Nice Things To Say About Tax Court

Yesterday, for the first time in a long time (if ever), I filed a petition in the United States Tax Court in Washington D.C.  (I have a tax litigation practice, but as in most litigation, almost all cases settle.)

Tax Court is an Article I (Executive Branch) administrative tribunal that resolved disputes regarding taxes owed prior to payment.  Taxpayers who exhaust their remedies within the IRS can petition the tax court to resolve a dispute regarding taxes owed in lieu of paying the taxes and suing for a refund in an Article III (judicial branch) federal district court.

A few civil procedure aspects of tax court are quite nice.

1.  The filing fee in Tax Court, regardless of the amount in controversy, is only $60.00.  In contrast the filing fee for a civil action in a federal district court is $400.00.

2.  There are extensive opportunities for settlement negotiations prior to the point at which a tax court petition must be filed, so most of the 95%+ of cases that settle prior to trial in every kind of litigation settle before the court process begins (obviating the need for a filing fee).

Moreover, settlement negotiations with the IRS, for better or for worse, are very different than with private parties.  If the IRS agent involved believes in good faith that the taxpayer is right after the matter is fully explained, the IRS will generally concede even if there are huge amounts of money at stake.  But, on the other hand, if the IRS agent involved believes in good faith that the taxpayer is wrong, or just wants to abuse power, the IRS will not concede even if the dispute makes no economic sense for the parties to litigate.

Likewise, while the IRS can be a stickler for documentation of a taxpayer's claim, the IRS very rarely engaged in the tax litigation equivalent of discovery practice for tactical advantage only which is the norm in ordinary civil litigation.  For example, it is common for a private lawyer in civil litigation to refuse to stipulate to a fact that could be proven at trial even knowing that the fact can be proven at trial, while the IRS will routinely stipulate to facts that could have been proven at trial once it has seen the documents or other evidence that would serve as proof of these facts.  The IRS is a litigator who freely and easily acknowledges reality without much of a fight.

3.  It is not necessary to post a bond to prevent an IRS determination that taxes are owed from being enforced, something necessary in some kinds of civil litigation and in most civil appeals.

4.  Tax Court is the only court in the land where you can meet the deadline for filing your petition by sending it in the mail postmarked on the deadline for filing the petition.  In every other court, state and federal, the petition or complaint is not considered filed until it is received by the court in question.  E-filing mitigates this hardship (particularly in the case of a geographically distant venue) for practitioners already admitted to the bar of the court in question, but not for pro se parties (who make up a substantial share of the court's litigants).

5. While Tax Court is a unitary national court, it rides circuit, so a taxpayer can choose the federal district court courthouse in which the trial will be held (although some secondary courthouse locations in some federal districts are not available; for example, in the District of Colorado, tax court generally comes only to Denver).  In contrast, other national courts (e.g. the U.S. Court of International Trade) conduct business and hold trials only in Washington D.C. and perhaps a handful of other places.

6. Tax Court makes a form petition easily available on line in an Adobe Acrobat format that can be completed online.  The Tax Court rules are also easily downloaded for free from its website.

7.  While other courts require that in lawsuits against the IRS, that the IRS be separately served with process, in Tax Court, the initial Petition does not have to be separately served upon the IRS who is a party to every single action filed in Tax Court.

8.  Judges in Tax Court have considerable subject-matter expertise, so one can get right to the point.

9.  Compared to other Article I administrative tribunals (e.g. the National Labor Relations Board, the Securities and Exchange Commission, the Federal Trade Commission, and the Federal Election Commission), the tax court operates pretty purely in an apolitical judicial manner, rather than in a merely quasi-judicial, partially political manner.

Of course, there are also aspects of tax court that are weird or negative.

1.  Appeals from tax court decisions go to regional U.S. Courts of Appeals, so the law before the same court can be different in different parts of the country and give rise to circuit splits, even when the Tax Court's rulings are consistent.

2.  Tax Court judges do not have the structural independence of federal court judges appointed for life.

3.  In a related point, the Tax Court's subject-matter expertise coupled with a situation where one party is a party to every single case presents a risk of administrative capture by the agency and a lack of openness to new ideas, even if they have a sound legal basis.

4.  Tax Court denies litigants the full range of Article III court protections in the course of making a record before a case is appealed, which limits the scope of the Article III protection provided.

Still, on balance, Tax Court is a good institution whose innovations relative to the ordinary court system are good ones.

Quote of the Day

We aren't supposed to feel.  We're British.

- Libba Bray (a.k.a. Martha E. Bray), "A Great and Terrible Beauty" (2003).

Defend Witches

T.M. Luhrmann, an anthropologist writing an op-ed piece in the New York Times today describes how very demon haunted Christian churches are in Africa:

Certainly religion is everywhere — churches and church billboards seem to be on every street — and atheists are few. American evangelicals often say that faith is more intense in Africa. There is something to this. Compared with Ghanaian charismatic Christianity, American Christianity can seem like soggy toast. 

It is not just the intensity that seems different. In these churches, prayer is warfare. The new charismatic Christian churches in Accra imagine a world swarming with evil forces that attack your body, your family and your means of earning a living. 

J. Kwabena Asamoah-Gyadu, a professor at Trinity Theological Seminary in Legon, Ghana, argues that these churches have spread so rapidly because African traditional religion envisions a world dense with dark spirits from which people must protect themselves, and these new churches take this evil seriously in a way that many earlier missionizing Christianities did not. Indeed, I have been at a Christian service in Accra with thousands of people shouting: “The witches will die! They will die! Die! Die!” With the pastor roaring, “This is a war zone!” 

While this feels very different from soft-toned American evangelical Christianity, which emphasizes God’s loving mercy rather than God’s judgment, spiritual warfare is deeply embedded in the evangelical tradition. The post-1960s charismatic revival in the United States, sometimes called “Third Wave” Christianity (classical Pentecostalism was the first wave and charismatic Catholicism the second), introduced the idea that all Christians interact with supernatural forces daily. That included demons. 

In fact, I found American books on dealing with demons in all the bookstores of the African charismatic churches I visited. In one church where I stood looking at the shelf of demon manuals, a helpful clerk leaned over to fish one off for me. She chose an American one. “Here,” she said as she handed me Larry Huch’s “Free at Last,” “this one is good.” 

In many American evangelical churches, people will tell you that demons are real, but they do not treat them as particularly salient. Demons don’t come up in Sunday morning sermons, and for the most part people don’t pray about demonic oppression. Their encounters with supernatural evil were like the ghost stories I heard at summer camp: more exciting than terrifying. . . .  It is possible that identifying your envy as external and alien makes it easier to quell. 

But it is also true that an external agent gives you something — and often, someone — to identify as nonhuman. In West Africa, witches are people, and sometimes, other people kill them or drive them from their homes. 

Luhrmann is an anthropologist and not a theologian or religious historian.  But, as anyone who has taken time to read the New Testament and especially the Gospels and Acts, knows, the demon haunted, exorcism oriented churches of Africa are closer to early church of Jesus and his disciples than the American and European offshoots of the faith.

People didn't clamber to see Jesus and his disciples to learn radical Marxism, they came to have Jesus cast evil spirits out of their loved ones.  Newly literate African Christians can safely disregard centuries of doctrinal and cultural gloss to get at a superstitious core that is more relevant to their lives and worldviews.

The trouble is that while there are many redeeming features of organized religion, encouraging a belief that warfare with demons and spirits is an important life activity and persecuting witches is almost never one of them.  People who know that demons and witches are amusing but fiction, should unite to defend those accused of being witches and search for waves to tame yet another wave of misguided religious fervor.

