Turkey Poety

A wonderful Thanksgiving poem can be found here.

Mile High Times Have Changed

You know that you have won the cultural battle, if not the entire war on drugs, when a blog promoted by the Denver Post, the leading daily newspaper in Colorado, is offering a video recipe at its website, on how to make marijuana infused pumpkin pie for Thanksgiving.

Some of the families enjoying their Thanksgiving dinners will be same sex couples married this fall, for the first time it has been legally possible to do so, under Colorado law.  Numerous leading politicians in recent Colorado history, including one of our seven sitting Congressmen, are openly gay.

Neither gay rights nor marijuana legalization turned out to be important issues in the 2014 election in the end, and Coloradans once again overwhelmingly defeated an anti-abortion ballot issue, just as it had several times in past elections, despite the fact that they voted a U.S. Senate candidate who had strongly supported similar measures in the past.

Yet, despite these liberal social issues stances that would have been unthinkable when I graduated from high school, it is also worth noting that Colorado, overall, is not a particularly liberal state in terms of partisan politics.  Instead, Colorado is the quintessential purple state right now.

Colorado was the swing state in the 2012 Presidential election that put President Obama in office by a narrow margin.

This year, Colorado simultaneously elected Republicans to statewide office as U.S. Senator, Secretary of State, State Treasurer and Colorado Attorney General, and gave Republicans narrow control of the state senate and state congressional delegation, while re-electing a popular Democratic governor and giving Democrats narrow control of the state house.  Six statewide partisan election measurements went to the GOP, while two went to the Democrats.

All were reasonably close.  Fewer than 900 votes in one Adams County State Senate District decided control of the State Senate in an election where roughly 2,000,000 votes were cast statewide.  With the higher turnout of a Presidential election year, some of those eight statewide partisan tests might have gone the other way.

Crash Blossom of the Day

"Pedestrian hit by car found lying in the street."

What a poetic way to describe parking.

Behind The Scenes Epic Battles For The Future Of Music

About a month ago, Pandora dropped its lyrics service within its music streaming service without publicly acknowledging the change anywhere except a backhanded update to a seven year old post on one of its blogs.

There has also been a fierce and largely unreported fight as Pandora has struck a deal with an outfit called MERLIN that licenses music from many independent music labels at a rate about half as rich as what major labels are paid under a Copyright Royalty Tribunal ruling.

While most forms of intellectual property licenses are governed purely by contractual agreements, the "little rights" in music (i.e. the right to play and cover music in formats like radio as opposed to the "big rights" to have music used in movies and TV shows) can be used unilaterally by radio stations and certain other radio station like entities like Pandora that stream music, if exchange for a royalty determined not be negotiation, but by the Copyright Royalty Tribunal, in what amounts to a legally authorized efficient breach of contract not allowed in other parts of copyright law.  (Efficient breach is when you intentionally breach a contract and pay damages because that is cheaper than performing the contract.)

The MERLIN deal is controversial because it involves "payola", i.e. playing a song more often for a monetary inducement, something that was banned in the radio world decades ago because it was considered a form of corruption in the music marketplace.

But, the MERLIN deal is also an effort to renegotiate the Copyright Royalty Tribunal rates for non-independent label music which is much more expensive, on the grounds that the MERLIN deal is a bona fide arms length deal between a willing seller and willing buyer that is a reference point for setting royalties when they are determined by the tribunal rather than negotiated.

There are other elements of the epic behind the scene battles.  Aereo, a company that tried to create free streaming of broadcast television was batted down in a U.S. Supreme Court fight, leading to its bankruptcy this week, but while Aereo lost the battle, it may have won the war, with the FCC formulating new rules to allow essentially the same services under an FCC regulatory framework with a Copyright Royalty Tribunal model.

The tribunal and related legislation drive the economics of all sorts of streaming media, satellite TV, cable TV, broadcast TV and essentially the entire electronic media world.

Maddeningly, however, in a world well companies like Pandora will only grudgingly and backhandedly acknowledge a sea change in their policies and won't publicly explain exactly why they did it, it is very hard to know what is going on in this demi-monde of media economics and law.

This is not the first time things like this have happened.  For example, a flourishing online world of fans who translated Japanese and Korean manga into English on a volunteer basis, largely in the absence of a commercially available alternative since the works were not being translated by the copyright owners, vanished, almost overnight a few years ago, without so much as a newspaper story in a mainstream American newspaper in a coordinated legal effort by manga publisher's lawyers.

Outside the area of media, the most similar case involves the reformulation of dishwashing soap for environmental reasons in an unannounced change that impacted hundreds of millions of people in their daily lives without their knowledge.

