28 June 2012

Obamacare Upheld As Constitutional

Per the SCOTUS blog live feed: "the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." Chief Justice Roberts and the four SCOTUS liberals uphold the individual mandate as within the taxing power.

The ruling once again deflates fantasy constitution advocates on the right. It also has the important practical implication of permitting the biggest reduction in the ranks of those without access to health care to go forward as Congress provided in 2014, barring a major shift to the right in the 2012 election whose voters will know the score when they go to the polls.

26 June 2012

Gangs Not Out Of North Denver Yet

A couple of weeks ago, a young man was shot to death in plain sight in the middle of the day on a busy North Denver commercial street.  Two men were arrested and gang warfare is suspected.

On June 24, 2012, a twenty-one year old man (who is a reputed drug dealer) shot and killed a female cop in uniform at one of Denver's City Park Jazz Festival events as she was breaking up an apparently gang related fight.  The twenty-one year old man was arrested and said he was "a member of the Park Hill Bloods street gang" when he was booked by the police.  His claim is consistent with social media posting (Twitter, Facebook) that he has apparently made under his street name of Boogie.

Many North Denver neighborhoods have gentrified, as Stapleton has sprung up, North Capital Hill has been renamed "Uptown", and developments further West have brought us neighborhoods dubbed LoDo, the Ballpark Neighborhood, and LoHi.  The zoo and Denver Museum of Nature and Science have renovated their facilities.  A hang out for vagrants at Colfax and York was razed and turned into a dog park (although not the promised new recreation center). 

The historically African American neighborhood in Denver (50% of the African American population of the State of Colorado lived within a few miles of MLK Boulevard and Colorado Boulevard as of the 1990 Census) has seen an influx of Hispanics spilling over from the West Side, mostly white gentrifiers seeking out real estate deals close to downtown, and a flux of of African Americans out of the neighborhood to affordable suburban developments towards the Denver International Airport (e.g. Gateway and Green Valley Ranch), Aurora (not just Old Town anymore), and elsewhere, as racial boundaries has faded in a world where the President and mostly white Denver's Mayor are both black, and whites are returning the the Denver Public Schools in droves after decades of white flight.

In 1990, Park Hill was the only the only middle class black neighborhood in the Rocky Mountain West, and one of only a handful in the American West at all.  It launched the near miss Mayoral campaign of Penfield Tate, an African American Denver lawyer.  Park Hills has gentrified and has become more wildly known as the respectable old neighborhood where Governor Hickenlooper chooses to live, and where one of Denver's Reform Synagogues (Temple Micah) is located.

But, in echoes of the "summer of violence" that gangs seem to be back in force again in North Denver.  Some of what we are seeing now may be the fallout from one of the largest ever gang busts in Colorado history earlier this year that removed huge numbers of gang members from the streets, but also left vacancies in gang leadership posts, heightened the apparent stakes in turf wars rendered unsettled as the arbiters of those turf boundaries disappeared, and may now be spawning the gang related killing that we've seen in the last few very hot weeks of June.

Shoot Out Kills Three Cops In Mexico City Airport

A shoot out in the Mexico City Aiport between federal police and men dressed as police who may or may not have been actual police men killed three federal police.  The gunmen fled and have apparently escaped.  The shooting continues a long drug war in Mexico.

Washington County, Colorado Burning

A blaze covering more than 38,000 acres suddenly sprang into being yesterday in rural Washington County, Colorado, the ancestral home of the Colorado branch of the Willeke family (my somewhat distant relations) who hail from Akron, which is in a different part of the Eastern Plains county than the place where the fire is right now.  It is one of a large number of major wildfires burning across the state.

No injuries or deaths are reported and 11 structures were destroyed, nine of which were in the crossroads town of Last Chance.  It is 95% contained now, but was almost instantly the fourth largest wildfire in Colorado history.  It has caused widespread utility outages and road closures in the county.

UPDATE: The Last Chance fire has been 100% contained this morning and ultimately burned 45,000 acres, making it the fourth largest in Colorado history by acres burned (after the 2002 Hayman Fire between Denver and Colorado Springs, the 2012 High Park Fire near Fort Collins that is still burning, and the 2002 Missionary Ridge Fire near Durango).  The Last Chance Fire was caused by sparks from a car that had a flat tire.  At least four of the structures burned in Last Chance were homes.  A fire truck was also destroyed in the blaze that more than one hundred people responded to in order to fight it. 

Residents of Last Chance (at the intersection of Colorado 71 and Colorado 36) and nearby Woodrow were evacuated to a Red Cross Shelter at Akron High School.  Evacation orders have now been lifted.

There are other major active wildfires to the North and South of Boulder, near Manitou Springs (the Waldo Canyon Fire), west of Durango (the Weber fire) and at several other locations around the state.  The High Park fire has now burned 87,250 acres (in addition to more than 10,000 acres of land continguous to it from another fire earlier this year and one in April of 2011).

Exceptionally hot, dry, windy conditions in a below average rainfall and snowcap year are mostly to blame for the fires, with the large supply of pine beatle infested dead wood in the mountains also fueling the fires in the mountains.  The increased presence of people in flamable wilderness areas is also a factor, but fires are a natural part of both Western forest and the Great Plains environment.  the High Park fire was triggered by lightning and almost all of the others were human activity played a part were not arsons or even cases of gross negligence, but were instead caused by acts that would be trivial were it not for the fact that vulnerability to wildfires is at its peak right now in wild areas across the state.

Climate trends are also quite plausibly at work.  There more complete Denver Post listing of historic wildfires in the state shows that all but two of the 32 biggest fires in Colorado history have taken place since 1999 - #7 was the 1879 Lime Creek Fire in the San Juan National Forest that burned 26,000 acres, #14 was the 1996 Buffalo Creek Fire in Jefferson County, that burned 12,000 acres.  Eight of the top 32 were in 2012, fourteen were in 2002, four were in 2000, one was in 2010 and one was in 2003.