Welcome Marginal Revolutionaries.

Tyler Cohen has kindly highlighted a comment of mine made to a post of his entitled "Is Christmas Efficient?"  at the Marginal Revolution blog on the subject of the economic reasons for Christmas spending sprees.  There is criticism in the comments about the extent to which summer vacation and Ramadan are truly rooted in agricultural reality.  But, I'll take this opportunity to grandstand on another issue.

Economics as a discipline generally claims as part of the "official line" to not have normative goals, and instead to simply discuss how certain economic conditions or public policies translate into certain results.  But, in practice, economists tend to focus on how to optimize a couple of key metrics: "efficiency" and "productivity".

The existence of decades of sophisticated macroeconomic theory, however, has illustrated that notwithstanding all of our economic knowledge, periodic, severe business cycles are more or less unavoidable.  Indeed, recessions are pretty much the worst hardship in the daily of ordinary people in modern developed countries.

While ending business cycles seems to be an unattainable goal, making them more tolerable is another story.  There are many things that one can do, as a matter of economic policy, to make the economy more robust, albeit often at the cost of modest reductions in efficiency or productivity.

For example, removing tax code preferences for debt over equity, and insisting as a regulatory matter on larger bank reserves, will tend to reduce average earnings per share for stockholders in good times, but will also make it more likely that firms will survive economic downturns and places less pressure on firms to lay off workers during recessions.

These examples certainly aren't exhaustive.  But, the core issue is that there are lots of examples of low hanging fruit where policy measures could make our economy more robust that don't receive the attention that they deserve because they don't measure up by productivity and efficiency metrics.  Harm reduction in the face of recessions which economists would have to admit that they can't prevent isn't sexy, but it is a worthwhile endeavor.

A Profound Truth

Obamacare Mission Accomplished

So, today, the deadline for signing up for an Obamacare health plan through Colorado's health care exchange that is effective January 1, 2014, from my father's place in Ohio, we finished up the process of applying for a new health insurance policy after many weeks of careful study and bureaucratic struggles including a major website failure.

In the end it was worth it.  My per person deductible in 2014 will be $5,000 per year smaller than it was in 2013 (as a group of one through the Colorado Bar Association), and my premium is about $250 a month smaller for a family of four.  I won't have to change any doctors or prescriptions.  The co-pays in my new plan are mostly the same, but the generic drug co-pay on the new plan is lower than the one that I pay now, and there are a few preventative care goodies that had co-pays before and don't know.

For me, the subsidy helps some, but the main benefit is getting an insurance policy that is at the same rate that big businesses get, because before the Affordable Care Act, adverse selection drove up small group rates.

Major Earthquakes Of 2013

The list below is a comprehensive list of the 7.0 or greater magnitude earthquakes in the world in 2013. They are listed by date, time, magnitude on the Richter scale (to the tenth of a point), and geographic description.

* 11-25 06:27, 7, South Atlantic Ocean earthquake
* 11-17 09:04,7, Scotia Sea earthquake
* 10-25 17:10,7.1, Off the east coast of Honshu, Japan earthquake
* 10-15 00:12,7.1, 4km SE of Sagbayan, Philippines earthquake
* 09-25 16:42,7.1, 46km SSE of Acari, Peru earthquake
* 09-24 11:29,7.7, 61km NNE of Awaran, Pakistan earthquake
* 08-30 16:25,7, 101km SW of Atka, Alaska earthquake
* 07-15 14:03,7.3, 218km SSE of Bristol Island, South Sandwich Islands earthquake
* 07-07 18:35,7.3, 115km ENE of Taron, Papua New Guinea earthquake
* 05-24 05:44,8.3, Sea of Okhotsk earthquake
* 05-23 17:19,7.4, 282km SW of Vaini, Tonga earthquake
* 04-19 03:05,7.2, 251km ENE of Kuril'sk, Russia earthquake
* 04-16 10:44,7.7, 83km E of Khash, Iran earthquake
* 04-06 04:42,7, 240km E of Enarotali, Indonesia earthquake
* 02-08 15:26,7.1, 31km SE of Lata, Solomon Islands earthquake
* 02-06 01:54,7, 27km NNW of Lata, Solomon Islands earthquake
* 02-06 01:23,7.1, 114km WSW of Lata, Solomon Islands earthquake
* 02-06 01:12,8, 76km W of Lata, Solomon Islands earthquake
* 01-05 08:58,7.5, Southeastern Alaska earthquake

Quick Hits

* Gun control is very effective at preventing suicide and suicides make up a much larger share of gun deaths than is generally realized because they receive less publicity.  This is notable, in part, because many of the most dramatic public shootings, such as the Arapahoe High School shooting last week in Colorado, the Columbine High School Shooting, the Sandy Hook school shooting, and many more of these events are, in terms of motive and usual outcome, more like suicides than typical homicides.

It is also notable that these kinds of shooting (add also the Aurora Theater Shooting which arguably was not suicidal), seem to be one kind of crime where the prototypical perpetrator is a young male who is white and middle class, a vastly different profile than a gang related killing, for example.

* Polling shows that the referendum on independence that the UK is permitting that region to hold is very likely to fail.  But, the likelihood of a successful vote for independence in Catalonia, which the central Spanish government is vehemently trying to prevent, seems much greater.  That vote is scheduled for a month after the one in Scotland.

* Consumer arbitration in credit card agreements almost never actually happen.

The CFPB found that large banks are much more likely than small banks to include arbitration clauses, but that because of their market share, around 50% of credit card loans and 44% of insured checking account deposits are covered by arbitration agreements. (The numbers would be far higher but for the NAF settlement, under which many issuers removed arbitration clauses from their contracts.) The percentages are much higher for prepaid cards.

Ninety percent of the arbitration agreements studied include class waivers. Most contain small-claims court carve outs. The banks are far more likely than the consumers to go to small claims court. That makes sense. For small debts, a collection action in a small claims court will usually lead to a default judgment, which is then immediately enforceable. Arbitration requires two steps, the arbitration proceeding and then the filing of the award.

Out of these millions of agreements, only about 300 arbitration claims have been filed by consumers per year over the last three years, and they were all for high dollar-value claims (more than $1,000). . . . 

the Bureau observed that almost no consumers filed arbitrations about disputes under $1,000. For arbitration filings involving debt disputes, the average amount of debt at issue was over $13,000. For other arbitration filings, the average consumer claim was for over $38,000. 

A number of arbitration clauses allow a consumer, and sometimes the company, to use small claims courts rather than arbitration for dispute resolution. The CFPB’s preliminary analysis indicates that not many consumers initiate small claims court cases in credit-card disputes. Rather, the analysis shows that small claims court cases are much more likely to be brought by banks than by consumers. In the states and counties studied, the Bureau was able to identify at most 870 credit card cases brought by consumers in small claims court against large credit card issuers, but more than 41,000 cases brought by these banks against consumers in small claims court. 

Got that, there were on average only about 100 consumer arbitration claims filed per year against banks, despite the fact that they cover half of all credit cards and more than 40% of deposit accounts. If people in Colorado file consumer arbitration claims in numbers proportional to the national average, that means there are only 1-2 consumer arbitration claims filed concerning credit card and account disputes per year in the entire state.

Basically, when compared to non-arbitration claim rates, the result of consumer arbitration clauses appears to be to deny consumers any meaningful remedy.

* Zombie debt collection is a growing kind of abusive debt collection practice.

* Almost a third of attorneys violate their ethical duties in negotiation settings.

