29 February 2012

Democrats In Denver Have Precinct Caucuses On March 6, 2012

Didn't that already happen? No.

Colorado Republicans have a Presidential race caucus earlier this February, but the plain vanilla, choose precinct committee people, propose party platform plank, start the process of nominating partisan candidates for political office caucuses for Democrats in Denver, at least, will be held on Tuesday, March 6, 2012, with sign in starting at 6:30 p.m. and the precinct caucuses themselves beginning at 7:00 p.m.

Honestly, for Democrats in Denver, this year's caucus process is going to be more about networking than exercising the power that comes from showing up.

The only serious intraparty nomination fight in 2012 for Democrats in Denver this primary season is likely to involve the people who want to be Denver's next District Attorney. I don't know at this time who is even in the running, although I'm sure I'll learn more at the caucus on Tuesday. There is also an open seat in House District 9 since Joe Miklosi is running for Congress, with Rosenthal fetted as the strongest of the two identified candidates seeking the Democratic party nomination in that race.

For that matter, the only interesting general election partisan candidate races that Denver voters are likely to consider in 2012 are the races for the U.S. President and University of Colorado Regent At Large, for which the Democrats will running the incumbents in both cases, and the race for the open position of Denver District Attorney, which could conceivably give rise to a meaningful partisan contest in Denver if Republicans run a credible moderate candidate for the post.

So, unless you have stong feelings about who should be our next district attorney or want to get your foot in the door of Denver's Democratic Party machine as a precinct committee person (who also has a say in any vacancy committee elections for a candidate who represents their precinct that are held over the next two years), you can be excuses for skipping the caucuses, and even the primary election this year in Denver. Just please, show up to the polls in November.

Local Offices In Denver

As usual, most of the local offices that appear before Denver voters are non-partisan, and as a result, Denver's political parties aren't involved in the nomination process for any of these offices and there are no primary elections for these races.

In Denver, we have a non-partisan Mayor, Auditor, Clerk and Recorder, and City Council, all of who are elected in odd number years with first round elections held in the spring. Regional Transporation District (RTD) directorship elections and Denver School Board elections are held in November, but are also non-partisan.

Judicial retention elections held in November (in which voters are asked to "retain" or "not retain" a long list of sitting judges who were appointed based on reviews compiled by a state agency) are non-partisan.

There is a partisan election for District Attorney (officially a state government position, but elected by voters from local judicial district and funded by the counties in the judicial district) in Denver this year in which the political parties are involved in nominating and supporting candidates. The incumbent in Denver's Second Judicial District (which includes all of the City and County of Denver and no other territory) is Democrat Mitch Morrissey, who was first elected in 2004 and was re-elected in 2008. Colorado has the somewhat odd process of letting voters in each of the twenty-two judicial districts (most have multiple counties) each set their own term limits. As of August 2011, six Colorado judicial districts had extended the term limit for District Attorneys to three terms rather than the default of two terms, and the judicial district that includes the City of Pueblo had abolished term limits for District Attorneys all together.

To the best of my knowledge, Denver is not among the judicial districts that have increased term limits for the District Attorney (although it is surprisingly hard to easily find a list of those term limits in one place), so Morrissey cannot run for re-election in 2012. This leaves an open race for this powerful post that could lead to the most interesting non-Presidential political race in Denver this year. It is also probably the only partisan race in Denver in which the Republicans, if the were to offer up a suitably qualified and moderate candidate, would have any real shot at winning, because it is an executive branch position where the person running matters more than their political party.

Federal Offices

Obviously, the big event this year will be the Presidential election. But, on the Democratic side, President Obama is uncontested and the Republicans in Colorado have already had their say in the Presidential primary and caucus process this year and have to wait until the Republican National Convention in Tampa in August to have either Romney or Santorum annointed as their nominee and to select a Vice Presidential running mate. President Obama could choose a new Vice President at the Democratic National Convention this summer, or could keep Joe Biden, but Democratic party voters will have essentially no input on that decision.

Each state has two Senators who each serve six year terms. Thus, each state goes without an election for U.S. Senator every six years. In Colorado, 2012 is the cycle we get a break of U.S. Senate races.

Members of the U.S. House of Representatives face re-election every two years in partisan, single member district races and this year will be the first year that Colorado's seven member delegation is selected from new Congressional districts based on the 2010 Census. In some races, like the 6th Congressional District race where incumbent Republican Mike Coffman will have a much more politically moderate district that he has had in previous elections that Democrats Joe Milklosi (the incumbent state representative from House District 9) and Perry Haney are facing off in the causus and primary process for the privilege of fighting him starting Tuesday, it could be very exciting indeed. But, in Denver, where many term incumbent Diana DeGette's 1st Congressional District remains a predominantly Denver based district that is safely Democratic, neither a primary challenger nor a serious general election challenger has emerged.

U.S. Representaties and U.S. Senators, of course, are not subject to term limits, despite the unconstitutional efforts of Colorado voters to impose them on its delegation.

State Government

Elections for state level executive branch posts: Governor, Lieutenant Governor, Attorney General, Secretary of State and State Treasurer are held in even numbered years when there aren't Presidential elections, so none of those posts are up for consideration.

There are a few state and local partisan positions that will be on the ballot in Denver in 2012, and there will be a bit of confusion as voters find themselves in newly drawn districts for various political offices. Also, all partisan state and local offices in Colorado have some kind of term limits.

All state representatives face partisan elections every two years and this will be their first elections with redrawn state house districts. Roughly half of the members of the state senate face re-election every two years to four year terms. In each case, there are eight year term limits, so there is often a fair amount of term limit induced turnover even in districts that are safe for one political party or the other.

None of incumbents state representatives from the nine house districts that were at least partially in Denver in 2010, all of whom are Democrats, are term limited this year, so there is every reason to expect that all of the nine, except Joe Miklosi, will run again, and will not face any serious challengers in the caucus process or at a primary this summer, and will for the most part, cruise to comfortable re-election in the general election in November from their generally fairly safe Democratic party leaning districts. Joe Miklosi's seat in House District 9, discussed above, has attracted two announced contenders so far, so this race will be a rare intraparty contest for Democrats this year.

The state senate situation is a bit more complicated. There were five state senate districts with significant portions in Denver, each with a Democrat as an incumbent, prior to redistricting: Senate Districts 31 (Pat Steadman), 32 (Irene Aguilar), 33 (Michael Johnston), 34 (Lucia Guzman) and 35 (Joyce Foster). Three of these are on the Presidential election year cycle: Senate Districts 31, 33 and 35, while Senate Districts 32 and 34 have their next elections in 2014. None of these five incumbents will be barred from running again at the next election. But, each of them represent a somewhat different district than the one in which they took office. Steadman, Johnston and Foster are all likely to seek re-election this year unopposed and are reasonably safe in the general election.

Each of the seven seats on the partisan Colorado Board of Education is identical to the corresponding newly drawn congressional districts. These seats filled for staggered six year terms with only some districts holding elections each two years. In 2012, voters in the First Congressional District, which is made up predominantly of Denver, won't have a Colorado School Board election. Denver's incumbent in the posts, Democrat Elaine Berman's seat isn't before voters until 2014. Term limits for the Colorado School Board are twelve years.

Seven of the nine seats on the elected from Congressional districts on the partisan University of Colorado Board of Regents, with the other two spots are "at large", and they serve for staggered six year terms. All Colorado voter will cast ballots for the at large position currently held by Democrat Stephen Ludwig. But, the next election for the 1st Congressional District CU Regent spot held by Michael Carrigan isn't until 2016. Term limits for the University of Colorado Regents are twelve years. Ludgwig won his first six year term in 2006 and there is ever reason to expect that he will be uncontested within the Democratic party in a bid to seek re-election.

28 February 2012

Olympia Snowe To Leave Senate And More

Olympia Snowe, the U.S. Senator from Maine and one of the few remaining moderate Republicans in Congress has announced that she is not running for re-election. Snowe's decision not to run turns a fairly safe Republican seat into one that is attainable for Democrats in an open race, improving Democrats odds of retaining control of the U.S. Senate in 2012.

Early rumors and polling put Romney and Santorum neck and neck in today's Michigan, where Romney grew up, while strongly favoring Romney in today's Arizona primary. The states have similar numbers of Republican national convention delegates. Prior GOP primary results are summarize here. Any good news for Santorum tends to strength Democratic's odds in the Presidential race, as Romney is the more moderate general election candidate. With tonight's results Ron Paul and Newt Gingrich have effectively faded to irrelevance in the GOP Presidential nomination race. Any likely result from tonight will still leave Romney with an absolute majority of the Republican delegates allocated to date for the GOP national convention in Tampa, Florida, but will disturb his momentum and solidify Santorum as a viable "not Romney" candidate in the primary.

The early, wildly premature results from Michigan are that "With 1% of precincts reporting in Michigan, Santorum leads with 41%, followed by Romney's 37%, Paul's 12% and Gingrich's 7%." Michigan is not a winner take all state, instead its delegates are mostly divided by Congressional district, so each man could easily take close to half of Michigan's delegates, helping Romney in a war of attrition, but not momentum, going into Super Tuesday.