Efforts to make movies available online have been rather more resilient, and have been hurt more by legal alternatives like Netflix and Hulu and Amazon Prime, than by legal action, despite relentless efforts to shut down these operations.

Engineering New Faiths

Suppose that you take it as an axiom that substantial portions of both the Christian religion and the Islamic religion are profoundly negative forces in the world that greatly detract from the well being of humanity.

Suppose that you further acknowledge that a tendency to be religious is a natural personality trait.  Some people may have it to a greater degree, and some to a lesser degree, but this tendency is inherently a part of human nature for a great many people, in some people to a great degree.

Thus, it may be impossible to have a human world that is truly secular.

Contrawise, it may also be impossible to have a human world that is full of truly devote people.  The Hebrew Bible is to a great extent a chronicle of Pyrrhic efforts to accomplish this that failed over and over and over again despite the best efforts of its rulers, priests and prophets.

Of course, even if a tendency to be religious is part of human nature, the way that this tendency manifests and plays out is almost purely cultural.  No one is born Christian or Muslim or Buddhist.  Someone with a natural tendency to be religious will manifest that in the shape of whatever religious beliefs they are exposed to in their lives.  And, even during someone's life, a person's religious worldview through which that person expresses their tendency to be religious can change.

It is not self-evident what must be part of a belief system for it to feed into and satisfy the tendency of some people to be religious.  Must it be metaphysical?  Must it be unknowable?  Must it involve a metaphysical realm that acts with moral purpose in our world?  Must it involve an afterlife?  Must it provide a way to deal with grief and injustice in the world?  Must it merely provide a moral code?  Are rituals and life scripts the key elements of what naturally religious people need?

At any rate, if the human world cannot be truly secular because Nature abhors a religious vacuum, then the alternative to the harm caused by the religions that we do have, would be to devise one or more new religions that are less harmful and find a way to get people to convert en mass to them.

This is not unprecedented.  Mass religious conversions of whole populations that virtually wipe out the religions that came before them a living faiths have been documented many times within the span of the historically attested past.  It hasn't happened particularly frequently, but it has definitely happened.

Conventional wisdom is that this has been driven by sincere true believers in an organic fashion.  But, if one really understands the process, and there is not actually any metaphysical world out there, so that no religion can actually be true, shouldn't it be possible to intentionally create a religion for this very purpose?  Issac Asmiov's Foundation series poses just such a scenario.

If one could do it, and the status quo is as bad as is assumed axiomatically for the purposes of this post, isn't this not just possible, but morally obligatory to do so?

Federal Judicial Nominations From 1789-1861

A new law review article comprehensively reviews the historical record of federal judicial nominations under the existing constitution of the United States which took effect in 1789 prior to President Lincoln taking office.

The process is essentially unchanged from modern practice, with the exception that in the early Republic judge's not infrequently declined to accept their appointments once the Senate approved their nominations.

Song of the Day

I heard the striking song "Shatter Me" by Lindsey Stirling (violin) & Lzzy Hale (vocals) (of the band "Halestorm") on the radio yesterday. I hadn't heard the song announced, but had heard Stirling on Pandora before and recognized her unmistakable violin style.

I'd figured it was a Disney movie song, but turned out to be wrong about that.   I've since learned that Hale is a 2014 "America's Got Talent" reality TV show contestant and that Stirling was a previous contestant on the show. The song is apparently the title track of Sterling's new album.

 An RWBY anime video (RWBY is a web based distribution anime series) featuring the song is here.

In other news, feminism apparent leads to witchcraft and the destruction of capitalism.

George Washington High School's IB Program Excels At Sending Low Income Students To Top Colleges

The Denver Public Schools is largely dismantling in the first two year (critically undermining its last two years) of its IB program, because of concerns about disparities between low income students who make up a larger share of George Washington High Schools non-IB program and more affluent ones who make up a majority of George Washington High School's IB program.

It is ironic, in light of this news, that this very program is actually more effective in sending low income students to top colleges in absolute terms than any other program in the state, and, it sends a very high percentage of low income student to top colleges relative to the percentage of affluent students who do so.

While the fact that the IB program at GW has successful graduates certainly owes a great deal to the fact that it selects only the most academically able students; academically talented low income students at other high school programs are much less likely to go on to top colleges at the vast majority of other programs in the state and in the Denver Public Schools, than similarly talented low income students in the GW IB program.