Colorado Is Super Hot

Monday's 105 degree temperature was a tie for the hottest day in Denver, ever.  Two previous days where that hot: August 8, 1878 and July 20, 2005.  Various other heat records are being set left and right.

UPDATE: 105 degrees again today (June 26, 2012), the first time in Denver history that there have been two 105 degree days in a row and a tie for the record number of 100 degree plus days in the row in Denver (five tied in 1989 and 2005).  The forecast high for tomorrow is 93 degrees so a record breaking six day streak of 100 degree plus days seems unlikely.  There is also a real possibility that average temperatures this June will be the hottest on record.

25 June 2012

Local Politics Drives Anti-American Views

Anti-American political rhetoric leads to anti-American views among the public, and that anti-American rhetoric, in turn, usually flows from Islamists trying to gain political advantage in contests against secularists accord to a new study.  Anti-American rhetoric and as a result anti-American public opinion, is much more muted where Islamists are not in pitched political struggles with secularists, for example, because Islamists are politically dominant already.

Colorado's J-LWOP Sentences Are Unconstitutional

Several years ago, Colorado repealed the law that allowed juveniles to be sentenced to life without possibility of parole sentences for murder (including felony-murder cases where the juvenile was not the trigger man or a person who solicited the killing).  But, that change left the sentences of several dozen existing juvenile life without possibility of parole in place.  Governor Ritter established a special panel to review juvenile clemency cases, but it yielded little fruit (two juveniles serving life without possibility of parole sentences out of several dozen had their sentences commuted).  Governor Hickenlooper has likewise offered little clemency to juveniles (or anyone) since he was elected.

The U.S. Supreme Court has ruled today that the Eight Amendment forbitds a sentencing scheme that provides for life in prison without possibility of parole for juvenile homicide offenders as a mandatory minimum sentence.  This is true of every juvenile life without possibility of parole sentence in Colorado, where life without possibility of parole is the mandatory sentence for first degree murder, and was imposed on juveniles tried as an adult for that offense and convicted, in every case where the death penalty was not sought, was not imposed by a sentencing jury, or was not available because the U.S. Supreme Court had declared the death penalty for juveniles to  be unconstitutional.

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have theopportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. Byrequiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.

The U.S. Supreme Court had already held unconstitutional the death penalty for juveniles, the death penalty for all but a handful of non-homicide crimes ("crimes against the state") and life without possibility of parole for minors convicted of non-homicide crimes.  The U.S. Supreme Court again refused to return to jurisprudence that treated young juveniles and older juveniles to be categorically different from each other.

Colorado's sentencing scheme is typical of juvenile life without possibility of parole statutes.  The vast majority of juveniles sentences to life without possibility arise from a first degree murder conviction for a juvenile tried as an adult where the death penalty is not imposed and life without possibility of parole is the mandatory minimum sentence.

Colorado's scheme was also typical in that in most cases, a prosecutor had the right to try a juvenile for first degree murder as an adult, without judicial review of the decision to try the juvenile as an adult.  And, a large share of all juveniles convicted of first degree murder faced "felony-murder" convictions meaning that they were merely part of a group of people engaged in one of a set of serious felonies, whom prosecutors were not required to show had any personal participation in the felony or any expectation that the a murder would result from the crime.

There are a very small number of juveniles sentences to life without possibility of parole where a judge has the option of considering a range of more lenient sentences and instead imposes the maximum life without possibility of parole sentence.  Wisconsin, for example, has imposed that kind of sentence and that remains constitutional for homicide crimes.  There is precedent for also applying a bar on life without possibility of parole to long sentences for fixed year terms that have the effect of life without possibility of parole, although the way that Colorado's sentencing laws work, juvenile sentences are unlikely to be that long in practice.  More background on the number of juveniles affected by the ruling can be found in a post made at this blog when certiorari was granted on the question.

It was a 5-4 decision.

Justice Breyer and Sotomayor joined a concurring opinions in which they expressed that view that felon-murder is never a sufficient basis for a life without possibility of parole conviction for a juvenile.

Since Colorado is not a party to the case, separate lawsuits may need to be commenced to force the hand of the state to revise the sentences in question.  Also, implementation of this decision, like the Graham decision (on life without parole for juveniles in non-homicide cases), is likely to involve granted the state legislature some time to attempt to devise a legislative attempt to comply with the decision before being forced by the Courts to act in a particular way.

In general, Colorado has greatly reduced its use of incarceration to address juvenile offenders in the last five years.

23 June 2012

2012 Hot

Yesterday's high temperature of 102 degrees was the the twelfth time so far in 2012 that a record high temperature for a calendar date has been set or matched for Denver, Colorado, according to records kept by the National Weather Service and index by 9News. 

Today's projected high of 102 in Denver, and tomorrow's projected high of 100, would tie records highs from 1954 and 2007.  It is also likely to be very windy today and tomorrow.

These conditions have encouraged the High Park Fire, near Fort Collins, Colorado which is currently the second largest in Colorado history (as measured by acres burned), but is only 45% contained (a retreat from 60% contained the previous day).  The High Park Fire surpassed the runner up, by acres burned, the Missionary Ridge Fire near Durango of 2002, this morning.  It has burned about 75,000 acres acres so far, destroyed 195-200 structures and killed one person in its first fifteen days.  Firefighters think it could take another three weeks to completely contain the High Park Fire.

The High Park Fire burned and is continuing to burn an area that is contiguous to the burn area of the 2012 Hewlett Fire earlier this year, which burned 7,685 acres.  The two adjacent fires near Fort Collins this year have combined burned about 83,000 acres so far.  The High Park Fire burn area has reached the more than 3,000 acres or so area that was burned in the Crystal Fire in the spring of 2011 which destroyed 13 homes.  The High Park Fire was attributed to a lightning strike, the Hewlett Fire to a controlled burn by forestry officials that got out of control, and the Crystal Fire to an individual who let a slash fire he started without a permit at his parent's house get out of control and was sentenced to sixty days in jail on a misdemeanor charge as a result, earlier this year.

