30 April 2012

The Godless Are Good

[N]ew research from the University of California, Berkeley, suggests that the highly religious are less motivated by compassion when helping a stranger than are atheists, agnostics and less religious people.
From here.

The results were replicated in three different studies with different methodologies.

Neuroscience Of Impulsivity Advances

A new study looking at fMRI scans of 1,896 teenagers has revealed that the kind of impulsivity that leads to substance abuse, and a kind of impulsivity that leads to ADHD are the product of particular types of networks in the brain that appear to precede the substance abuse rather than being caused by substance abuse.
[D]iminished activity in a network involving the "orbitofrontal cortex" is associated with experimentation with alcohol, cigarettes and illegal drugs in early adolescence. . . .  
The researchers were also able to show that other newly discovered networks are connected with the symptoms of attention-deficit hyperactivity disorder. These ADHD networks are distinct from those associated with early drug use. In recent years, there has been controversy and extensive media attention about the possible connection between ADHD and drug abuse. Both ADHD and early drug use are associated with poor inhibitory control -- they're problems that plague impulsive people. But the new research shows that these seemingly related problems are regulated by different networks in the brain -- even though both groups of teens can score poorly on tests of their "stop-signal reaction time," a standard measure of overall inhibitory control used in this study and other similar ones. This strengthens the idea that risk of ADHD is not necessarily a full-blown risk for drug use as some recent studies suggest.
This is one of the most direct observations ever made of the biochemical and anatomical basis of ADHD and the impulsivity associated with substance abuse. It adds to the increasing evidence that these conditions, at least by the time people are teenagers, are to some extent "hard wired" rather than merely reflecting easily changeable habits of thinking. And, it provides some very specific guidance regarding the mechanisms at work in these mental health conditions. The fact that more than one network was associated with ADHD also suggests that it may be possible to use fMRI studies to develop a more meaningful set of subtypes for ADHD based on brain mechanism rather than merely visible symptoms.

It isn't clear if the factor analysis that researchers used to discern the different neural networks would be sufficiently specific to use as a diagnostic tool in individual cases, or if they are merely capturing a statistical tendency. The fact that researchers can afford to have such a large sample of fMRI scans at all, and that they have the computational power to make sense of and see trends in such a massive four dimensional dataset is a testament to the impact that technology is having on fields like psychiatry that have until recently tended to lag behind other fields of medicine in technological sophistication.

Electoral Vote Predictions By Chris Chillizza

Chris Chillizza analyzes plausible electoral vote outcomes in an Obama v. Romney general election. The magic number a Presidential candidate needs to win the Presidency in the electoral college is 270 electoral votes.

Chillizza puts a plausible floor for Romney electoral vote performance at 191 electoral votes and a ceiling at 292 electoral votes:
Romney would win 292 electoral votes if he replicated the Bush 2004 victory. But New Mexico seems like a very tough place to win — not to mention the fact that he would again need to carry Ohio, Florida, Colorado and Nevada as well as North Carolina and Virginia...  
Sen. John McCain (R-Ariz.) won 173 electoral votes in 2008. If Romney carried those same 22 states under the 2012 map, he would win 180 electoral votes. Add Indiana, which McCain lost but which will almost certainly go for Romney in 2012, and the former Massachusetts governor’s electoral floor sits at 191.
If Romney fails to collect just 23 of the electoral votes that are part of Romney's best case scenario, then Obama wins. About 101 electoral votes are plausibly in play in this election.

As Colorado Pols notes, it is very hard to imagine a plausible scenario in which Romney wins the Presidency without winning Colorado's 9 electoral votes. We are one of the key swing states in this election. New Mexico have 5 electoral votes, Nevada has 6, Florida has 29, North Carolina has 15, Virginia has 13, Ohio has 18, Pennsylvania has 20, New Hampshire has 4, Iowa has 6, Wisconsin has 10, Michigan has 16, Delaware has 3, and West Virginia has 5.

One recent poll has Obama and Romney tied in Colorado, with 47% each and 6% undecided.

29 April 2012

The Ecology of Monsters

Monsters, i.e. fauna that prey on humans, make all sorts of ecological sense. Most forms of life on earth has something else that kills it and eats it, controlling its numbers. Most top predators face Malthusian existences, they grow in numbers until their prey declines in numbers enough to starve them. It is a little more complex than that, as we are learning that we aren't the only top predator that manages its own ecosystem, but while other top predators in the world have total numbers in the thousands or tens of thousands globally, there are eight billion, give or take, of us.

It would make all sorts of sense for there to be an ecology in which vampires, or dragons, or zombies, or hydras, or alien overlords, or angels and demons, or giant spiders, or triffids, or what have you to kill off large number of humans on a regular basis (millions or tens of millions of people a year), or for us to struggle to survive despite the constant threat of predation.

Of course, this isn't what happens. Even before we became modern humans, we finished off much of our mega fauna competition, and by the time our current species became dominant, most of the last few competitors for the top predator spot were wiped out. A Malthusian limitation on global population became obsolete right around the time that Malthus formulated it.

We are no longer a species whose population is limited mostly by disease, starvation and war. We have gradually found ways to cure and prevent disease, live peaceably with each other, and feed ourselves with a small fraction of our available time and treasure. Rather than restraining our population mostly through death, which claims quite a bit less than 2% of us each year, mostly at quite advanced ages, we have restrained our population by restraining our fertility, mostly in some semblance of a voluntary fashion.

Monsters could surface. I'd put my money on microorganisms that cause plagues ahead of mega fauna, but something could kill us (although I'd put my money on modern medicine and epidemiology in the face of threats like those). And, while we seem to have navigated every plausible terrestrial natural disaster, we know from our own planet's history that big chunks of stuff that slam into us from space could mean game over (although we're increasingly at a point where we can defy even that kind of threat).

Selfishness and an affluence meme, rather than monsters or disease or starvation or war is the main means by which we limit our population, and it seems to be an ironclad law of economic development that increased economic affluence through development naturally produces a reduction in fertility rate, often to a level below the replacement rate.

While the world's population is still growing, the growth rate is falling as economic development makes a seemingly inexorable advancement in the less developed parts of the globe, and eventually, if current trends continue, the world population will first stabilize, and then shrink, as we as a species collectively decide that life is nicer in a world where fewer of us share the same finite pool of resources. Perhaps at some point, a natalist meme will overtake the affluence meme that is keeping population growth in check. But, we aren't close to being there at a global level yet.

27 April 2012

The Intellectual History of Autism

Neuroskeptic has a nice little historical sketch of the way that autism came to be known by that name and described as a distinct condition in the first half of the 20th century.

26 April 2012

Newt Out

Newt Gingrich, a few weeks after Rick Santorum announced he was throwing in the towel, recently let it be known this week that he was withdrawing from his race for the GOP nomination and would endorse Romney, although I haven't been following the story closely enough to see if he has officially made that announcement.  This leaves Ron Paul as the only candidate left in the race who hasn't ended in primary campaign and it has clear from the delegate count that he has absolutely no chance of winning the Republican nomination this year. This also makes it inevitable that Romney will win the GOP nomination on the first round at the Republican National Convention this summer. 

The only question left in the GOP primary and caucus process in 2012 is how Romney will choose as his running mate, something he now had a free hand to do with only the impact of his choice on his general election prospects in mind, in the absence of any remaining viable primary season competition.

History has tended to show that the running mate choice doesn't matter much electorally, at least outside the home state of the running mater, but the history books do bother to record who is chosen.

Romney's real problem, however, really has nothing to do with the primary process or his choice of running mate.  For now, the economy seems to be recovering.  And, even little bit that the economy improves between now and the start of the general election season in the fall hurts Romney's chances vis-a-vis President Obama.  If  that recover stumbles in the next few months, President Obama is in trouble.  If the recovery gathers stream, President Obama may cruise to a landslide victory.

25 April 2012

Colorado Civil Procedure Reforms

In a previous post, I outlined some recent reforms to Colorado's Civil Procedure Rules, set forth our tradition of having modern procedural rules and innovating, and proposed a few improvement worth considering. These reforms make little or no substantive change in the law and are intended to be uncontroversial ways to streamline the system, like several other recent changes in the Rules, not major policy items. I'll first recap those proposals and then make a few more.

Proposals From The Last Post

1. Establish e-filing for lawyers in all of Colorado's state courts. As I understand it, the Colorado Supreme Court and some parts of the state's county courts are still hold outs, while all of the state's general jurisdiction trial court and the Colorado Court of Appeals are in the system, and some of its county courts are in the system.

2. Establish a user friendly way for people not represented by lawyers to e-file documents in court. This particularly makes sense for pleadings for which there is no filing fee after the original pleading in a case is filed. A user name and a password that are valid in a case could be established at a citizen e-filing site when pro se parties enter an appearance in a case.

3. Eliminate the requirement for certificates of service on pleadings that are e-filed, because e-filing makes them redundant.

4. Consolidate the several forms that must be filed out with a great deal of redundant information to commence an informal probate case into a single form. It currently takes about four forms to commence a probate case. 

5. Provide a streamlined court form for financial disclosures cases that involve child support, but not property divisions or alimony. This would disclose income and certain extraordinary child related expenses, but not assets, liabilities and all other expenses which are not legally relevant in child support cases.