* Prosecutors frequently violate the constitutional rights of criminal defendants by committing Brady violations (i.e. failing to disclose exonerating information to defendants), which is a violation of professional conduct rules for prosecutors and sometimes is a crime as well.  But, prosecutors are almost never personally punished for this misconduct.

* Federal courts are intervening to cease the grossly inadequate "meet and plead" public defender systems in some Washington State cities.

* Once again, U.S. drones killed an innocent wedding party.  This time, in Yemen.

* The Cincinnati library was beautiful before it was demolished.

* Data comparing aggregate IQ in various nations at different times and places support the notion of wealth as a cause, rather than an effect of national IQ.

* A federal court has finally struck down the minister's housing allowance, an exclusion from federal income for tax purposes only available to clergy and hence discriminatory on the basis of being religious rather than non-religious.  Other tax breaks in the Internal Revenue Code available to religious organizations are generally also available to other non-profits (except a certain religious FICA exemption).  The opinion is here.

* The labor and delivery medical expenses for almost half of all U.S. births are paid for by Medicaid (48% in 2010).  But, there is substantial regional variation:

[J]ust one quarter of births in Hawaii were financed by Medicaid compared to nearly 70 percent in Louisiana. States in the northeastern and northwestern United States have the lowest proportion of births financed by Medicaid. For example, Massachusetts and New Hampshire reported fewer than 30 percent of births funded by Medicaid, and Washington State reported 39 percent.  Southern states tend to have the highest Medicaid coverage: For example, Arkansas, Louisiana, Mississippi, the District of Columbia and Puerto Rico each reported more than 60 percent of all births financed by Medicaid in 2010.

* Crisis Pregnancy Centers (at least in Virginia) routinely lie and spread disinformation.

* New York City has an awesome passport office.

* Swedish entrepreneurs tend to have anti-social tendencies.  This is probably a phenomena that can be generalized but is easier to study in Sweden due to it massive ability to cross-reference population-wide databases.

* Basing fraud sentences on the difference between what was asserted the victims would receive and what they did receive, rather than on actual losses, produces sentences that punish the wrong people most severely.

* Thomas Cooley Law School graduates do very poorly in the job market.

* The good customer service in the low income shadow banking world partially explains why they have more market share than traditional banking institutions.

* State fairs offer many weird food options.

Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism

Benjamin Hayempour is apparently a graduate student in Oxford in radiation biology working towards a PhD and doing his best in a publish or perish academic climate to get ahead.  Unfortunately, it appears that he has engaged in serious academic misconduct while doing so. [Ed. Correction: based upon his e-mails to me, he appears to be a graduate student at the UC Berkeley Department of Engineering and UC San Francisco School of Medicine, despite indications from other online sources that he was at Oxford, perhaps a past affiliation.]

A paper that he was a co-author of from 2011 entitled “Neuroradiological advances detect abnormal neuroanatomy underlying neuropsychological impairments: the power of PET imaging,” was retracted because of "unexplained close similarity of some passages to parts of a previous publication" (i.e. possible plagiarism), and the blog Retraction Watch noted this fact in a blog post.  

Benjamin Hayempour alleges that he played only a minor almost clerical role in preparing the paper, yet, he is listed as the corresponding author for the paper and his co-author is the one who requested the retraction claiming that he was unaware of the plagiarism.

Hayempour hired inexperienced Los Angeles real estate lawyer Eyal Aharonov to write a cease and desist letter directing Retraction Watch to retract its truthful and factual coverage of the retraction notice or face a lawsuit for defamation (the legal basis for the threatened suit wasn't clear).  

This triggered the Streisand Effect, i.e. "the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely."  After learning of the groundless legal threat, readers of Retraction Watch tried to determine if any of Benjamin Hayempour's other published work showed evidence of academic misconduct or deceit on his part.

The readers of Retraction Watch found a great deal when they dug around a little more into the situation and found a lot of troubling additional facts.

(1) According to one RW reader, On his linked in profile (no longer public or since edited) Benjamin Hayempour claimed that: 

Even though he just started as graduate student, he is editor-in-chief of a journal: “Journal of Nuclear Medicine and Radiation Therapy” and is on the editorial board of three other journals: Journal of Neurological Disorders 

The Journal of Alzheimer’s Disease & Parkinsonism 

Journal of Family Medicine and Medical Research.

All of which are published by OMICS Publishing Group, which has a reputation with another RW reader as something of a hybrid of a vanity publisher and diploma mill.  While this is not illegal, it is certainly unethical morally and reflects poorly on the integrity and honesty of anyone involved in the venture.  It manifests a clear intent to blatantly deceive third parties presented with these articles about the significance of these publications.

(2) RW Readers note in the comments to the posts linked above, very similar plagiarism problems in seven other papers listing Benjamin Hayempour as an author including:

* “Biological Imaging Instrumentation…” J Nucl Med Radiat Ther. 2013 Jul 20;4(3). doi:pii: 1000157

*  “Should Antidepressants be our Choice of Treatment?”

*  “The Controversy of Conventional Psychiatric Diagnostics”

*  “Clinical Medical Physics Methods in Radiotherapeutic Cancer Treatments”

*  "Brain Disorders: Evaluation by Radiological Techniques and Nuclear Medicine of the Primitive Neuropsychiatric Disorders."

* J Psychiatry Law. 2011 Winter; 39(4): 537–566.

* "Neuromolecular Imaging Instrumentation Demonstrating Dysfunctional Brain Function in Schizophrenic Patients" (2013)

Benjamin Hayempour, rather that admitting wrongdoing as he participates in the discussion tries to argue that he believes that the many instances cited (sometimes despite several long plagiarized passages in a single paper) that his conduct was considered acceptable academic practice when writing review papers.

Eight papers in just a few years with plagiarized passages, dubious claims of editorial roles in four diploma mill journals including an "editor-in-chief" claim, a refusal to acknowledge wrongdoing when presented squarely with black and white evidence of his misconduct, and a doubtful claim that the authors of the RW blog misquoted him despite support in contemporaneous notes of a conversation about what was said all point to an obvious conclusion.

I used to be a full time associate professor in a master's degree program at the for profit "College for Financial Planning" which developed the Certified Financial Planner designation, and later became a sister college of the for profit 'University of Phoenix" system.  Not a particularly prestigious post within academia, to be sure.  

But, even in that little outpost, I would have immediately assigned an "F" grade to any paper from a student that had instances of unattributed quotation from another source of the type illustrated by Benjamin Hayempour in all eight of the papers identified by RW or its readers, and would have expelled him from the program with a negative academic dishonesty reference if I ever saw that kind of behavior repeated even a single time.  The plagiarism examples present in those works are easy and clear cases of intentional academic misconduct, not gray areas.  Any college sophomore would be expected to know better, and Hayempour's academic credentials are from schools where knowledge that this is not acceptable academic conduct is widespread.

The fact that Benjamin Hayempour felt the need to hire a lawyer to try to cover up and intimidate people who were revealing Benjamin Hayempour's academic misconduct with threats of defamation lawsuits that have no substantial justification also tends to indicate an awareness on his part of just how damaging the truth would be to his reputation.

In my opinion, Benjamin Hayempour has engaged in a widespread, intentional pattern and practice of academic misconduct and plagiarism that no reasonable graduate student at Oxford University could have possibly been unaware was improper, and certainly conduct that no one who was legitimately Editor-in-Chief of an academic journal could possibly believe was acceptable.  He did so, apparently, for the purpose of inflating is academic reputation and professional credentials.  And, in my opinion based upon this evidence, deceit is so second nature to him that he may very well be irredeemably some sort of psychopath, or just a habitual liar and con man. 