Measured by damage to property, "the High Park Fire is the most destructive fire in Colorado history," a title previous held by the Fourmile Canyon Fire in 2010 near Boulder, Colorado.   The 2002 Hayman Fire, in the foothills between Denver and Colorado Springs, was the largest in Colorado as measured by the 138,114 acres it burned in eleven days.

Twenty-six of the twenty-eight largest fires in Colorado history have taken place after 1999.  Fourteen of those fires were in 2002 and three of those fires (including the High Park Fire) were this year.  (These estimates are based on the list found in the link to the Missionary Ridge Fire above; another more comprehensive chronology of major Colorado wild fires since 1900 by the Denver Post generally confirms this analysis, although it notes a few more big wildfires in less recent Colorado history.)

Thankfully, the current High Park Fire has not been the most deadly wildfire in Colorado history.  The most deadly wildfire in Colorado history was the 1994 South Canyon Fire (Storm King Mountain) which burned 2,115 acres and killed 14 smoke jumpers in Western Colorado near I-70.

21 June 2012

Lawyers Explain Blog Technology

Our tech people have used their black magic to speed up www.volokh.com, and reduce the risk of brownouts. But apparently there weren’t enough virgins to sacrifice, or some such, and the incantations only worked for www.volokh.com — though volokh.com gets forwarded to www.volokh.com, the forwarding will delay things slightly for the user, and will cause some extra load on our servers.  
So if you could change your bookmarks to point to http://www.volokh.com, we’d be much obliged.
From this law blog.

20 June 2012

Does Judicial Pay Matter?

How much should judges be paid? We first survey the considerable history of the debate and identify the implicit causal claims made about the effect of judicial pay. We find that claims about the effect of pay on the composition and quality of the judiciary have remained remarkably similar over the past two hundred years. In contrast, claims about the effect of pay on judicial independence have changed as the meaning of judicial independence itself has shifted.

We take advantage of the large variation in real salaries and opportunity costs for state appellate court judges across states from 1977 to 2007 to empirically test these claims. We find that judicial salaries have a small but significant effect on the likelihood of exit and thus the length of judicial tenure, and a small effect on the background of judges that join the appellate bench.

A more limited analysis of California trial court judges finds far more sensitivity to pay, however, suggesting that trial and appellate court judges may behave differently.

From here (a recent Stanford law review article by Anderson and Helland).

Of course, the question is complicated and multi-faceted.  A particularly important factor which interacts with judicial pay is the nature of the judicial appointment process, which prior studies have shown to have a material impact on the nature of the people who are appointed.  This varies widely from state to state and not infrequently between different courts in the same state.

The study also doesn't tell us much about the issue everyone wants to know about: does judicial pay influence the substance of the judicial rulings that judges make?  The influence on the "background of judges that join the appellate bench" in this study is the area where one might presume that such an influence exists.  States that pay less are less likely to come from "Top 10" law schools or to have been judicial clerks after they graduated from law school.  They are somewhat less likely to be men, although the impact of appellate judicial pay on the racial makeup of the judiciary is statistically insignficant.

One could imagine the small impact that pay has on early exit from the bench having a meaningful impact on rulings, but in practice, this doesn't seem likely at the appellate level at least, where courts are most often thought of as "making law" in a manner that persists beyond an individual case, rather than just applying the law.

Do Judges Rule With A Next Job In Mind?

Does the impact of pay on the likelihood that a judge will leave the bench before retirement age have any effect on judicial rulings?

In theory, the lure of lucrative post-judicial private practice positions could influence how a judge makes decisions on the merits of cases before leaving the bench, but I have never heard so much as an intimation or whispher from someone with personal knowledge of a judge's motivations in cases where a judge ultimately did leave the bench that this actually happens in any meaningful share of cases where a judge leaves or has seriously contemplated leaving the bench to practice law or a law related endeavor. 

On average, only 2.66% of appellate judges retire before age sixty-five, so any effect is necessarily slight.  Typically, appellate judging is already a second or third career for an attorney, followed in the vast majority of cases by retirement or death.

Conventional wisdom is that judges leave their posts when they have a choice to remain because they find that they don't like their jobs as much as the alternative, don't feel like they can't make enough of a difference doing what they do in good faith, or need a larger income than they receive to support the lifestyle that they would like to maintain.

Conventional wisdom is that judicial experience looks good on the resume of anyone seeking a position as a litigation partner in a law firm or high public office of any kind, elected or appointed.  But, generally one assumes that a judge is who he or she is, and will seek a compatible position, rather than making insincere rulings that are tailored to secure a next job.

There is powerful evidence from studies of the tenure patterns in the federal courts that the terms of defined benefit pension plans for judges do have a powerful influence on when judges choose to either retire and take "senior status."  Judges tend to hang on a few years longer than they otherwise might have to get a full pension, and tend to heed the economic incentive to retire once they do qualify for one.

Judicial Pay As A Political Tactic For Legislators

One can imagine legislators refusing to increase judicial pay and allowing judges to fully benefit from defined benefit plans after a shorter number of years because they don't like the rulings of the incumbent judiciary and want to encourage the creation of judicial vacancies that their allies can fill.  But, this tactic generally only makes sense when there has been a fairly recent change in who holds political power in a jurisdiction, would have a pretty modest effect in any case, and quite frankly, calls for more patience, discipline and capacity to engage in strategic thinking than most legislators have at their disposal.

At the state level, it is usually going to be easier for legislators with the political power to take these kinds of actions to change the substantive laws and legislatively overruled judicial decisions that they don't like, than it is for them to change the make up of the judiciary that interprets them so that it is more favorable to their point of view.  Obviously, this isn't possible if the laws that legislators seek to change are questions of federal constitutional law.  But, even state constitutions are usually fairly easily amended.  And, a variety of political precedents make manipulating the pay of federal appellate judges to encourage them to retire early a difficult or impossible task.