UPDATE: With about 1/7th of the vote in, the results of similar. Late results are likely to be from more conservative parts of Michigan. Also, about 40% if Michigan Republican primary voters aren't Republicans, which artificially elevates the performan of Ron Paul and Romney (although an 2008 op-ed from Romney saying that Detroit should go bankrupt probably doesn't help him in Michigan).

If Santorum can knock Gingrich out this week, he would go into Super Tuesday as a much more formidable opponent.

Statistical Analysis of Authorship

Statistical analysis of authorship styles support a number of interesting conclusions.

In the case of the anonymously published Federalist papers, most of the papers are attributed to Hamilton (51), Madison (14), John Jay (5), or a collaboration of Hamilton and Madison (3), but twelve have disputed authorship. Statistical analysis of the linguistic features of those texts favors a Madisonian authorship of all the papers of disputed authorship.

Analysis of the verses in the Torah support an authorship distinction between Priestly and Non-Priestly sources that matches the scholarly consensus developed over centuries (where one existed at all) more than 90% of the time. The algorhythm was trained using a learning experiment in which the tool distinguished verses belong to the books of Jeremiah and Ezekiel respectively.

Efforts to statistically distinguish Christopher Marlowe and William Shakespeare's corpus produce an ambiguous result with several of the seven works in the corpus of Marlowe identified as early Shakespearian instead. There are also several other historical figures who are serious candidates to have been alternate authors of Shakespeare's plays. Computational linguistic methods have seen much greater similarities between Marlowe and Shakespeare than Sir Francis Bacon or the "Oxfordian theory."

In a set of 100,000 blogs including two thousand blogs that also have a co-authored blog of two blogs outside the set, a statistical analysis matched just three posts from a blog outside the set of 100,000 to its co-authored match within the set of 100,000 as the single most likely match about 20% of time, compared to an expected 0.001% success rate predicted by random chance. Identifying information such as author names were removed from by the source and the comparison sets. With more data and less insistence on accuracy one can do better. Specifically:

This means that when our algorithm uses three anonymously published blog posts to rank the possible authors in descending order of probability, the top guess is correct 20% of the time.

But it gets better from there. In 35% of cases, the correct author is one of the top 20 guesses. Why does this matter? Because in practice, algorithmic analysis probably won’t be the only step in authorship recognition, and will instead be used to produce a shortlist for further investigation. A manual examination may incorporate several characteristics that the automated analysis does not, such as choice of topic (our algorithms are scrupulously “topic-free”). Location is another signal that can be used: for example, if we were trying to identify the author of the once-anonymous blog Washingtonienne we’d know that she almost certainly resides in or around Washington, D.C. Alternately, a powerful adversary such as law enforcement may require Blogger, WordPress, or another popular blog host to reveal the login times of the top suspects, which could be correlated with the timing of posts on the anonymous blog to confirm a match.

We can also improve the accuracy significantly over the baseline of 20% for authors for whom we have more than an average number of labeled or unlabeled blog posts. For example, with 40–50 labeled posts to work with (the average is 20 posts per author), the accuracy goes up to 30–35%. . . . [with tweaks in the formula] the algorithm does not always attempt to identify an author, but when it does, it finds the right author 80% of the time.

Moreover, this was done with just a quick and dirty search alogrithm published itself in a blog post ("The good news for authors who would like to protect themselves against deanonymization, it appears that manually changing one’s style is enough to throw off these attacks.") that could be refined with experience and by using data that would be considered "cheating" in the statistical authorship analysis conducted.

All of this goes to show that in individual's writing style, while not quite as distinctive as their DNA or fingerprints, is still quite distinctive and a fairly accurately measure of authorships. It also suggests that privacy on the Internet, as a result of latent features to track authorship, may be even more illusory than it seems.

Ignoring Star Wars Episode I

A lengthy post here notes that Episode I (the fourth movie made) of the Star Wars saga is almost entirely superfluous to the story arc of the other five movies.

While the fact that this is the case is more or less irrelevant, since Star Wars fans will watch them all sooner or later anyway and probably already have done so.

I point the post out mostly because while Episode I wasn't canned by George Lucas who had immense financial backing due to the success of his first three movies and his ongoing support of the project in other media formats, a high level editorial choice to cut that much material from a multi-episode series of books, movies, or TV shows, or in cutting a novel down to another format that allows for less content like a movie, is actually almost the norm, rather than the exception. It tightens the story arc, it reduces the cost budget exposure of whoever if financing the deal, and it reduces subsequent episode attrition in the number of people who consumer the product. If you see an opportunity to do it in advance, you can fix the minor rough spots of the kind noted in the blog post linked that emerge in the overall story when you remove a large chunk of superfluous to the story arc material with relative ease. The lack of tight editing used to be the norm in the publishing industry (ever read Moby Dick or a Dickens novel?), but now tends to be the exception. It is one of those places where creative skill in the editing process has substantial, direct dollars and cents economic impact on the project itself. Rookie writers are particular prone to writing material succeptible to large scale wholesale editorial purging of unnecessary parts of the stories, as they have particular difficulty transitioning from short forms they can get published before they really establish themselves to the beginning, middle and end with more elaboration found in full length works.

This kind of big picture editing, which is incredibly painful, even if you feel better about the finished product afterwards, is every bit as common and necessary in most forms of non-fiction writing as it is in fiction writing.

With better planning Lucas might have done Episode I, if he did it at all, as a pre-pre-prequel and improved the reputation of the overall Star Wars brand in the process, or might have devoted a more or less stand alone sixth episode in the same world that would be more accessible to viewers new to the series that explored parts of the saga explored in other Star Wars properties with proven track records of success promoting cross-selling of Star Wars properties outside the story arc of the core movies.

Tone Deaf Academic of the Day

The draft law review article, "Prisons, Privatization and the Elusive Employee-Contractor Distinction," by Alexander Volokh at the Emory University School of Law, previewed here and here has to rank as one of the most tone deaf, ill conceived, poorly written law review articles I read in several years, and I probably read thirty to fifty law review articles a year. The author is just so blinded by ideology and too clever by half rhetoric about conceivable possibility that trump all reality, that any legitimate point the article tries to make is drowned. Comment from the author in the two blog posts linked give a flavor of that attitude.

The writing style in the draft is dismal. It is too conversational for the format, too choppy to express extended ideas, and too afraid to really dig into and engage any particular idea. The use of the first person in this argument, when the writing style is so snarky, also perhaps unfairly undermines the article by opening it up to self-inflicted ad hominem attacks on the validity of the argument. When your article contains phrases like "And I have no basic problem with the general idea of the state action doctrine," it invites the natural response, "why should I give a shit what you think?" When you write like that you shoot yourself in the foot. A law review article is not the place for a transcript of your bull session at two in the morning over beer.

Similarly, when the Israeli Supreme Court says the private prisons are inherently unconstitutional, the right way to make sense of that reality is not to say that:

"The Court’s opinion does note a few tangible, non-question begging differences between the Israel Prison Service and private firms, but these are hardly central to the argument; nor do they succeed in distinguishing public and private prisons as a philosophical matter."

Sorry kid. When the Israeli Surpeme Court rules on a question and they have the last word, the succeeded and your argument didn't. Deal.

An example of a much better written article with somewhat similar stylistic leanings that are better executed and a somewhat similar style of argument, can be found, for example, here.

Honestly, who in their right mind hires somebody so obtuse who is such a poor academic writer to be a law professor?

27 February 2012

The Various Stigmas Of Various Mental Illnesses

There is a stigma of schizophrenia, and there's a stigma of depression, etc. but they're not the same stigma. We're told it's a myth that "the mentally ill are violent" - [but] no-one thinks depressed or anorexic people are violent. They think (roughly) that people with psychosis are. They have other equally silly opinions about each diagnosis, but there's no monolithic "stigma of mental illness".

From Neuroskeptic.

Authorizing Private Violence

Strictly speaking a Fatwa is opinion letter on a question of Islamic law issued by a Islamic law scholar. The popular media accounts of this kind of instrument, however, focuses on the subtype of Fatwa in which opinion letters on Islamic law authorize some sort of extra-governmental self-help action by a representative of the victim or members of the general public to punish someone for a violation of Islamic law in a partular way for particular conduct. In short, some Fatwa's authorize private violence since Islamic law, which isn't statist and isn't united in a bureacratic hiearchy that derives its power from a sovereign, doesn't have the capacity to compel state action to enforce its edicts. Islamic law when used in this manner goes almost beyond libertarian visions of the role of government in securing legal justice to a basically anarchist theory of the state (which is not to say that there isn't a role in Islamic political theory for a state - indeed a state in which church and state are unified).

