You've got to admire a guy with a pure heart. But, Scott Walker just doesn't get it. His campaign has jumped the shark with its bold initiative to stop Canadians from illegally immigrating into the United States by crossing its 5,525 mile U.S.-Canada border. The Onion couldn't have devised a more inept campaign slogan.
There are basically two problems with this approach.
First, Canadians don't want to illegally immigrate from a relatively hand gun free land with national health care to the far more troubled United States, and if they did want to, they wouldn't because they can easily immigrate to the United States legally at any local border crossing.
Second, anti-immigration stances are popular with Republicans because they are a dog whistle way for Republicans to continue to be racist without admitting it. It is a policy driven by fear. This doesn't work in the Canadian case. Who's afraid of Canadians? But, nobody gave Walker the memo.
Put a fork in him. He's done.
31 August 2015
30 August 2015
Select Military News
* Last week Oshkosh beat out AM General (the contractor that made the Humvee) and Lockheed Martin for the U.S. military's JLTV(Joint Light Tactical Vehicle) contract. In order to thwart anticipated challenges to the contract award by AM General and Lockheed Martin, the U.S. military did not announce its reason for choosing Oshkosh over its competitors.
The JLTV is the successor to the Humvee with greater protection from mines and (with optional armor) gunfire as a primary objection, intended for use by the U.S. Army and the U.S. Marines. The Oshkosh contender, also known as the L-ATV, is a variant of its heavier M-ATV MRAP (Mine Resistant, Armor Protected) vehicle procured for Afghanistan, that maintains roughly the same level of protection from threats.
The Humvee was highly vulnerable to mines due to its flat bottomed design which had optimized its off road capabilities, had no armor in its base version, and degraded quickly mechanically when up armored since it was not designed for the extra weight.
The 7 ton vehicle is heavier than the Humvee, but still light enough to allow more than one to be carried in a C-130 intra-theater transport plane. The initial contract for about 16,901 units for the Army and Marines combined will cost the U.S. Army and Marines about $400,000 each (the target price had been $250,000 each and the per unit price will probably come down a bit in full production as R&D costs are spread over more units). Current plans are for an eventual buy of 55,000 or so of these vehicles.
It isn't obvious from the picture above, but the Oshkosh L-ATV is much larger than the Humvee.
The armored Humvee cost about $220,000 each and was about 3 tons. About 289,000 Humvees were built and they will not be replaced on a 1-1 basis by the JTLV as originally contemplated. In hindsight the main flaws in the Humvee were:
1. Building a military vehicle that provided little improvement in protection from direct hostile gunfire or mines from a civilian vehicle. This would be appropriate for a vehicle intended to be used only within secured bases, but made no sense for vehicles intended to be used on patrol in hostile territory where armed opponents lurked, or following tanks and Bradley infantry fighting vehicles in off road ground wars between peer class military forces as originally contemplated.
This was also a flaw of the Jeep that preceded it. But, since Jeep type vehicles when used in World War II had little exposure to environments where snipers lurked around every corner and expectations of force protection were lower, this defect of the Jeep didn't factor into the Humvee's specifications. If anything, the military wanted to design systems ill suited to counterinsurgency missions in order to (futilely) discourage higher ups from committing U.S. troops to such missions in the wake of the Vietnam War.
2. Focusing design criteria on off road capabilities comparable to those of tracked tanks despite the fact that Humvees, in practice, were overwhelmingly driven on roads. The Humvee is perhaps the best off road wheeled vehicle ever mass produced, but the actual niche of military need for off road patrol vehicles was profoundly smaller than military planners imagined. This flaw is not entirely unrelated to first one. Design choices made to optimize off road capabilities made the Humvee more vulnerable to mines than it otherwise would have been. Per Wikipedia on the Humvee:
The JTLV should address both of these flaws, and is unlikely to reveal equally serious new flaws because similar Ohskosh M-ATV design was tested extensively in Afghanistan in hostile fire conditions in similar missions to those contemplated for the JTLV. It remains to be seen, however, if there might be flaws in the JTLV when used, for example, in a tropical jungle environment, an arctic environment, or in a more conventional warfare setting than the counterinsurgency operations that U.S. ground forces have faced in its recent engagements. Planners have attempted to address all of these concerns, but they have not been battle tested.
* The loss of access to suppliers in the Ukraine due to Russia's seizure of some of its territory, an inability to obtain replacement suppliers in the West for the same reasons, and a weak economy in Russia, as well as the fact that Russia is trying to support all of the Soviet Navy with a smaller population and economy than the Soviet Union had, has taken a huge toll on the Russian Navy. The bottom line:
* A new U.S. military system called Serenity (which given that it has a component called "Firefly", is clearly science fiction inspired naming) uses acoustics, heat sensors and cameras to identify where incoming fire is coming from and what kind of weapon is being used and to automatically point weapons and video cameras in that direction. This is a refinement of previous systems. "By 2010 over 60,000 sniper detectors had been shipped to American troops in Iraq and Afghanistan, where they were increasingly useful and generated a continuous flow of user suggestions for improvements. These were addressed and that resulted in new and improved models appearing every year."
Similar systems are also starting to make their way into the civilian markets, including Denver, where police pre-locate these systems in high crime areas.
* While the Littoral Combat Ships (recently renamed frigates) are getting the bugs worked out, for example, with a larger base crew of 50 instead of 40, bugs remains with the mission modules that tailor the multi-purpose ship to particular missions. Among the models not working right are an anti-submarine package that is working well but overweight, the Mine Countermeasures module that is having problems with systems integration, and the module that would carry 24 Hellfire missiles is also having implementation problems due to a late start after the originally planned Griffin missiles proved to be too slow to take out hostile targets. Fixes are expected in the 2016-2017 time frame.