6. Establish a stand alone set of domestic relations procedural rules. This would be for ease of use in an area were a large percentage of parties are pro se and don't need to be confused by having to figure out rules that don't apply to them.  It would also reduce some lingering ambiguity over the extent that other civil rules which are rarely invoked in domestic relations cases actually apply in domestic relations cases and might encourage some innovation.  For example, even though it is possible to join parties other than the two spouses to a dissolution of marriage action in certain circumstances (e.g. when a third party has a property right in marital property, or when a third party has parental rights and responsibilities with respect to a child of the marriage), a joinder of parties rule drafted specifially with domestic relations cases in mind would be much easier to apply when appropriate in domestic relations cases than the generic joinder rule applicable to all civil actions.

7. Increase the availability of declarations that are not notarized in lawsuits. This practice was adopted in Utah in 2007 and according to the Utah Bar Journal has worked well in practice. The could be implemented for a large share of cases with an amendment to Colorado Rules of Civil Procedure 108 and 408, and Colorado Rule of Evidence 902.

8. Establish a system of automatic, court system generated, date certain, procedural deadline notices through the e-filing system. The courts themselves already make these calculations to manage their own dockets, and there is no harm in sharing it, giving these dates at least presumptive effect, and establishing that it will generally constitute excusable neglect to file by a court generated deadline even if it is actually later than the true deadline.  This would be particularly helpful at times like the present where multiple sets of procedural rules are operating in parallel in the same court.

9. Permit telephone testimony of witnesses in hearings, and telephone participation of attorneys non-evidentiary hearings, unless otherwise ordered, rather than requiring advanced permission to authorize this form of participation in court.

10. Reduce redundant information in standard form court document captions. The reform requiring this information in captions came at the tail end of the paper document filing era and was obsolete soon after it was adopted.

11. Discontinue the practice of requiring proposed orders for motions. Courts routinely grant or deny simple motions with comments on the motion document rather than the proposed order in most cases using the current court system software anyway.

New Proposals

Here are some additional suggestions in the same spirit, although sometimes a bit more substantive:

12. Establish streamlined expert disclosure rules for certain kinds of expert opinions regarding:
a. Appraisals of property, or the value of any asset.
b. Opinions regarding the reasonableness and necessity of the compensation of an attorney, accountant, expert witness, fiduciary, or another other person.
c. An interest calculation, actuarial calculation and/or amortization schedule.
d. Surveys conducted by a licensed surveyor.
e. Opinions of an expert that are derived solely from a review of tax returns or financial statements.
f. Opinions of an expert whose conclusions are entirely embodied in a tax return or financial statement prepared.
g. Opinions of a party to the action, a managerial representative of a party to the action.
h. Opinions as to the state of title to real property.

13. Adopt Colorado Jury Instructions for Civil Cases for additional causes of action and issues, such as civil theft, conversion and landlord-tenant disputed in general, and under the security deposit statute.

14. Make the annotated Colorado Jury Instructions available for free online.  This is the single most practical code-like guide to the common law that is particular to Colorado available in print, and it would be a great asset to pro se parties.

Housekeeping Notice

I've made updates without attribution in the posts edited today to a number of old posts at this blog that have received a large number of page views (the only desirable feature of the lastest blogger interface upgrade is a feature that breaks down page views by post), to correct issues with grammar, run on sentences, spelling, etc., without adding new information, analysis, or insight.

23 April 2012

Beautiful Malice

The mental health diagnosis: "borderline personality disorder" (a.k.a. psychopathy) is controversial.

But, there are a number of good and relatively recent non-fiction and textbook treatments of the condition (e.g. Simon Baron-Cohen, "The Science of Evil" and Martha Stout's "The Sociopath Next Door" (2005); Philip Zimbardo, "The Lucifer Effect: Understanding How Good People Turn Evil"; Babiak, P., and R.D. Hare, "Snakes in Suits: When Psychopaths Go to Work." (2006); Blair, R.J.R. "The emergence of psychopathy: Implications for the neuropsychological approach to developmental disorders." Cognition 101(September):414-442 (2006); Edens, J.F. "Unresolved controversies concerning psychopathy: Implications for clinical and forensic decision making." (2006); Hare, R.D., "Without Conscience: The Disturbing World of the Psychopaths Among Us." (1993); Hawes, D.J., and M.R. Dadds. "The treatment of conduct problems in children with callous–unemotional traits." Journal of Consulting and Clinical Psychology 73(August):737-741 (2005); HervĂ©, H., and J.C. Yuille, eds., "The Psychopath: Theory, Research, and Practice." (2007); Viding, E., J.R. Blair, et al., "Evidence for substantial genetic risk for psychopathy in 7-year-olds.", Journal of Child Psychology and Psychiatry 46(June):592-597 (2005); Woodworth, M., and S. Porter, "In cold blood: Characteristics of criminal homicides as a function of psychopathy." Journal of Abnormal Psychology 111(August):436-445 (2002); Lyman, D.R., and L. Gudonis, "The development of psychopathy." Annual Review of Clinical Psychology 1(April):381-407 (2005)).

One recent fictional treatment of the condition that doesn't mention it by name once, but portrays a near perfect textbook case of the condition that supporters of the diagnosis say is real and makes for easier reading than an academic monograph is the novel "Beautiful Malice" by Rebecca James. While the setting is ambiguous, the portray of the havoc one can experience when one is involved in the life of someone with BPD is vivid and closely tracks the recent academic and popular non-fiction literature on the subject.

Environment Matters In Schizophrenia Too

The evidence for that heredity plays a part in causing schizophrenia is more compelling and better documented than almost any other mental health condition (heredity may account for as much as 80% of schizophrenia risk, at least a third of which has been linked to common genetic variants and some of the rest of which may be epigenetic). But, the case that there is also an environmental element to schizophrenia is also compelling according to a recent meta-analysis.

The research, conducted by teams at Liverpool and Maastricht University in the Netherlands, is the first of its kind to bring together and analyse the findings from more than 30 years of studies looking at the association between childhood trauma and the development of psychosis. The researchers looked at more than 27,000 research papers to extract data from three types of studies; those addressing the progress of children known to have experienced adversity; studies of randomly selected members of the population; and research on psychotic patients who were asked about their early childhood.

Across all three types of studies the results led to similar conclusions. Children who had experienced any type of trauma before the age of 16 were approximately three times more likely to become psychotic in adulthood compared to those selected randomly from the population. Researchers found a relationship between the level of trauma and the likelihood of developing illness in later life. Those that were severely traumatised as children were at a greater risk, in some cases up to 50 times increased risk, than those who experienced trauma to a lesser extent.

The Liverpool team also conducted a new study which looked at the relationship between specific psychotic symptoms and the type of trauma experienced in childhood. They found that different traumas led to different symptoms. Childhood sexual abuse, for example, was associated with hallucinations, whilst being brought up in a children's home was associated with paranoia. The research further suggests a strong relationship between environment and the development of psychosis, and provides clues about the mechanisms leading to severe mental illness.

The study described in the material quoted above is R. P. Bentall, S. Wickham, M. Shevlin, F. Varese. "Do Specific Early-Life Adversities Lead to Specific Symptoms of Psychosis? A Study from the 2007 The Adult Psychiatric Morbidity Survey." Schizophrenia Bulletin, 2012; DOI: 10.1093/schbul/sbs049.

One common paradigm, which could be at play in schizophrenia, would be to view the genetic inheritance associated with the condition as vulnerablity to trauma genes, rather than as mental health condition causing genes per se. One might think of them as kindred to the idea that someone has an "eggshell skull" that together with a head trauma leads to much more harm than a typical person would suffer under the same circumstances.

Another possibility is that there is more than one set of circumstances that can present as the set of symptoms (i.e. syndrome) that we call schizophrenia or psychosis. Some cases could have a purely genetic causes, other cases might have a root purely in severe trauma, while yet other cases could be due to a mix of the two causes. For example, if trauma associated schizophrenia has some distinctive features not found in people who develop schizophrenia without a history of trauma, it might be possible to develop diagnostic subtypes of the condition with better identified caused and figure out which treatments work best for which subttypes. For example, maybe psychotherapy works for trauma associated schizophrenia but not purely genetic schizophrenia.

The abstract of the behind the paywall article, doesn't say what proportion of schizophrenia cases involve or do not involve traumas, making the data hard to evaluate.

The gene x environmental model also fits the tendency of the link between mental health conditions and crime being a "mental illness plus" model, in which mental illness alone is not a strong risk factor for crime, but mental illness plus a history of violence and substance abuse are an extremely powerful risk factor for crime. Similarly, college educated people with a mental illness are much less likely to have criminal justice involvement than people who have only high school diplomas or are high school dropouts.

Random Monday Thoughts

* Just two weeks and a couple of days are left for the Colorado General Assembly. Still in play: Civil unions, undocumented immigrant tuition, making it easier to hold back kids who aren't performing academically to grade level.

* Maternity dresses are a lot less dumpy than they used to be.

* Proof that we live in a civilized society: Coffee shops that serve mimosas on weekends. Here's a shout out to the great Daz Bog at 17th Avenue and Park Avenue in Denver.

* Boulder, Colorado author Carrie Vaughn's 2011 novel "After the Golden Age", about a forensic accountant without superpowers who is estranged from who superhero parents is definitely screen play worthy. The well balanced plot and carefully timed character development shows her writing maturing from her somewhat raw "Kitty" series, while continuing to include some of the spunkiest female characters in fiction today.