This kind of activity isn't as alien as it seems. Medieval Iceland has a period of time when it had courts that likewise authorized private individuals to carry out judgments, but had no enforcement mechanism of their own. The Article 9 of the Uniform Commercial Code authorizes creditors who comply with a certain set of requirements to seize and dispose of collateral for their loans through private action, without resort to the courts, so long as this can be accomplished without a "breach of the peace." U.S. Presidents have long been entitled, in fact, even if the law has sometimes been muddy, to authorize the use of military force in the furtherance of a variety of ill defined national security ends, such as the recently exercised authority to authorize the assassination of a particular U.S. citizen abroad without any court process, in furtherance of the authorization for the use of military force that is the legal basis for the war in Afghanistan and the "war on terror." The U.S. Constitution makes provision for the issuance of Letters of Marque and Reprisal (i.e. authorization for the owner of a private vessel to capture enemy vessels and goods on the high seas, a Congressional right abrogated in the Declaration of Paris in 1856, but which could be overturned by a simple statute passed by Congress). Bailbondsmen have extraordinary authority to take actions that would constitute kidnapping and certain other crimes if committed by someone else, to produce the persons whom they have posted bond for in court. Legislative authority to engage in self-help hacking targeted at suspected hackers (e.g. intentionally sending computer viruses to their computers) is a regular subject of debate in Congress today, and the self-help remedy of the non-judicially authorized "take down notices" to Internet institutions like You Tube, have become a part of every day life in the 21st century.

Historically, the right to use force to discipline and control one's children or one's spouse or one's slave or one's indentured servant or one's military subordinate, and to force those people to return to you if they ran away, was another large domain in which the private use of force was authorized and supported by state authority, but this right is now much diminished in theory as well as practice. As Pinkerton has noted in his recent book, "The Better Angels of Our Nature," support for corporal punishment of children is greatly diminished. Legal toleration of domestic violence has dramatically declined within my own lifetime. Reforms in the military justice system and in how military discipline is maintained generally in the last seventy years or so have greatly reduced the caprice of force directed at military subordinates in the U.S. military (some countries, like Russia, have lagged further behind in this regard). History views the fugitive slave act as an instance of historic, collective shame. Government authorities still help parents recover their runaway children, but the cutting edge of modern social criticism is increasingly calling attention to the fact that even runaway children may have good justification for running away even though that means rejecting the parental economic support that they rely on for all of their economic needs.

Many countries authorize trial in absentia for crimes, although under U.S. law this is pretty much limited to cases where a criminal defendant absconds during the course of a trial already commenced in the defendant's presence. U.S. law certainly authorizes default judgments, however, which in cases where the object of the case is property rather than a civil judgment (a.k.a. a license to steal under the watchful eyes of sheriffs and/or courts), can sometimes issue without actual notice that a case is pending to a defendant. Closely related is the somewhat obscure and perhaps misunderstood concept of "wanted dead or alive" bounties.

Of course, the private use of violence for self-defense has been recognized since ancient times and is frequently considered a form of natural justice, although debates on the requirements for invoking the privilege of self-defense, for example, to defend a business when retreating from the business would have been a viable alterantive, is an issue being debated by Colorado's state legislature in 2012. For about a century, combat by agreement (i.e. dueling) was a defense to charges of murder and assault, a defense only removed by constitutional amendment in many states.

Louisiana recently considered (and rejected in a 54-39 state house vote) a law that would have reduced the criminal penalties available in the case of assaults directed as someone who is burning an American flag to $25. The idea has a lot in common with the notion that "heat of passion" murders (e.g. of a spouse or "other man" found engaged in the act of adultery by a husband) are less culpable than premediated murders.

A ruling in a Mechanicsburg, Pennsylvania case by Judge Mark Martin in which assault charges were dismissed against a man caught on videotape attacking an atheist Halloween parader dressed up in a way that mocked the Prophet Muhammed in a ruling that breated the parader for being offensive raise the specter of the harm that can be done not with state action, but with state inaction in the face of what would otherwise be illegal private violence that would usually be (and in this case was) prosecuted and would usually result in criminal punishment for the person engaging in intentional private violence.

In general, in U.S. law, unlike German law, for example, there is also no per se duty of the state to enforce criminal laws for the benefit of citizens who have been victims of crime. The political structure of U.S. law enforcement and criminal prosecutions ensures that usually law enforcement officials errs on the side of overkill in trying to enforce criminal laws, and federalism in the U.S. means that there are usually there are several officials who have the independent authority to bring criminal charges arising from a particularly instance of criminal conduct. But, absent an almost impossible to prove case of discrimination on the basis of race or some similarly prohibited reason, prosecutors and law enforcement have no legally enforceable duty to attempt to protect citizens from crimes or to prosecute crimes they know to have taken place no matter how solid the case, even in the face of state law authorized and court issued restraining orders that purport to create such an obligation (see Castle Rock v. Gonzales).

As I've noted before, this lack of duty to use the criminal justice system and law enforcement to protect people from private violence is perhaps the strongest policy argument for an individual right to bear arms for self-defense under the Second Amendment in the U.S. Constitutional scheme. If people can't rely on the state to defend them, they must be allowed adequate means to defend themselves through self-help. U.S. law also generally allows suits for civil damages arising from most kinds of common law crimes committed against an individual by an alleged victim of the crime or their heirs even in the face of an acquittal of the same charges in a trial by jury (the most prominent such case being the O.J. Simpson civil case for wrongfully causing the death of his wife).

There are times when we don't often do so, when authorizing private violence, i.e. making someone a stranger to the protections of the law, might make a certain amount of sense in foreign policy settings, as an intermediate step between making only diplomatic protests to some actions in a foreign state, and directing our own covert agents and military to themselves use force against that state. For example, one could imagine Congress or the U.N. Security Council, declaring that anyone or any country or any organization who kills specified leaders of the regime in Syria that is raining down artillery on its own citizens indiscriminately in violation of international human rights standards, or sabatogues that regime, may do so with impunity notwithstanding international laws that normally afford the highest levels of respect to sitting sovereigns. To some extent, this already happens through consultations between intelligence agencies of various foreign governments.

Still, on balance, I am inclined to think the the lack of limitations in the U.S. Constitution and state constitutions in the United States, laws that have the effective of authorizing or minimizing private violence without compelling justifications for that authorization, are a defect born of the short sightedness of Founding Fathers whose political theory was so concerned about active abuses of state power, that the more more subtle theat of abuses of state power through inaction were simply overlooked. The Founding Fathers did not have fresh in their minds as they drafted the Bill of Rights, the experience of institutions like informally state sanctioned death squads of Latin America, the Lynch Mobs of the Reconstruction South, the full fledged Middle Eastern institution of honor killing, or the organized brownshirt organizations of the Third Reich through which private citizens carried out state encouraged private violence to inform their deliberations.

Our system of criminal justice is based on the bedrock assumption that prosecutors and law enforcement will make their best efforts given their practical limits in resources and likelihood of conviction to prosecute cases where they have bona fide probable cause to believe that crimes have been committed. When that assumption is absent, legal due process protections for criminal defendants can look like rules that simply further the end of official corruption and abuse of power. The only institution in American law, other than political incentives and federalism (including federalism within states) that limits this kind of problem is the rarely invoked notion of a "special prosecutor" appointed in cases where the person with official authority to act may have a conflict of interest (for example, in the case of crimes committed personally by an elected district attorney such as the case Colorado recently saw in Montrose County). But, that doesn't cover cases where there is not a personally self-interested kind of conflict of interest involved.

There are a couple of distinct problems with private violence authorized by Fatwa-like authority that are in theory distinguishable.

One is a due process concern. U.S. criminal law generally requires in person participation by defendants in cases that invoke criminal-like punishments, and a Fatwa-like process (not at all specific to Islamic law as I have illustrated above) makes it possible to go through the motions without the level of due process secured by in person participation in key events of the process combined with a right to counsel if one can't afford it. These concerns can be just as great when the President authorizes an assassination or airstrike that will likely lead to civilian casulaties as it is when an Islamic scholar in Pakistan or Iran declares that it is acceptable to murder a Scandinavian cartoonist, although the concern that there might be multiple conflicting rulings by people with equal authority is much greater in the latter case than the former one. In many cases, self-help remedies put someone in the position of being the judge of their own case, a fundamental prohibition of ordinary judicial proceedings.

The second is the concern associated with lack of state involvement in the carrying out of the remedy. The idealized basic bargain of Western political theory is that the state has a monopoly on the use of violence (or any breach of property rights as well) that comes with a duty to use that monopoly to suppress private violence against those who are under the protection of the state, a duty to protect those who are under its protection from violence from foreign sovereigns, and a duty to dispense justice so that self-help not supported by sovereign authority is unnecessary or at least undesirable. Exceptions to this basic bargain delegate the state's monopoly on the use of force to private individuals in cases where the state is incapable of fulfilling its duty (e.g. self-defense or a posse), and only in cases justified and provoked by someone else's actions that themselves abridge the state monopoly on the use of force. Citizens are, in turn, protected from state abuses of its monopoly by the rule of law, and by violations of their rights under the color of law, with a set of rights enforceable against the state in the event that its agents deviate from the requirements of the rule of law (e.g. in a civil rights action). The idea of this political theory is to create a utopia where non-consentual activity by private parties is rare, violence is minimized, and both private and public interests are tamed so that they act on the basis of consent and rational, well informed decision making processes.

This second concern isn't deeply implicated in cases where due process concerns are for some reason associated with the scope of a particular grant of self-help authority are minimial, remedies for misuse of the authority to engage in self-help activities are ample where it occurs, and the force in question would in reality have been little different had it been carried out with perfunctory state supervision or where the private parties carrying it out as deputized as "officers of the court" or the "public trustee" some such quasi-public title with corresponding obligations associated with acting under color of state law (which to be clear, U.S. law generally often doesn't actually treat as such for purposes of civil rights lawsuits).