Footnote: Who Are State Appellate Judges?

The study, in the course of reaching its conclusions on judicial pay, does a nice job of profiling the background of the state appellate judges since the 1970s (although this is a lagging indicator and may not reflect the trends in new judicial appointments) (sample size 2207 judges, very nearly a complete data set).  Since judges may have multiple jobs prior to becoming a judge, the categories are not mutually exclusive.

African-American 2%
Male 79%
Judge Had Been an Academic 8%
Judge Had Worked in a District Attorney’s Office 20%
Judge Had Been a Politician 12%
Judge Had Been an Officer in the Military 7%
Judge Had Been a Private Attorney 47%
Judge Had Been a Judge on a Lower Court 60%
Judge Had Worked in a State Attorney General’s Office 7%
Judge Had Worked in a Public Defender’s Office 3%
Judge Had Worked in a U.S. Attorney’s Office 4%
Judge Had Been a Judicial Law Clerk 11%
Judge Attended a Law School Ranked in the Top Ten 19%

In 2007, the highest paid associate supreme court judges were in California, followed by federal supreme court associate judges (who make almost as much as the California judges), followed by associate judges of Delaware's highest court (who receive quite a bit less than federal appellate judges).  Colorado's supreme court is in the bottom third of appellate judicial pay.  Associate judges of the Montana Supreme Court, who are the least well paid appellate judges (and probably have a lighter case load due to the state's small size and a lower cost of living, than some of their colleagues), made about half as much as the California Supreme Court associate justices.

Relative to the pay of partners in top law firms in their jurisdictions, which state supreme court justices could usually have if they wished, state supreme court justices make 1/3rd (Tennessee) to 1/12th (New York) as much money. 

Happy Solstice!

Summer solstice for those of you reading in the Northern Hemisphere and winter solstice for those of you reading south of the equator. For those of you reading precisely on the equator, you don't have seasons anyway, so who really cares.

19 June 2012

Navy Tests New Anti-Small Boat Missile Launcher

The U.S. Navy is testing a new light missile called the Griffin that weighs about 33 pounds.  This is roughly comparable to Viper Strike air to ground missiles, a howitzer or mortar round, or a heavy tank round.  But, it is lighter than a Hellfire missile used by an Apache attack helicopter or armed drones, a "smart bomb" dropped by a jet fighter, or a typical round from a warship's naval guns.  And, it is heavier than, for example a grenade launcher or armor piercing round from a heavy machine gun or round in the canon of an A-10 Warthog ground attack aircraft.

The system has done well in recent rounds of naval testing and is already in use on C-130 cargo planes modified to serve as gunships for the Marine Corps against similar targets so it is more than vaporware.  It is also used on a variety of armed drone aircraft (fixed and rotary wing), military helicopters, and A-29 Super Tucano ground attack aircraft.  Apparently, it can be retrofitted to be mounted on existing vehicles such as reasonably large aircraft and ships, fairly easily. One can imagine mounting them on docks or buildings that need to be defended, Abrahms or Bradley sized armored vehicles, a Humvee or coastal patrol boats of the size class used by the Coast Guard as well.

In naval applications, the plan is to use the Griffin missile to destroy fast moving small craft of the kinds used by pirates and as gunboats in Iran's navy, at ranges of about two kilometers or less (the maximum range is about 5.5 kilometers, quite a bit less than even the smallest of naval guns on U.S. warships or howitzers).  It is being considered for missions including deployment on the navy's new Littoral Combat ships.  Reduced collateral damage is also attractive for these kinds of targets, which may be near their civilian or military targets when then are hit.

A lack of appropriate weapons systems to deal with this kind of threat effectively, nimbly and without the overkill that would allow an opponent to win a with a war of attrition or swarm strategy has been an important deficit in U.S. naval resources that has been identified in training exercises and a handful of real naval engagements in recent years.  This system, which does not seem not terribly technologically ambitious compared to existing naval weapons systems, seems to fill that gap in capabilities reasonably well.

Presumably these kinds of weapons systems can be procured for an affordable price (although the source doesn't quote a proposed price for either the launcher or the missiles, usually missiles cost more than dumb artillery rounds), relative to the status quo.  This source says that a guided Griffin Missile B costs about $45,000 each - less than similar but heavier missiles (the slightly heavier Javelin missile reputedly costs about $75,000 each and the much larger RAM missiles cost about $450,000 each) and fairly comparable to the cost of a guided artillery round for a howitzer (Excaliber).  The launchers apparently cost something on the order of the single digit or low double digit millions of dollars, although I haven't seen very specific numbers.

Most of the serious threats to the U.S. Navy, such as attack submarines, advanced fighter aircraft, stealth drones, and cruise missiles are at least confined largely to "high end" naval threats that few plausible hostile countries have available to them, even if they are not strictly restricted to "near peer" opponents.  A diesel-electric attack submarine can easily cost $100 million.  Figher aircraft cost tens of millions of dollars.  Each drone and cruise missile can cost several million dollars.

In contrast, explosive filled speed boats and pirate craft are much more easily available, so this gap in the U.S. Navy's countermeasures resources has been particular troubling.  One can buy one, outfitted with weapons serious enough to be a military  threat for hundreds of thousands of dollars.  Any naval threat that private individuals in Somolia can afford is effectively available to anyone interested in taking on the U.S. military, and in asymmetric warfare like that, winning inefficiently can be almost as bad as losing - the opponent may not be able to kill you, but they can force you to spend far more money on the conflict than they do indefinitely while waiting for you to go away.  (Of course, one can only be so efficient in asymmetric warfare when you ships that you mount the missiles upon cost half a billion to a billion dollars each, regardless of the efficiency of its weapon systems.)