* Sunday's Denver Post featured a front page story claiming that Generation Y is starting to put distance between evangelical religion and conservative politics. It's a very hopeful possibility, but I'm not sure that I'm ready to believe it yet.

* Congratulations to my cousin's three children in Columbus. One has earned his degree and actually found a job in one of the toughest job markets for new college graduates in years, and the twins both have respectable college admissions lined up - separated for the first substantial period of time in their lives. Good going guys. My cousin and her husband have done a great job raising such solid kids. I hope I'll be as successful in that department.

* Of course, my brother and I and those of my cousins who do have kids have to make up for the six of my cousins who have ended up by choice and by chance not having kids. You'd think we grew up in a deep depression instead of a very prosperous several decades.

* In my lifetime, kids have gone from being an inferior good to a normal good (in the language of economics, an inferior good is something you buy more of when you are poor and a normal good is something you buy more of when you are better off).

* While newspapers all across the country, including the Denver Post, are cutting back on content, Dayton's paper is actually beefing up its offerings.

* All across the state and the nation, psych wards, and especially juvenile psych wards are closing. But, Denver Health is bucking the trend, offering the only new juvenile psych ward in the nation this year. Good work guys.

* Middle schools start way too f--ing early in the morning. On this, my daughter and I agree.

* SCOTUS is taking up the constitutionality of Arizona's immigration laws on federalism grounds. The case against is that immigration is vested solely in the federal government and can't be addressed by states without express delegation. The case for is that absent a specific reason, state laws are constitutional. While I had some intuition on how lower courts would rule on this case based on the state of federal law prior to a SCOTUS rulling, all bets are off in the U.S. Supreme Court.

* It's hard to tell is CU-Boulder's draconian crackdown on 4-20 events by banning vistors from campus that day achieved its ends of curtailing those events (it seemed to) or if it accomplished anything worthwhile. The cost of a year at CU-Boulder before the state "scholarship" for in state students and after fees is now $13,000 a year for arts and sciences undergrauates. This is an increase, but not a huge one.

* CU-Boulder tuition is up again, but just 5%. It is about $13,000 for one year's tuition and fees for an arts and sciences undergraduate before the state "scholarship" for in state students, for a net of a bit more than $10,000 a year before room and board and books. A four year degree, including those things is $80,000-$100,000 for an in state arts and science undergraduate (in addition, of course, to opportunity costs). Still a decent value, but also one that excludes a lot of people even with significant financial aid packages available in many cases.

19 April 2012

Alcohol Preferences And Political Affiliation

Hat tip to Enik Rising.

There is a strong link between the way that you identify politically and your cultural identity. While the alcohol in all alcoholic drinks is identical, the kind of drink in which you consume alcohol is largely a matter of cultural preference and identity; like fashion a choice of type of alcohol is a way of expressing your personal style and your personal style is driven by your cultural identity.

So, it really comes as no surprise to me that people who identify with the Democratic party are culturally different from people who identify with the Republican party, and hence have different average preferences for different kinds of alcoholic drinks.

The fun part, since what we know directly about the cultural drivers of political identity is probably more accurate than what we can infer indirectly from charts like the one above, is that it invites us to trace the links between drink types and cultural identity and political identity. For culture lovers, the fun part is drawing inferences that connect cultural groups in a political party's coalition and that group's drink preferences. For politics lovers, the fun part is refining one's intuitions about which cultural factions are part of the overall coalition represented in each major political party.

The clear Republican edge in mostly in a number of beers and blended whiskeys. The clear Democratic edge is in most other kinds of liquor.

Blended whiskeys are culturally associated with the Southern/Country-Western culture. The Democratic preferences are suggestive of a mix of ethnic votes and "cultural elites" who are more willing to try "sophisticated" variations.

Beer preferences are a bit more subtle. Sam Adams may do well with Republicans because it is associated with Patriotism, while Corona may not seem "American" enough for Republicans. Of course, the biggest selling beer brands, because so many people drink them, have a weaker political association in general.

17 April 2012

Things You Can't Do In Boston

Fire waitresses in alphabetical order until someone admits to stealing. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976).

16 April 2012

No European Human Right To Brother Sister Incest

The European Court of Human Rights affirmed a three year incarceration sentence of a German court in a "consensual" brother-sister incest case.

Notably the case wasn't an entirely clean case of consent, as the sexual relationship, commenced when the sister was sixteen and the brother was twenty-three, showed indications of undue influence, made possibly precisely because of the trust they placed in each other as a result of the brother-sister relationship, exerted by the brother over a young woman with diminished capacity who was grieving the death of her mother. These facts help explain why it might be fair to punish one but not the other, although both objected to the prosecution. The case addressed has some similarity to a prosecution under Colorado's sexual assault on a child by one in a position of trust (Colorado Revised Statutes 18-3-405.3, which would be a class 3 felony on these facts if the statute of limitations had not run, which it probably would have in this case after four children were born) which carries a much longer minimum and maximum sentence of incarceration (or under the incest statute, which would be a class 4 felony on these facts). According to the European Court, using the word "States" in the sense of national governments, "twenty-eight out of the forty-four States reviewed provide for criminal liability" for brother-sister incest between adults.

The siblings were raised apart during their childhoods. The relationship would not have been statutory rape in Germany if they were not related and it does not appear that there was a finding that the sister was so mentally impaired that she would generally be incapable of consent. They had four children, three of whom have been placed in the German equivalent of foster care. Two of four children had disabilities, although given the sister's mental impairment, this could have been simply a matter of inheriting the issues that she already displayed that might not have been mitigated in another relationship.

Denver Attorney Suspended From SCOTUS Bar

Today's Order List from the U.S. Supreme Court, in addition to one grant of a writ of certiori,* a few GVRs (grant, vacate and remand orders where an appellate court decision where a writ of certiori was granted in another case on the same issue is returned to the appellate court for reconsideration in light of the new U.S. Supreme Court precedent), and a mind numbing list of matters in which relief was denied, including this entry:

Robert T. McAllister, of Denver, Colorado, is suspended from
the practice of law in this Court and a rule will issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.

Mr. MacAllister, a high profile criminal defense attorney, was disbarred based upon a stipulation reached in June of 2011 from Colorado's state court bar for converting client funds. He acknowledged converting the funds, most of which had been frozen pursuant to a court order. The news account suggests that he was excellent at his job as a criminal defense attorney, a career in which he had thirty years of experience, but succumbed to temptation after facing financial ruin from unrelated business deals gone bad in the wake of the financial crisis (the parallel case of Tom Martino's bankruptcy comes to mind).

Disbarment is pretty much an automatic consequence for that offense (indeed, disbarment is the norm even when client funds are intentionally borrowed and returned without the knowledge of the client and without harm to the client arising), absent the most extreme mitigating circumstances, or a complete lack of intent that is promptly correctly when discovered.

Each federal court has its own list of lawyers admitted to practice before it that is separate from that of the state courts which have primary responsibility for admission to the practice of law. Reciprocal discipline in on federal court jurisdiction based upon a state bar membership sanction is routine, but not instantaneous.

* See below.

Certiorari Granted On International Copyright Issue

The issue in the case where certiorari was granted, Kirtsaeng v. John Wiley & Sons, Inc. is:

How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?

FWIW, I suspect that the Supreme Court will hold that Section 602(a)(1) trumps Section 109(a). This was the holding the divided three judge panel in the Second Circuit, from this case was appealed held and the 9th Circuit has also previously held in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff'd by an evenly divided Court, Costco Wholesale Corp. v. Omega, S.A., ___ U.S. ___, 131 S.Ct. 565, 178 L.Ed.2d 470 (2010). The U.S. Supreme Court probably decided to grant certiori in the absence of the circuit split in this case because Justice Ginsberg specifically identified the fact pattern presented in this case as an open question in a concurring opinion in Quality King Distrib., Inc. v. L'anza Research Int'l Inc., 523 U.S. 135, 118 S.Ct. 1125 L.Ed.2d 254 (1998), which addressed similar issues. The somewhat unsettled state of U.S. law on this point has been used as a defense to willful infringement penalties for this kind of alleged copyright violation in other cases.

While I am a sharp critic of U.S. intellectual property laws in many respects, on the grounds that its protections are far too expansive, impairs free speech considerations, and should be based upon principles of unjust enrichment rather than the metaphor of property rights, this is not one of the rules of copyright law that is obviously broken. The holding of the 2nd and 9th Circuits appears to reflect Congressional intent in this situation. It is hard to imagine what other rule related to importation that Congress could have sensibly meant in this context.

15 April 2012

Judge Rants On Economic Regulation

A rare concurring opinion by a conservative federal appellate judge in a case upholding the constitutionality of milk regulation acknowledges that the precedents allow Congress nearly plenary power to regulate economic activity while decrying path that the Courts have taken since the New Deal to determine that there is no constitutional right to be free of economic regulation.

13 April 2012

Clarity v. Importance

There are lots of policies out there in the world that are not optimal. Every policy change involves significant legislative, grass roots political, and bureaucratic mobilization. So, changing everything at once isn't possible (in addition to being highly unpredictable). How do you prioritize?

One way to do it is to focus on issues where the status quo is clearly wrong to anyone who really understands it. These issues are ones where with fortitude, it is possible to build bipartisan coalitions, and where the results of the policy change, while probably impossible to measure at a macro level, are almost surely good.