But, this political theory breaks down most severely when the state authorizes private individuals the right to use force in circumstances when it would not have been authorized to use force itself (and hence cannot be said to be delegating to private individuals), or establishes punishments that are mitigated on grounds that it would be improper and contrary to the rule of law for it to considerate itself. This concern gets to the heart of the legal prohibition on vigilantism beyond the delegations of power to private citizens to use force for the defense of others, or to make a "citizen's arrest" for a range of offenses much narrower than those which a law enforcement officer may make absent very special circumstances.

Fortunately, legislators, jealous of their monopoly on the use of force and intuitively understanding the grand bargain of the Western political and constitutional system even when it isn't expressly stated, generally don't authorize private individuals to use force or act non-consentually in circumstances when the state couldn't jusifiably do so. This doesn't mean, however, that sometimes they might do just that, because partisan policy agendas frequently trump larger process concerns based in political theory in the political process when courts don't restrain them.

Marriage In Ireland

The Republic of Ireland has historically been Roman Catholic, and indeed, Ireland was the based from which a lot of the Christianization of Europe originated after the fall of the Roman Empire. Roman Catholicism is part of the national identity as it was an institution that help sustained resistance to the Protestants from the United Kingdom after hundreds of years. Naturally, then, it is unsurprising that Ireland has been slow to embrace the institution of divorce that was the defining reason for the establishment of a Church of England separate from the Roman Catholic church.

The 2009 film Ondine set in contemporary County Cork, however, shows the limitations of an ideological commitment not so much to marriage as to non-divorce. Annie, a young girl with kidney failure who binds the central characters in the film, has a mother and father (both alcoholics) who cohabited, but never married, and then split up. While they are certainly not viewed as community role models, their arrangement doesn't leave them ostracized either and they get along much like a typical divorce couple in the United States.

The fact that Annie's mother has a live in boyfriend now who is married with children back in Scotland, also barely makes a stir, while the father's cohabitation with a beautiful woman out of nowhere is notable because a loser guy has found a beautiful woman, not because of the scandal that he is shaking up. Even the father's confessional priest (who is admittedly something of a comic foil) doesn't even seriously hope to make the father feel guilty about "living in sin" with her.

The film is obviously just a feel good magic twinged romance and not intended to be a hard hitting documentary of attitudes about marriage in Ireland, but I think that it is fair to say that Ireland's discomfort with divorce as a lived reality is profoundly different from Japan, for instance, where out of wedlock parenting is more rare than anyplace else in the world, and divorce is legal but quite rare.

The cultural package of modern Western culture is intertwined enough, that even if you reject some rather important part of the package, like the institution of divorce, except in comparatively rare cases, it is hard not to find imperfect work arounds that are similar in effect, if not form. Serial monogamy is a much more core part of the Western cultural package than specific rules relating to marriage and divorce that implement that culture.

Atheism and Politics

A recent post at Gene Expression looks at the intersection of atheist or agnostic religious views and one's self-identified political stance as a liberal, moderate or conservative from the General Social Survey.

Not surprisingly, self-identified liberals are about three times as likely to be atheist or agnostic as self-identified conservatives, with moderates in between. Indeed, compared to what one might intuitively expect, that religious belief driven skew between liberals and conservatives is smaller than one might expect. About 20% of self-identified atheists and agnostics are self-identified conservatives, while almost half are liberals.

Non-Christians, generally, are considerably more reliable in voting for Democrats rather than Republicans in federal elections based upon exit polls that I've seen over the years. But, atheists and agnostics are only a minority of that category, and some self-identified moderate or conservative atheists and agnostics might still vote for a Democrat over a Republican whose rhetoric, for example, claims that non-believers don't deserve any legal rights. In the same way, Muslim Americans are much more prone to vote Democratic than their views on a variety of political issues would suggest.

The Trouble With Cords

Despite the rise of the wireless age, computers and other electrical devices from landline phones to modems to cell phones to GPS units to iPods to shavers to Kindles and Nooks to power tools to CD players to lamps to printers to toasters need cords. All of them need power cords. Many of them have headphones or earbuds attached to them. In crowded office buildings, ethernet cords are preferrable to wi-fi for Internet connections because the crowded airwaves are thick with different wireless router signals.

Several issues with this state of affairs eventually become clear:

1. There has not been very much standardization of connectors, so you have a mass of similar looking cords and it isn't always visually obvious which one goes with which device. Yet, you fear throwing one out because replacing a proprietary cord for a device is almost as expensive as replacing the device itself. Even if the cord can be found or replaced, your device is effectively useless until you replace it and simply finding the right cord can take considerable time on top of any cost of replacement.

2. Homes and offices are not generally designed with convenient places to plug everything in; their outlets were placed for lamps and blenders, not for an era when everything from your toothbrush to your book are electric.

3. Most surprisingly, cords and the slots that they attach to, are quite prone to being the first part of an electric device to break that needs to be replaced. In hindsight, this makes sense. These are some of the most frequently manipulated part of a device that is often otherwise more or less solid state. But, it is still surprising how easy it is for an internal break to arise in a power cord or head phone cable, for example. At first, you find that twisting it or extending it "just so" is necessary for it to work, and eventually, the contortions needed to get the internal break of the wire within the cable becomes to great that it becomes effectively unuseable. However, since you can't see the break, it often takes many days or weeks of deduction to determine what is the matter - ruling out bad outlets (or perhaps just outlets turned off through a connection to a light switch), a loose connection at places where the cable is intended to connect with something, a flaw in the AC to DC converter box on a cable, a flaw in one of the speakers in a set of headphones, or a flaw in the connection to the electronic device.

4. A related but more vexing problem, because it is hard to solve, is when slot to which a power cord or other slot in a device is jarred or broken. The internal part may cost only a couple of bucks or require only a little nudge, but mass produced electronics are so cheap, and the labor and skill that go into taking one apart, tinkering with it, and putting it back together are so great, that such a little problem can effectively turn your device to junk.

23 February 2012

The Law Against Using Your Own Ideas

Alex Tabarrok at Marginal Revolution makes a solid case that patent law should not allow someone with a patent to exclude someone who independently invented the same thing. Under current patent law, it is often illegal to use an idea you invented yourself because someone else who invented the same thing gets a patent on the idea.

U.S. Patent was was recently revised in exactly the opposite direction, joining most of the world in become a country with a pure "race" priority system, in which there is not even an inquiry into who invented something first - the first person to file a valid patent for an idea has exclusive priority. This makes the task of determining who gets a patent first easier, but begs the question of what is so bad about letting someone who develops an idea independently have their own patent. Of course, proving an independent invention once an existing patent for the same idea is already in the public record is a practical problem. But, on the other hand, if multiple different inventors are simultaneously and independently inventing the same thing (and this has happened frequently in the history of science and technology), perhaps some other recent discovery has made the idea obvious and it should receive weaker protection. Also, the idea that you can't commercialize your knowledge produced without reliance on other people's protected intellectual property is problematic.

Copyright law and trade secret law don't impose liability on people using independently invented ideas, although someone else using something identical to an existing copyrighted work or trade secreted idea will provide strong circumstantial evidence that the idea is derived from the protected work that will have to be rebutted with pretty convincing evidence.

21 February 2012

SCOTUS Takes Up $5,257.20 Bill of Costs Dispute

When somebody wins a lawsuit, even if no attorneys' fees are awarded, the prevailing party can submit a "Bill of Costs" for certain recoverable out of pocket costs involved in litigating the case, like court filing fees and process server charges. It so happens that I filed one in a case just today, so the issues are fresh in my mind. One of the items allowed as a recoverable cost in federal court is the charge incurred for "interpretation" costs.

Normally, the lion's share of "interpretation" costs is the costs of having a real time foreign language intepreter present in open court to help a non-English speaking witness or party communicate with other participants in the court process, like the judge, the jury, or opposing counsel.

But, there is a split of authority between the federal circuit courts on whether the costs of translating documents in a civil case, and not just interpretation of spoken statements by witnesses and parties counts as a recoverable cost.

The reality in federal court and in state courts of general jurisdiction is that recoverable costs are typically minimal relative to the amount in dispute on the merits. The case before the U.S. Supreme Court on the Bill of Costs issue involves a hotel was sued for a serious personal injury suffered by a professional baseball player from Japan that undoubtedly involved tens or hundreds of thousands of dollars of attorneys' fee expenses for each party, and probably hundreds of thousands or millions of dollars in potential money damages.

But, like many U.S. Supreme Court cases, the clear conflict of authority between circuits on a legally narrow and factually very clean issue of federal law applicable in a large number of cases nationally made it attractive to the U.S. Supreme Court. The odds are good that this case will have shorter briefs than any of the other cases decided on the merits this term.

Of course, it is insane in the context of this particular case for either party to litigate the issue all the way to the U.S. Supreme Court. Even a very narrow and simple appellate issue like this one, taken so far up the appellate process, will easily cost both side more in attorneys' fees (or would if the clients were actually paying for this appellate litigation) than the less than $6,000 at stake, and neither party will recover their attorneys' fees from the other in this appellate litigation.