There is reason to question, however, how important the niche of short range ship based anti-small craft missiles really should be with an appropriate strategy.  No ship with short range missiles can match the ability of small aircraft to outrun anything on the water or to take on opponents on land in coastal areas.  It could be that the only ships that end up using Griffin missiles are those that weren't smart enough to deploy helicopter gunships to address the threat first.  But, if the cost isn't overwhelming relative to the entire ship, a belts and suspenders approach to one of the most common types of potential threats makes sense.

New Lawyer Market Still Lousy

Slightly more than half of the class of 2011 — 55 percent — found full-time, long-term jobs that require bar passage nine months after they graduated, according to employment figures released on June 18 by the American Bar Association. The statistic was perhaps the most sobering in a season of bad news about new lawyer employment. Less than one week earlier, the National Association for Law Placement reported that only two-thirds of new graduates landed any type of job requiring their law degree, and that the overall employment rate hit an 18-year low at 85.6 percent.
From here.

I sympathize. I have a former law clerk who just passed the bar exam pounding the pavement looking for work as we speak.

Personally, while I did find quality full-time law related employment not long after I graduated (in Buffalo, New York).  But, two weeks after passing the bar exam, I was laid off due to the merger of a my boss's biggest client since the merged firm chose to give its work to the other company's law firm.   This sent me into solo practice (which involved a number of very high level and interesting cases, but did not bring in nearly enough work to provide a reasonable standard of living after my expenses) almost immediately after earning my ticket. It took another eight months to find a new law firm employer half a continent away in Grand Junction, Colorado.

14 June 2012

A Little Justice

I previously blogged about a woman who was trying to set aside the murder for hire conviction she received in federal court while she was represented by lead defense counsel (Howard O. Kieffer, a felon even before this incident) who claimed that he was a lawyer when he wasn't (whose conviction related to that conduct was recently affirmed on appeal on Monday be remanded for a resentencing).

Her conviction was vacated this week.
A U.S. district judge ruled Friday that Gwen Bergman's Sixth Amendment right to counsel was violated after she unknowingly hired a fake lawyer, Howard O. Kieffer, to represent her at trial in 2008.
She was sentenced to nine years in prison, but was allowed an early supervised release and good time. She could be retried for the offense (since double jeopardy prohibits retrials after jury acquittals, not after convictions or mistrials). But, given that she served all of her sentence except part of a three year supervised release component of the sentence, the government may decide that it is not worth the time and effort to retry her. (She would receive credit for time served if reconvicted and the there might also be limits on the sentence that could be imposed if she was convicted again). While the decision buys her only a few months of moderately greater freedom at this point, and certainly does not consititute a judicial finding that she is innocent, it also frees her of the many collateral consequences of being a convicted felon whose underlying crime was murder.

Egypt Gets Ugly

Egypt's top court, appointed by the old regime, ordered today that parliament, elected just three months ago in the first genuinely democratic elections in decades, be dissolved for a do over. It also reinstated the candidacy of the old regime's prime minister for this weekend's Presidential election. And, the transitional regime greatly expanded some recently suspended emergency powers of the military to arrest civilians.

The ruling might be one that could have been appropriate were it coming from a court installed by a historically democratic regime facing an undemocratic electoral reform of the kind recently seen in Hungary, particularly if it had come out before the parliamentary elections were conducted and the new parliament was sworn in, but as it is, it looks like a power grab. This particular court lacks the legitimacy and democratic credentials to order such sweeping, after the fact, relief related to an election on what are conceptual and technical grounds. It may, however, have the ability to consolidate support within the military for the removal of the current parliament and set up a constitutional crisis if parliament, righteously resists, or if it assents to the ruling and the new elections are not conducted honestly.

A popular uprising that was part of the Arab Spring ousted a totalitarian regime under Hosni Mubarak who was sentenced last week to life in prison for crimes against the people involved in putting down that uprising. The peaceful resolution was secured by putting a military dominated transitional government in place and maintaining the form of a legally authorized regime change conducted with the consent, albeit coerced, of the old regime.

A Pessimistic Scenario

Collectively, Egypt seems to be creeping towards a coup under color of law that would roll back the democratic accomplishments of the uprising sixteen months ago, driven by a basically, secular military used to reporting to a long time dictator that fears the potential radicalism and incompetence of a super majority Islamist civilian government now that they have seen what the parliamentary elections produced and who is likely to win if the military does not interfere with the election.

This situation could easily led to a constitutional crisis followed by a return to a totalitarian regime that abandons the democratic reforms adopted a few months ago in favor of making the transitional government itself the new non-democratic permanent rulers of the country with military backing, either with, or without, a bloody rerun revolution as outgunned democracy activists face a more determined military regime that has had time to consolidate its hold and the loyalty of the mid-level officers whose support for the revolution made regime change possible in the first place. What the military has given, it may have the power to take away. And, even if the democrats and pro-democracy factions in the military ultimately prevail, months of a bloody Syrian style conflict could unfold before they do.

An Optimistic Scenario Coloring Without The Lines

There is still room for the transitional regime to back down and retreat from these new developments. It doesn't have to make wide use of the emergency powers it was granted this week. The Islamist candidate likely to win the Presidential election this weekend could win a clean majority and be recognized as the winner and given the "keys to the kingdom" from the transitional government and military. A clean, slightly modified set of parliamentary elections could be conducted in a do over.

There are a number of less accomplishments the military could win in this bit of brinkmanship without actually bringing about chaos.

A recent study showed that electing a President before a parliament, rather than a parliament first, materially increases the chance that a newly democratic country will revert to totalitarian rule, and the military may want to heighten that possibility, making the winner into a new strong man.

Establishing the precedent that the military can use extraordinary emergency powers even under the new regime, strengthens its hand in future negotiations, even if they aren't over used as they were for most of the later days of Mubarak's regime.

Egyptians are tired of revolution and may be willing to tolerate a certain amount of tarnish on their new democracy at this point that they wouldn't have accepted sixteen months ago. The military may hope that the fervor of revolution that prevailed in the earlier rounds of the Presidential election and the parliamentary election, and that they will make a more detached and "rational" decision in a do over.