Solutions to clear problems that are uncontroversial make up a large part of the legisltive agenda. But, even when the status quo is clearly out of whack, for example, in the case of disparate sentencing for crack and powder cocaine, or the double taxation of corporate distributed earnings of C corporations, if the issue is politically hot, you can be tilting at windmills. There is near total academic consensus that these are both bad ideas and has been for decades, but in best case scenarios they are mitigated rather than resolved on the floors of Congress.

Another approach is to dig into the often muddy issues that don't have clear solutions not because the current approach is clearly wrong, but because the consequences of even minor tweaks in the policy can matter a lot because it is an issue that has a big impact on a great many people. In these issues, the lack of a clear consensus solution to the problem, or even a clear consensus recognition that there is a problem, can prevent policy makers of any political persuasion from getting too righteous and entrenched about a particular approach, so there is room for policy movement. But, the stakes are so high no matter what change is made, that securing more than incremental change can be difficult. Health care reform fits more closely in this category.

New MS Word Still Sucks

A takedown of Microsoft's signature product appears at the linked article in Slate. Razib of Gene Expression and Professor Bainbridge agree. So do I.

"What you type is what you get" should be the fundamental principle of any word processor from which deviations are made only deliberately and when absolutely necessary. The interface is bad. And, Microsoft still hasn't learned the most fundamental principle that has made Apple, and all of the ideas that Microsoft has stolen from Apple, great: Less is more. A software program is not automatically better because it has more features. The ideal software program has all of the feature you need, and none of the features you don't. And, this idea really, really matters in a product that is used by hundreds of millions of people.

Astrology Bunk, Psychology Somewhat Better

The researchers took 52 college students and got them to complete a standard NEO personality questionnaire. They also had to state the date, time and place of their birth.

Three weeks later, the participants were then given two personality summaries - one based on the personality tests, and one on their astrological chart generated with a computer program.

The trick was that everyone also got a pair of bogus summaries, one of each kind. These were simply someone else's results, picked at random from the other 51 volunteers. They weren't told which were the fakes and which were real - they had to work it out, based on which one matched them best.

The results showed that the subjects were no better than guessing when trying to tell which of the two astrology charts was theirs. They were able to pick their own personality scores better than chance, although only 80% of them got it right, and guesswork gets you to 50% - so this is not all that impressive. . . .

This study is a modern update of Shawn Carlson's classic 1985 Nature paper, A double-blind test of astrology. In Carlson's experiment, though, people weren't even able to accurately pick out their own personality scores.

When asked to say which of the four reports was the best match overall match to their personality, 55% of the participants picked their own real personality one - but no fewer than 35% preferred one of the astrology charts, and 10% went for someone else's personality scores.

From here.

I note that the sample size is ridiculously small for a study where the WEIRD sample is so easily gathered. Also, query if the results would be different if people were picking a personality test based on the assessment of someone who knew them well, rather than one based on their own answers.

12 April 2012

The Lastest Thirty Year DOD Aviation Plan

During the Cold War people harped on how inefficient it was for communists to try to adopt five year economic plans for their nations. The U.S. military, by comparison, adopts a thirty year plan each year for its future aviation purposes (i.e. this year's covers planned purchases through 2022) (it does something similar for naval purchases). What is it?

[T]he Defense Department plans on buying two new VC-25 presidential transports (Air Force One) by the end of this decade, kicking off an effort to replace the ancient T-38 Talon around 2018, new bombers and a fleet of more than 600 UAVs by 2022. Most interestingly, the plan lists an effort to develop a 6th-generation fighter, dubbed F-X, to replace the Air Force’s F-22 Raptors and another 6th-gen jet called F/A-XX that’s slated to replace the Navy’s F/A-18E/F Super Hornet. . . . All in all the document shows that the Pentagon’s aviation fleet will grow slightly from 14,340 aircraft today to 14,415 by 2022, with aviation spending totaling about $770 billion during that time.

The reality is that there is serious reason to doubt that sixth generation manned fighters to replace the F-22 and F/A-18E/F will every be built as drone technology takes off, and the utility of a new long range manned stealth bomber to replace the B-2 is questionable. Moreover, the presumption that one can really make meaningful aircraft procurement plans thirty year out is doubtful. The theory is that it tracks the useful life of the longest lived classes of aircraft, but technology changes to rapidly to make planning over such a long term time horizon very sensible, and allowing that kind of time horizon only encourages the kind of unreasonably long thirty year design to completed production run project schedules seen on projects like the F-22 that cause projects to go over budget and get behind schedule while encouraging unreasonable technological expectations that lead to technologically frought efforts that produce only marginally superior or sometimes inferior products at times long after the need for new weapons systems arises.

And, like all routinized planning requirements, this one has degenerated into a bureaucratic rehash of all recent past plans rather than genuine new thinking about what strategic direction the U.S. should take in its aviation procurement by people with enough vision to consider better alternatives than the status quo, and with enough clout to put the behmoth on a different course when the plan is adopted.

Do We Need F.R.C.P. 12(b)(6)?

Federal Rule of Civil Procedure 12(b)(6), which is equivalent to Colorado Rule of Civil Procedure 12(b)(5), allows for dismissal of a civil action for "failure to state a claim upon which relief can be granted", and while on its face the rule and some of the precedents decided under it apply only to dismissals of entire civil actions, parties routinely bring, and courts routinely consider motions that will only dismiss a particular theory of relief, rather than the entire case.

A motion to dismiss for failure to state a claim can be filed before the defendant has to file an Answer responding to the allegations of the complaint in detail and is a "so what?" motion that asks, "even if everything in the Complaint were true, would you win?" Recent U.S. Supreme Court cases have effectively raised the bar that must be met by a Plaintiff to survive such a motion.

Colorado has innovated in the opposite direction. It requires defendants in cases within the scope of its pilot project rules to file an Answer addressing the claims of the Complaint in detail, even if the defendant has a legal theory that could throw out the case under Colorado Rule of Civil Procedure 12(b) which includes not only motion for failure to state a claim upon which relief can be granted, but also claims related to jurisdiction and proper service of process. Parties are required to engage with the case under pilot process rules and make extensive factual disclosures before even a challenge to jurisdiction can be fully briefed. This seems to move too far in the other direction.

But, the case for eliminating Federal Rule of Civil Procedure 12(b)(6) and Colorado Rule of Civil Procedure 12(b)(5), which are by far the most common versions of motions to dismiss prior to the filing of an Answer in a case addressing the merits of the allegations of the Complaint, make quite a bit of sense and captures what Colorado's pilot project is trying to accomplish with its rule preventing the filing of an Answer in a case (which honestly isn't all that hard to do, since you can deny allegations on the grounds that you lack knowledge of their truth or falsity) from being delayed by legal arguments over the claim asserted.

These rules themselves are really holdovers from 19th century civil procedural ideas that were mostly rejected when the current regime of civil procedure rules in the federal courts and by imitation many state courts including Colorado, were adopted.

If after an Answer is filed, it is clear that there is not a valid claim asserted, the more procedurally flexible "Motion for Summary Judgment" which allow a court to consider documents and affidavits beyond the bare allegations of the Complaint, is still more than sufficient to serve the same purpose with only marginally more expense to a Defendant facing an insufficient Complaint. Indeed, since a motion to dismiss for failure to state a claim upon which relief can be granted will often produce an order for the Plaintiff to try to redraft the Complaint rather than a dismissal of the case with prejudice once and for all, it will often benefit the Defendant as well as the Plaintiff to have a case that is facially insufficient resolved on a "Motion for Summary Judgment" rather than a "Motion to Dismiss."

This amendment would also resolve controversial U.S. Supreme Court holdings denying an ability to start a lawsuit that would produce evidence controlled by a defendant, which make certain kind of lawsuits very hard to bring without insider spies, because the existing the motion for summary judgment rule expressly contemplates court orders for limited need justified discovery on select issues prior to forcing a party to defend such a motion.

But, as long as an early quick dismissal is possibly an option, lawyers being lawyers, will always want to take every opportunity to reduce the scope of the claims against their clients.

Eliminating these motions is something that, in theory, could be done by Court rule amendment without legislative involvement, although a state statute in Colorado allowing awards of attorneys' fees and/or costs after motions to dismiss slightly complicates the question in Colorado.

DeFacto Juvenile LWOP

When does a sentence of imprisonment to a fixed term of years for a juvenile constitute an unconstitutional sentence of life without possibility of parole for a non-homicide offense?

A recent case out of Florida (one of the few states to have had genuine life without possibility of parole sentences for juveniles) reviews the more than half a dozen decisions that have grappled with that question, typically in cases where consecutive sentences for multiple offenses gives rise to a first possible parole date at something close to the juvenile's life expectency.

The case held (in the case of Antonio Demetrius Floyd v. Florida), that on its facts, the term of years sentence imposed was unconstitutional under Graham v. Florida, 130 S.Ct. 2011 (2010):

Appellant was seventeen years of age in 1998 when he committed grand theft auto and two counts of armed robbery with a firearm, which, according to the prosecutor’s description during the resentencing hearing, was a pellet gun that was “realistic looking.” The trial court initially sentenced Appellant to life imprisonment on the armed robbery counts. After Graham was issued more than a decade later, the trial court resentenced Appellant to consecutive forty-year sentences on the two armed robbery counts . . . In this case, we are faced with a situation where Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five.

