Schizophrenia Illustrated With Sound

Start with John Cage's 4'33", a piece of music featuring rests for the entire duration of the piece.  Add Autotune.  The result, sporadic, faint noise triggered random sounds that almost seem like music when autotune tries to make sense of it.

This is the prevailing view of the mechanism of the hallucinations of schizophrenia, in which the pruning of neural connections during adolescence to a too thin level forced the brain to extrapolate from a too weak signal with insufficient noise processing and amplifies random noise into seemingly coherent messages using means that normally are used to simply fine tune noisy input.

Irony Strikes

Official NSA and CIA gift shop sweatshirts are made in Pakistan.

Westminster NIMBY Fears About New ER Proved To Be Baseless

Fears that a new free standing ER would bring noise, crime, declining property values and traffic to a tony neighborhood in the suburban Denver town of Westminster have proven to be totally baseless.  But, there is every reason to believe that the economic activity and saved lives that the facility brings to the neighborhood are real.

Kudos to the city for ignoring the Chicken Littles in Westminster who wanted to stop the project.

Smart People Still Godless

An article at Salon.com recaps the main points in support of the argument that smart people tend to be non-religious and that the least religious countries are the nicest ones to live in.

Happy Festivus!

Festivus lives.

Our grievances are many.  Our Festivus pole is bare.  Our feats of strength, pathetic as they may seem, are on display.  Our meal is ordinary.

Nuclear Power v. Coal

One train car full of uranium hold energy equivalent to 3,166,667 train cars of coal (i.e. 100 train cars per day for almost 87 years).

Ilya Somin On Crimes Against and By Police

Often I disagree with Ilya Somin, a libertarian law professor and public intellectual.  But, on the issue of how to think about crimes against and by police, raised by high profile excessive force cases in Ferguson, Missouri and New York City that have spawned protests nationwide, and by the retaliatory assassination of two police in New York City by a man who then committed suicide a few days ago, he is spot on.

Law enforcement is a much less dangerous job than most people perceive it to be, and the existing system does an excellent job of holding people who try to harm law enforcement officers accountable.

The existing system, in contrast, does a poor job of holding bad cops accountable for their actions, which is unjust, which poisons the relationships between the police and the public, and which creates horrible incentives that basically encourage future police misconduct.

What Response Is Appropriate?

It is also notable that this problem is not simply a case of bad apples making a good system look bad.  Small town suburban Missouri and big cities like New York City, Cleveland, and Los Angeles have almost identical problems, for almost identical reasons.  The source of the problem is something common to almost every law enforcement agency in the country (at least to the extent that they deal with economically unequal racially or ethnically mixed populations), and needs to be addressed at the level of governmental institutions and legal frameworks for civil and criminal liability for police misconduct.

Reforming Civil Liability

I have long felt, and won't reiterate in this post at great length, that one key part of the reform process should be an overhaul of civil liability for law enforcement officers and their employers.

The key elements of these reforms should include:

(1) Vicarious liability, not limited by the qualified immunity available to individuals, for the employers of law enforcement officers sued for civil rights violations.

(2) Provide qualified immunity for employers of law enforcement officers from employment law remedies for discipline of civil servants based upon a good faith belief that an employee had used excessive force or otherwise violated someone's civil rights.

These two reforms would give employers of law enforcement officers a much greater incentive to hold their employees accountable, something that they are well positioned to do than the courts.

 (3) Establish a compensatory "takings" remedy that provides compensatory damages to anyone seriously harmed by the criminal justice system in a manner not incident to an ultimate conviction.

For example, a takings remedy might apply, without regard to government fault, if someone was charged with a crime and not convicted for their defense costs, loss of liberty while awaiting trial, bond charges, and other economic losses arising from the charges.  Similarly, anyone incarcerated pursuant to the conviction that was overturned would be entitled to compensation for their loss of liberty without regarding to the wrongfulness of the process that caused that conviction.  And, a takings jurisprudence would provide a compensatory remedy to anyone harmed by the use of force that would not have been justified in hindsight if everyone involved benefited from fully accurate information (e.g. cases where a law enforcement officer shoots and kills someone because the law enforcement officer sincerely believed he had a gun when he didn't actually have a gun).  Damages for loss of liberty from incarceration would be standardized in some way (e.g. $X per day).

This would provide justice in a manner much easier to prove to innocent people harmed by the criminal justice system.

Reforming Criminal Liability

Another useful step may be to create a new crime of excessive use of force causing serious bodily injury or death by a law enforcement officer, that is prosecuted in a manner that procedurally addresses the inherent conflicts of interest in the status quo approach, and that also recognizes that the level of culpability of overzealous or panicked law enforcement officers in these situations if often closer to that of criminally negligent homicide than it is to intentional murder.  In these cases, the standard might be closer to "use of force that a reasonable person under the circumstances would objectively believe to be inappropriate", rather than the usual standard for proof of homicide or assault.  A yet lesser criminal offense, perhaps a misdemeanor, might be established for failure to discipline law enforcement officers under your command for using excessive force as this is really just one more category of corruption.

Procedural reforms might vest enforcement of the crime against local law enforcement officers in a state attorney general's office or the United States Justice Department Civil Rights division, without resort to a grand jury in jurisdictions where that is permissible.  Prosecutors charged with enforcing the crime might also be vested with the authority to insist on lesser civil sanctions such as termination of employment, termination of law enforcement officer employment eligibility, civil fines, suspension without pay pending investigations, and placing local law enforcement agencies that are pervasively troubled in a federal or state receivership.

A criminal remedy for excessive use of force by bad cops that is more consistently applied and moderate in terms of sentence available, would be a better option than a criminal sanction that is theoretically available but almost never imposed.

Fox News Duped By Parody of North Korean Twitter Feed

The parody is run by the folks at Popehat.

Supreme Court Rule 17 and Nebraska and Oklahoma v. Colorado

The U.S. Supreme Court has exclusive jurisdiction over lawsuits between states, and on the surface, Nebraska and Oklahoma v. Colorado, which seeks an injunction related to Colorado's state legalized marijuana industry, would seem to qualify. But, before a Complaint can be filed, a state must ask the U.S. Supreme Court for permission to file it pursuant to Supreme Court Rule 17.

Since the current lawsuit is a far cry from the usual boundary or water rights disputes between states brought in the U.S. Supreme Court's original jurisdiction, all bets are off concerning how this plays out procedurally.

It seems unlikely that the U.S. Supreme Court would refuse to take up a seemingly non-discretionary duty to take up all cases in its original jurisdiction.

But, is there any reason that permission could be denied?

In this context, the Court could treat Supreme Court Rule 17 as the functional equivalent of federal rule of civil procedure 12(b) which provides the grounds for dismissal of lawsuits prior to the filing of a formal answer to a complaint.

I think that there are several, all of which are variations on the theme of lack of subject matter jurisdiction, perhaps for lack of standing, or the closely related concept of justiciability.