Also, the political party fragmentation of a first election in any new political system culls weak contenders and simplifies the political playing field. Parties the military is more comfortable with were weak and disorganized then relative to the Islamist parties who have been preparing for this day and learning how to maintain cohesion even in the face of totalitarian crack downs for years. Now that the non-Islamists are less fragmented and have had more time to learn the ropes of the new political system and organize themselves, the military may hope that they will be better equipped to perform in a quick new parliamentary election with somewhat more favorable election rules.

Is It Time To Break Ties To The Old Regime?

Alternately, perhaps the fig leaf of legality in the regime transition has outlived its usefulness.

The parliamentary government could simply pass a rhetorically grand declaration that the transitional government and old court are illegitimate because they lack democratic support, ideally after a new President to parliament's liking is sworn in, could defy and disregard the court ruling, and could appoint a new democratically blessed court on the strength of its electoral legitimacy - perhaps pausing to impeach the members of the old court in the process. If the security apparatus agreed to refrain from backing the old court in favor of the directions of a newly elected Prime Minister and President or President-elect's directions, this could turn out to be just a minor bump in the road, even though it looked like a dire crisis at the time.

Barriers To Good Outcomes And The Impact Of Past Policy Towards Egypt.

It doesn't help that there is little political culture to speak of in Egypt. There are basically no experienced politicians, in the democratic sense, in Egypt who have the wisdom to really judge what will and will not work. The military has no experience and habit of honoring the will of a democratically elected civilian government. The top players in the transitional regime, the military, and the new civilian regime mostly haven't spent years versing themselves in the ways of domestic statecraft.

The people have weak expectations regarding what the new regime will look like in practice.  The models for Islamic regimes with some democratic aspects that have stood the test of time like Turkey, Iran, Pakistan, and Northern Nigeria, leave much to be desired, and Egypt has no legitmate constitutional monarch available to ease the transition.  Perhaps this will encourage Egyptians to put in place a political system as a whole that fits their own unique needs.  But, it is often harder to innovate than to imitate a successful model. 

Of the lot, Turkey is the most plausible model, but is notable for its people's political liberalism secured through painful and sometimes misguided cultural reforms imposed by Ataturk who had a broad mandate to impose them, and for the somewhat high degree of military meddling in civilian affairs that has been exercised in its role as "guardian" of the state, a common third world military self-conception that is probably shared by the Egyptian military.

In short, even if there are tools and strategies that could allow Egypt to make it through this crisis smoothly, there is good reason to doubt that the people who matter are aware of them and capable of pulling them off in practice.

Perhaps the best hope we can have in this regard is that a large number of Egyptian military officials have had dealing with members of the American military and visited the United States. The soldiers with these contacts may use the lessons learned about how to handle political-military interactions in a democracy, and the political values they have absorbed by osmosis in these interactions to guide their own actions now, for lack of any better models. U.S. diplomatic or rhetorical involvement may be counterproductive at this point, because it could be perceived as meddling, although the Egyptian military does receive billions of dollars each year from its relationship with the United States, an investment the U.S. made initially to protect Israel. But, perhaps our past dealings have set the stage for a brighter future that we had not really seriously contemplated actually happening nearly so soon.

It also doesn't hurt that while Egypt has been a dictatorship for decades, that it has not been a particularly closed one.  Average and even more so middle class Egyptians have witnesses via the media and their first hand trade and tourism dealings, how the Western world works personally.  It is a nation whose wealth depends more on enterprise and functioning government than its peers with more oil per capita.  If it closed itself to the outside world the way that North Korea or Saudi Arabia have, it would collapse and everyone in power knows it.  It has the petite bourgeoisie of lawyers, teachers, business owners, seasoned mid-level and senior level civil servants, and technocrats that was absent in sufficient numbers in most of the newly independent nations the swiftly devolved into dictatorships in the 1960s and 1970s, like Sudan.  It is a nation of city and town dwellers who have a self-concept that includes long periods when they were the imperialists and know the temptation of modernity, not a nation of luddite tribesmen and subsistence farmers and laborers, whose elites were mere mere mid-level subordinates in colonially managed enterprises.

Of course, the revolution could go the way of the Iranian one and see democracy erode in favor of theocracy.  But, this hasn't happened in Pakistan or Turkey, and Egypt has a national identity that is more than just Islam that may check temptations to allow it to devolve into a theocracy rather than a democracy run by people who happen to be religious and live their convictions as they act through secular institutions, in the model of Israel.  So far, the Muslim Brotherhood has seemed content to keep within those kinds of boundaries, so we should not be quick to depart from our natural instinct to favor democratically elected civilian political institutions over military and authoritarian rule.

On the other hand, maybe the lesson that the Egyptian military learned is that it doesn't have to do much to win U.S. backing when push comes to shove.  And, the people of Egypt may have learned that the nail that sticks up gets hammered down and that the blessings of democracy that Westerners enjoy are impossible to achieve at home.  In this conflict, we have to hope that Egyptians have learned from what they seen as well as what they have lived.  Time will tell.

13 June 2012

Matt Arnold: Worst CU Regent Candidate Ever

Sometimes the caucus process fails to produce good recommendations. The case of Matt Arnold, who won top line status at the Republican State Convention for his prior attacks on the state judicary, is a case in point.

The biggest issue is simple. He said on his resume that he had a master's degree from John Hopkins University. Except, he didn't.

Last week, Arnold admitted he did not have a master's degree from Johns Hopkins University, although he has completed the coursework. He shocked education officials by saying, "I was more interested in getting on with my life than trying to, quite frankly, waste more time in pursuit of academic BS that no one cares about."

"I goofed," Arnold said in an e-mail to Republicans on Tuesday.

When running for another office, his actions and attitude towards them might be acceptable. But, when he's running for the body that regulates who should and shouldn't get decree from the University of Colorado, and what students should have to do to earn them, his statements are an unforgivable breach of faith.