The impact on litigation economics, in the vast majority of cases, are usually modest as well. Many cases have no document translation costs, and costs are typically chump change. Notably, no many Plaintiffs' or Defendants' attorneys' organization filed an amicus brief in the case. The costs in the Bill of Cost that I prepared today were less than 0.5% of the amount in controversy in the case, and while that is on the low end, that wouldn't be particularly unusual is a medium sized civil lawsuit. As the Justices in the oral arguments in the case noted, however, in some jurisdictions, like Puerto Rico, the impact of a ruling on the recoverability of document translation costs can be considerable.

Presumably, the law firms involved are financing this effort because they or their clents have a much greater long term stake in the legal issue involved over many cases, and also because taking a case all of the way to the U.S. Supreme Court, even on a petty issue, provides reputational capital to both of the firms involved in the case, proving to future clients and future adverse parties in negotiations that you are willing to go to any lengths of fight even minor issues. Also, lawyers for both sides probably don't grudge an excuse to take a trip to Washington D.C., and the underlying issue isn't the kind of thing that is likely to create deep bad blood between the firms in their ongoing dealing with each other.

The party appealing the ruling is a personal injury law firm probably paid on a contigent fee basis. The party securing the favorable ruling is probably an insurance defense firm that has a long term interest in securing larger bill of cost recoveries for the insurance company (which may have a national customer basis that includes Chicago where a less favorable rule for prevailing defendants exists) when they win defense cases for their clients. The case also arises in Saipan, a U.S. territory, where document translation expenses are a significant and recurring part of both party's practices.

For what it is worth, on the merits, I think the trial court probably made the right call in ruling that the costs of document translation related to litigation are recoverable costs, and Judge Posner, in Chicago, whose Seventh Circuit is the only outlier on this score, probably made the wrong ruling on this point of law. Costs are supposed to cover out of pocket expenses that are reasonable and necessary to the litigation other than attorneys' fees, and although the statute specifically identifies particular expenses rather than using this general definition, litigation specific document translation costs are at least as good a fit for this category of expenses as expert witness fees, courtrooom interpreters, and certain expenses involved in complying with electronic discovery orders in large computer systems which are also allowed as recoverable costs. There is no compelling reason to find that document translation costs are less like expert witness fees and more like attorneys' fees that prevailing parties must bear in most situations under the American rule that states that each party bears their own attorneys' fees absent a clear exception to the contrary. The oral arguments in the case reflect that fact that this is a likely outcome.

The case is Kouichi Taniguchi v. Kan Pacific Saipan, Ltd, and oral argument transcripts in the case can be found here.

The Economics And Politics Of Talent Discovery And Term Limits

Tyler Cohen calls attention to the paper "Superstars and Mediocrities:
Market Failure in The Discovery of Talent"
by Marko Terviö , published in 2009. It isn't often that you see something new under the sun in economics, but this comes pretty close.

The essence of the argument is that firms in competitive markets underinvest in discovering new talents, particularly in situations where (1) there is no good way to discern talent other than putting someone in a job and seeing how successful they turn out to be, often in the public eye, and (2) talent is quickly apparent once someone is put on the job. Since, the supply of revealed talent is often small for high profile positions like CEOs and Hollywood Stars, and the risk that a novice will flop are great, it is safer to try to hire someone with revealed talent, rather than a novice. Even if there are many more talented people out there waiting to be discovered, a firm may want to take a risk on a merely mediocre sure thing.

Furthermore, firms lack an incentive to take a risk on novice talent because is the novice turns out to be a flop, the firm has invested in a hire that turned out to be a failure, while if the novice turns out to be a success, the legal barriers to entering into long term contracts for personal services means that the person with a newly revealed talent may minize the return to the firm that gave them a break by insisting on the high compensation available to revealed talent rather than the low compensation available to novices with unrevealed talent.

Thus, investing in discovering new talent may be a bad economic decision for firms in competitive markets.

In contrast, under situations like the studio system of Hollywood in the 1920s until the 1940s, where talent is hired for seven year contracts with enforceable non-compete clauses that allow the studio to pay low capped wages during the trial period, even if the person is a superstar (while allow the studio to terminate the contract early, ending the salary and the non-compete of the person under contract), the potential up side gain for discovering someone gave Hollywood studios an incentive to invest in discovering new talent.

Alternately, he notes that there are other ways one can break the barriers to entry for undiscovered talent other than long term contracts.

One is to allow people to buy jobs, something that actually does happen in the world of business where you can start or buy a company (the entertainment equivalent would be to rent Carnegie Hall with your own money), on the theory that talented people will pay to get a chance to prove their stuff, while mediocre non-novices will be happy to sell their opportunties to someone else and get out.

Another is that the disincentive to invest in discovering talent declines when there is a monopoly, collusive market, or simply a market in which some players of outsized market power. Since firms in these kinds of markets can realistically expect to receive at least their share of the industry-wide benefits of having an industry in which more talent is discovered, they have an incentive to participate in processes that discover talent even if it is costly to do so. Disney's quasi-studio system is one example. The quasi-collusive market of professional sports leagues is another. One could argue that this model helps explain why large law firms with great market power are willing to pay so much to new associate attorneys. And, one could also apply this insight to industry monopolist employers like the military.

He also argues that market failure in discovering new talent means that merely mediocre people who managed to get hired in the past will be paid more and have longer careers, and that the rewards to being a discovered superstar will be greater because fewer superstars will have been discovered.

Indeed, the author suggests that insufficient investment in talent discovery may be at the root of superstar economic rents (i.e. payments in excess of what their personal marginal economic contribution can explain) in a variety of professions such as entertainment and senior management for big businesses, situations that have previously been attributed to other economic causes.

The author doesn't extend his analysis to politics, but the same kind of analysis can be applied to thinking about how term limits work in politics. Rather than compelling talented novices to provide benefits for a prolonged period for the benefit of the government, it kicks people out, talented or not, to make room for new talented novices to move in. The people whose political talents are revealed in this process may be sought for other political jobs down the line, perhaps running for higher offices that also pay better. The people whose political talents prove to be lacking don't get re-elected (Doug Bruce comes to mind), and the people whose political talents are mediocre, who might be re-elected indefinitely closing the door to new talent that is superior, are forced to end their careers early by getting out (as many do) or moving up. Thus, one of the important roles that a term limited state legislature can provide is to serve as a "farm team" in which real life political talent can be discovered, leading to better talent at the top of that industry.

More analysis of talent discovery issues in sports and with broader implications can be found here and summed up with these conclusions, which pointed out the superiority of the minor league system used by baseball to the college sports system of identifying pro-sports talent in football and basketball:

An important sorting mechanism for labor market sorting is real-time work. Regardless of your school pedigree, most prestige professions (lawyers, financial managers, professors, etc.) have up-or-out rules after a period of probationary employment where skill is evaluated in real world action. . . . . I wonder if the de facto college minor-league systems of basketball and football hinder the sorting of talent so that the Jeremy Lins and Kurt Warners of the world often don’t survive. Thus, another downside of these college sports monopsonies is an inferior allocation of talent at the next level.

19 February 2012

The Christian Thing To Do

For a substantial part of American history, the phase "the Christian thing to do" was synonomous with the compassionate and charitable thing to do. This persisted throughout the 1800s and well into the 1900s.

Somewhere along the line, that secondary meaning of the phase was lost. The words still have a residual familiarity, but the content has been lost. Christians lost their way and became righteous and wrathful and started to confuse right wing politics with basic human decency. Sometimes, Christians get it right. But, it has become the surprise rather than the expectation, provoking comments like: “I never thought I’d see a church do something so Christian.”

I'm not a sharp enough of an intellectual historian to tell you just when it happened, or how. But, it has happened. And, I wish I could tell you a little better how it did.

Poor Men In U.S. Particularly Unlikely To Move Up In Social Class

Another analysis illustrates that working class women have made much more economic progress than working class men.

One Man (Or Woman), One Vote, In Larimer County, Colorado

The race for precinct chair won't be competitive in Larimer County's two person precinct, with one house, and two voters who are married to each other, one a Republican, the other a Democrat. Usually a precinct has 1,200 to 1,500 voters, but precincts are drawn so that they have entirely the same set of elected officials and redistricting can confuse that issue. Larimer County was one of the first to abandon precinct level election administration in favor of "voting centers" so it doesn't affect how elections are conducted, although it does impair the privacy of the precinct level result if reported at that level.

Apart from precinct chair status in a political party (a role that I held for a few years in Denver), the decision means very little, since no one other than political party officials are elected from precincts and most of the interesting decisions made by political parties are made by delegates at the county level or higher. The post does generally carry with it, in addition to the obligation to distribute party propaganda to district residents, however, a seat on the vacancy committee used to fill vacant state legislative posts and nominate candidates for other vacancy elections.

The decision is temporary and likely to be corrected later in the boundary finalization process.

Mother Jones Doesn't Understand Obama's War On MMJ Either

Mother Jones magazine recounts the sudden policy reversal of the Obama Administration on medical marijuana, but can't explain it.