1.  The damages that Nebraska and Oklahoma claim to have suffered are predominantly expenses incurred not by the states themselves, but by local government law enforcement officials (and citizens) in those states.  The U.S. Supreme Court could argue, therefore, that the real parties in interest are not the states, whose claims are within the U.S. Supreme Court's original jurisdiction, but the local governments of (and citizens of) those states, who are not states for purposes of 11th Amendment immunity and must sue another state in its own courts, rather than in the federal courts.  Moreover, the State of Colorado would be allowed to invoke its 11th Amendment immunity for lawsuits for torts in its own courts.

2.  Similarly, the U.S. Supreme Court could hold that a state does not have standing to bring claims arising out of discretionary legislative decisions made by a sister state as quasi-nuisance claims, establishing a broad, new standing rule that affects almost no other past cases and would quash similar cases in the future.

3.  Alternately, and more broadly, perhaps states do not have rights to be free from tortious harm except as property owners, parties to contracts, and as expressly created by federal law.  This may implicate none of these interests.

4.  This standing argument would be a close cousin to the more established "political question" doctrine that holds that some issues are reserved to the political branches and may not be resolved by the federal courts.  Thus, this issue might not be justiciable controversy.

5.  In a similar vein, the jurisdiction of the U.S. Supreme Court consists of cases "in law and equity."  But, this dispute might be deemed to be outside the scope of either the law courts, or the equity courts, at common law, and hence to be outside the subject-matter jurisdiction of the U.S. Supreme Court.  England didn't have constitutional federalism at the time that British law was received in the 18th century, and certainly didn't allow one sovereign governmental entity to sue another in the fashion proposed in either the Courts of Law or the Chancery Courts.  The closest equivalent jurisdiction may have been exercised by standing committees of the House of Lords, or the monarch, acting individually or through her Governor's General.

6.  Finally, the U.S. Supreme Court might refuse to consider the complaint because it failed to join necessary interested parties, such as the United States government, since the supremacy of its laws and its exercise of prosecutorial discretion are at issue, or other states bordering Colorado.

Any of these procedural bars might be preferable to the Court to adjudicating this dispute on the merits for the U.S. Supreme Court as an institution, and would also resolve this urgent question much more quickly.

Will International Economic Mayhem Hurt The American Economy?

I've predicted a Great Depression class economic downturn in China, as early as 2015, or as late as 2024.  China's seen a bit of an upturn in its economy as its taken some measures to address the mounting international consensus, but it remains a strong possibility.

Weak oil prices and a Crimea related embargo (but honestly, more the former than the later) have sent the Russian economy into the danger zone with interest rates skyrocketing to 17%, the value of the Ruble collapsing by more than half despite massive interest rate intervention, and sanctions slightly notching up.

The Greek economy apparently remains fragile after its meltdown earlier this year.

Surely, there is a domino or two that I've left unturned.

The U.S. economy seems to be on the mend after six years of good stewardship from President Obama, but how long can that last?  Military re-engagement in Iraq, major foreign economies in trouble, none of that can be good.  Will we fall into a double dip recession just after coming out of the last one?  Or, will the U.S. economy pick up the slack as foreign competitors are no longer able to perform?

Nebraska and Oklahoma v. Colorado

The states of Nebraska and Oklahoma have brought a lawsuit against Colorado in the U.S. Supreme Court, which has original jurisdiction in lawsuits between states, alleging that Colorado has a duty to criminalize recreational marijuana because it is illegal under federal law.  They allege that they are damaged because they have increased law enforcement burdens when trying to enforce their own marijuana laws that arises from legal sales of recreational marijuana to their citizens (who are allowed to buy a quarter ounce at a time).

The notion that Nebraska and Oklahoma have any right to tell Colorado what kind of laws it can pass (something that even the federal government does not claim), is odd indeed.  Their real beef is with the fact that the federal government is not enforcing its own laws, not that Colorado has chosen not to criminalize recreational marijuana.  But, it is perfectly well settled that the President has essentially absolute power to exercise prosecutorial discretion.

Similarly, nobody is compelling Nebraska or Oklahoma to exercise their prosecutorial discretion to aggressively pursue violations of marijuana laws.  They may, but if they do, that is their choice, not Colorado's choice.

The U.S. Supreme Court would be well advised to dismiss this lawsuit in short order with a stern admonition to Nebraska and Oklahoma to quit the political grandstanding and to stop wasting the Court's time with their frivolous whining.  The lawsuit is quite frankly embarrassing to the conservative movement and to the Republican party whose officials are pressing the lawsuit.  It is worth noting, however, that Colorado's Republican attorney general is fighting the lawsuit.

Non-Religious People Hold Moral High Ground On Torture

Religious people often claim that they are more moral than non-religious people.  Faced with a concrete question:

"Do you feel the torture of suspected terrorists can be justified?"

here is the percentage of people who said that it could be often or sometimes justified by religious affiliation in a recent opinion poll:

White evangelical Protestant: 69%
White Catholic: 68%
White non-evangelical Protestant: 63%
Non-whites (not broken down by religion): 51%
Non-religious: 40%

No statistically significant data was available for whites adherents to non-Christian religions such as Jews and Muslims.

In my view, it is the non-religious people who hold the moral high ground here.

Juan Cole on the Pakistani Taliban's School Massacre

Juan Cole provides useful background and context in understanding an incident yesterday in which six or seven Pakistani Taliban militants killed about 145 people mostly older school children and injured more than a hundred more, while burning several teachers alive at a school run by the Army in the Tribal Areas of Pakistan.

In a nutshell, he explains that the Pakistani Taliban are mostly part of a single linguistic and ethic group in the tribal areas of uneducated people allied with the "seminary student" movement in Afghanistan.  They were allied with the Pakistani Intelligence Services for years, but after U.S. encouraged pressure from the top, the Pakistani military has declared war on them in the past few months and killed about 2,000.

Cole describes the school massacre as a futile effort to exact revenge for their losses, that look to them like a betrayal, during this campaign which is taking a great toll on their movement.

The Iron Law of Oligarchy At Work

There were 272 automobile companies in 1909. Through consolidation and failure, three emerged on top, two of which went bankrupt. Spotting a promising trend and a winning investment are two different things.

From here.

I would observe, however, that this is a list of American automobile companies.  There are many "foreign" automobile companies out there selling cars in the U.S. market and maintaining the oligopoly to which markets seem to naturally trend. The Iron Law of Oligarchy is hard at work, however, with more than fifteen different companies selling cars to U.S. customers.  

One of the "Big Three" is now a subsidiary of Italian automaker Fiat, rather than an American automobile company. General Motors went bankrupt and has since reorganized. Ford didn't.  On the other hand, Tesla has come into its own as a new American automobile company.  Also, Harley Davidson is an American company selling motorcycles in the U.S., and General Dynamics manufacturers and sells wheeled military vehicles in the U.S.