He claims ignorance, a desire to fix his past mistakes, and so on.  But, there are simply too many implausible statements in his reactions to the accusations against him, and too many blatant instances of conduct that couldn't be anything other than intentional, to make his statements believable.

The only just sanction for this kind of widespread academic misconduct, in my opinion, would be to expel him from his program at Oxford with a bad recommendation reflected on his transcript, together with a termination of any scholarships or stipends, to retract all eight of these papers and to investigate all of his other published work for similar misconduct, to revoke any professional certifications that he has obtained to date, and to advise the appropriate officials at the National Institute of Health of the academic misconduct that he engaged in when doing work funded by one of their grants.

No responsible educational institution, professional regulatory body, or employer could continue to keep him on in any capacity where integrity or honesty was required.

Neuroskeptic and others in the blogsphere have similarly noted Benjamin Hayempour's academic misconduct which otherwise might have gone unnoticed.

So, there you have the story of Benjamin Hayempour's pattern of plagiarism.

Footnote: Eyal Aharonov, an incompetent rookie lawyer

Of course, it is also the story of his lawyer Eyal Aharonov's gross incompetence and professional malpractice in handling the situation.  Aharonov's bad advice and ill drafted cease and desist letter has made the situation a hundreds or thousands of times more damaging to Benjamin Hayenpour's reputation than it otherwise would have been.  Aharonov's actions have probable turned a minor hiccup in Hayenpour's career into a situation that will probably destroying Benjamin Hayenpour's career prospects for life, deny him any hope of ever becoming a doctor or a professor, and thus may cost him millions of dollars in lost income over the decades.  Aharonov's bad judgment may also expose Benjamin Hayenpour to a substantial risk of sanctions and anti-SLAPP law penalties such as the attorneys' fees incurred by people who he sues (if he does).

As a lawyer, one of your first priorities had to be to act in a way that does not call more attention to the myriad instances of misconduct that your client has committed.

Aharonov is slightly more sympathetic, as he has apparently been dumped into self-employment as a lawyer more or less right after graduating from a second rate law school (Pepperdine), and has only had a couple of years of experience without the kind of post-law school mentoring necessary to develop good judgment.  But, on the other hand, I was in more or less the same boat when I finished law school and somehow managed to avoid harming any of my clients so seriously with my own incompetence.

Still, Aharonov's mistakes were merely a product of incompetence and don't reflect all that badly on his integrity.  Most junior lawyers, with enough experience and guidance can learn not to repeat catastrophic mistakes like the one he made in this case.  And, he is probably too broke to be worth suing for malpractice at this point.  If you must screw up, it is better to screw up when you are poor, than to screw up once you have accumulated substantial wealth.

Meanwhile, I have no doubt whatsoever that the Retraction Watch blog will be fully vindicated in this dispute.

UPDATE 3/27/2014:  This post was the subject of an improper DMCA takedown notice.  More than fourteen days have passed since I was notified that a DMCA counterclaim was served and no federal lawsuit has been filed regarding this post in the appropriate forum.  Therefore, I am republishing it.  Further discussion of the takedown notice drama and comments re further plagarism by Hayepour can be found here.

UPDATE 4/06/14:  As noted in the related post, I got the official notice of the all clear in the wake of the takedown notice and my counterclaim only on April 4, 2014, more than two months after the original take down notice, although I had already restored it a week earlier, once fourteen days from acknowledgement of receipt of my counterclaim passed without incident.  Thus, the takedown and reinstatement process actually takes about nine weeks, rather than the two weeks it should take in theory, for a blogger post takedown.  Since then, there have been twists to the underlying story, in addition to the metastory told at the companion post.  The following comment was made anonymously at the metastory post and is included her because it relates to the original post:

"BTW, I though you might be interested to learn that Ayden Jacob (aka Hayempour) is still plagiarizing.

(also posted to RetractionWatch)

---------
Hayempour (now going by Ayden Jacob) is *STILL PLAGIARIZING*. I admit to being stunned, but there we go...

Ayden's new website contains the following two sentences:

"Using patented nerve monitoring technology, the surgeon gains lateral (side) access to the spinal column, avoiding any major nerves in the area between the incision and the column. The XLIF procedure does not require an anterior (front) or posterior (back) exposure, and thereby does not present the same risks of vascular and/or neural injury as traditional approaches."

(from http://www.aydenjacobmedicine.com/orthopedic-surgery.html , archived here: http://archive.is/c0lYJ )

They are copied, word-for-word, from http://www.nuvasive.com/patient-solutions/nuvasive-surgical-solutions/extreme-lateral-interbody-fusion/ (archived here: http://archive.is/6fiyx ).

There is no citation, no quotation marks, not even a link to the site he stole from.

He learned *nothing*.

3/19/2014 3:27 PM "

Benjamin Hayempour, has identified himself as "Ben Jacob" in some of his correspondence to me. So both "Ben Jacob" and "Ayden Jacob" appear to be aliases of Benjamin Hayempour.

Sister Wives Family Wins Case Decriminalizing De Facto Polygamy In Utah

Today, the family at the center of the reality TV show, "Sister Wives" has won a federal trial court case partially invalidating the criminal bigamy statute in Utah on a motion for summary judgment (the link is to the 91 page court order) in a lawsuit filed in July 2011 (the case was resolved on the pleadings and a motion for summary judgment filed in lieu of an answer, never even reaching the usual "discovery" phase of the case).

The Utah law states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

Utah's bigamy statute prohibits not only being in two legal marriages at the same time, but also cohabitation of a married man with, for example, another woman.  The federal court judge held that the cohabitation clause of the statue of unconstitutional on its face, and that the meaning of "marry" and "purport to marry" should be limited to legal licensed marriages rather than more broadly to religious marriages that do not purport to have civil legal effect.

The introduction to the ruling summarizes the holding:

[T]he court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. . . . after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute.

The conclusion of the opinion continues on to explain:

[T]o save the Statute, the court adopts the interpretation of  “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent constitutional requirement that polygamy, as defined in the 1892 Act, be criminalized, such a conclusion would have no bearing on the constitutionality of the “cohabits” prong of the current criminal bigamy statute. Holm, 2006 UT at ¶ 153 n.13, 137 P.3d at 766 (Durham, C.J., dissenting in part) or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.

The suit was nominally filed against Utah County Attorney Jeffrey R. Buhman (the "Defendant") who represented the state's interests in the case, albeit, lackadaisically.  The judge commented on the dismal quality of the state's defense of the motion for summary judgment in the case and its failure to support its few factual disputes with any admissible evidence, although a quick read left it unclear whether this was because the state's lawyers didn't believe in the cause, or were simply absurdly incompetent and didn't take the case seriously when they should have done so (citations omitted below):

The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” Finally, outside of the briefing schedule ordered by the  court, Defendant filed a Reply in which he, for the first time, provided academic  discussion about “social harms” arising from religious cohabitation in Utah, though no  admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013. . . . Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims. 

The Salt Lake Tribune's story features a pretty portrait of the famous family (full disclosure, I've read their book, but I have not watched the TV reality show although my wife and daughter have both seen it) and recaps some of the drama of the litigation:

At the time [that the lawsuit was filed], Utah Attorney General Mark Shurtleff [who was later dismissed from the case as an improper defendant] responded that the bigamy law is different because it involves entire families, not just consenting adults.