Note that at the time the case was decided, twenty-four year had already passed since the defendant stole a car and committed two robberies with a pellet gun as a juvenile, with the Defendant incarcerated for almost all of that time period, and the Defendant is now about 41 years old. The expected age at death of a forty-one year old person in the United States is about 79 years, and is lower for men and even lower for men in prison.

Of course, under any sort of proportionality or reasonableness standard, this sentence is already surely sufficient to allow at least a parole hearing for those offenses committed by a juvenile, but that isn't the law. The most excessive cases are inevitably cases like this one where the underlying crime of conviction just barely and technically qualifies as a basis for finding the offense has been committed and doesn't fall in the heartland of cases that legislators were thinking about when they set a penalty for the offense.

There are very few non-homicide offenses in Colorado for which a forty year sentence for a single count would be authorized, and none for which a sentence that long would be a mandatory minimum sentence not subject to judicial discretion in sentencing based on the characteristics of the offender and where the conduct involved in the offense in question falls within the range of conduct prohibited by the offense, which isn't to say that Colorado doesn't authorize very long sentences for serious criminal offenses.

The other cases reviewed in reaching the ruling were a mixed bag:

In Thomas v. State, 78 So. 3d 644, 646 (Fla. 1st DCA 2011), we noted that the Graham holding was limited to those juveniles who were sentenced to life without parole for nonhomicide crimes. Although we agreed that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the appellant’s argument that his fifty-year concurrent sentences met that standard because, as found by the trial court, the appellant would be in his late sixties when he was released from prison, if he was required to serve the entirety of his sentence. 78 So. 3d at 646. In Gridine v. State, 37 Fla. L. Weekly D69 (Fla. 1st DCA Dec. 30, 2011) while again noting that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the argument that a seventy-year sentence was unconstitutional. . . . See, e.g., Henry v. State, 37 Fla. L. Weekly D195 (Fla. 5th DCA Jan. 20, 2012) (holding that a ninety-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011) (holding that a combined 139.75-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); People v. Caballero, 119 Cal.Rptr.3d 920, 926 (Cal. App. Ct. 2011) (holding that a 110-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional). . . .

As the California appellate court reasoned in People v. Mendez, 114 Cal.Rptr.3d 870, 882-83 (Cal. Ct. App. 2010), while Graham’s holding was expressly limited to juveniles sentenced to life without the possibility of parole, courts should be guided by the principles set forth in Graham when evaluating a lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide offense. In holding that the juvenile defendant’s eighty-four-year sentence was unconstitutional, the court found that common sense dictated that a juvenile who is sentenced at the age of eighteen and who is not eligible for parole until after he is expected to die does not have a “meaningful” or, as the Supreme Court also described, “realistic” opportunity of release. 114 Cal.Rptr.3d at 883; see also United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775 (S.D. Fla. June 29, 2011) (holding that a 307-year sentence for a juvenile who committed nonhomicide offenses was unconstitutional); People v. J.I.A., 127 Cal.Rptr.3d 141, 149 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which had a minimum period of actual confinement of 56.5 years, was unconstitutional because the defendant would not be eligible for parole until about the time he was expected to die); People v. De Jesus Nunez, 125 Cal.Rptr.3d 616, 617 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which precluded the possibility of parole for 175 years, was unconstitutional).

Colorado law prohibits new per se life imprisonment without parole for juvenile offenders, allowing parole after forty years for offenses that would previously have held a life without possibility of parole sentence, although, according to a recent Westword story on a long sentence for a juvenile offense, no one in Colorado currently incarcerated has actually served forty years or more for a juvenile offense, since most provisions of Colorado law authorizing longer sentences for juveniles weren't legislatively authorized in Colorado until 1993.

For a juvenile sentenced at age 18 or 19, possibility of parole after forty years means age 58 or 59, and is not a sure thing then. Parole depends to a significant extent on one's behavior in prison and it is hard to stay completely clean of disciplinary plots for four decades starting in your late teens, when you start out with the most hardened criminals as fellow inmates, you have no hope, your are part of the most vulnerable inmates in the system, and your release date in the distant future makes you an unattractive candidate for eligiblity for programs in prison for training and education.

As eligibility for parole comes at dates later than forty years into a sentence, it becomes harder and harder to say that the sentence doesn't amount of juvenile life without possibility of parole. At fifty years, one is looking at a first parole hearing at ages 68 or 69. At sixty years, one is looking at a first parole hearing at ages 78 or 79, roughly the defendant's life expectency. Any longer than that, and the first parole hearing is extremely likely to come up only after the defendant is dead. And, for parole to be at all meaningful, there has to be some possibility to return to the community and actually live in it after that first parole date. A mere chance at seven years of freedom as a senior citizen (who will have no Social Security benefits or Medicare eligiblity in most cases), after sixty years of incarceration, isn't very meaningful. If one were to adopt a bright line rule regarding when a term of year sentence amounts of life in prison without possiblity of parole in fact, to adopt without express legislative authorizatioon, ineligibility for parole after anything more than forty years might be a sensible rule to adopt.

Colorado has no laws directly addressing multiple adult convictions of non-homicide offenses that amount in practice to a life without possibility of parole sentence. In part, this is because there is considerable more discretion available to judges in Colorado in imposing sentences for all non-homicide offenses but certain kinds of aggravated kidnapping than in states like California and Florida. This discretion has been heightened by recent juvenile justice reforms adopted in last year's legislative session and will be heightened even more by limitations on the direct file authority of prosecutors in Colorado passed in this year's legislative session that substantially restricts the direct file authority of prosecutors. The demise of the juvenile death penalty and life without possibility of parole for juveniles has also reduced the leverage of prosecutors to extract plea bargains involving very long sentences from juvenile offenders who are often not subject to special recidivist sentencing rules either.

These cases also illustrate the fairly prosaic way that some of the longest sentences in the criminal justice system arise for both juveniles and adults, with fairly long sentences for multiple moderately serious felony counts being imposes concurrently, rather than from a very long sentence from a single count of a more serious felony. But, there is no effective way for an adult defendant to challenge this kind of de facto life without possibility of parole sentence in most cases.

The most unjust sentences in the criminal justice system are almost invariably those that the system backs into by virtue of bureaucratic logic, of copy cat legislation, and not those that have received serious consideration on the merits by the legislature in the manner that they present themselves in actual court cases.

Fewer Smart College Grads Go To Law School

Getting into law school was easier this year than it has been in many past years.

The drop in applications from college graduates with top LSAT scores has been significantly greater than the decline in college graduates applying to law school with low LSAT scores. Overall, there are about 15% fewer law school applicants (although there are still far more law school applicants than there are available 1L spaces).

It isn't clear what post-graduate pursuits are attracting the applicants who would have applied to law school in prior years.

Connecticut Will End State Law Death Penalty

The details are here. A bill passed by the state legislature will be signed signed by the Governor abolishing new death sentences under state law in Connecticut.

[The bill will] make Connecticut the 17th state — the 5th in five years — to abolish capital punishment for future cases. . . . [and] will leave New Hampshire and Pennsylvania as the only states in the Northeast that still have the death penalty. New Jersey repealed it in 2007. New York’s statute was ruled unconstitutional by the state’s highest court in 2004, and lawmakers have not moved to fix the law. . . . From 1639 to 2005, [Connecticut] performed 126 executions, first by hanging, then by the electric chair, and since 1973, by lethal injection. But since 1976, when the Supreme Court allowed the resumption of executions, there has been just one person executed in the state: Michael Bruce Ross, a serial killer who voluntarily gave up his right to further appeals and was put to death in 2005. The last person involuntarily put to death, in 1960, was Joseph (Mad Dog) Taborsky, who committed a string of robberies and killings.

The bill does not apply to "the 11 men currently on death row" in Connecticut, although it would provide considerable political cover for commutations of those sentences by the current Governor or a future one, and may color the way that the Courts evaluate those sentences.

Holding Clients Responsible For Lawyer's Mistakes

A recent article in the Michigan Law Review examines the issue of when clients should be held responsible for a lawyer's mistake.

Since Gideon creates a right not just to counsel, but to effective assistance of counsel, in criminal cases, the case for attributing a lawyer's error to a client in a criminal case (the main subject of discussion in the article), is inherently problematic. Similar considerations are not nearly so strong in ordinary civil claims over money damages where a malpractice lawsuit against a lawyer may provide an adequate remedy.

10 April 2012

Las Vegas Real Estate Still A Disaster

Las Vegas has seen the largest price decline of any of the Case-Shiller composite 20 cities. Prices, as of the January report, were off 61.8% from the peak according to Case-Shiller, and off 9.1% over the last year.

From here.

The share of all real estate sales in Las Vegas that are short sales or foreclosures is 67.3%, a marginal improvement from a year ago when the figure was 71.2%, but still very ugly.

Net Illegal Immigration From Mexico Is Zero

The number of undocumented immigrants entering the United States has matched the number leaving for quite a few years now.

The population of undocumented immigrants in the US fell from 12 million to approximately 11 million during the height of the financial crisis (2008-09) . . . And since then, Mexicans without documents aren’t migrating at rates to replace the loss, creating a net zero balance for the first time in 50 years.

Of course, while the number of undocumented immigrants overall has held steady, the population of the United States as a whole relentlessly, but slowly, grows. So, the percentage of the United States population that does not have lawful immigration status continues to fall, and is currently a bit more than 3.3% of the total population of the United States.