Many of them (Hyundai, Honda, Toyota, Nissan, Volkswagen, BMW, Mercedes, Mitsubishi, Mazda, Kia, Subaru and Fiat-Chrysler) have manufacturing operations in the North America and significant numbers of U.S. debt and/or equity investors.

A few more foreign automobile companies sell cars in the U.S. but do not have plants in the U.S. (e.g. Porsche and Rolls-Royce).

An Early New Year's Resolution

This year, the only Black Friday deal we swooped up with a pair of Denver Recreation Center passes.  One for my wife, a long time regular, and one for me, who has never been a big exerciser and cut back further when a back injury a couple of years ago limited my options.

The theory is that I will swim on a regular basis in the New Year, to get some exercise, since the long walks that used to be my mainstay are a no go for now.

Today was a first trial run, so I can "hit the water swimming" when the New Year comes around.  Heading to swim with the snow falling down around me wasn't exactly auspicious.  And, I did learn that I'd need a lock for a gym locker and a comb, in addition to those things I remembered to bring.  But, with any luck, I will still be at it once than January New Year's resolution rush subsides.

Is Inflation A Function Of Standard Of Living?

Tyler Cowen argues convincingly that despite inflation, the consumption utility of $100,000 of nominal dollars per year today is greater than it was 50 years ago (in 1964), but that the standard of living conveyed by $20,000 nominal dollars per year then was much greater than $20,000 nominal dollars per year now.

Thus, the upper middle class has seen deflation, while the middle class has seen inflation.

The main reason for the deflation at higher incomes is that there are many valuable goods and services available today that were not available at any price then.

Two Harsh Unanimous SCOTUS Rulings

The U.S. Supreme Court made two rulings yesterday that were "harsh" in the sense of producing a substantively unfair result on the merits, despite being supported by a solid legal basis in each case that convinced a majority of the court.

* The opinion of Justice Thomas in a wage and hours case, Integrity Staffing Solutions, Inc. v. Busk, involved leased employees at an Amazon.com warehouse who were not paid for time spent while waiting for a exit security check that was a condition of their employment, despite the requirement of the Fair Labor Standards Act that the agreed hourly rate plus any overtime required by the act by paid to workers for time worked.  The Fair Labor Standards Act was amended by the anti-labor Portal-to-Portal Act in the 1940s that defined hours worked narrowly and was interpreted by the Labor Department in regulations issued within a few years of the passage of the new law in an analogous situation to exclude this time from the employer's duty to compensate.

The result is harsh, because the law is allowing an employer not to pay employees for time that they are required to be at work for the convenience of the employer, but the statute, rather than the interpretation of it, is the real problem, therefore a unanimous court rules against the workers.

* The opinion of Justice Sotomayor in Warger v. Shauers involved a federal civil jury trial of a car accident case in which a juror lied in the jury selection process and this lead to a bad result for the person injured in a car accident. The only evidence presented of the lie, however, was a hearsay statement about what she said during jury deliberations, rather than independent evidence that she had lied. A federal rule of civil procedure prohibits this kind of evidence from being considered by a court in the interest of protecting jurors from post-trial investigations by disappointed parties after jury trials, and she found that no exception applied. So, even though there was clear evidence that the juror lied and harmed the person injured in the automobile accident as a result, the injured individual was not allowed a remedy based upon this evidence.

Men Treat Women Wearing Heels Better

When it comes to securing the interest and help of strange men, a woman has few tools in her arsenal that have been empirically proven to be more effective than high heels.  Also three and a half inch heels are more effective than two inch heels.

The downside: High heels are unhealthy, increasing the wearer's risk of ankle injury, back pain and calf tendon injuries.

Can Syria or Iraq Ever Be Put Back Together Again?

ISIS has had de facto control of most of what our maps say are Western Syria and Northern Iraq for about six months now.

The military efforts of the respective recognized governments of those states to regain control of their territory have been impotent.  The military forces of the Kurdish regional government's milita have held back its advance, but he main Iraqi military has been nearly useless as have the civil war torn Syrian government's efforts to reclaim their territory.

Even if ISIS can be defeated, it is far from obvious that Syria or Iraq can effectively assert legitimate and accepted authority in these areas or the area controlled by the Kurdish regional government.  Recent reports of indiscriminate killing of civilians and ISIS forces alike by Shi'ite militias entering ISIS controlled Sunni majority areas support a skeptical view.

There are examples of countries losing de facto control of their territory and regaining it after long periods of dispossession, like Columbia.  But, they are rare.

Similarly, the Crimean annexation by Russia appears to be a fait accompli.

The CIA Tortured People and It Didn't Produce Useful Information

A slightly longer summary of the U.S. Senate report on the subject is found here and at the New York Times.  Lawfare also covers the report with links to the original documents.

The Law Still Fails To Hold Law Enforcement Officers Responsible For Misconduct

Popehat has a nice link heavy rant explaining what is wrong with our system's failure to hold bad cops accountable, framed by the broken windows theory of law enforcement.

HPV Vaccination Still Doesn't Lead To Increased Sexual Activity

The latest large scale studies have the scoop.

Leadville In Decline

The Denver Post reports the imminent decline of the only hospital in Lake County that is home to the town of Leadville, which is 135 years old, because local voters refused to support a property tax increase needed to keep St. Vincent hospital's doors open.  The hospital also provide's the county's only nursing home and ambulance service, in addition to its emergency room.

This would appear to leave the town's urgent care facility as the highest level of medical care available in the county.  This facility amounts to Dr. Lisa Zwerdlinger and her two physicians assistants.  The good doctor is no doubt competent and hard working, but will be hard pressed to replace a full fledged hospital emergency room in a hospital complex previous staffed by 107 employees.

Lake County has 7,300 residents of whom 2,600 live in Leadville, the only municipality in the county (and the highest elevation city in the United States at 10,152 feet).  The closest hospital is now in Frisco, 33 miles away along slippery snowy roads in the winter.  About 60% of the county's residents are on Medicaid.

The closing of the hospital will cost the county about 107 jobs and will cost the local economy $8 million.  Sales tax revenues are predicted to decline by $130,000 costing the city of Leadville a job in its fire department and a job in its street department.  The City also turned away a $1,000,000 state grant and a loan from the Department of Agriculture that would have allowed the hospital to stay open when it voted down the property tax increase.

A study published in the medical journal Health Affairs in August found that when emergency rooms close, the chances of death for those steered elsewhere rises by 5 percent. In cases of heart attack, stroke and sepsis, deaths rise by 15 percent. None of the hospitals studied, however, has Leadville's wintertime challenges of nearly 14 feet of snow annually on steep, twisting roads.

The Post notes that the decision would have increased the hospital's property tax from 5.48 mills where it has sat since 1988 to 16.44 mills, an increase on each $100,000 of value in a home from $43.62 a year to $87.26 a year, and for a business from $158.94 per $100,000 in property value to $476.84 in property value.