Punishment On Autopilot Still Stupid

Zero-tolerance policies still lead school administrators to make absurd decisions, like the one made at Lewis-Palmer Middle School in Monument, Colorado where one thirteen year old lent her inhaler to a friend of the same age who seemed to be having an asthma attack. One girl was suspended from school, and the other was expelled, because the inhalers is a "controlled substance" and a zero-tolerance policy was imposed (in a town with no real history of drug dealing problems in its schools) to try to get drug dealing kids out of schools. Untreated asthma attacks are no joke. A prominent Middle Eastern foreign correspondent recently died of one while fleeing Syria on a horse.

Treating a children intervening in a potentially life threatening situation (albeit not as a medical professional might have in the situation), or receiving help in that situation, as no different than juvenile drug dealers is morally bankrupt.

Caryn Collette, the principal at the school who came to the conclusion that she should exercise her discretion to treat these girls in this way is the sort of bureaucratic idiot who according to the Peter Principle recently got appointed to a position beyond her competence (she has only recently served as a principal in the district and this may be the first time she's had to make a real decision like this one after decades as a teacher and then as an assistant principal) and should be deeply ashamed of her immoral and unintelligent decision she made when faced with this situation. Ms. Collette has done great harm to two young girls with hardly contemptible intentions who committed a minor infraction intended for other purposes.

Expelling a middle school girl from school without so much as providing any alternative education plan for her, even though she hadn't even signed any policies about sharing medication that wasn't even hers, and was undeniably accepting help while experiencing physical distress and in a panic making it necessary for her to be sent to the nurses office and to be brought home for the day (and it turned out in retrospect, for good) by an aunt, is proof that Ms. Collette simply lacks good judgment.  Misunderstanding your own health isn't something that should be punished more seriously than the harm one might suffer personally.

Ms. Collette showed much worse judgment than the girls in the case, and more should be expected of her given her life experience and training for just these kinds of events. The girl expelled apparently received a more serious punishment mostly because she was unrepentant and didn't have family that knew how to advocate for her in this situation - it also looks their there were social class distinctions at work.  The student expelled (based on video interviews) didn't have quite the socio-economic capital (race was not a factor) as the student who were merely expelled. 

The school board in the district (which doesn't appear to have had an active role in the matter based on the agendas of their meetings) and the superintendent, John Borman, (himself just less than a year into the job), of course, also deserves criticism for backing up a bad decision made by one of their principals who deserved to be reversed and reprimanded for her conduct. 

Also causing more harm than good is a privacy policy in which school administrators claim, implausibly, that "Some information that has been reported is misleading, and the privacy of student disciplinary records prevents the District from telling the public any details about actions of students involved." The news reporting from people with first hand knowledge of the situation is complete enough that the claim that the reporting is misleading in any way that is material to the situation, almost certainly can't be true.  While the District arguably has privacy obligations (although given that the students involved have gone to the media, that is doubtful), it certainly should use privacy policies to cover up its own deficient decision-making.

The whole point of a zero-tolerance policy is to provide students with transparency about the disciplinary policy, but it can't even achieve that end, and indeed, the notion that privacy interests outweigh the public benefit of making disciplinary and delinquency proceedings involving children public has increasingly appeared to be misguided. The right of both the accused and the public to a public trial has its origins in very natural notions about justice and the force of public knowledge of what happened in a case that can be educational, which an obsession with privacy undermines in this case, and also in other cases where it is applied, for example, to professional discipline cases. This case is one more where the opportunity to educate the students and public about public health and good behavior in a teaching moment was trashed by a misguided privacy policy that has elevated a minor consideration to unreasonable priority on a systemic basis nationwide.

Coming To Terms With Complicated

Among mothers of all ages, a majority — 59 percent in 2009 — are married when they have children. But the surge of births outside marriage among younger women — nearly two-thirds of children in the United States are born to mothers under 30 — is both a symbol of the transforming family and a hint of coming generational change. . . . When Daniel Patrick Moynihan, then a top Labor Department official and later a United States senator from New York, reported in 1965 that a quarter of black children were born outside marriage — and warned of a “tangle of pathology” — he set off a bitter debate.

By the mid-1990s, such figures looked quaint: a third of Americans were born outside marriage. . . . Now the figure is 41 percent — and 53 percent for children born to women under 30, according to Child Trends, which analyzed 2009 data from the National Center for Health Statistics.

Still, the issue received little attention until the publication last month of “Coming Apart,” a book by Charles Murray, a longtime critic of non-marital births.

Large racial differences remain: 73 percent of black children are born outside marriage, compared with 53 percent of Latinos and 29 percent of whites. And educational differences are growing. About 92 percent of college-educated women are married when they give birth, compared with 62 percent of women with some post-secondary schooling and 43 percent of women with a high school diploma or less, according to Child Trends.

Almost all of the rise in nonmarital births has occurred among couples living together. While in some countries such relationships endure at rates that resemble marriages, in the United States they are more than twice as likely to dissolve than marriages. In a summary of research, Pamela Smock and Fiona Rose Greenland, both of the University of Michigan, reported that two-thirds of couples living together split up by the time their child turned 10.

From the New York Times, complete with interviews in Lorain, Ohio, down the road from where I went to college.

Another recent news story looked at another complicating nuance. About a quarter of co-parents who no longer live together still have a romantic relationship and that is good for their children:

When low-income cohabiting couples with children decide to no longer live together, that doesn't necessarily mean the end of their romantic relationship. A new study suggests that about one in four of these couples who split their households still maintain some type of romantic relationship. . . . [Claire] Kamp Dush's work included 1,624 mothers who were cohabiting at the birth of their child. The mothers were followed for five years after the birth. About 46 percent the sample split their households within three years, and 64 percent did so within five years. Of those who moved apart, 75 percent ended their romantic relationship. About three-quarters of these black mothers no longer lived with their partner after five years, compared to 52 percent of Hispanic mothers and 57 percent of white and other-race mothers. These black mothers were also significantly more likely than Hispanic and white mothers to continue a romantic relationship after moving away from their partner. . . .

[C]ouples who stayed connected after moving apart tended to have two factors going for them: they had more relationship "investments" with each other and had less family chaos.

Relationship investments included things like pooling money, having a joint checking account or credit card, or having a second baby together. "These investments help bring couples together and make it less likely that they will totally separate," she said.

"But if you have a lot of family chaos -- things like inflexible job arrangements, child care problems and constant moving -- it is harder to create and maintain family routines and time together, and hence cohabiting parents are more likely to permanently separate." The study found that each additional indicator of family chaos increased the odds of a couple breaking up by 22 percent.

"There are clear disadvantages to the simultaneous end of living together and a romantic relationship, particularly when children are involved," Kamp Dush said. "The negative effects of divorce for children are clearly documented and cohabitation dissolution likely has similar impacts on children when it ends in breakup."

From a policy perspective, [Researcher] Kamp Dush said the results point to the importance of providing good and flexible jobs and quality child care to low-income parents in order to help them stay together.

"If a mother can't change her work schedule to deal with sick kids or other issues, it just adds to the chaos of their family life. And more chaos means it is less likely they will stay romantically connected to their partners," she said.

I've spilled enough ink for now on the question of why people divorce, which goes hand in hand with the question of why they don't get married in the first place, and why co-habiting couples break up. Take this as a give for the time being. It happens, and it happens a lot. It has happened notwithstanding that fact, as Krugman, commenting on Murray's book observed, that crime and teen pregnancies are at record lows.

Families these days are complicated. Some require a program just to figure out whose who and how they are related. There are cohabiting parents whose children from prior relationships must blend together with them. There are people with children in new relationships who barely acknowledge that their children from prior relationships exist. There are families who bring children of a relative whose life has crashed and burned into their life. There are ex-spouses whose relationship is so tense that restraining orders are necessary, people who don't have their ex-spouse's name in their cell phone contacts, and ex-wives who trust their ex-husbands to change the oil in their car or handle their legal issues for them. There are people who have had three or more spouses, one of them in the race to be the next President of the United States. As people live longer, even people who have never divorced themselves and never had a close relative divorce can end up with a passel of step-relatives. Throw in same sex couples, sometimes with children, and sometimes with ex-spouses, and further below the radar, polyamorous couples, and life can get really complicated.

Not infrequently, court orders further complicate matters. But, the court system, which was designed to handle one time interactions between strangers or business acquaintances in situations where one claims to have been wronged by the other is ill suited to managing long term relationships in complicated families related to children who stubbornly insist on constantly growing up and changing from the way they were the last time their parents and custodians came before a court.

There are disagreements over how we ended up in such a complicated state, perhaps the real problem is that cupid has developed a drug problem and gotten trigger happy, but it seems clear that there is no end in sight, so we're going to have to learn to cope with a new more complex reality, muddling through with civility and a case by case point of view that doeesn't assume too much.

A related and lingering issue is that the state often takes children away from their parents, generally following serious instances of abuse or neglect, but often seems to offer up an alternative only marginally better, and sometimes even worse, in the foster care system. The abuse and neglect that happens shows a couple of clear patterns. First, having an unrelated adult in the household, like a stepparent or mother's boyfriend, dramatically increases the likelihood that there will be abuse and neglect. Second, neglect is correlated rather strongly to financial stress, which is also frequently a driving force behind families falling apart.