The lawsuit also came at a time when the Brown family faced possible prosecution from Utah County. However, nearly a year after the Brown’s filed their lawsuit, Utah County District Attorney Jeff Buhman announced that his office wouldn’t file bigamy charges against any consenting adult polygamists unless violence, abuse or fraud was involved. [The Browns later moved to Nevada, in part motivated by fear of prosecution, anyway.]

During [oral] arguments in January . . ., both sides engaged in a conversational and sometimes heated exchange with Wadduops. For much of the hearing, Wadduops zeroed in on the definition of a polygamous relationship. Posing a hypothetical question, he asked what the difference was between a polygamous relationship and an unmarried man who chooses to have intimate relationships with three women.

After a series of increasingly heated exchanges, Assistant Utah Attorney General Jerrold Jensen replied that a polygamous relationship is different because it was defined by people representing themselves as married.

"I think it’s the representation that they make to the world," Jensen said.

Waddoups also drilled Turley. During that conversation, Turley argued that Utah has a unique bigamy statute because it makes it illegal for married people to cohabitate with adults who aren’t their legal spouse.

"Other states focus on multiple marriage licenses," he said.

One can imagine the state making a motion to reconsider the ruling so that they can present a more competent briefing.  But, if the state cannot clean up the record in the trial court, on appeal to the 10th Circuit in Denver, if the state appeals, the state may be hard pressed to prevail without any favorable facts in the record, and in the face of being barred from asserting arguments not first made to the trial court.

Not that I envy an attorney trying to defend the case.  It is been somewhat astonishing how long Utah's very broad statute has survived in the face of similar challenges in the past (most recently in the face of a divided Utah Supreme Court in 2006 in the Holm case) and the law has evolved greatly in recent years as a result of gay rights litigation.  But, the Assistant Attorney General representing the Defendant in the case did more to hurt his case than to help it in oral arguments in the case, establishing in some cases a religious basis of discriminatory selective enforcement that might have been hard to establish otherwise.

Importantly, the ruling does not require the state of Utah to legally recognize polygamous marriages.  It doesn't even require anyone to refrain from discriminating against people who are in de facto polygamous households.  Instead, it merely prohibits the state of Utah from criminally prosecuting people for being part of this kind of household simply because it is polygamous and not because of other abuses that are present in the family.  The holding follows fairly naturally from other precedents holding that sex between consenting adults may not generally be criminalized such as Lawrence.

The Court's analysis is thoughtful, historically well informed, thorough and well worth the read.  Particularly notable is the Court's discussion of how a policy of selective enforcement of the bigamy statute actually has the practical effect of placing a barrier in the way of prosecuting families where there are other stand alone violations of criminal laws, undermining the argument that the cohabitation clause validly serves the purpose of protecting family members of these families from exploitation.

Incidentally, Judge Clark Wadduops was appointed by Republican George W. Bush with the support of Utah's two conservative Republican U.S. Senators and was confirmed on September 26, 2008, a little more than a month before President Obama was elected.  He earned his undergraduate degree at Brigham Young University had a legal career concluding as a partner in a firm where he was commercial litigator and as a registered lobbyist.  He is hardly a man that central casting would pick to be the man to decriminalize polygamy in Utah.

Wasted and Misused Human Capital

Our 21st century economy does a better job of analyzing and making rational decisions regarding physical capital and financial capital, than it does human capital, where inertia and tradition have produced maladaptive and outright wasteful management of human capital.

Where do we go wrong?  Here are a few examples:

Early Retirement Of Productive Workers

It seems incredibly wasteful to have skilled professionals who are perfectly capable of doing valuable work in their fields retire early.  Retirement ideally should coincide with greatly reduced marginal productivity.  In manual labor or military service, that date may come early.  In law and medicine and a host of other "knowledge based" professions, that date may not arrive on average, until someone is in their seventies.  Early retirement is a symptom that we are paying these professionals too much, leaving them sated in their need for money for further consumption so that they seek leisure instead.  It may make sense in a highly productive era to shrink the labor force with early retirement for many, but this should not be a path chosen for those who are capable of being highly productive in their golden years.

If a neurosurgeon finishes medical school and a residency becoming a full fledged specialist physician at age 32 and retires at age 57 after 25 years as a physician, instead of at age 67 after 35 years as a physician, the productivity return on that person's education and inborn talent (collectively, his human capital), is reduced by 29%.  In dollar terms, this early retirement deprives society of something on the order of $5 million in medical services that would otherwise have been produced.

Curiously, some professions, like medicine and financial services (which are in my opinion probably overcompensated in our economy on average due to market failures in the U.S. economy) seem to have far more early retirements of highly compensated able bodied individuals than law, where it is not uncommon for even very successful professionals to continue to work part-time as "of counsel" attorneys or "senior judges" into their early 70s.  It would be interesting to get better empirical data on early retirements.

This example is extreme.  But, it is the early retirements of the most elite and highly paid workers in our economy that impact our nation's productivity the most.  A retirement of a thirty hour a week minimum wage worker, ten years earlier, in contrast, deprives society of just $120,000 or so dollars of productivity.

Higher Education Funding Not Well Matched To Academic Ability

Another huge source of waste in our economy is the way that higher education resources are used. Assume that academic ability of graduating high school students can be broken into four categories of equal size, A, B, C and D with A being the most able, and D being the least academically able.  

Unsurprisingly (for different reasons in different political-sociological and economic theories) affluent families tend to have more children in the higher category than the lower category.  It turns out that one of the big picture empirical messages of educational psychology (basically academic testing and test analysis) is that this reality is highly resistant to policy intervention on a consistent and widespread basis even with considerable education expenditures.  Education spending helps kids achieve their potential in a way that benefits us all, but is a far less potent force for upsetting the socio-economic status quo than early public education advocates had assumed. 

Probematically, the likelihood that a child of an affluent family with academic ability D goes to college is about the same as the likelihood that a child of a working class family with academic ability A goes to college.  Household spending on higher education is not very well linked to academic ability, even though academic ability is closely linked to return on higher education investments.  Public spending on higher education is also not very closely tied to academic ability.  The group of students who attend and graduate from college is dramatically more skewed towards the affluent than the group of students in academic ability group A.

Thus, our society spends vastly too much in public and private funds educating academically weak rich kids, and vastly too little educating academically strong poor kids.

How important is this?

A February 2013 paper using the natural experiment of employment desegregation after the civil rights era opened the doors to women and minorities in a variety of professions and occupations quantified the economic returns attributable to that reallocation of talent.

This paper measures the macroeconomic consequences of the remarkable convergence in the occupational distribution between 1960 and 2008 . . . . We find that 15 to 20 percent of growth in aggregate output per worker over this period may be explained by the improved allocation of talent.

The current disparities in higher education access are probably not quite so direly skewed (although probably worse than they were at the most meritocratic moments from 1960 to 2008), but it isn't unrealistic to think that 5 to 10 percent of growth in aggregate output per working in the next fifty years could be achieved by improving the nexus between academic ability and how we allocate economic resources to providing students with higher education.

Child Care For Low Income And High Income Parents Of Young Children

The somewhat counter-intuitive pattern in the U.S. economy is for it to be much more common for college educated mothers of young children (who are very likely to be married) to leave the workforce temporarily to focus on parenting and homemaking than for mothers of young children who have no college education to do so (these mothers are also less likely to be married).

At the household level, this is understandable.  Being a stay at home mother is considered a form of leisure than is easier to substitute for consumption of third party goods and services in an middle class family that can provide a comfortable living for itself with one income (or perhaps one and a half incomes), and this leisure is too expensive for working class families with only the bare necessities of life with all adults working full time to afford.