Attention Unchanged Since 1983 In Normal Kids

ADHD diagnosis rates have risen dramatically since 1983. Clinically measured levels of attention in random samples of normal kids, however, are unchanged according to a 2012 paper.

Indeed, the total lack of change in the result (from 2002-2006 test administrations) is itself surprising given the sample size, which all other things being equal would be expected to deviate just a little from the prior result due to the statistical noise associated with random sampling errors. Maybe this means that kids who had ADHD before are now being properly diagnosed instead of denigrated. The clinical test shows about two standard deviation differences between typical kids without a diagnosis and those diagnosed with either ADHD or an autism spectrum disorder, which suggests that the diagnosis process today is far from random.

An increased diagnosis rate may also mean that more typical kids are being diagnosed when they should be and are receiving drugs to treat the condition that are counterproductive. The two possibilities are not only not inconsistent, but are both likely to be true.

But, the result undermines theories that claim that a greater diagnosis rate for ADHD is in any way a product of greater incidence rates of the condition.

12 June 2012

Financial Crisis Sliced Wealth and Income

The median family, richer than half of the nation’s families and poorer than the other half, had a net worth of $77,300 in 2010, down from $126,400 in 2007, the Fed said. The crash of housing prices explained three-quarters of the loss.

This vast loss of wealth was compounded by a loss of income, as the earnings of the median family fell by 7.7 percent over the same period.

Via Tyler Cowen.

So, the median family wealth in the United States was down about 40% as a result of the financial crisis (thirty percentage points from reduced housing prices and the balance from reduced wealth of other kinds), and the median family income was down 7.7%.  Two decades of wealth creation were wiped out.

The fact that the financial crisis would have a wealth reducing effect was apparent immediately.  The fact that it would so dramatically affect median family, rather than having a greatly disproportionate impact on the very affluent, was not.

Recovery to pre-crash levels of income, employment, and wealth continues to be something that will not happen for many, many months, although one can argue that using a bubble inflated false level of wealth from 2007 is an inappropriate benchmark for a recovery.

Alaskans and Finns Would Disagree.

From Chuckle-A-Duck (an exceedingly worthwhile, gag without storylines webcomic).

11 June 2012

Sacred Legacies In A Changing World

One of the time honored tropes in fiction is what I sometimes like to call the "Sacred Legacy." Perhaps it is a favorite for me because I have a probate, trusts and estate practice.

A sacred legacy is something passed from one generation to another, pragmatically, a parent to a child, but sometimes skipping a generation or sometimes passing to a mere member of the next generation mentored by a member of the older one.

A sacred legacy generally includes some kind of duty of responsibility, and often a secret.  It may be a duty to continue to wage war on an ancient evil, to serve a noble family, to care for a shrine or relic, or to perpetuate a secret or a secret society, or simply to carry on a business or take over the task of caring for a dependent of the person making the legacy. 

Is it part of the destiny of the recipient who must decide if they will rise to the occasion and fulfill their destiny, or will abandon it to go their own way.  Usually, the next generation either immediately accepts the sacred legacy and must live up to the expectations that come with it despite their own inadequacies, or try to avoid their destiny for a prolonged period of time only to ultimately cave in to it because the character in the next generation ultimately recognizes that the duty give to them really must be fulfilled by someone in furtherance of the greater good, and finding no other volunteers.

These stories have great moral and community power when one spends one's live in a system were real power vests in people selected on a hereditary principle, like monarchies that are more than symbolic, a few of which still persist today.  A Prince's willingness to accept the duty of managing his fief well has deep consequences for his subjects.

In real life in the modern American world, sacred legacies tend to be rare, although some semblance of them can be found here and there.

Multigenerational family businesses tend to be rare, although they do exist.  Few businesses survive that long, and most that do either go public, or cannot continue to operate when a founder retires, or are sold to an unrelated successor in a private business transaction.  A business that stays in a family for every two generations is uncommon, successful business successions often take place during the life of the parties, and a multigenerational business that persists for even as long as seventy years, even so humble a business as a gas station, like the Wilson Family Conoco at University and Bonnie Brae in Denver is rare.  Intense pressure to take over a family business is the rare exception rather than the rule.  While many Americans are self-employed, few have self-employment in a business that has value over and above "buying yourself a job" that is susceptible to being passed on to the next generation.

Few parents die before their children become adults and many children who need adult guardians pre-decease their parents. 

American religious institutions tend to be operated like large non-profit organizations, often democratically by congregations or delegates selected from congregations.  Perhaps the most notable successions that resemble sacred legacies in the modern American religious scene are the succession of the Papacy, and the Jewish hereditary kohanin priesthood (despite its birthright lifetime transition rather than true legacy status) which survives in part by being relatively undemanding relative to the Bat Mitzvah expectations of all members of the community who become adults in the religious community.

Americans have abrogated not only aristocracy, but almost all legally binding multigenerational debts and punishments, civil and criminal - the property of a decedent may be subject to debts of a decedent, but apart from a residence or vehicle being inherited subject to the loan for which it is collateral, the usual course of affairs is for debts to be settled within a year or two of a death, and for inheritances to be received otherwise free and clear.

Children tend not to feel bound by the parents commitments, political, ideological, religious, professional, or otherwise as adults, although there have been a handful of notable political dynasties in the United States, a handful of instances of widows stepping into their late husbands' political shoes, and many instances of multigenerational military service.  However, the U.S. military isn't, any longer at least, an institution in which nepotism and family ties in and of themselves are commonly viewed as having great weight once one enlists or playing much of a role in meeting the standards for being enlisted.

Legacy admissions to colleges and universities tend to be isolated single events during the lives of the older generation carrying benefits but few obligations that wouldn't accrue at any institution of higher education, and multigenerational legacies like society debutante ball admissions also tend to take place during the lives of the older generation and to be brief and unburdensome obligations.

Ancient evils turn out to be remarkably scarce in daily life, few secrets not carried to the grave have much potency, and secret societies, like civil organizations that require actual participation by members generally, seem to have mostly withered on the vine. 