Our Governor in Colorado is hard at work trying to shape up a child services system for the state that doesn't let as many cases of abuse and neglect fall through the cracks. But, it is hard to see a reform of foster care really producing sustained improvement. Nobody is asking that we return to the days of orphanages, and nobody has much in the way of concrete comprehensive proposals for reform on either side of the partisan divide.

What does seem to be increasingly clear is that a lot of cases in which there is neglect or a family does fall apart could be prevented if those families had faced less financial stress, less "family chaos", and received more support before it all got to be too much and something bad happened. Families try to hold each other together with love, but love doesn't pay the rent and buy diapers. Lots of people do find love, even in a hopeless place. But, sustaining relationships in hopeless circumstances is more than most people can handle.

The single biggest decline in child abuse and neglect happens when children go to school. In part, this may be because it prevents children from being isolated. In part, it may be because older children are less vulnerable to serious harm in a momentary lapse of parental attention or loss of parental control. But, equally important, it eases the economic burdens of child care for financially stressed young families - sometimes in the form of opportunity costs, sometimes in the form of dollars paid to child care providers. And financial insecurity can wreck as much damages as long term low average earnings. Periods of unemployment or surprise big expenses can be non-survivable events for families trying to stay in tact.

Upper middle class families that are complicated have the resources to navigate complicated with some degree of success and to bend a system not designed for their situations sufficiently to meet their needs. Less affluent families often don't.

One can point the finger at welfare as culprit, but really, the bigger culprit as an economy in which stability has vanished, and more for some than for others. Racial disparities in family patterns and trends over time for different social classes and generations, tend to track unemployment figures pretty closely. One can point to a feeble system of unemployment benefits, but that system wouldn't be very important if the private economy were providing stable employment at living wages for more people.

If one adopts the philosophy that government doesn't create jobs, despite the fact that it is demonstrably untrue, one ought to also properly assign blame for the economic woes people experience to a private sector that doesn't behave like Econ 101 says it should by putting every resource to use in a maxmimally efficient way even in the absence of meaningful regulation.

Alas, like complicated families, an economy in which few people have any security, and less elite employees are cast about by the changing economic tides without any regard to their needs, seems to be an inevitability. Whatever macroeconomists may understand about interest rates, GDP growth, and public sector deficits, few of them really have a solid grasp and understanding of the underlying forces that are changing qualitative differences in how our economy is structured and organizes, that drives increasing social class divides and economic insecurity for families. This makes consensus solutions harder to devise.

16 February 2012

Interracial Marriage (And Children) More Common

The rate of new marriages which are interracial, according to the Pew Research Center in a new report, has increased dramatically in the last thirty years, as has public acceptance of these marriages. The executive summary of the open access report makes "key findings" including the following:

The increasing popularity of intermarriage. About 15% of all new marriages in the United States in 2010 were between spouses of a different race or ethnicity from one another, more than double the share in 1980 (6.7%). Among all newlyweds in 2010, 9% of whites, 17% of blacks, 26% of Hispanics and 28% of Asians married out. Looking at all married couples in 2010, regardless of when they married, the share of intermarriages reached an all-time high of 8.4%. In 1980, that share was just 3.2%.

Gender patterns in intermarriage vary widely. About 24% of all black male newlyweds in 2010 married outside their race, compared with just 9% of black female newlyweds. Among Asians, the gender pattern runs the other way. About 36% of Asian female newlyweds married outside their race in 2010, compared with just 17% of Asian male newlyweds. Intermarriage rates among white and Hispanic newlyweds do not vary by gender. . . .

[W]hite/Asian newlyweds of 2008 through 2010 have significantly higher median combined annual earnings ($70,952) than do any other pairing, including both white/white ($60,000) and Asian/Asian ($62,000). When it comes to educational characteristics, more than half of white newlyweds who marry Asians have a college degree, compared with roughly a third of white newlyweds who married whites. Among Hispanics and blacks, newlyweds who married whites tend to have higher educational attainment than do those who married within their own racial or ethnic group. . . . [W]hite male newlyweds who married Asian, Hispanic or black spouses had higher combined earnings than did white male newlyweds who married a white spouse. As for white female newlyweds, those who married a Hispanic or black husband had somewhat lower combined earnings than those who “married in,” while those who married an Asian husband had significantly higher combined earnings. . . .

Intermarriage in the United States tilts West. About one-in-five (22%) of all newlyweds in Western states married someone of a different race or ethnicity between 2008 and 2010, compared with 14% in the South, 13% in the Northeast and 11% in the Midwest. At the state level, more than four-in-ten (42%) newlyweds in Hawaii between 2008 and 2010 were intermarried; the other states with an intermarriage rate of 20% or more are all west of the Mississippi River. . . .

More than four-in-ten Americans (43%) say that more people of different races marrying each other has been a change for the better in our society, while 11% say it has been a change for the worse and 44% say it has made no difference. Minorities, younger adults, the college-educated, those who describe themselves as liberal and those who live in the Northeast or the West are more disposed than others to see intermarriage in a positive light. . . . More than one-third of Americans (35%) say that a member of their immediate family or a close relative is currently married to someone of a different race. Also, nearly two-thirds of Americans (63%) say it “would be fine” with them if a member of their own family were to marry someone outside their own racial or ethnic group. In 1986, the public was divided about this. Nearly three-in-ten Americans (28%) said people of different races marrying each other was not acceptable for anyone, and an additional 37% said this may be acceptable for others, but not for themselves. Only one-third of the public (33%) viewed intermarriage as acceptable for everyone.

Ten observations.

1. Attitudes about race are fluid. This study is a good example to show that public attitudes can change dramatically over the course of a generation or two. American attitudes towards race and sexual orientation have both transformed dramatically over the last sixty years or so. A lot of the short and medium term political science literature could leave you thinking that it is a fools errand to try and change what people believe as opposed to trying to massage coalitions that take those beliefs to be a given. But, over time frames of several decades, movement politics can achieve ends that electoral politics could never hope to achieve.

2. Complexity has led to acceptance and reframed racial thinking. An important piece of the radical change in attitudes towards race and interracial marriage has been the reframing of race from a binary category (black and white) to a multiple choice category. This has created a great deal of middle ground which allows, for example, someone whose frame of reference might once have been black-white marriages in the Deep South to also consider, for example, Hispanic-Asian marriage in California about which they had no strong preconceptions, which in turn has weakened views about the general issue. I am also inclined to think that the multi-racial as opposed to biracial frame has also decomposed the monolithic "white" category somewhat. For example, it has probably reducing the likelihood that someone of Spanish descent from Spain, or someone of Middle Eastern or North African descent, or someone of Russian descent,would think of themselves as being part of the same race as someone with British ancestors.

3. Racial categories are in constant flux. Almost every U.S. Census has had a slightly different set of them. Is a marriage between someone of Indian descent and someone of Chinese descent an interracial marriage, even though both are counted as Asian on a census form? We may relocate Hispanic to a standing on a par with ancestry categories in twenty or thirty years, or may start to conceptualize a mestizo racial category rather than as a Hispanic ethnicity, for official business. The check more than one box approach currently in use could fall out of fashion. I don't see U.S. society entirely abandoning race as a concept any time soon, but the trend towards de-emphasizing it, for example, in college admissions in some state university systems, has probably not yet fully run its course.

4. Familiarity breeds acceptance. When interracial couples marry and the world doesn't end and the present company excluded rule starts to limit what you can politely say at social events about interracial marriage, opposition fades. More than a third of native born Asian Americans and Hispanics marry across racial or ethnic lines respectively. A quarter of black men and one in eleven black women do as well. Almost every native born Asian American, Hispanic individual, or black person will have a peer or near peer of the same race who has had an interracial marriage. There are also many serious interracial relationships that are not marital across racial and ethnic lines that aren't counted in these statistics, some of which produce children. In parts of the United States that are not overwhelmingly white (e.g. Hawaii or California or New York City), this will often be true for native born whites as well.

5. Everyone is somewhat endogamous. The overall out marriage rate in the absence of any in marriage preference would be something on the order of 35-40% of newlyweds rather than the current 15%, although geographic considerations and social class considerations might trim the race neutral out marriage rate to closer to perhaps 30%. There is no race-gender combination in a person who is more likely to marry a person of another race than they would be if random chance determined pairings, and for almost all minority groups the difference between random pairings and actual out marriage rates is considerable. Even the people most prone to outmarry (for example, certain subcategories of U.S. born Asian and Hispanic women) have outmarriage rates on the order of 50%-60%, in a society where outmarriage rates would be closer to 80%+ in the absence of some endogamy effects. Once one controls for geography at the scale where people actively interact with potential spouses and for social class, quite a bit of this endogamy tendency is diluted, but any way you measure it, it is still there. As a general rule, people tend to marry people who are as similar to them as possible without being closely related.