Santorum Out

Rick Santorum has dropped out of the 2012 race for the Republican Presidential nomination, effectively handing the race to Mitt Romney, although neither Newt Gingrich nor Ron Paul have officially dropped out yet.

"We made a decision over the weekend, that while this presidential race for us is over, for me, and we will suspend our campaign today, we are not done fighting," he said.

A three year old daughter in the hospital this past week, and the near numerical impossible challenge Santorum faced to win the race outright, as opposed to in a brokered conventioon, pushed him to recognize the inevitable. The fact that Santorum was actually still running out of a desire to be President, rather than to advance an agenda knowing he had no chance of winning (Ron Paul), or out of insane delusions of grandeur (Newt Gingrich), probably also made it possible for Santorum to make the call that his fellow candidates have not yet made themselves.

Kitchen Lingerie

“I’ve always loved to cook, but one night after a few cocktails, I realized cooking in sassy lingerie could ruin the garment and cooking in the nude usually leads to injury,” she said.

[Ashelee] Coln, 25, said nearly getting burned (while preparing sauteed mushrooms in port cream sauce for her boyfriend) put her on a mission to find a sexy but serviceable apron for her steamy cooking sessions.

From here.

You haven't lived a full life until you and your loved one have discovered the hard way the need that Coln's company, Cheeky Aprons, fills. But, I am among the millions who would never have considered such a bold way to fill it.

09 April 2012

Chinese City Dwellers More Productive

"Remarkably, in 2009 China generated some 40.9% of GDP from just 16.6% of its population living in the 35 largest cities."

From here.

Thus, the per capita GDP of big city dwellers in China is 358% of that of its other residents. Odds are the medium sized cities are intermediate in per capita GDP and that small town and rural China is even less productive per capita than this statistic would suggest.

Is the difference a big one? Yes. It is the difference between a $35,800 a year per capita GDP and a $10,000 a year per capita GDP, for example. To the extent that government isn't redistributing the production gap when it is transformed into purchasing power, it is an immense difference in affluence.

It also seems to be quite typical of how economies develop and have developed historically. Hot spots surge, other areas lag behind and catch up.

And, it is a bold embodiment of the fact that wealth production is a group activity, and that to the extent that it is an individual activity that it is driven by elites within the group. An average man is going to be much more affluent in the city than in the country, in a result that has almost nothing to do with his personal abilities. He is more productive in the city because he is part of a mode economically efficient urban economy as a whole, and because he is probably also working for more talented masters.

Colorado General Assembly Wrapping Up Consideration Of Ordinary Bills

The Colorado General Assembly has a state constitution fixed 120 day session which is translated into deadlines for steps in the legislative by joint legislative rules to which there are surprisingly few exceptions allowed in practice.

Today, April 9, 2012, is the last day for bills concerning ordinary legislation passed in the State Senate to be considered in the State House. All House bills were already been considered for final passage by the State Senate by April 2, 2012, and all bills had to clear their own chambers on February 29, 2012. Thus, by the end of today, we will have a very good idea (barring vetos and budget items) of what Colorado's laws will look like until the next legislative session. There will be a few stragglers, but not many.

Summaries of the status of these bills can be found for the 345 State House bills and 168 State Senate that were introduced this session, including fiscal bills, and also for other resolutions and measures considered. Many, of course, have either died in the legislative process or are too dull for even a policy wonk to love.

The last month of the legislative session until adjournment on May 9, 2012 is mostly reserved for consideration of the state budget matters. The deadline for K-12 education funding decisions in April 20, 2012, while other spending decisions can be made up to the wire.

08 April 2012

Henry Ford, Nazi Sympathizer

Henry Ford might have paid his workers a good salary, but he was also a notorious anti-semite and supporter of the Nazis, from whom he accepted the Grand Cross of the Golden Eagle in 1938, Germany’s highest honor for foreigners.

From here.

The juxtaposition is more than coincidence. Henry Ford's approach to corporate management, a paternalistic and micromanaging approach that traded liberty for generous and wholistic compensation for workers, was a natural outgrowth of the economic ideas behind the Prussian state which was one of the main components of what would become a unified German state in the late 19th century. To some extent, the whole neo-feudal American economy in which the social safety net for families comes mostly from their employers rather than from the state, can be traced to these ideas.

Many of the literal and intellectual heirs of those Prussians went on to become Nazis in the wake of the economic privations that the Treaty of Versailles, the ended World War I, exacerbated in Germany. The collapse of the German economy created conditions ripe for a demagogue like Hitler to exploit for his own ends.

Even More Rare and More Different

Considerably less common than homosexuality (crudely defined as sexual attraction to members of the same sex as opposed to members of the opposite sex), are transgender individuals, who perceive themselves to be members of a gender different from the one to which they physically appear to belong.

But, there are gender situations more rare and more complicated than either of these relatively easy to grok conceptions, which Neuroskeptic reports from a new pioneering study of more complex gender identities:

Under the transgender umbrella, a distinct subset of "Bigender" individuals report blending or alternating gender states. It came to our attention that many (perhaps most) bigender individuals experience involuntary alternation between male and female states, or between male, female, and additional androgynous or othergendered identities ("Multigender")... A survey of the transgender community by the San Francisco Department of Public Health found that about 3% of genetic males and 8% of genetically female transgendered individuals identified as bigender. To our knowledge, however, no scientific literature has attempted to explain or even describe bigenderism; a search of PsychInfo and PubMed databases returned zero results.

If the percentage estimates are accurate, the frequencies are on the order of one individual out of a hundred thousand, or even a million (i.e. on the order of 300 to 3000 individuals in the United States).

The American Psychological Association recognized the concept in 2008.

To be clear, this isn't simply a survey of people with androgenous gender (i.e. people who are gender ambiguious) (another heavily overlapping notion is that an individual is an intersex individual or "hemaphrodite"), which is quite a bit more common (perhaps 0.1% to 1.7% of births depending on definition and research method, with at least seventeen different understood causes that differ from each other in important ways). Nor is it a survey of the much more common group of individuals who are "bisexual" (i.e. crudely defined as people attracted sexually to both men and women).

This is a survey of people who may self-perceive themselves to be male one day, female the next day, and sometimes androgeneous on another day (the actual duration of the phases varies) and is dubbed by the researchers "alternating gender incongruity" (AGI). Obviously, this would be a mite inconvenient if one wanted to try to reconcile one's self-perception of one's gender and one's physical appearance (the most commonly used medical resource for transgendered individuals) either with hormone treatments or gender reassignment surgery.

The total sample was small, because this situation is rare to the point of being undescribed in the literature, and based on surveys from a transgender Internet forum:

Of the 32 alternating bigender respondents included [some were excluded for diagnoses of DID etc], 11 were anatomically female (identified as female at birth)... One respondent identified as intersex, but only for reasons of androgynous facial appearance...

10/32 respondents agreed that their gender switches were "predictable." The period of gender switches was highly variable, ranging from multiple times per day to several times per year. A majority (23/32) of respondents, however, reported that their gender switched at least weekly [with 14 saying it switched at least once per day].

The paper is: Case, L., and Ramachandran, V. (2012). Alternating gender incongruity: A new neuropsychiatric syndrome providing insight into the dynamic plasticity of brain-sex Medical Hypotheses, 78 (5), 626-631 DOI: 10.1016/j.mehy.2012.01.041

Obviously, this is something of a first stab in the dark and its causes and nature are unknown. Is this etiologically more along the lines of multipersonality conditions where the individual does not completely lose continuity between phases, or some kind of psychosis, or is it simply an extended and more complex dimension of the same kinds of causes and phenomena associated with a transgender identity. For example, "ordinary" trangender identities are often described as prototypically manifesting in early childhood and being very stable over time. There is a formal diagnosis associated with what is commonly called multiple personality disorder, although it is a controversial diagnosis, and that condition is sometimes associated with extreme childhood trauma. We don't know much about when a bigender manifests, whether there is any particular set of other set of commonalities in the lives of these individuals, or much of anything else.

Many cases of multiple personality diagnosis after the syndrome was popularized were later considered doubtful, but the last century of so of psychiatry, psychology, neuroscience and gender studies have also caused us to recognize that individuals who are pscyhologically and perhaps neuropsychologically atypical can be rare without being non-existent. The article is not open access and not published in a particularly high profile journal.

Before making any definitive conclusions about what is happening, one would want, at a minimum, to have extensive case studies of as many individuals presenting as bigender or multigender as possible.

For that matter, a single, feature length article in a newspaper or magazine, interviewing an AGI individual, or a short autobiographical piece, would add far more insight than a simple write up of a single survey. But, one has to start somewhere and start asking questions before knowing that there is something to know.

The authors make the preliminary case for an understanding rooted in neuroscience (i.e. "hardware") rather than psychology (i.e. "software"):

We present descriptive data suggesting that many bigender individuals experience an involuntary switching of gender states without any amnesia for either state. In addition, similar to transsexual individuals, the majority of bigender individuals experience phantom breasts or genitalia corresponding to the non-biologic gender when they are in a trans-gender state. Finally, our survey found decreased lateralization of handedness in the bigender community. These observations suggest a biologic basis of bigenderism and lead us to propose a novel gender condition, “alternating gender incongruity” (AGI).

We hypothesize that AGI may be related to an unusual degree or depth of hemispheric switching and corresponding callosal suppression of sex appropriate body maps in parietal cortex- possibly the superior parietal lobule- and its reciprocal connections with the insula and hypothalamus.