Needless to say, the voter's decision not to fund their county hospital doesn't seem very wise.  But, perhaps they are merely recognizing the inevitable.  The Post reports that this is not the only decline that Leadville is experiencing.

Leadville has lost about 40% of its restaurants in four years (seven out of seventeen or eighteen), and one of its two grocery stories, Alco, is going out of business, leaving only one Safeway outside the city limits.

"The landmark Tabor Opera House, built in 1889, the same year as the hospital, closed as a private enterprise in August.", although a non-profit coalition is trying to the raise the $5 million needed to restore it.  In the late 1800s when it was built, it was the second biggest city in the state (in 1880 the census reported 14,820 residents in its 1.1 square miles) and was supported by silver mining.

Most of its seven museums have closed, or dramatically reduced their hours.  Sales tax revenues are down too:

Leadville collected about $648,000 in sales taxes in the last fiscal year, compared with just over $754,000 the year before. Sales-tax collections fell from $352,196 in the first quarter of 2013 to $312,662 for the same period in 2014. Neighboring Buena Vista, with almost the same population, had more than twice the sales-tax revenue: $1.55 million last year, up from $1.48 million the year before, according to tax records.

These setbacks will no doubt make it even harder to attract new residents.

The town took its main hit in 1893, when Congress stopped buying silver to prop up the currency, and has been struggling direly since the Climax molybdenum mine closed in the early 1980s, and a series of marathons and ultra-marathons in the summer have become a mainstay of a local economy, already oriented towards tourism.  The reopening of the mine in 2008 with it starting production in 2010 was too little, too late to save the Leadville economy.

It is unclear from the Denver Post reporting why the last few years have seen such a decline.  A delayed impact from the financial crisis and housing bust that hit Colorado's mountain towns hard, could be a factor.  But, it is hard to point to any one thing that has happened since 2010 that had a major negative impact on the town.

The closing of the hospital, the opera house, and area businesses, and municipal layoffs will surely cause tax collections to fall further, the population of Leadville and Lake County to fall, declining property values, and more declines, although it is close enough to major resorts to continue to be a bedroom community for ski resort workers and a secondary tourism destination.

Ten Mysteries of the Universe

1. Why did Microsoft make Windows 8 such an abomination?  Why didn't they change course once they discovered that their product was a flop?

2. Why do people vote for Republicans?

3. Why do people believe in Creationism?

4. Why is reality TV popular?

5. Why don't they cancel decades old moribund soap operas?

6. Why don't movie theaters compete with each other on popcorn prices?

7. Why don't more places in the United States than Nevada legalize prostitution?

8. Why does Colorado ban selling cars, but nothing else, on Sunday?

9.  Why do people pay extra for faster cars when there is no where that they can actually utilize this feature?

10. Why do people find baseball exciting?

Cop Killings At Record Lows In 2013

The Huffington Post has the story.  Just 27 cops were killed in the line of duty by felonious acts, the lowest in FBI reporting history.  Roughly twice as many were killed in traffic accidents in the line of duty.

A 2013 tally by the National Law Enforcement Memorial Fund showed 100 officers died in the line of duty last year, the fewest since 1944. Traffic-related fatalities were the leading cause of officer deaths in 2013. The report found that "firearms-related fatalities reached a 126-year low ... with 31 officers shot and killed, the lowest since 1887 when 27 officers were shot and killed.

Needless to say, the population of the United States and the number of police officers in the United States were far lower in 1887 than in 2013.  Indeed, in 1887, the idea of a professional police force was only a few decades old anywhere in the world.  On a per police officer basis, 2013 was the safest year to be a police officer ever.

The National Law Enforcement Memorial Fund methodology (which includes several more killings than the FBI data) is slightly more comprehensive than the FBI data which relies strictly on reports from other law enforcement agencies.

The story does not explain the trend, which includes a roughly one-third decline from 2011 to 2012, and a roughly 50% decline from 2012 to 2013, but wide use of bullet proof vests and improved trauma care, in addition to a reduced number of incidents overall, are important factors.

Americans Rarely Riot

Eric Loomis suggests that the impression of blacks rioting understates the extent to which whites also riot.  I'd argue, instead, the Americans, in general, riot and otherwise engage in street politics far less often than comparable industrial economies do over all sorts of matters.

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.

Odd And Untrue Anti-Udall Radio Ad

The U.S. Senate race in Colorado between Mark Udall and Cory Gardner is the closest in the country and could swing control of the U.S. Senate.

The latest ad I heard on the radio (this morning) was sponsored by Women for Cory Gardner or something like that.

It argued that choice of issues other than abortion (which Gardner wants to restrict in any manner possible, whether or not it is constitutional) and contraception (which Gardner has repeatedly supported "Personhood" measures to restrict despite a sudden about face arguing that oral contraception should be an over the counter drug, in part so it isn't provided via taxpayer subsidies for health insurance) was important to women.

The ad claimed that Udall wanted to take away at least three other kinds of choice for women in very non-specific language that was at best misleading and in most cases false.

1.  Udall wants to take away your choice of a doctor.  FALSE.

Presumably this is a reference to his support for Obamacare.

Despite the fact that Obamacare is not a single payer system, does not reduce choice of doctor in any way for people who have health insurance, and expands one's choice of doctors for the large number of people who couldn't previously afford health insurance.

Obamacare also greatly increases reproductive health and mental health options for large numbers of people who already had insurance, particularly in the individual and small business plan market.

2. Udall wants to limit choices about how to protect your family.  MISLEADING.

Presumably this is a reference to Udall's support for mild gun control measures.

If you are a woman who is also a felon, this is true.  If you think you need magazines with more than ten bullets to defend your family, this is also true.

In particular, Udall has not sought any new limitations on purchases of the ordinary handguns, rifles and shotguns usually used by families for self-defense, and has actually supported legislation to make it easier to carry firearms in checked luggage on Amtrak trips.  He has also supported legislation to limit tort liability for gun manufacturers when their products are used illegally or tortuously, as opposed to simply being defective.

If you are more concerned about making it easier for criminals to use their guns against you and your family, particularly criminals and impulsive men on the verge of having restraining orders entered against them, than about you having a military grade arsenal at your home, like most women, this isn't a big deal.

Notable facts: Criminals kill about 100 people with guns for every criminal killed by a law abiding person person with a gun.  Criminal commit a similar ratio of non-deadly crimes with guns for every non-deadly crime prevented with guns.

3. Udall wants to limit your energy choices.  FALSE.

Presumably this is a reference to Udall's support for various forms of regulation of fossil fuel extraction and combustion, and support for renewable energy measures.  At the level of ordinary voters, this simply isn't true, although he has supported some new regulation of air pollution and oil and gas production (an area OSHA and the EPA admit that they do not satisfactorily regulate) that impact utilities over whom consumers never had any choice or control in the first place.