For example, low income students in GW's IB program are more likely to enroll at top colleges (44%) than more affluent students at Boulder High School (32%), the Denver School of Science and Technology (25%), or Denver's East High School (18%).  (More affluent students at GW's IB program are the most likely to attend top colleges (65%) than any of the other programs evaluated.)

This high level of success may have as much to do with the fact that the students in this program (which my daughter attends) are a tight knit group that reinforce each other's common educational goals and aspirations, as it does with the content of the coursework.

The Denver Public School district would be well advised to abandon its misguided efforts to overhaul this very successful program and to instead focusing on improving the programs in the district that are broken.

Transit And Population Density

One of the keys to making public transit work is population density.  It is widely used and popular in densely populated places, and is little uses in places with low population densities.

This is largely a function of technology and economics.  Transit systems generally have costs that are only moderately sensitive to ridership, so higher density spreads cost per trip over more people and makes the price of transit lower.

Two good blog posts on the subject are here and here.

The first looks at U.S. transit use by metropolitan area with interactive charts.

The second make international comparison and also introduces the concept of weighted density, which considers the disproportionate impact of densely populated areas within a metropolitan area, and employment density, which considers the impact of employment centers like downtowns and office parks in areas where residential populations are more dispersed.

How Many Record Breaking Climate Days Are Normal In Denver?

Denver's climate records extend from 1872 to the present.  This is a 142 year span.

Suppose that the probability of different weather outcomes doesn't change at all from year to year in Denver.  Then, the chance that the record for any given day of the year was set in a particular year is 1/142.  This means that the expected average number of record days per year in Denver is just a bit over 2.57 per year.  The standard deviation (of this binomal distribution) is 1.60 per year.

Thus, in about 68% of years, 1-4 records are set for a given measurement, and 0-6 records are set in 30 out of 31 years (6 records is a 2.14 sigma event).  A year with 8 or more new records would be a 3.4 sigma event that would happen only once every 1,667 years.

This simple analysis does not so easily apply to multiple measurements since the high and low, and precipitation in a given day, are not independent of each other.

The Race Of African Immigrants To The U.S.

In 2009, 74.4 percent of the African-born population reported their race as Black, either alone or in combination with another race. African immigrants identified as Black at a much higher rate than the native born (14.0 percent) and the foreign born overall (8.6 percent), and accounted for 33.3 percent of all foreign-born Blacks and 2.7 percent the total Black population in the United States. 

Racial self-identification varied widely by African country of origin. For example, nearly all immigrants from Ghana (99.7 percent), Somalia (99.3 percent), Cameroon (98.8 percent), Nigeria (98.7 percent), and Ethiopia (98.2 percent) reported their race as Black, either alone or in combination with another race, compared to 4.6 percent of Algerians, 5.6 percent of Egyptians, 8.1 percent of Moroccans, 13.8 percent of South Africans, 56.7 percent of Tanzanians, and 65.7 percent of Cape Verdeans. 

From a quote contained in a comment at this this blog post

Coldest November 12 Ever In Denver

In Denver today, the high temperature was 6 degrees Fahrenheit and the low was about -14 degrees, breaking the 9 degree record set in 1916 (and a record of -4 degrees set in 1882). Schools were open anyway after the previous four day weekend, although tardy students were mostly excused since many school buses were late.

My own heater was broken though the cold snap until this morning when it was finally repaired and heat was restored. [UPDATE: Actually, still broken.]

Executed Like A Military Operation (Really)

I just moved house this week. (Had to. Lease unexpectedly terminated.) And colleagues and friends keep asking me how it went. I've decided on the right thing to say: "It was all executed like a military operation."

The familiar simile (almost an idiom) always seems to be used with favorable connotations of tight organization and swift, flawless execution. But I'm assuming people who have been reading the newspapers over the past twenty years know what military operations are really like.

Chaos and mayhem, quite unlike anything the prior planning had envisaged; enormous expense and economic damage; vast deployments of equipment; a huge cost in wasted human life; and in the aftermath, a wrecked environment necessitating a massive cleanup and recovery operation.

That's roughly what moving house during a teaching semester felt like.

- From a post by Geoffrey K. Pullum at Language Log.

Gypsies and Palestinians in Egypt

Looking at an old post at this blog I came across a point that deserved recalling. The post was on modern Egyptian ethnic and linguistic demographics. It noted that:

In addition to these linguistic minorities there are communities of Abazas, Turks, and Dom (Gypsies). . . . Estimates of the Dom population range from tens of thousands to a million, an estimate complicated by the apparently common practice of Dom publicly identifying as Palestinian to avoid discrimination.

When self-identifying yourself as Palestinian moves you up the social hierarchy and reduces the discrimination that you face, you know you are in a pretty bad place.