This is based on two lines of reasoning.

First, bigender individuals in our survey sample reported an elevated rate of bipolar disorder, which has been linked to slowed hemispheric switching. We hypothesize that tracking the nasal cycle, rate of binocular rivalry, and other markers of hemispheric switching will reveal a physiological basis for AGI individuals’ subjective reports of gender switches. Switching may also trigger hormonal cascades, which we are currently exploring.

Second, we base our hypotheses on ancient and modern associations between the left and right hemispheres and the male and female genders. By providing a case of sharp brain-sex shifts within individuals, we believe that the study of AGI could prove illuminating to scientific understanding of gender, body representation, and the nature of self.

It is unclear from the abstract just how elevated for example, an "elevated rate of bipolar" is in the sample. Just two cases would probably be a statistically significant elevation relative to the baseline rate in a sample of thirty-two bigender individuals.

The second author is best known for prior research on phantom limbs. Associations with bipolar disorder and being ambidextreous, are interesting, at the very least.

The study also provides one more datapoint in the continuing psychological question of whether to think of gender as a construct with a small number of fixed categories, or as something involving more of a continuum, even though most people are on relatively extreme points in that continuum.

For more background, see in particular prior posts at this blog from March 1, 2008, and December 22, 2011. This post at another blog also provides a great deal of well informed grist on a variety of related subjects for your consideration.

05 April 2012

Thursday Brain Dump

* Denver's proposed camping ban would essentially make it a crime to be a vagrant. What are they thinking? After all the years of progress under Mayor Hickenlooper (who actually had stronger ties to the Downtown Business Improvement District that is its biggest backer in the city than Mayor Hancock does), it is a real pity to see Denver on the verge of backsliding. Putting 300 to 600 more people a day into Denver's jail instead of on the streets is not a sensible solution to Denver's vagrancy issues.

* Good bills to expressly authorize county clerks to send ballots to inactive voters and to curtail prosecutor's authority to charge juveniles as adults without judicial approval for midgrade felonies are making progress in the general assembly, while a bad bill to require photo identification to vote is dead.

* The former sheriff after whom Arapahoe County's jail is named will be spending thrity days there followed by two years of probation and paying a tiny $1,100 fine. He used his influence to great a large scale meth for gay sex ring, and some of the prostituted or extorted young men may have been minors. On the upside, who knew that Arapahoe County would be the first county in Colorado to have an openly gay sheriff, even if the announcement did come only after he had retired, and the sentence certainly doesn't reflect any sentencing premium for gay prostitution over opposite sex prostitution.

* A female Jefferson County jail guard has been charged with felonies including having a romantic relationship with a female prison inmate formerly residing at the Jeffco jail and then lying and covering up.

* Some seriously convoluted messes in police discipline, like a female officer who was allegedly raped by fellow deputies who then covered up the incident who is also accused of fraud and blabbing too much on social media about the internal affair process who was recently fired by the Denver Police Department.

* Four cops who killed members of an innocent, unarmed family in the wake of Hurricane Katrina in New Orleans were sentenced to 38 to 65 years for the killings by a federal judge. Another cop who wrote a deceptive report that purported to clear the cops and recommended prosecuting two of the surviving family members was sentenced to six years. Quite a few other cops who plea bargained in exchange for cooperation received shorter obstruction of justice sentences, the longest of which was eight years. The federal civil rights charges can't be commuted by a Louisiana Governor and are subject to less direct and collateral appellate review than state convictions.

* It is a pity that the first time I heard of perhaps the only private college in the nation catering primarily to Koreans was when six of it students and receptionist were killed (and three other people were injured) by a 41 year old ex-nursing student who had been trying to get a full tuition refund. He turned himself in shortly after the shooting at a local Safeway and was charged with crimes that could draw the death penalty in California.

* The employment situation in the United States is slowly but surely improving with seven months to go until the Presidential election. Advantage Obama.

* College basketball is over, nobody care nearly as much about the NBA's boring post-season play, and opening day for the Rockies is just around the corner.

* The Volokh Conspiracy blog is a wasteland of libertarian bloggers arguing in an endless parade of posts that it is obvious that health care reform is unconstitutional and praying for a return to pre-Lochner constitutional rights for business interests. While the anti-insurance mandate campaign has made it further than most liberals and moderates, myself included, had dreamed that it would, my bet is still for an end result that will be decidely underwelming, narrow and technical. Congressional commerce, taxation and spending powers may take a slight dent in their near plenary status quo, but don't expect a clear ideologically coherent sea change from a court where Justice Kennedy hold the swing vote. At any rate, the only nine votes that count have been preliminarily cast and we'll see in a few months what the opinions in the several cases at issue look like. Throw in a bunch of posts on the scope of the right to deadly self-defense under the Model Penal Code and that's all they wrote. Boring.

* Nokia has finally concluded that maybe letting other companies grab huge amounts of its market share in the mobile phone business is not a good idea and planning on offering a new and improved model of smart phone to win it back.

* One of the little known regional airlines that provides small plane connector flights for a couple of major airlines went bankrupt; the story of the industry for the entire post-deregulation era. Why don't investors instinctive flee for the hills when they hear the word airline? The only worse investment I could imagine these days would be print newspapers, or sovereign debt from less affluent Euro countries.

* There should be a pretty steady stream of DSM-5 driven mental health studies and stories coming out over the few months as deadlines on its ponderous timeline march relentlessly towards its print publication date. For a lot of ordinary people, this decision will make more a difference in their daily lives than anything that the legislatures are doing these days.

* President Obama signed a mildly diluted bill banning insider trading in Congress with bipartisan support. Research conduct and promoted by Professor Bainbridge, a conservative corporate law academic, which demonstrated convincingly that there is rampant insider trading going on in Congress was pivotal in the bill's progress through the legislative process, a somewhat ironic result given Bainbridge's own ambivalence (nay, hostility) to the laws against insider trading generally, at least as currently structured.

* Five alleged participants in the planning of the 9-11 attacks, including the alleged mastermind, are facing renewed military commission trials which will be hard pressed to be completed eleven years later. An early version of military commission trial had to be overhauled when its was determined that sentencing people to death based on evidence obtained through torture didn't promote American soft power. A civilian federal jury in Virginia or Pennsylvania would have been faster, cheaper, more credible internationally and domestically, would have dampened rather than incited the movement behind those attacks, and would have probably more reliably produced a hoped for death sentence than the military commission process. The case simply has not been made that military commissions are a more effective way to deal with terrorism than the tried and true criminal justice system where most people suspected of plotting terrorist attacks in the U.S. or supporting terrrorists abroad are charge, convicted and sentenced to very long sentences.

* A pullout from Afghanistan and the effective date of the main provisions of the health care reform act are both scheduled to happen in 2014 and whether these dates are realistic are both still anyone's guess.

* Japanese and Korean television is much more comfortable with fictional portrayals homosexuality and tween/early teen sexuality than American culture, and is also far less concerned about versimilitude. But blessedly, their television networks also don't feel compelled to run every B+ grade idea for four to eight seasons.

* Why do people like reality TV? My kids love it and I just don't get it. I also don't get the appeal of long, meandering, unstructured talk radio and DJ talk segments. If I'm going to listen to someone talk, I'd prefer to listen to someone who knows what they are talking about and has put some real thought into what they are going to say. Maybe that elitists, but elites earn that designation for a reason.

* The Arkansas Supreme Court found that an eighteen year old student in a consensual sexual relationship with a much older teacher at her high school had a constitutional right not to be prosecuted criminally for their love affair. He had been convicted of statutory rape and sentenced to a many decades long prison sentence. Similar prosecutions in Colorado under the sexual assault by a person in a position of trust statute have been upheld, but those convictions carry dramatically shorter sentences, so the conflict has not been as stark.

* An interesting law review article has pointed out that if a sexually aggressive teenage boy rapes an adult female teacher, that the teacher may have no valid legal defense to a statutory rape charge. The issue hasn't been salient until recently because historically only men having sex with girls could be prosecuted for statutory rape and historically the age of consent was too low to make the possibility a the younger person in the relationship committing rape was vanishingly unlikely.

Yes, I know, there are no links in this post. Maybe later, maybe not.

Wrong The First Time

Vincent Carroll, writing an opinion piece for the Denver Post, on a recent U.S. Supreme Court decision starts out his discussion as follows (part of a photo caption is also included to frame the question):

In a 5-4 decision, the Supreme Court ruled against [Albert] Florence, who faced strip searches in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid. . . .

In the space of 11 years, the Supreme Court has gone from allowing police to make a warrantless arrest of someone for a minor offense in which the worst penalty is a fine to approving a strip search of that person. Somehow that doesn't sound like progress.

The first decision was debatable, but at least you could see the logic. By contrast, the latest opinion is a gross intrusion into personal privacy and the Fourth Amendment's ban on "unreasonable searches and seizures."

Backward Logic

Actually, Carroll has it backward.

Allowing a warrantless arrest of someone in which the worst penalty is a fine, which guarantees that the process will inflict upon the person arrested a punishment more serious than a conviction for the crime itself would have produced is not in any way logical. Even one day incarcerated for a crime in which incarceration is a sentence not authorized by law is an unreasonable seizure, because incarceration before conviction in a general population jail is every bit as much of a punishment as incarceration after a conviction. The legal principles that require that people who have been held in jail prior to trial be given credit for time serviced if they are convicted, is a frank acknowledgment of that reality.