But, given the considerable cost of child care for pre-schoolers, despite the fact that early childhood child care providers are among the very lowest paid workers in our entire economy, the economic returns of working to a household with a low income mother net of child care costs a very meager relative to the economic returns of working to a household with a potentially high income mother with a college education and the beginnings of a professional career.

Yet, the fact that middle class mothers are predominantly willing to make the immense economic sacrifices in lifetime earning potential that they do in order to be stay at home mothers for their children, suggests that the perceived benefits to a household of this form of child care relative to outsourced child care for young children is considerable indeed.

Women who don't leave the workforce tend to generate incomes comparable to men.  College educated women who do leave the workforce, even if they return five or ten or fifteen years later, see deep reductions in their lifetime earnings, far in excess of that reduction associated with simply shortening their total number of years in the workforce by that many years; but non-college educated women pay only a modest lifetime premium beyond simply having a shorter number of total years in the work force for taking time off.

Does it really make sense to have an economic system that overwhelmingly causes women with young children who have potential incomes of $1,000 to $1,500 per month less child care expenses of $300+ per month (net $700-$1,200 per month) to be in the work force, while overwhelmingly causing women with young children who have potential incomes of $5,000 to $7,500 a month less child care expenses of $500+ per month (net $4,500-$7,000 per month) to stay out of the work force?

A culture of "welfare queens" is decried by conservatives.  But, doesn't it make sense to tweak the incentives in our economy in some way that causes highly economically productive women with young children participate in the workforce at higher rates than those who are less economically productive?

A fair amount of progress has been made in determining why this happens.  But, if we want to make better use of human capital, we need to find ways to better use the human capital of college educated, highly productive women who chose to stay at home mothers for some period of time, and we also ought to rethink the intensity of our current incentives for low income women to enter the workforce rather than providing very valuable parenting to their own young children in critical years for their development.

Unemployment

Permanent harm from temporary household economic collapse

The most economically catastrophic thing that can happen to most households is for one of the adults in the family to be involuntarily unemployed.  Only a tiny share of households have enough savings or access to debt to sustain their normal level of consumption and debt service expenditures for more than a few months.  Fear of unemployment is a powerful incentive for employees to meet employer expectations in the American economy.  And, only a modest percentage of American workers are capable of self-employment at something comparable to what they could earn as employees - even then, many are capable of doing so only if they begin with considerable working capital and start up cost investments.

Temporary loss of income can lead to permanent economic waste and harm to households by causing households to lose investment opportunities and equity in property due to fire sales necessitated by immediate needs to pay current expenses and debt service that current income can't cover.  This waste is often blameless in the sense that the inability to pay was unforeseeable when the obligations to pay many of these expenses and debt service obligations was incurred.

Thus, one problem caused by unemployment is household economic scarcity that causes disproportionate harm.

Unemployment isn't intrinsically a product of economic waste of human capital by any given firm.

In a rapidly changing economy, employers legitimate needs to lay off workers, and to fire poorly performing workers are real.  The economic costs of prohibiting them from doing so, or strongly discouraging them from doing so are great.  The employer need to reduce their work forces and trim under performing workers is particularly great during economic recessions when unemployment is highest.  Often, during economic downturns, public sector and private sector firms simply do not have the funds needed to make payroll every month.

Likewise, there are very legitimate reasons why, particularly during recessions, a particular firm has no economically viable opportunities to hire new employees to carry out its existing line of business, so that they are not wasting or misusing human capital either.

Thus, unemployment can create wasteful losses to household that can exist even if firms that are terminating the employment of employees, or failing to hire new employees, are not wasting or misusing human capital at all.

Instead, unemployment is not fundamentally a problem of too few jobs, or of too many workers.  It is fundamentally a failure of entrepreneurship and the new business forming sector in general.  Unemployment happens when nobody can find anything economically worthwhile to do at any legally permissible rate of compensation with available unemployed human capital resources.

Put another way, the firms that are mostly at fault for wasting and misusing human capital in recessions are not the firms that exist, but those that don't exist but should.  Unemployment represents massive opportunity costs that existing firms, by almost definition*, have collectively forfeited.

* Some workers may have negative marginal productivity net of minimum legally permissible compensation rates in every public and private sector firm and every use that could be imagined but is not undertaken by any firm.  For example, if technological change causes many formerly economically productive people to have negative marginal productivity, or if age or disability causes a person who once might have been productive in some capacity to have negative productivity, then unemployment to that extent (together with a minimal necessary job transition employment) is rational and not an opportunity cost.  Estimates of the proportion of the unemployed who are in fact unemployable by any economically rational firm vary considerably and are controversial and tend to flow from political predisposition as much as facts.

Human Capital Rot

In addition to household economic scarcity, economic data support another cost of unemployment that impacts not just the household of the affected worker, but also the productivity of the economy as a whole, even if all potential employment situations where a new employee would have zero marginal productivity net of compensation at a free market determined compensation rate (ZMP) or more are filled.

This is the finding that long term unemployment reduces the economic value and productivity of an unemployed worker on at least a short to medium term basis, and perhaps even on a long term, lifetime future earnings basis.  Employee productivity is a perishable asset that rots if it isn't used regularly.  Very little current U.S. unemployment policy addresses this well documented phenomena.

The Case For A Right To A Job, Government Created If Necessary

Because productivity rot is real, ideally, unemployment policy should provide not just economic support to unemployed workers, but also interim employment, even if it wouldn't make economic sense for a private, for profit firm. Addressing unemployment by artificially creating jobs for anyone who wants to work and is unemployed, at a minimum legal rate of compensation or the amount that would otherwise be paid as unemployment compensation, without regard to the profitability of this employment, can make sense as an economic policy.  If someone is tasked with simply brokering or directly assigning these make work employees with the most valuable task that they can locate for them to do on any given day given their skills, then existing human capital waste which is a dead loss productivity loss to society is avoided, and economic productivity rot from having people out of the workforce for long periods of time is likewise avoided.

A make work social welfare program like this may very well (and indeed should be if the economy is functioning well) a net public expenditure.  But, this kind of program mitigates the welfare program expense and minimizes waste and human capital rot to the greatest extent possible in a way that is not just a handout and leaves recipients with dignity.  Also, because participants must show up and work in order to receive the compensation under the plan, like any other job, opportunities for fraud present in an application and mailed benefit check program paradigm are avoided.

Unemployment Benefits and Working Class Family Stability

Our existing unemployment system, which provides benefits only to the most "morally worthy" of the unemployed (those who are unemployed solely due to layoffs which are no fault of their own for less than six months), and provides benefits that are stingy and bureaucratically a nightmare to administer also greatly undermine the stability of low income less educated couples.

If unemployment benefits are not generous and robust, a male worker who experiences fairly regular episodes of unemployment is at great risk of seeing his marriage collapse even time this happens, because one of the most powerful predictors of divorce is that the husband makes less money than the wife, which often happens when a man is unemployed for a sustained period of time.  So these men tend to have unstable marriages which is bad for the couple and bad for their children.

But, if generous and robust unemployment benefits or access as a matter of right to some job can prevent able bodied work force participants from periodically becoming economically worthless, they are more likely to be able to sustain their marriages at rates similar to those of college educated men who have far, far lower rates of long term unemployment - something that is good for both the couples and their children.

In contrast, welfare programs that are not tied to employment history, or specifically require that absence of two able bodied adults in a family to qualify, weaken couples and make it less likely that their children are raised by both parents.

Childhood parenting instability for working class families very likely is an important factor impairing human capital development in these families leading to greater inequality and lower aggregate productivity.

