appeal Circuits in the United States federal court system. The case eptiomizes the divide between liberals and conservatives over habeas corpus relief. (Note that this was a federal court decision, so the federalism aspects of habeas corpus law are absent from this case.)

It also illustrates the fact that in the federal sentencing guidelines system, slight nuances of interpretation regarding gray areas of the governing law can have profound consequences for criminal defendants. This suggests that there are real problems with the fundamental structure of this criminal sentencing system, which in practice can be quite capricious.

Then again, there is wide bipartisan consensus that far more profound mistakes in fact finding by juries cannot be corrected on any kind of appeal, and these mistakes are probably considerably more common than mistakes on questions of law that are subject to appeal or correction in a collateral attack on a conviction.

Reasonable estimates put the error rate of juries on the question of conviction for a crime, based on comparing the conclusions drawn by juries and judges and other judges with each other based on the same evidence and based on exoneration rates in cases where DNA evidence is available, at 10%-20%. Of course, something on the order of 90%+ of cases are plea bargained, so jury errors make up only about 1%-2% of criminal prosecutions. But, this still probably dwarfs the number of material mistakes made by judges on questions of law that are not corrected on direct appeal. While fixing mistakes that are clearly wrong, even if discovered and accurately addressed only much later, makes the system more accurate, errors in fact finding and poor legislative and quasi-legislative standards for sentencing across the board are a bigger problem in the inaccuracies of the criminal justice system as a whole.

19 May 2011

Service Announcement

The merit selection panel for the Second Judicial District selected three of the nine nominees from which Governor Hickenlooper will select the next Denver Probate Judge on Tuesday.

One was a former Denver Probate Court magistrate who served for much of outgoing Judge Stewart's tenure. One is the current Denver Probate Court magistrate. One is a long time magistrate in Denver in its non-probate divisions. I am not that Denver lawyer and instead, will be continuing to have a private practice law. It is now up to Governor Hickenlooper to make a choice from these three candidates in the next two weeks, and as I probate lawyer who practices regularly in that court, I sincerely hope that he makes a wise choice between the three very different candidates. I appreciate all the support I received in the process, which was conducted in a fair and orderly manner. Colorado's method of selecting judges is a far superior way to obtain qualified judges than either ordinary judicial elections (we do have retention elections, but those are quite different), or the kind of exclusively political appointment process we have for the federal judiciary and some state courts.

For those of you who read this blog, that means that a brief hiatus from making posts that would be inappropriate for someone subject to the Canon of Judicial Ethics, most notably, partisan politics and certain kinds of posts on religious topics. In the next few day, I will be rebuilding the sidebar links (not necessarily exactly as I left them), and restoring archive functionality.

I anticipate having considerably less time available to blog for the indefinite near future, due to a major new source of legal work (hurray!), and also simply want to keep this space from getting stale. Towards that I end, I plan on rethinking and refocusing what I write about and how I do it.

I'm not sure exactly what I will come up with, but don't be surprised to see some changes. This post is two short of being post number 5400, and this July will be the sixth anniversary of this blog. I plan to make the change over on this anniversary, although there will be some beta testing of some of the concepts in the next nine weeks.

I definitely won't be converting to a group blog or taking guest posts - I don't have time for that kind of brain damage and coordination in a catch as I can personal hobby.

But, I'm looking at ways to give a bit more structure and direction to my posting and I am considering imitating Maju and splitting my currently eclectic blog into two or three more focused ones, although, unlike him, I will definitely make sure that "Wash Park Prophet" continues to exist as one of those blogs, mostly (with all due respect) because "Wash Park Prophet" is a bit catchier a name than the name of Maju's old omnibus blog, "Leherensuge."

The new Wash Park Prophet will include, at least, all matters related to Colorado in particular, from local politics, to infill and Denver neighborhoods, to praises of and rants about local businesses. One or more other blogs with still undetermined names will cover a significant chunk of the other stuff that I blog about here.