Most Colorado voters have historically had one and only one choice when it comes to electricity and natural gas, because these are regulated monopolies.  In the Denver metropolitan area, you used to buy your electricity and natural gas from Xcel energy, the monopoly provider.  Gasoline and diesel fuel and propane, in contrast, have always been provided in highly competitive markets that Udall has done nothing to restrict.

Udall's support for renewable energy measures, however, such as alternative fuel vehicle credits and solar energy credits, have given people an alternative to gasoline and diesel in the transportation fuel market, and have given people an alternative choice to Xcel (or in conjunction with Xcel) for electrical and water heating energy.  Similar credits have also opened up additional conservation options, which is a choice to consume less money on energy.

Everything In Australia Can Kill You

Australia has far more deadly animals and climate conditions than just about anyplace else in the world, at least on a per capita basis.

These include four kinds of deadly snakes, two kinds of deadly jellyfish, disease carrying flying foxes, deadly ticks, spiders and centipedes, poisonous fish, octopuses, and fresh water amoebas, sharks, crocodiles, large flightless birds, hail, and extreme heat.  And, those of just the highlights.

The toxic and deadly fauna can largely be chalked up to extreme Red Queen type evolutionary competition in a hot, arid environment, and a relatively brief period of high density human habitation to exterminate smaller threats.

The people in Australia, on the other hand, are generally quite nice, even though they have funny accents and judges who wear wigs.

Colorado Renames State Standardized Tests Again

In yet another puzzling and useless development pretending to be education reform, Colorado has renamed its state standardized tests again for the third time since my kids entered the public education system in the state. First, we had the CSAPs. Then, they were called the TCAPs. Now, they are called the CMAS.

The assessments are called the Colorado Measures of Academic Success, or CMAS for short. These statewide tests replace the former statewide exams known as the Colorado Student Assessment Program (CSAP) and the Transitional Colorado Assessment Program (TCAP).

The CMAS will serve the same purpose as the TCAPs and CSAPs, but will have a different set of four levels of grades with different cutoffs to achieve each of the four ratings, to keep us on our toes and to prevent us from making apples to apples comparisons for long time periods.

In principle, the CMAS will not be graded on a curve to the same extent as the prior renditions. But, since the tests are used to evaluate schools rather than having any role in educating kids, it really doesn't matter how they are graded.

Here's a prediction for you: the relative performance of kids, income groups, ethnic groups, schools and school within school programs on these tests will be almost exactly the same as they were when the tests were called the TCAPs and the CSAPs.  In physics, we call this a gauge symmetry.  In education, we call this shifting deck chairs on the Titanic.

Quote of the Day

"Sorry," I say, "I'll be right back and we'll go," leaving Ben to explain our plans and knowing that at this moment, he could say we were off to a heroin-smuggling operation in Mexico and that my father, dazzled and disarmed, would probably only ask if I needed any cash for tacos.

- Kat Rosenfield, in her novel "Inland"(2014).

Rural New York State Is Much More Liberal Than Alabama

Lawyers, Guns and Money dramatically demonstrates how much more liberal New York State outside of New York City is than Alabama. For example:

If we look at the presidential level, a more useful metric in this context, we can see that upstate New York is overwhelmingly Democratic. In 2012, Obama lost three of New York’s 27 congressional districts: NY-22 [central New York] by .4%, NY-23 [Ithica and parts of the Finger Lakes] by 1.2%, and finally one solid Romney win in NY-27 [suburban Buffalo.] In Alabama, conversely, Romney’s percentages in the 6 of 7 districts he won were 62, 63, 62, 74, 64, and 74.

How Fast Can Gender Norms About Appearance Change?

Today, once of the most visually disturbing and alienating feature of Islam is the extent to which the religion places limitations on how women can dress. But, not so long ago, even the center of the American film industry wasn't that different when it came to using the force of law to impose dress standards on women (although this women's protest was ultimately upheld on appeal):

In 1938, L.A. woman defied a judge's order and wore slacks in court, earning her a five-day jail sentence 

Kindergarten teacher Helen Hulick made Los Angeles court history — and struck a blow for women's fashion — in 1938. Hulick arrived in downtown L.A. court to testify against two burglary suspects. But the courtroom drama immediately shifted to the slacks she was wearing. 

Judge Arthur S. Guerin rescheduled her testimony and ordered her to wear a dress next time. Hulick was quoted in the Nov. 10, 1938, Los Angeles Times saying: 

You tell the judge I will stand on my rights. If he orders me to change into a dress I won't do it. I like slacks. They're comfortable.

She returned to court five days later — in slacks — infuriating the judge. The Times reported: In a scathing denunciation of slacks — which he prosaically termed pants — as courtroom attire for women, Guerin yesterday again forbade Helen Hulick, 28, kindergarten teacher, to testify as a witness while dressed in a green and orange leisure attire. 

The last time you were in this court dressed as you are now and reclining on your neck on the back of your chair, you drew more attention from spectators, prisoners and court attaches than the legal business at hand. You were requested to return in garb acceptable to courtroom procedure. 

Today you come back dressed in pants and openly defying the court and its duties to conduct judicial proceedings in an orderly manner. It's time a decision was reached on this matter and on the power the court has to maintain what it considers orderly conduct.  

The court hereby orders and directs you to return tomorrow in accepted dress. If you insist on wearing slacks again you will be prevented from testifying because that would hinder the administration of justice. But be prepared to be punished according to law for contempt of court. 

Slack-shrouded Miss Hulick was accompanied by Attorney William Katz, who carried four heavy volumes of citations relative to his client's right to appear in court in whatever dress she chose.  She said: 

Listen. I've worn slacks since I was 15. I don't own a dress except a formal. If he wants me to appear in a formal gown that's okay with me. I'll come back in slacks and if he puts me in jail I hope it will help to free women forever of anti-slackism. 

The next day, Hulick showed up in slacks. Judge Guerin held her in contempt. She was given a five-day sentence and sent to jail. "After being divested of her favorite garment by a jail matron and attired in a prison denim dress, Miss Hulick was released on her own recognizance after her attorney … obtained a writ of habeas corpus and declared he would carry the matter to the Appellate Court," The Times reported. Hundreds sent letters of protest to the courthouse. Guerin's contempt citation was overturned by the Appellate Division during a habeas corpus hearing. Hulick was free to wear slacks to court. A couple of months later, Hulick came back to court. Her point made, this time she wore a dress.

On comment on this retrospective article at the Los Angeles Times noted that:

When I moved to western Michigan in 1973, women attorneys were not allowed to wear slacks, even tailored pant suits, in some judges courtrooms.

Now, of course, in the era of "Orange is the New Black" women in jail or prison are rarely allowed to wear dresses or skirts even if they want to do so.  And, about one in three women incarcerated in the world are incarcerated in the U.S. prison system, despite the fact that the U.S. has only about 5% of the world's population.