The term "Gypsy", of course, has an origin with the historically inaccurate claim that these people have origins in Egypt (rather than the historically accurate South Asia via Romania), something that visual appearance doesn't immediately rule out as strongly as any other possible ethnicity in the general vicinity of Europe, particularly if one is unfamiliar with the appearance of South Asians themselves.

About 9% of Egyptians are part of some ethnic or linguistic minority.  The 91% majority is made up of speakers of two dialects of Arabic that are about as similar as Spanish and Portuguese, one in Upper Egypt (generally in the South of the Nile Valley) and the other in Lower Egypt (generally in the North of the Nile Valley).

Is Throwing Back Undersized Fish Spolation Of Evidence?

On Wednesday, November 5, 2014, at 10:00 a.m., the U.S. Supreme Court will hear oral argument in a criminal case, Yates v. United States. 

The Court will decide whether to overturn the conviction, under the Sarbanes-Oxley Act, of John Yates, a commercial fisherman who allegedly directed his crew to throw undersized fish back into the sea after receiving a regulatory citation for catching them. 

Washington Legal Foundation filed a brief in the case urging reversal of Yates’s conviction, arguing that the broadly worded statute failed to provide Yates with requisite “fair warning” of what conduct would run afoul of the law. WLF Senior Litigation Counsel Cory Andrews, who authored WLF’s brief, will be available following oral argument to discuss the case and assess whether the justices’ questioning suggested any particular outcome. 

The case raises important questions about the permissible scope of the Sarbanes-Oxley Act, a law passed in 2002 to restore integrity to and faith in public companies’ disclosure and accounting practices in the wake of corporate scandals at Enron and WorldCom. Yates was convicted for violating the Act’s so-called anti-shredding provision, 18 U.S.C. § 1519, which makes it a crime to destroy or cover up “any record, document, or tangible object” with the intent to obstruct an investigation. 

Treating fish as “tangible object[s],” federal prosecutors indicted Yates under § 1519. The U.S. Court of Appeals for the Eleventh Circuit affirmed his conviction. 

Ahead of oral argument, WLF issued this statement by Senior Litigation Counsel Cory Andrews: “Overcriminalization occurs when vague, ambiguous language in a criminal statute deprives citizens of the appropriate ‘fair warning’ needed to comply with the law. The Eleventh Circuit’s overbroad interpretation of the Sarbanes-Oxley Act’s ‘anti-shredding’ provision would radically transform that law into a trap for the unwary. It takes the investigation of a civil offense (catching fish that were too small) and converts it into a criminal matter without notice and for no good reason.”

From the Washington Legal Foundation via Professor Bainbridge.

The statute states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

I have to say that using law designed to prevent securities fraud to criminally prosecute improper fishing practices that would otherwise be subject to a civil fine does seem excessive, and the extremely conservative 11th Circuit's take on the issue seems inappropriately crabbed.

Notably, the law enforcement officer boarded the ship, measured the fish, and found 72 were too small.  Then, when the ship landed, only 69 were found to be too small and the difference between the two measurements is the evidence for a charge brought three years after the citation, that the small fish were thrown overboard (not a very impressive effort, given that more than 95% of the small fish were not destroyed).  The legal size is 20 inches measured in a very technically precise way.  The first measurement allegedly found a few fish as small as 18 inches.  The second found fish as small as 19 inches.

He was sentenced to 30 days in prison and three years of supervised release, and argued at trial in addition to this argument, that the discrepancy was due to a measurement error in the first set of measurements by the fishing officer.  The felony conviction also has many collateral consequences, such as prohibiting him from voting in Florida.

A discovery sanction judicially imposing an adverse inference that the small fish were caught in the civil fine action would have been more than sufficient to address the issue and would have been the normal course of action in a situation like this one.  Indeed, the criminal trial outcome was also influenced by a quite harsh discovery sanction excluding an expert witness who had been endorsed and qualified by the government the same morning because the defense had inadvertently failed to name that person as a witness.

Also, it isn't as if the fish were thrown out to prevent being caught.  A regulatory citation was issued, and there is no clear indication that there was some sort of clear court order to preserve the small fish as evidence.  Presumably, selling the undersized fish would also be illegal, so there was no economic value apart from the court process in preserving them, and old fish get stinky much more quickly than the court process in regulatory cases moves forward.

The amount of discretion that the statute itself allows for imposition of the penalty is also breathtakingly broad.

Vote Now.

Tomorrow at 7 p.m. is the last day to vote in Colorado.  Colorado is the swing state this year.  Get out and vote if you haven't already.