I am still playing with precisely which other topics to separate out, what banner(s) they will fly under, and what format changes, if any, I want to make at the same time. This blog covers an immense range of territory and it is perhaps a foreseeable curse that the son of a man whose academic career was profoundly interdisciplinary finds it tricky to fit his own musings into neat disciplinary boxes. The main criteria will be practical. Which topics overlap the least and what descriptions produce the clearest clusters (acknowledging that on rare occassions, a cross-post may be in order)? I am also considering a retooled set of post categories.

"Wash Park Prophet" will stay at this web address and continue to use the blogger system, because I want the address and format to have continuity, although it will have a visual face lift. The new blogs will not necessarily be blogger blogs and suggestions for the best alternative platforms are welcome.

17 May 2011

Father of the Nation

If you are asked on an immigration exam who the father of the nation is in the United States, the answer iis George Washington.  But, a better choice might be John Lothropp.

An ordained minister of the Church of England, Lothropp quickly found himself in the Crown's disfavor. In 1623, at age 39, he renounced his affiliation with the Church and instead affiliated with the Independents, a group which advocated for separation between church and state and for religious freedom for non-Catholics. For this, Lothropp and his followers were jailed, when in 1632, local authorities became aware of their secret meetings. Lothropp was released just over two years later, on the condition that he'd leave England and emigrate to the New World. He agreed and arrived in Boston that fall. He'd later found the Cape Cod town of Barnstable, Masachusetts.

He is an ancestor of all of a great many prominent Americans including:

President George W. Bush
President George H.W. Bush
President Millard Fillmore
President James A. Garfield
President Franklin D. Roosevelt
President Ulysses S. Grant
Mormon prophet Joseph Smith
Supreme Court Justice Oliver Wendell Holmes
Revolutionary war era traitor Benedict Arnold.
Vice Presidental candidate Sarah Palin
Governor Mitt Romney
Industrialist J.P. Morgan
Poet Henry Wadsworth Longfellow
Author Laura Ingalls Wilder
Actress Shirley Temple
Actress Brooke Shields

16 May 2011

When Does Talk Therapy Work?

Some mental health conditions are utterly unresponsive to sessions spent talking with a psychologist or counselor, but very responsive to drugs.  For some conditions for some people, drugs and talk therapy support each other.  Others people with particular conditions are responsive to talking with someone, but the mere fact of having a conversation with someone who cares matters more than the content of the talk, the talking to a professional may not be the most cost effective solution.  How is one to make sense of what works and doesn't work in talk therapy for mental health issues?

A good place to start is an index of resources accompanying one of today's National Public Radio stories. 

For example, it includes a registry of 193 different interventions whose effectiveness is supported by scientific evidence.  For example, there are dozens of interventions proven to be effective in treating substance abuse problems of various types that are evidence based.  Others deal with issues connected to parenting, eldercare, PTSD, suicide prevention, general juvenile delinquency, aggression, ODC, workplace stress, and depression.

One common and basic deficiency in the status quo is a failure to know that there are approaches that have been proven to work with a condition or situation.  When there is good news, it needs to be spread far and wide.

While any list of evidence based talk therapies is necessarily driven by the funding and institutions incentives of programs to have their approaches validated with scientific research, it is also a good starting place to get a sense of what kinds of issues there is evidence to support benefits from this kind of treatment, and by inference, what issues there is no solid evidence at this time that this kind of treatment is effective in treating.  Thus, lists like these are a logical empirically driven starting point to a larger widely available resource for determing how best to deal with mental condition or emotionally difficult situations.  Moreover, as one puts together these lists, one ends up with a more practically relevant classification scheme for dealing with these conditions and situations than one that is more focused on cause and classification than in the availablity of treatment.

Also worth noting from the list is that many effective approaches take a group or community orientation rather than an individual psychotheraputic one.  Some issues are not best dealt with in a self-referring patient medical model and can look more like generalized character education.

There is probably a siginificant residual of conditions (for example, Alzheimer's disease) for which the answer is that there are no evidence based treatments, talk based or drug based, available.  Knowing that, too, has value as well, both in counseling skepticism towards unrealistic claims about proposed treatments and fostering inquiry about a broad range of treatment modalities to see if any look like a promising source of a future evidence based intervention.  Knowing this also favors an inquiry approach that focuses on minimizing harm and side effects, given that positive benefits aren't well established.