The direct contempt of court power under which Miss Hulick was incarcerated is essentially unchanged today from the way it was in 1938.

Dogs Are For Soup

While it is unfortunate that it took NRA support, I applaud the defeat of a Pennsylvania bill that allows the criminal prosecution of anyone who “[breeds,] keeps, sells, offers for sale or transfers a dog or cat for the purpose of human consumption." I also favor keeping slaughter houses for horse meat legal.

Eating dogs, cats and horses is a matter of taste, not a crime.  Many perfectly law abiding people in other parts of the world eat these animals, and animals are not people, no matter how much we might wish to imagine otherwise.  Given a choice, I will almost always side with the People Eating Tasty Animals version of PETA and not the often extremist People for the Ethical Treatment of Animals that wants us to call fish "sea kittens."

Now, this is not to say that I don't believe that cruelty to animals shouldn't be subject to a criminal sanction.  Torturing animals for cruelty's sake, rather than merely killing them for utilitarian purposes, is a characteristic trait of a psychopath and is often used as a means of intentionally inflicting distress upon, or threatening people.  But causing a swift death to an animal for food, or for advancing a clearly identified research objective in medical science is not cruelty.

The 10 Worst Diet Foods

There are certain foods that diets love to include that have an impact on taste similar to including rat droppings or cat piss in your food:

1. Flax seed Guaranteed to make anything delightful into a chore to eat.

2. Tempeh  A nausea inducing meat substitute.

3. Capers and olives  Little nuggets of yuck.

4. Turmeric drinks  After one sip, you'll never want another.  Rust and water would have about the same color, but would be more tasty.

5. Protein powder  Looks and tastes like chalk, and isn't much more satisfying either.

6. Ricotta cheese  A gooey texture and almost rotting taste and smell that my wife thinks is dessert-like.

7. Turkey burgers and bacon  Turkey has its virtues; a Thanksgiving helping of slices turkey with gravy can be excellent.  But, turkey is not a good substitute for either ground beef or bacon.

8. Eggplant  Purple is a color that belongs on your sweater, not in your grocery basket.  Diets love to substitute eggplant for meat or cheese, a role that it just cannot live up to.  Honestly, there really isn't any role in a human diet that eggplant can live up to.  It is best reserved for pig slop on a farm.

9. Quinoa Imagine bird seed infused with pureed mold and you'll be fairly close to reproducing this diet recipe favorite.

10. Mashed Cauliflower  As a minor salad component, cauliflower has its place.  As a form of imitation mashed potatoes, it is a form of torture.

Hottest October 24 on Record Today In Denver

The old record high of 80 degrees for October 24 in Denver was set in 2011. This year, this record was broken at 12:30 p.m. when temperatures reached 81 degrees and could easily reach 83 degrees before the day is out.

Quote of the Day

You can't choose your destiny, you can only fulfill it or fail it.

- The Tomorrow People, Season 1, Episode 7 (2013-2014 remake by the the CW Network).

Two Week Left Until Election Is Over

Voting is in full swing here in the swing state of Colorado and in two weeks, we will have a verdict from the state's voters.

Vote Yes on Denver Ballot Issue 2A

Vote Now!

I filled out my mail in ballot today, and will drop it off at a 24 hour drop box (all of which have been open since October 15, 2014 in Denver), today or tomorrow.

If you vote by mail in Colorado, you should have your ballot for the 2014 general election by now.  If you don't, take action to make sure that you can vote.  Due to recent legislative changes, it is easier than every to vote, and the register to vote close to the election, than ever before in Colorado.

Previous Posts In This Series

In previous posts, I've discussed Colorado's four state ballot issues:

* Amendment 67 (personhood - vote no);
* Amendment 68 (horsetrack casino gambling - vote yes);
* Proposition 104 (restrictions on collective bargaining with school boards - vote no); and
* Proposition 105 (labeling genetically modified food - vote no).

I have also written about Colorado's judicial retention elections in 2014.

I've also discussed the importance of electing Democrats this year in Colorado.  Once again, Colorado is a critical swing state in both the U.S. Senate and U.S. House races, in addition to having a very close Governor's race underway.

In particular, the performance of incumbent Colorado state treasurer Walker Stapleton has been dismal.  (Incumbent  Republican Secretary of State Scott Gessler's performance has also been dismal, but he isn't running for re-election.)

Referred Measure 2A

Denver's Preschool Program, which was improved in 2006, provides access to high quality preschool for all Denver 4 year olds and is financed with a 0.12% sales tax (12 cents per 100 dollars).  The program will end in 2016 if not reauthorized.  Referred measure 2A will reauthorize the program and increase the sale tax amount to 0.15% (15 cents per 100 dollars) from 0.12%.

Also on the ballot is the City and County of Denver, Colorado is local referred measure 2A.  This ballot measure reauthorizes and expands Denver's Preschool Program.

Why Should You Vote Yes on Referred Measure 2A in Denver?

One of Mayor Hickenlooper's initiatives in Denver, before he became Colorado's Governor, was to subsidize preschool education, which is much more costly than K-12 education which is supported by state and school district tax dollars.

Preschool programs are more effective, by far, improving the lifetime academic performance of low income, black and Hispanic children relative to their middle class and affluent peers, than any other form of education spending.  2013 and 2014 Denver Preschool Program students did better than their peers who didn't attend a DPP program on their third-grade reading TCAP tests.

Participation in a preschool program also significantly reduces the likelihood that a child will be abused or neglected.  And, a parent's ability to put a child in preschool at an affordable price greatly increases the economic well being of low income and middle class families, both because it reduces the amount of money that must be devoted to child care, and because it makes it possible for a parent to obtain at least part-time employment where it would otherwise have been very difficult.

Denver's economic well being is well served by having all children (or at least as many as possible) whose parents want to be able to place them in preschool programs do so.  The preschool program in Denver has generally been a great success.  This is an investment in children that is well worth it.

The United States has a social welfare system and economy that produces epic rates of poverty for children, while almost no senior citizens, and a far smaller proportion of adults are destitute.  Poverty rates are particularly high for children of preschool age.  So, preschool subsidies are also justified in terms of relative demographic justice.

Vote Yes on Denver Referred Measure 2A.  This funds a preschool program that works and provides exceptionally great rewards compared to other public spending programs.

Vote For Betsy Markey For Colorado State Treasurer And Toss Incumbent Walker Stapleton

Besty Markey is the Democrat and a former state representative, who is running to replace incumbent Republican state treasurer Walker Stapleton in Colorado.

Why should you vote for for Besty Markey and against Walker Stapleton?

Mostly because in his first four years, Walker Stapleton has done a lousy job as state treasurer.

State treasurer is one of the least partisan elected positions in the state.  It calls for competence, diligence and honesty in managing state funds, while offering very little policy discretion.  It doesn't tip any partisan balances in the legislative or executive branches.