6. There is no end in sight. There is every reason to believe that overall out marriage rates will continue to increase for the foreseeable future, certainly for another several decades at least. This trend has not yet run its course. The more frequently people intermarry, the less of a social barrier there is to other people doing likewise. Obviously, there is an absolute limit on outmarriage, but we are nowhere near to being close to it. And, those limits are reached piecemeal. The demise of elevated in marriage rates between two ethnicities relative to random chance is a good operational definition of the cultural merger of those ethnicities. But, one could easily imagine a world in which, for example, East Asian and white merge ethnically, while black and white do not. Since some of the endogamy tendency we observe today is still driven by the cultural preferences of not fully assimilated first and second and third generation immigrants, the inexorable assimilation of immigrant communities in later generations almost assures that out marriage rates will continue to increase.

7. There is a corresponding rise in the number of multiracial children. Weakening norms of hypodescent (i.e. the "one drop rule"), especially in couples where one parent is not black (majorities still have difficulty thinking of even prominent interracial individuals whose family origins are widely known and who are part black, like President Obama and Tiger Woods, as something other than "black" ethnically), and dramatically increasing rates of interracial marriage, has meant that there are more people in the United States who are interracial, more people who identify as interracial, and a much higher percentage of children who are interracial than there are adults who are interracial. This too is a trend with no end in sight. It isn't really clear at this point to what extent the United States will follow in the footsteps of Latin America in which a monolithic category like "mestizo" come to be a new category that includes all or more mixed race people, and to which extent there will instead be many widely accepted social categories of particular subtypes of mixed race individuals as there was, for example, in pre-Louisiana purchase Louisiana, or is now in Brazil.

8. End Game Predictions From Mathematical Models. If you play with mathematical models of intermarriage long enough, and you make an assumption that there is a range of strength of beliefs about the importance of in marriage in different subpopulations within ethnic categories, it takes only a few generations for a quite robust set of conclusions to emerge.

a. A large pool of interracial children emerges rapidly and eventually their descendants will become one of the largest categories, in the absence of hypodescent systems of ethnic affiliation or something like them adding these children to one of the existing catgories. A century or two out, almost everyone who isn't intentionally trying to marry people only of their own race ends up "brown."

b. The smaller the percentage of the total population a minority comprises, the more rapidly it will become the case the only people who remain monoethnic in that minority group are people who have a very strong commitment to endogamy that will probably materially influence a great many aspects of their daily lives through intentionally maintained monoethnic communities.

c. The largest ethnicity will be the last to have significant number of monoethnic people in the absence of powerful culturally imposed endogamy constraints because many people in this ethnicity will in marry simply by random chance anyway. The presence of people who are not opposed to out marriage, but don't end up out marrying tends to make the endogamy values of the minority populations much more influential in determining intermarriage rates than the endogamy values of majority populations. It takes a very strong endogamy preference to a majority group to have the same effect as a quite modest endogramy preference in a minority group.

9. Social class factors. Several decades of economic prosperity leading up to the Great Recession, declining residential segregation in housing, and the return of properous people to central cities from the suburbs, has shrunk the ranks of isolated underclass ghetto residents, and the class structure of the United States has evolved in a way that sets the bottom 95% against the top 1% with little in between economically, and secondarily within the bottom 95% an upper middle class and a working class. The American socio-economic class system is less finely graded than it was in 1980 and this has somewhat deracialized few remaining social class bins that are left. Falling crime and reduced rates of teen pregnancy especially in minority communities, and declining prosperity among working class whites, has made the lives of people at the bottoom of the heap of differing races less different that it was a few decades ago.

10. Out marriage rates are very context specific. Overall out marriage rates are mere statistics that don't tell you much about reality. Out marriage rates can be wildly gender asymmetric, can depend on the degree of assimilation of people with immigrant roots, on the local cultural climate, on the race combinations for husband and for wife in a pairing, or for that matter on the same factors in different ways for husband-husband v. wife-wife pairings, which are themselves not symmetric with each other. Every single factor in the complex matrix of interacting considerations that give rise to a particular rate of out marriage for someone in a particular demographic to someone in another demographic has a story to tell.

a. Gender Asymmetry In Out Marriage For Asians. The factor that I suspect drives asymmetry of intermarriage by gender in Asian Americans is the perception that Asian patriarchal attitudes towards husband-wife relationships are good for Asian men and that these benefits are lost if they out marry, while Asian women fair better by assimilating into more egalitarian attitudes about how husbands and wives should interact that are held by middle clas and affluent white Americans.

There may also be immigration factors at work. First generation (i.e. born abroad) Asian immigrants, who are the least assimilated and hence the least comfortable with out marriage, are much more likely to be men than women in the United States. At the second generation and later, among Asians who are more assimilated, there is likely to be something close to gender balance. Thus, even if out marriage rates were identical for later generation Asian men and Asian women (which they aren't, although the gap fades somewhat in later generations), we would still expect Asian men to outmarry less than Asian women overall.

Native-born Hispanics were nearly three times as likely as their foreign-born counterparts to marry a non-Hispanic in 2010 [36.2% v. 14.2%]. The disparity among native- and foreign-born Asians is not as great, but still significant: Nearly four-in-ten native-born Asians (38%) and nearly a quarter (24%) of foreign-born Asians married a non-Asian in 2010.

Among Asian newlyweds, the intermarriage gap between native and the foreign born is much bigger for Asian men than for Asian women. In 2010, native-born Asian male newlyweds were about three times as likely as the foreign born to marry out (32% vs. 11%). Among newlywed Asian women, the gap between native and foreign born is much smaller (43% vs.34%). The gender differences are not significant among Hispanic native- and foreign-born newlyweds.

Also, it is worth recalling that in a multiethnic category like "Asian" that the largest populations in the United States sample statistically swamp contrary trends in less numerous subpopulations. I suspect, for example, that the out marriage rates of Korean women in Buffalo, New York, where my wife grew up, are very differnt from the marriage rates of Vietnamese women in Denver. But, the marital tendencies of immigrants from China and India in major immigration centers like New York City and Los Angeles probably swamp any other trends in the data. To the extent that the rates are similar for different subcategories of Asians, this is probably a product of similar immigration histories for these ethnicities, similar to the parallels between Irish and Italian immigrants in the Northeastern cities in the late 19th and early 20th centuries.

Similarly, even if Cubans in Florida, or Dominicans or Puerto Ricans in New York City, are atypical of Hispanics generally, the demographic tendencies of Mexicans in the American Southwest are going to swamp the trends in any other category statistically. Trendlines and generalizations about patterns of relationships for smaller subgroups of multiethnic categories are invisible when they are lumped into categories with larger subgroups.

b. Gender Asymmetry In Out Marriage For Blacks. I don't think I know enough to explain all of the factors that could be driving the asymmetry of outmarriage rates between black men and black women. But, one factor that may be coming into play could be something of a statistical artifact of the reality that the most common form of black household in the United States today is a matriarchal household in which the father or fathers of the children, as well as their mother, are black, but the couple has never been married even if they have lived together or maintained a non-cohabiting romantic relationship for many years. A lot of black men who have serious relationships with black women may not produce a marriage and not feel a strong cultural pressure to do so, while black men who have similarly serious relationships with non-black women may feel more pressure from their non-black partner to be formally married.

Thus, black men and black women might have fairly similar rates of entering into serious long term relationships with someone of another race, but black men in a relationship like this with non-black women may be considerably more likely to memorialize that relationship with marriage than a black woman in a relationship serious long term relationship with a non-black man.

It isn't implausible to hypothesize that in general, it is the woman in an opposite sex serious relationship who insists upon marriage more often than the man. After all, the economic upsides of marriage in the event of a break up disproportionately benefit married women relative to unmarried women and married men. Alimony payments and property divisions upon divorce usually have the net effect of transfering wealth from ex-husbands to ex-wives, but aren't worth the litigation costs necessary to secure them in households where the couple has few assets and the ex-husband doesn't have a capacity to make substantial alimony payments. (Child custody and child support payments are now independent of marriage.) And, if that is the case, and if black women have grown to place a lower priority on being married on averge than other women do on average that could explain a great deal of the asymmetry seen in intermarriage rates between black men and black women.

Why might black women marrying black men place less of a premium on getting married and in turn give rise to a cultural norm that cares less about a formal marriage for oneself? Perhaps, in part, black women on average have less to gain economically from marriage to a black man when the relationship ends than other women. This could be because black women tend to be socio-economically better off on average than black men. Black women, on average, have higher levels of education, a lower likelihood of having a criminal record, lower unemployment rates and higher average incomes than black men. This could also be because both young black men and young black women, on average, have few prospects of having much property to divided or alimony that could be paid in the event of a divorce.

This factor alone probably isn't enough to explain all of the gender asymmetry in outmarrriage rates for black men v. black women, but it probably explains a good chunk of that gap, maybe even a majority of the asymmetry.

c. Divorce rates are also not monolithic.

[I]nterracial marriages that are most vulnerable to divorce involve white females and non-White males (with the exception of white females/ Hispanic white males) relative to white/white couples. Conversely, there is little or no difference in divorce rates among white men/non-white women couples, and white men/black women couples are actually substantially less likely than white/white couples to divorce by the 10th year of marriage.

In other words, white men and black women are less likely to divorce, while white women and black men, or white women and Hispanic non-white men, and white women and Asian men, are more likely to divorce.