Unemployment Benefits And Incentives To Seek Work Or Work Well At A Current Job

Of course, if unemployment benefits are too generous or robust, the incentive of workers to perform on the job in a manner that allows them to keep their jobs declines, and the incentive to look for new jobs declines.  But, the amount and duration of U.S. unemployment benefits, and the difficulties involved in qualifying for them are so minimal that this isn't a problem here as it is in places like Europe where unemployment benefits are far more generous.

Indeed, in the U.S., the opposite problem may be present.  Undue pressure to find replacement employment in the U.S. due to weak savings and stingy unemployment benefits may cause unemployed people to take jobs that are suboptimal in the long run if short term liquidity weren't such a problem.  The magnitude of this cost is hard to measure.

Footnote on Japan and lifetime employment

In Japan, many of the social welfare roles of the state exist, but are performed by Prussian style big businesses that aim to provide "lifetime employment" for much of its workforce, and a variety of other consumer needs, even employer housing, directly and in kind to workers.

Essentially, Japan has tried to deal with the failure of entrepreneurship problem in their economy by internalizing it to large firms that have to lay off employees from their declining lines of business - pressuring them to find alternative lines of business or opportunities for those employees instead.

In the absence of government make work programs, the U.S. has no firms anywhere in its economy that are specifically identified as being responsible for creating new jobs, even on a temporary mitigation basis during economic downturns.

Parent To Child Transmission of Fear Stimuli Documented In Mice

Until recently, we thought that experiences of a parent during life were transmitted to their children solely through child rearing.  The pure germ line inheritance of a parent to a child remained unchanged except for genetic mutations in sperm or egg cells relative to the parent's genome.  Natural selection could favor individuals with a particular fitness enhancing mutation's likelihood of having fertile offspring, but experiences during the life of the individual (other than infections with germ line retroviruses that change that individual's DNA during its life) were not passed along merely through germ cells.

Usually, that model is correct and the preceding model in which environmental effects on an individual cause it to adapt and pass on those adaptions to children via the germ cells rather than child rearing is incorrect.

But, we have now learned that epigenetic signals which control the activation of different parts of our genome, can be passed down to future generations via germ cells like sperm without any child rearing transmission of those effects.

This was recently demonstrated in a mouse model where a fear target was generated during the life of a mouse and then transmitted purely via sperm cells to children and grandchildren of the mouse.

Mouse parents learned to associate the scent of orange blossoms with a shock. Their children and their grandchildren startled in response to the scent — a sign of fear — even though they had never smelled it before. Offspring also had more neurons that detect the orange blossom scent than mice whose parents weren’t exposed to the scent. Sperm cells alone can deliver this fear message, study authors Brian Dias and Kerry Ressler of Emory University found. DNA in the sperm cells was imprinted with this fearful association: A gene that codes for the molecule that detects the orange blossom odor carried a chemical stamp that may have changed its behavior.

Epigenetics opens up a pathway for hereditary effects not present in the genome itself to be passed on (partially explaining the "missing heredity problem"), can help explain evolutionary adaptations that take place to rapidly to be due to mutation and selection mechanisms alone, and open the door to a whole new class of medicinal treatments, since tweaking someone's epigenome is often far easier than gene therapy that changes genes themselves.  Epigenetics gives new life and potential scientific validity to concepts once considered purely pseudo-scientific like "ancestral memory."

For example, experiences of trauma and abuse, particularly in childhood, can leave epigenetic signals and negative symptoms that therapy acting on the epigenome could undo. Similarly, substance abuse can impact the epigenome and epigenetic treatment might permit addicts to undo the physical manifestations of their physical addiction and prevent their descendants from being born with an epigenome preset for rapid addiction to the substances favored by the addicted parent.  As these examples illustrate, the focus so far in epigenetics has been on the impact that epigenetics may have in the mental health area.

We don't really know much about what kind of lifetime experiences in an individual leave epigenetic traces, how the epigenome can be manipulated, or what portion of hereditary effects observed in humans and other animals are epigenetic or genetic, respectively.  Also, while epigenetic effects can last a couple of generations, they don't appear to persist indefinitely in the absence of reinforcing stimuli in the descendant individuals.

But, the existence of both genetic and epigenetic hereditary factors also further supports the emerging results from twin studies and other studies of heredity that show that child rearing practices of parents have less of an impact on the abilities and personalities of children that conventional wisdom would have us believe - something that can reassure parents anxious about how their own failings as parents might screw up their children, and discouraging for parents who are convinced that exemplary parenting is key to their children's success when really their efforts may have only a marginal impact.

From Science News discussing the paper: B.G. Dias and K.J. Ressler. Parental olfactory experience influences behavior and neural structure in subsequent generations. Nature Neuroscience. Published online December 1, 2013. doi: 10.1038/nn.3594.

Rodents Show Path To Possible New Class Of Painkillers

The Arizona Tree Bark Scorpion has a venom that works on the principle of pure pain.  Unlike, for example, the venom of a brown recluse spider, this scorpion's venom doesn't actually do much damage to tissue or biological processes necessary to survival.  Instead, a protein in the venom opens what is called a sodium channel that activates a pain signal in the nervous system and causes it to cascade across pain receptors all along the bite area.  The venom is also notable because it has a particularly strong effect in mammals of all kinds, including humans.  While the dosage of this tiny scorpion is merely a vicious sting in an adult, it can kill small children.

A carnivorous mouse species in Arizona called a grasshopper mouse that eats these scorpions and other arthropods has a defense to this venom.  It has a protein that reverses the signal that the protein in the scorpion venom usually triggers.  In these mice, the scorpion venom interacting with the mouse protein closes the sodium channel and effective shuts off all pain receptors in the area affected by the venom.

Once the venom has shut down the pain receptors in the affected area, the mouse in numb to all sources of pain in the affected area, even those unrelated to the venom.

The African naked mole rat, which lives in a highly acidic environment, has a similar biochemical mechanism in its body that shuts down the pain receptor sodium channel that would normally be triggered by its environment.

The unstated implication of these discoveries is that if one could replicate protein combinations that shut down the sodium channel to pain receptor activation in the Arizona grasshopper mouse and African naked mole rat, that one could create a new class of local anesthetic pain killers that utilize this biochemical pathway.  Since we have real world examples of the proteins that block these channels, in principle, it ought to be possible to either harvest it from mice or rats bred for that purpose, or to synthetically generate it, with a minimum of trial and error.  Indeed scientists have been able to reconstruct Nav 1.8 (the protective protein in Arizona grasshopper mice) in the lab.

My source was Science News (print copy) but National Geographic also covers the story (albeit less lucidly). Ultimate source: Rowe, Xiao, Rowe, Cummins & Zakon. 2013. Voltage-Gated Sodium Channel in Grasshopper Mice Defends Against Bark Scorpion Toxin. Science http://dx.doi.org/10.1126/science.1236451

Georgia Courts Still Confused About Outcome Of Civil War

DECATUR, Ga. -- A new online juror questionnaire offered by the DeKalb County Court listed "slave" as an occupational option. Court Administrator Cathy McCumber told 11Alive, the questionnaire went online a month ago, but is based off an internal list that's been used for 13 years. She says the list is 62 pages long, so she's not sure if the word slave has always been on it, or if it was added before the questionnaire went online. 11Alive and the court learned about the problem Monday morning, after a potential juror filling out the form hit the letter "s" for sales. He says he got "slave" instead. . . . The company that designed the software says the drop down menus in the survey are inputted by the user. . . . Until a month ago, jurors had to fill out the questionnaire by hand and mail it in to the courthouse.

From here.