If you are going to cross party lines in your voting on any office, and instead focus merely on the candidate, this is the office where this can make sense.  And, whether you are a Republican, an unaffiliated voter, a Libertarian, or a Democrat, getting incumbent Walker Stapleton out of this job that he has utterly failed in, and replacing him with someone else, is an easy choice.

In practice, the only way to do that is to vote for Democrat Betsy Markey.  She is competent enough, and given the incumbent's performance over the last four years, the choice is an easy one.

1.  Walker Stapleton devotes very little time to this full time public office.

He shows up to work about 10 days a month.  He is gone from the office for weeks at a time.  When he does show up to work, sometimes it is after three p.m. and for short days.

He rarely shows up for PERA meetings, on whose board he serves ex officio, and when he does attend, often leaves early.  Here's his PERA meeting attendance track record:

2012: There were 10 PERA meetings. Stapleton attended 3, but left early at 2 of those. 

2013: There were 7 PERA meetings. Stapleton attended 2, but left both early. *NOTE: From the September 20, 2013 PERA Board Meeting Minutes: “Mr. Stapleton requested the removal of his absence from the June 25, 2013 Board meeting minutes, as his designee Brett Johnson was present.”

2014 (through June): There have been 5 PERA Board meetings. Minutes are not available for the June 24 meeting. Of the other 4 meetings, he has fully attended 1 and left early at another 2 meetings.

These meetings are not just some extracurricular fund activity for Mr. Stapleton.  They are a core responsibility of his full time job that the people of Colorado elected him to do.  He shouldn't have any higher priorities than his duty to the people of the State of Colorado as a statewide elected official.

2.  He has done a poor job carrying out his responsibilities to serve on the board of PERA, the public employees retirement system for Colorado.

He is on the record saying that:

It's time, unfortunately, that everyone that benefits from PERA sufferers. 

His has spent much of his term in contentious litigation with the rest of the PERA Board, which he lost.

3.  He has secured only a dismal 1% annual rate of return on Colorado's investments, during a recovery and financial market boom.

By comparison, the PERA board which manages the state's retirement assets, has had a long run (and recent) rate of return in excess of 8%.  His Democratic predecessor, Cary Kennedy, who served from 2007-2010 during the Financial Crisis and went on to become Denver's very competent CFO, in contrast, outperformed market benchmarks during this very difficult fiscal climate.

In his 2010 primary campaign, he said that the State of Colorado should invest its financial assets heavily in gold, which if he had done so, would have led to massive losses on the state's investments.  This has a lot to do with the fact that Stapleton is a life long realtor, a career to which he still devotes most of his time and efforts, with essentially no experience in finance or accounting.

4. He games Colorado's property tax system.

Walker Stapleton games Colorado's property tax system by pretending to be a gentleman farmer to secure huge property tax breaks for property that can't fairly be described as farming.

This isn't illegal, but it doesn't inspire confidence in someone whose primary responsibility should be to look out of Colorado's fiscal solvency.  Simply put, it doesn't reflect well on his character.

5.  He was arrested for DUI in  a hit and run incident in San Francisco in 1999 after hitting two pedestrians, and acknowledged that he was an alcoholic at the time.

He pleaded no contest to the DUI charge in exchange for having the more serious hit and run felony dropped.  He was sentenced to three years probation, twice a week AA meetings, and community service, in addition to restitution, fines and costs.

It could be that Walker Stapleton is managing his alcoholism better now than he was then.  But, this was no youthful indiscretion, hurt people and property, and he demonstrated irresponsibility when life tested him.

There are worse things in life to be than a recovering alcoholic.  But, why have a recovering alcoholic in a highly responsible statewide political office when we could have someone who isn't in alcoholic in that post.

6.  He is an heir to the KKK wing of the Republican party.

Walker Stapleton is the great-grandson of Denver's Mayor Benjamin Stapleton (from 1921-1931 and 1935-1947) and as Democratic State Auditor from 1933-1935, after which Denver's former airport and current redeveloped neighborhood is named.  This was back when the Democrats were the party of Southern Conservatives and the GOP was still the party of northern liberals in the tradition of Abraham Lincoln.

Mayor Stapleton's key to getting elected was support from the Ku Klux Klan:

Stapleton was the Klan candidate for mayor of Denver in 1923 and won the election with Klan support. When Stapleton declared his candidacy for mayor in March 1923, he was Klan member number 1,128 and a close friend of the Colorado Klan Grand Dragon, John Galen Locke.

After realignment, when conservative Southern Democrats were replaced by Republicans, and liberal northerners joined the Democratic party, most of the political heirs of the KKK wing of the Democratic party became Republicans.

Admittedly, Walker Stapleton is not responsible for things that he great-grandfather did before he was born (and in fairness, his great-grandfather's detestable racism and anti-Semitism didn't prevent him from accomplishing a lot as state auditor and Mayor of Denver).  But, it is hardly a proud legacy either, and is certainly not a legacy that Walker Stapleton is running away from himself.

Simple Graphs and Formulas Are Persuasive

Published this week in Public Understanding of Science, the Cornell Food and Brand Lab study found trivial graphs or formulas accompanying medical information can lead consumers to believe products are more effective. "Your faith in science may actually make you more likely to trust information that appears scientific but really doesn't tell you much," said lead author Aner Tal, post-doctoral researcher at the Cornell Food and Brand Lab. "Anything that looks scientific can make information you read a lot more convincing." 

The study showed that when a graph -- with no new information -- was added to the description of a medication, 96.6 percent of people believed that the medicines were effective in reducing illness verses 67.7 percent of people who were shown the product information without the graph. . . ."In fact, the more people believed in science, the more they were convinced by the graphs."

From here citing A. Tal, B. Wansink, "Blinded with science: Trivial graphs and formulas increase ad persuasiveness and belief in product efficacy." (Public Understanding of Science 2014) (emphasis added).

Let charitably, but to the same effect, the vast majority of people are at least somewhat innumerate, but most people can easily grasp simple graphs and formulas.

Truth Stranger Than Fiction In Alaska National Guard Scandal

Wonkette's recounting of a sexual harassment, rape and credit card fraud scandal in the Alaska National Guard's recruiting office that implicates the Governor, who is now running for re-election, and numerous senior National Guard officials, reads like a John Irving novel.  It is both wacky and tragic, and is filled with characters so bizarre, it shouldn't be possible for them to exist in the real world.

Consider, for example, a Deputy Chief of Staff of the Alaska National Guard, who was a former pornography company manager and co-founder of an end times religious sect.  During his tour in Iraq, he served as the military advisor to the Mongolian Army.

The Republican Governor promoted him to his current high ranking post at the same time that a confidential report recommended him for a bad conduct discharge (a military equivalent of  serious misdemeanor conviction), for his role in facilitating $200,000 of credit card fraud in the recruiting office he supervised which was also notorious for its rampant pattern of sexual harassment and rape by a core of several recruiters under his command.