If the U.S. Supreme Court had held that offenses punishable only by fines were not a valid basis for an arrest under the U.S. Constitution, this would not have unduly interfered with federalism concerns or the ability of law enforcement to do their jobs. If states that felt, in reaction to a U.S. Supreme Court decision eleven years ago, that they needed to give their law enforcement officials greater latitude to incarcerate people for certain offenses that were currently punishable only by fines, states could have changed their criminal laws to permit short sentences of incarceration for the offenses where that latitude was required.

This year's decision is far more understandable. If you take it as a given that arresting someone for what the arresting officer was told by a court database was an outstanding warrant, in a locality where the government has not decided to expend the funds necessary to have a jail with separate parts for people awaiting transfer to felony sentences, people convicted of misdemeanors and serving their sentences, people awaiting trial for crimes, and people picked up on warrants for trivial offenses (and the vast majority of people in U.S. federal court circuits that have permitted it do mix all four of these categories of prisoners more or less indiscriminately), then it makes sense that some sort of uniform screening search for people entering that population should be required and that the search ought to involve a strip search. A general population prison is only secure as the least carefully searched inmate.

The four liberal judges on the U.S. Supreme Court pushed for, but did not obtain, a broader rule (adopted by some U.S. federal court circuits before the U.S. Supreme Court had ruled) that would have held that a jail that treats people in all of these categories the same is unacceptable. Their rule would have constitutionally required that people picked up on warrants in quasi-civil matters may not be treated in the same way as people who are awaiting trial for an ordinary crime, or people who have been convicted of crimes.

Instead, the U.S. Supreme Court merely strongly implied that if a government has a jail will one area of criminals and another for people arrested for quasi-civil matter, that strip searches are not justified for the latter segregated population. So, governments that do the right thing may actually have more exposure to civil rights liability than those do don't.

The Problem With An Intent Based Civil Rights System

Under our current civil rights and governmental liability laws, you generally cannot bring a lawsuit for money damages arising from unintentional negligent conduct by a law enforcement official or court official resulting in you being incarcerated for a crime of which you are not guilty and for which there was never actually any probable cause to arrest you.

Albert Florence spent six days in jail for allegedly having an outstanding warrant for failure to appear in a case where he had not paid a fine, even though the warrant was actually vacated long before when he paid the fine and was only still in the system do to a record keeping glitch.

Many Denver residents over the last few years have spent days in jail on warrants for people whom the government's files make clear don't fit the physical description of the person eligible for arrest under the warrant, and more have been arrested on warrants for someone who looks like them and perhaps even has the same name but is really somebody else.

Some people who aren't guilty of any crime are incarcerated pending trial and found not guilty. Our system is set up in such a manner that a not guilty verdict doesn't necessarily mean that a jury found that you were innocent, but no one disputes that some significant share of people who are acquitted at jury trials are indeed innocent.

In all of these cases, the result is the same. An innocent person was arrested, has been strip searched upon entering a jail, has spent some period of time (often many days and sometimes months) in jail together with criminal and subject to strict discipline designed for convicts and to exposure to many people who are dangerous to their fellow inmates, and often incurred attorneys' fees fighting the charges. If the reason that the innocent person endured this was negligence or administrative error or a policy that has not been clearly determined in a previous reported case to be unconstitutional, then this is just your tough luck.

You have no entitlement to any monetary compensation for the deprivation of liberty you experienced, the searches you endured in connection with that incarceration, or your economic losses of wages or income as a result of your incarceration.

You have no entitlement to any compensation for the attorneys' fees that you incurred, no matter how correct you were that you were innocent, unless the individual law enforcement officer who arrested you sincerely believed that you were innocent and arrested you anyway out of intentional malice or spite.

You have no entitlement to any compensation for any loss of dignity or emotional harm that you suffered as a result of being subjected to the conditions inherent in incarceration.

You have no entitlement to any compensation for any physical harm you suffered while incarcerated what was not due to the intentional constitutional violation of the guards, except in narrow circumstances where state law expressly afford you a right to compensation not required by the U.S. Constitution, typically involving negligence on the part of the guards, for example, in the sort of slip and fall, or failure to comply with building code, or medical malpractice sorts of situations where any building owner would have legal liability.

Footnotes On The Florence Case

In the Florence case, Florence claimed that his arrest resulted from a racially discriminatory stop, and that he let the officer and subsequent jail officials know that there was an administrative mistake and that the warrant for his arrest had been vacated. But, it is very hard to make a case that an arrest is discriminatory when there is indeed a valid basis for arresting you pursuant to a warrant, as the data base consulted by the law enforcement officer stated.

It is also hard to make a hard and fast constitutional rule that a law enforcement officer or jail administrator has to take seriously your claim that a warrant that appears clearly in a court data base is an administrative mistake. This is the kind of issue we usually leave to the judicial branch rather than the executive branch, although arguably one ought to imply a duty to more promptly look into the matter, if a credible claim of a mistake is raised with an arresting officer or jail administrator.

The fact that Florence was incarcerated for six days, when there is what I understood to be a constitutional duty to bring someone before a judge, where mistakes can be cleared up, much sooner than that is also something of a mystery to me. But since that part of the case wasn't the basis for the Supreme Court's decision, that aspect of the case may be best left for another day. Perhaps that constitutional violation was contrary to the policy of the government in question, and perhaps this violation was also due to negligence, in which case there would be no civil liability.

The Case For A Takings Jurisprudence For Liberty, Not Just Property

In my view, this state of the law, while clearly supported by court precedent, is ill designed.

Most of the problems with the current system could be corrected in a quite simple way, either through laws affording more protections to innocent individuals than required by the constitution by statute, or through a reinterpretation of the takings clause of the 5th Amendment.


When the government seizes the property of an innocent person, that government must pay them the an amount adequate to compensate that person for the taking of the property. When the government takes that property without following the property due process steps in advance, the suit is called an “inverse condemnation suit.” All that must be shown in that suit is that the person suing owned the property, that it was taken by the government and its value.

There should be a parallel right to bring an "inverse condemnation action" not just for property taken without fair compensation from an innocent person, but for liberty taken from an innocent person, as a matter of strict liability, from the governmental entity which deprived you of liberty (or from the person acting under color of law if they weren't actually associated with a governmental entity).

In such a lawsuit, the process that produced the deprivation of liberty of an innocent person would be nearly irrelevant in cases where someone was not convicted at trial. One would merely have to show that (1) you were incarcerated, and (2) the length of your incarceration exceed that was actually authorized by law after ignoring the legal justifications given for your incarceration if you were innocent of those charges. In cases where someone has been convicted at trial of a crime, one would first have to establish that the conviction has been set aside before the separate claim for money damages on a takings theory would be ripe, in order to avoid inconsistent verdicts, and then also have to establish your innocence.

Innocence claims would often be difficult to establish in cases where their were acquittals at trial or on appeal which could have been granted simply because proof beyond a reasonable doubt was not established or evidence was suppressed. But, innocence claims could be quite easy to establish in cases of mistaken identity, administrative error, or DNA evidence based post-trial acquittals. These are all cases that the current civil rights law regime handles very poorly and only at great litigation expense to all involved.

As in the case of inverse condemnation lawsuits involving property, the actual law enforcement officer or jail guard or court administrator whose mere negligence or even non-negligent mistake caused an innocent person to be deprived of liberty wouldn't have personal liability, except under the conditions that give a person grounds a civil rights lawsuit against that person under existing law.

But, the government that arrested and detained that person would have a duty to pay, on a strict liability basis, compensatory tort damages (both economic and non-economic) and attorneys' fees to that actually innocent person, whether he was detained for one day or twenty years, whether the people involved in the process were acting in good faith or were crooked, whether it was authorized by a court or was done without a warrant or contrary to a court order.

If a civil rights violating employee was at fault, the government could bring a subrogation suit against that employee for the damages that it was obligated to pay, and the innocent victim wouldn't be entitled to a double recovery, but recovering those damages from the employee would be the governmental entity's problem, not the innocent victim's problem.

The Benefits Of A Takings Of Liberty Jurisprudence

Unlike the morass of procedural complications the overwhelm civil rights claims and habeas corpus petitions, the takings jurisprudence would be simple and focus on the morally important issue: Was an innocent person deprived of their liberty by the government without receiving fair compensation?

Often, the facts necessary to establish this cause of action are clear, even if the existence of a civil rights violation is not. In a civil rights action, there may be questions of intent, questions of which particular government official committed the violation even when it is clear that some government official employed by a governmental entity did, and questions about whether the constitutional right violated was clearly established at the time. These considerations may make sense as limitations on the personal liability of government officials, but does not make sense as a limitation on the liability of a governmental entity.

Also, in takings jurisprudence, it is much easier for the government and the victim of its actions to simply acknowledge "mistakes were made" and reach a settlement without either the government or the party or the individuals seriously losing face.

Yes, this would cost governments a little money, but only by compensating someone who suffered a serious personal harm at the hands of the government through no fault of their own. This is precisely the kind of situation that tort litigation can work well to address. It creates a good and proportionate incentive for the government to take care not to abridge the liberties of innocent people, while in no significant way discouraging law enforcement action against people who are actually guilty.

Also, since the litigation costs in this kind of suit would be so much lower than in conventional civil rights lawsuits, the savings in litigation costs might actually make up a significant portion of the increased cost of compensation for victims under this regime.