The "slave" option was removed within an hour of being discovered and brought to the Court's attention. My suspicion is that it was a bad joke inserted by data entry employees assisting in the transition who felt they were mistreated and were describing themselves.

Spanking Is Counterproductive In Long Run

No matter where they live in the world, university students who were spanked as children are more likely to engage in criminal behavior, according to new research by Murray Straus, co-director of University of New Hampshire Family Research Lab. Even young adults whose parents were generally loving and helpful as they were growing up showed higher rates of criminal behavior.

From here. 

The purpose of spanking is to teach children to behave when they get older.  But, it doesn't work.

The Few, The Dirty

90 companies on the list of top emitters produced 63 percent of the cumulative global emissions of industrial carbon dioxide and methane between 1751 to 2010, amounting to about 914 gigatons of CO2 emissions. Aside from seven cement manufacturers, the rest of the emitters were energy companies producing oil, gas, and coal.

From here reporting on a report of the Colorado based Climate Accountability Institute.

Nuclear Option Finally Invoked

Democrats in the U.S. Senate have invoked the "nuclear option" by changing the rules to require a mere majority, instead of 60 votes, to proceed with debate on executive branch appointees other than U.S. Supreme Court justices, without obtaining the usually required two-thirds majority vote necessary to change Senate rules.  "The vote to change the rule passed 52 to 48. Three Democrats — Sens. Carl Levin (Mich.), Joe Manchin III (W.Va.) and Mark Pryor (Ark.) — joined 45 Republicans in opposing the measure."

Other obscure Senate rules that can be used to block nominations were also swept away.

The U.S. House of Representatives adopts new rules from scratch every two years by majority vote and does not require super-majorities for legislative action.

But, the filibuster has been interpreted since the Civil Rights era to require sixty vote supermajorities to pass almost all kinds of legislation and all nominations in the U.S. Senate with filibusters and related arcane rules. In recent years, Republicans have increasingly used these powers to thwart Democratic Party majorities in the U.S. Senate.

Historically, the U.S. Senate has considered itself a "continuous body" since only one-third of its members face election every two years, and hence there has never been a clean slate point at which new Senate rules can be adopted by majority vote as they are in the U.S. House.

But, the illegitimacy of Republican's routine use of the tactic to block nominees ultimately came to appear worse than hoary old Senate traditions.  The change, which amounts to a virtual amendment of the constitution, has provoked surprisingly little outrage, even among Republicans, who warn that turnabout is fair play, rather than crying bloody murder.

Denver Post Motto: Inferior Product, Superior Profit

The Denver Post, now under new managerial leadership, has continued its policy of reducing product quality in pursuit of higher profits.

For example, today, it consolidated its ever thinner three sections into two sections.  It has shrunk its comics section several times in the last couple of years.  And, in about two weeks it is putting its website behind a pay wall.

Since it put the Rocky Mountain News, its primary competition, out of business, the Denver Post has also increased subscription rates, fired much of its reporting and op-ed staff, deemphasized national and world news, deemphasized out of metro Denver news, and ended the practice of replacing ruined or undelivered papers.

Apparently, someone thinks this is the secret to success, although I can't imagine why.

Secular Parenting Is Simple

Crazy Religious People Coddled By Cops In Stockton, CA

Prosecutors say they will not file charges against a father and son arrested on suspicion of kidnapping the father's ex-wife in Northern California to perform an exorcism. 

San Joaquin County Deputy District Attorney Robert Himelblau told The Record of Stockton on Thursday that 42-year-old Jose Magana-Farias and 20-year-old Victor Farias would not be charged. He declined to say why. The father and son were accused of kidnapping 41-year-old Blanca Farias from Stockton on Saturday. They were arrested on suspicion of kidnapping, false imprisonment and conspiracy to commit a crime. 

Blanca Farias told News10 in Sacramento they told her she had devils inside her and took her to a church, where they bathed her in oil and made her drink it.

From here.

What the hell were prosecutors thinking? And, why won't they tell the public?

Two priests were also involved in the exorcism attempt and are not facing charged.  The woman was tricked into entering the car under the guise of a couple's counseling meeting for the one year divorced couple.  The father may have been in the country illegally as he was detained by the U.S. Border Patrol. Additional context here.  Another source states: "Cops were tipped off about the amateur religious activity by the victim's roommate."

You Think You Have Legal Bills?

Starbucks Corp. (SBUX) said it would pay Mondelez International Inc. (MDLZ) $2.79 billion to settle a dispute over distribution in the coffee-shop chain’s bagged-coffee unit, as grocery-store sales become a growing part of the business. The payment, ordered by an arbitrator [in Chicago, Illinois on November 12, 2013], consists of $2.23 billion in damages and $557 million in interest and attorneys’ fees, Seattle-based Starbucks said today in a filing. The company said it has adequate cash and borrowing capacity to fund the payment and will book it as a charge to its fiscal 2013 operating expenses.  The ruling settles a dispute that began in 2010, when Starbucks offered $750 million to end an agreement through which Mondelez, then known as Kraft Foods Inc., distributed its coffee to food retailers. Kraft rejected the offer. Starbucks sought to wrest control of its packaged coffee business as revenue grew[.] 

. . .Kraft sought compensation for the “fair market value” of the business plus possibly a premium of as much as 35 percent of that value. Since they started working together, Starbucks’s retail-grocery coffee business grew to $500 million in annual revenue from $50 million, Kraft said in November 2010.

From Bloomberg.

If you had any illusions that the cost of litigating an arbitration was cheaper or faster than litigating an ordinary court case, allow this lawsuit to disabuse you of the belief.  The matter took three years to resolve from initial filing of the arbitration proceeding to final ruling (even without the possibility of an appeal), and there is every reason to believe that the legal fees in the case will be immense.

One hopes that most of the $557 million is interest rather than attorneys fees (8% for three years is about 25% which is pretty close to the total), because honestly, for a lawsuit that hinges on a breach of a single two party contract by one of the parties, where it is largely acknowledged that some compensation is must be paid by the breaching party to the non-breaching party and the main issue is how much is owed, I have an incredibly hard time fathoming how you could run up hundreds of millions of dollars in attorneys' fees.

This case is also a striking illustration of the fact that while some personal injury cases produce big dollar awards, that the really huge dollar lawsuits are mostly commercial cases involving medium and large sized businesses.

UPDATE:  It turns out, according to the press release from Kraft's lawyer, that all of the $557 million is interest and that attorneys' fees will be determined at a later date.  The press release also adds this detail: 

Starbucks unilaterally terminated its agreement in November 2010 before its 2014 expiration, cutting off Kraft’s exclusive rights to sell, market and distribute Starbucks roast and ground coffee in grocery and other retail outlets. Kraft immediately initiated arbitration proceedings to challenge the contract’s improper termination.

Background on the counsel involved can be found here.  The award will be subject to approximately 37% of federal and state and local taxes, with the balance used to repurchase common stock.

It is very hard to understand how three and a half-years of lost profits on a business that was grossing $500 million at the time of termination, could have been worth $2.23 billion, even with a 35% premium.  Wholesale grocery markups just aren't that big.  Another report from March of 2013 notes that: 

The two sides are rather far apart, with Kraft calculating the debt at $2.9 billion, plus attorney fees. (Why do we think the attorney fees will trump that debt figure?) Starbucks said the amount is actually $62.9 million.

Thus, the ruling was a near total victory for Kraft, with the arbitrator adopting their damages theory lock, stock and barrel.  Starbucks would almost certainly have appealed this ruling had it been in a state court and would have very likely secured a major reduction in the award in the process, either via a settlement or a court ruling.