Increasing scientific recognition of the role played by genetic inheritance in a wide variety of endeavors has provided something of an intellectual counter-revolution to an environmental and personal choice driven view of an individual's prospect just a few decades ago, but increasing research has also diminished the importance of ritual and personal family interactions in that transmission.  While we would all like instruction books for our lives, apart from medical records, we increasingly don't see instruction from one's own parents as indispensable to our ability to realize our genetic legacies, and research has cast increasing doubt on the importance of parenting in shaping a child's personality or intelligence.

Moreover, as we have urbanized, it is increasingly the case that preserving a place, a tradition, a skill, or knowledge, is almost always the responsibility of many people in which no one individual's contribution is absolutely indispensable.  In a community with a hundred blacksmiths, no one of them has to carry on the trade for the trade to survive, in a community with just one blacksmith, the moral weight on the apprentice smith is much greater.

Is it a bad thing that our society is sufficiently transparent that secret societies and family ties on longer seem to be dominant drivers of our economics and politics? Is it a bad thing that little potent information seems to be hidden for long? Does the allure of secret knowledge harken back to pre-literate deep history (really just a few hundred years ago in many societies) when someone had to accept personal responsibility for carrying on all information that would survive to the next generation?  Has job training and education replaced and bureaucratized what would once have been structured as sacred legacies?  Do we need more forces working behind the scenes for good, or merely to make life more interesting?  Are conspiracies dead?

08 June 2012

Open Primary Fail

In a California Congressional district where most primary voters voted for Democrats (who were split in a four way race), there will be no Democrats on the ballot, because the two Republicans on the ballot split the vote less completely and finished first and second in the District's open primary.

07 June 2012

Soul Crushing Experiences

The waves of pain that had only lapped at me before now reared high up and washed over my head, pulling me under. I did not resurface.
- Bella Swan, New Moon, Chapter 3, p.84.

While bipolar disorder has a strong genetic component, emotionally powerful events in one's life often come into play in unipolar clinical depression (aka major depression), one of the most common forms of debilitating mental health conditions.

A new study looked at fourteen pairs of identical twins raised together as children, one of whom experienced clinical depression and the other of whom did not. Romantic difficulties were fingered as the likey cause in half (7) of the cases. The other cases were attributed to single traumatic events (2); employment difficulties (1), a mixture of factors (2), and no clear reason at all (2).

The study was: Kendler, K., and Halberstadt, L., "The road not taken: life experiences in monozygotic twin pairs discordant for major depression.", Molecular Psychiatry (2012). DOI: 10.1038/mp.2012.55.

06 June 2012

Quotes On Excess

I think I don't regret a single 'excess' of my responsive youth - I only regret, in my chilled age, certain occasions and possibilities I didn't embrace.
- Henry James
Moderation is a fatal thing. Nothing succeeds like excess.
- Oscar Wilde
Poetry should surprise by a fine excess and not by singularity, it should strike the reader as a wording of his own highest thoughts, and appear almost a remembrance.
- John Keats
The faults of husbands are often caused by the excess virtues of their wives.
- Sidonie Gabrielle Colette

05 June 2012

Law School Admission Easier

In 2004, about 55% of people who applied to law school were admitted somewhere.  In 2012, 83% of law school applicants were admitted somewhere.  The percentage of applicants who were admitted somewhere but did not matriculate as 1Ls was basically unchanged. From here.

Previous reports have indicated that there has been more of a drop in the most qualified applicants than in less qualified applicants.

Stop Thinking About Zombies

National zombie awareness month is over folks.  Get with the program.  Stop thinking about zombies already.  Perhaps not coincidentally, National Drug Court Month is also over. 

Tomorrow is the 68th anniversary of D-Day.

June is LGBT Pride Month (i.e. Lesbian, Gay, Bisexual, Transexual Pride Month), a designation that commemorates the Stonewall Riots.  Bill Clinton made the proclamation in 2000, and President Obama has done so again in 2009, 2010, 2011 and 2012.  Denver always makes a good showing with Pridefest which is June 16-17, this year.

Also surely not coincidentally, it is also now, Fae Awareness Month (i.e. Fairy Awareness Month), which also ties to Fae Centric the Shakespeare Play, a Midsummer's Night Dream (I once played the father of one of the heroines in it), even though June is host to the first day of summer and not Midsummer.  This year in Colorado, the summer solstice, which marks the beginning of summer, is at approximately 5:09 p.m. on June 20, 2012.  Notwithstanding this discrepency, however, Swedes and Finns celebrate the civil holiday of Midsummer's Day on the third Friday in June.

American's observe Father's Day, the poor and insignificant counterpart to Mother's Day, for which the traditional present is a neck tie (despite their declining popularity), on June 17, 2012.

Today is also street cleaning day on my side of the street.  Alas, our block failed to have perfect performance today in removing cars from that side of the street, as my next door neighbor (whom I dutifully tried to alert by knocking on her door before she got a ticket) had left her car parked on the street but was not home.  It is the first street cleaning day since she moved in, and nobody actually reads the fine print on the street signs and put it on the calendar, so she is not really morally blameworthy for her err and I really should have left her a note in advance as a warning.  I've been caught out myself several times in twelve years living in my beloved neighborhood, including the first time.

Finally, I'd like to take a moment to observe the passing of Ed Quillen, a Denver Post columnist noted for his insights about current events informed by Colorado history.  He also brought to my attention such useful concepts as the "Stupid Zone."  He passed too early at the age of sixty-one and will be missed.  By all accounts, he has not become a zombie at this point.

01 June 2012

Japan's Full Employment Lost Decade

Krugman notes that despite having had some very bad years, sometimes call the "Lost Decade" from the perspective of GDP growth in its economy, that Japan took a far more modest employment hit than the U.S. did after the financial crisis.  The U.S. remains much worse off from an employment perspective, even now, about four years later.