But, investigative reporting from the Anchorage Press, a newspaper with documents and sources to back up its allegations, corroborates the story.

We Are Uplifting Racoons

In the Uplift Universe of science fiction writer David Brin, humans deliberately upgrade the intelligence of chimpanzees and bottle nosed dolphins making them into sentient species equal in ability to humans.

In real life, humans are inadvertently placing selective pressures on urban raccoons that is creating a highly intelligence and capable subspecies of this scavenger species.  They are smarter than previous generations of their kind and smarter than their rural counterparts.  Alternately, their rapid adaptation could be a cultural or epigenetic adaptation.

Denver Loses Another Excessive Force Case

A federal jury awarded the surviving family members of Marvin Booker, a homeless African-American preacher who died in the Denver jail, $4.65 million of combined economic, non-economic and punitive damages, plus their lawyers reasonable attorneys' fees and costs which are likely to exceed $1 million.

The City stipulated to liability for all non-punitive damages awarded, to avoid the introduction of similar incidents involving the city at trial, but that procedural trick made no difference in the end.

The City has not determined how the punitive damage awards against individual jail guards will be handled, or whether it will appeal the ruling.

The jury found that Denver jail guards violated Mr. Booker's civil rights by unconstitutionally using excessive force to subdue him in a videotaped incident.

The City has spent many millions of dollars on settlements and jury verdicts in excessive force cases involving its police and sheriff's departments, several involving multiple millions of dollars, and many more cases are in the pipeline.  A judge in a recent civil rights case related to harm to a prisoner in the jail concluded that Denver's attorneys' and internal affairs investigators were engaging in litigation misconduct and called for a federal investigation.

Heads have rolled in the Denver jail's management, and numerous reforms have been proposed.  But, the problem of improper conduct by Denver's police and jail guards remains an unresolved and long standing issue.

The U.S. Constitution does not allow state governments to be sued in federal courts, but municipalities may be sued in federal courts for civil rights violations, so long as the "qualified immunity" defense which makes money damages available for civil rights violations only in cases involving intentional violations of clearly established constitutional rights by particular named individuals acting under color of law.  If the City had not conceded liability for compensatory damages, the Plaintiffs would have had to show that the City had a policy or practice in place that caused the civil rights violation by its guards to take place.

Popular Opinion And Marriage

Via xkcd.

Majority approval of gay marriage in public opinion preceded majority legalization of gay marriage.

Majority approval of interracial marriage followed Loving v. Virginia in 1967 by about three decades.

When Should Lying Be Legal?

Via Legal Theory Blog: Ariel Porat and Omri Yadlin (Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law) have posted Valuable Lies on SSRN. Here is the abstract:

Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information. 

This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling valuable lies in well-defined categories of cases.

There are a number of circumstances where the law authorizes, or at least does not punish, lying:

1.  Lies by law enforcement (but not prosecuting attorneys) in interrogating criminal suspects.  See Oregon v. Mathiason, 429 U.S. 492 (1977) (confession obtained through false statement that fingerprint evidence linked suspect to crime) and Michigan v. Mosley, 423 U.S. 96 (1975) (confession obtained through false statement that co-defendant had confessed).  See also Moran v. Burbine, 475 U.S. 412 (1986) (allowing confession to be admitted despite lie of police to attorney obtained by a suspect's sister to represent the sister to the effect that the suspect was not being questioned when he was being questioned, after suspect waived Miranda rights not knowing that attorney was available).
2.  Lies in connection with a covert intelligence or undercover law enforcement operation to targets of the operation, and in general, to sustain an officially sanctioned "cover identity" such as those in witness protection programs. See, e.g., Hoffa v. United States, 385 U.S. 293 (1966) (undercover agent in non-custodial environment) and Illinois v. Perkins, 496 U.S. 292 (1990) (undercover agent in jail).

3   Lies in the course of political debates and campaigns about policy issues.
4.  Lies about receiving military honors (in some circumstances) despite the Stolen Valor Act.

5.  Lies about your "bottom line" in negotiations.
6.  Lies that are not relied upon by the person hearing them.
7.  Lies about immaterial matters.
8.  Lies that do not lead to economic harm and don't violate other criminal statutes.

9.  Lies told in order to secure sex ("rape by deception" or "rape by fraud") (but some lies to secure a marriage about matters that are deemed to be material as a matter of law, may give rise to an action to annul a marriage).

Categories 1 and 2, as well as a doctor's lies, are true cases of alleged superseding justification.

Categories 3 and 4 are motivated by First Amendment concerns and about courts acting as arbiters of what is true, although I personally feel that 4 was wrongly decided as the usual First Amendment concerns about who decides what is true aren't applicable in any meaningful way.

Categories 5, 6, 7 and 8 are basically variations of the "no harm, no foul" rule together with a codification of what can and cannot be reasonably relied upon.  These are derived from the common law of fraud and misrepresentation.

Category 9 is also troublesome.  On one hand, there are often serious issues of proof, questions about what is material, and longstanding judicial distaste for interjecting itself into the dialog that leads to sex.  On the other hand, there are many cases where those concerns do not clearly apply.  There is also in category 5 a skepticism over how many lies as opposed to what amount to broken promises (express or implied, even if in the form of representation of fact) lead to sex.

In general, I don't favor broadening the scope of lies that are not sanctionable, except in "self-help" situations such as the lie about one's religious affiliation made to avoid unlawful discrimination, which in some sense is a generalization of the lack of legal sanction for lies about immaterial matters.  Indeed, there is a good argument that some of the above categories of authorized lies should be narrowed.

The lie in the abstract example about mineral potential is deeply problematic, because a whole framework of commercial practice and due diligence burdens is predicated on the inability to make material misstatements of fact about such matters, which is as much as rule of the road as it is anything else.  It would be deeply disruptive to commercial practice to change this rule.

Doctors have a very utilitiarian and paternalistic set of ethics and frequently feel that they have the right to lie for the greater good in all sorts of circumstances where it would never be tolerated from lawyers.

A more common a problem than the vaccination issue, which actually is very rarely the case, is the circumstance where prognosis information is withheld from terminally ill people or expressed in an unduly optimistic way, on the theory that a belief in a better prognosis will make it a better outcome more likely through a sort of placebo effect (with the placebo effect itself being the classic physician lie for the patient's well being).

Law enforcement officers and doctors, already conditioned to believe that it is ethically permissible to lie under some circumstances are also particularly prone to also lie for the impermissible purposes of covering up their own mistakes and the mistakes of their peers.

Another area where there is a distinction between non-disclosure and false affirmative disclosure that is, I would argue, morally relevant, is between anonymous or clearly pseudonymous writing in which there is clear non-disclosure of authorship, and sock puppetry, in which there is affirmative deception concerning authorship.