* Three new Virginia class attack submarines purchased by the Navy will need immediate maintenance work because some of the pipes used in the construction were not up to specifications. But, the U.S. is churning out new state of the art nuclear attack submarines while its global competitors are either not doing so, or are doing so at a much slower rate.
The JLTV is the successor to the Humvee with greater protection from mines and (with optional armor) gunfire as a primary objection, intended for use by the U.S. Army and the U.S. Marines. The Oshkosh contender, also known as the L-ATV, is a variant of its heavier M-ATV MRAP (Mine Resistant, Armor Protected) vehicle procured for Afghanistan, that maintains roughly the same level of protection from threats.
The Humvee was highly vulnerable to mines due to its flat bottomed design which had optimized its off road capabilities, had no armor in its base version, and degraded quickly mechanically when up armored since it was not designed for the extra weight.
The 7 ton vehicle is heavier than the Humvee, but still light enough to allow more than one to be carried in a C-130 intra-theater transport plane. The initial contract for about 16,901 units for the Army and Marines combined will cost the U.S. Army and Marines about $400,000 each (the target price had been $250,000 each and the per unit price will probably come down a bit in full production as R&D costs are spread over more units). Current plans are for an eventual buy of 55,000 or so of these vehicles.
The Oshkosh L-ATV
It isn't obvious from the picture above, but the Oshkosh L-ATV is much larger than the Humvee.
The armored Humvee cost about $220,000 each and was about 3 tons. About 289,000 Humvees were built and they will not be replaced on a 1-1 basis by the JTLV as originally contemplated. In hindsight the main flaws in the Humvee were:
1. Building a military vehicle that provided little improvement in protection from direct hostile gunfire or mines from a civilian vehicle. This would be appropriate for a vehicle intended to be used only within secured bases, but made no sense for vehicles intended to be used on patrol in hostile territory where armed opponents lurked, or following tanks and Bradley infantry fighting vehicles in off road ground wars between peer class military forces as originally contemplated.
This was also a flaw of the Jeep that preceded it. But, since Jeep type vehicles when used in World War II had little exposure to environments where snipers lurked around every corner and expectations of force protection were lower, this defect of the Jeep didn't factor into the Humvee's specifications. If anything, the military wanted to design systems ill suited to counterinsurgency missions in order to (futilely) discourage higher ups from committing U.S. troops to such missions in the wake of the Vietnam War.
2. Focusing design criteria on off road capabilities comparable to those of tracked tanks despite the fact that Humvees, in practice, were overwhelmingly driven on roads. The Humvee is perhaps the best off road wheeled vehicle ever mass produced, but the actual niche of military need for off road patrol vehicles was profoundly smaller than military planners imagined. This flaw is not entirely unrelated to first one. Design choices made to optimize off road capabilities made the Humvee more vulnerable to mines than it otherwise would have been. Per Wikipedia on the Humvee:
Compared to the jeep, it was larger and had a much wider track, with a 16 in (410 mm) ground clearance, double that of most sport-utility vehicles. The new truck was to climb a 60 percent incline and traverse a 40 percent slope. The air intake was to be mounted flush on top of the right fender (or to be raised on a stovepipe to roof level to ford 5 ft (1.5 m) of water and electronics waterproofed to drive through 2.5 ft (0.76 m) of water were specified. The radiator was to be mounted high, sloping over the engine on a forward-hinged hood.The Humvee may be one of the better military surplus items to put in civilian use, however, for some of these same reasons. For example, it is well suited to fighting wildfires in roadless terrain, and to use by ranchers, oil and gas exploration operations, emergency medical technicians and archaeologists in roadless areas. In these applications, a excellent off road capabilities are a virtue and a lack of protection from hostile gunfire is not a problem.
The JTLV should address both of these flaws, and is unlikely to reveal equally serious new flaws because similar Ohskosh M-ATV design was tested extensively in Afghanistan in hostile fire conditions in similar missions to those contemplated for the JTLV. It remains to be seen, however, if there might be flaws in the JTLV when used, for example, in a tropical jungle environment, an arctic environment, or in a more conventional warfare setting than the counterinsurgency operations that U.S. ground forces have faced in its recent engagements. Planners have attempted to address all of these concerns, but they have not been battle tested.
* The loss of access to suppliers in the Ukraine due to Russia's seizure of some of its territory, an inability to obtain replacement suppliers in the West for the same reasons, and a weak economy in Russia, as well as the fact that Russia is trying to support all of the Soviet Navy with a smaller population and economy than the Soviet Union had, has taken a huge toll on the Russian Navy. The bottom line:
On paper the Russian Navy currently has 270 combat ships (including amphibious and combat support vessels). But only about half of these are in any shape to go to sea. The rest are too old, and usually too poorly maintained for too many years, to leave port. Russian shipyards are terrible at building or repairing ships and efforts to remedy this have so far failed. Thus only about 15 percent of Russian naval vessels are major surface warships or submarines. In comparison the U.S. Navy has 290 warships and about 85 percent can go to sea (the others are being upgraded or repaired.)As a result, the U.S. blue sea naval superiority is actually considerable greater than one would naively expect.
* A new U.S. military system called Serenity (which given that it has a component called "Firefly", is clearly science fiction inspired naming) uses acoustics, heat sensors and cameras to identify where incoming fire is coming from and what kind of weapon is being used and to automatically point weapons and video cameras in that direction. This is a refinement of previous systems. "By 2010 over 60,000 sniper detectors had been shipped to American troops in Iraq and Afghanistan, where they were increasingly useful and generated a continuous flow of user suggestions for improvements. These were addressed and that resulted in new and improved models appearing every year."
Similar systems are also starting to make their way into the civilian markets, including Denver, where police pre-locate these systems in high crime areas.
* While the Littoral Combat Ships (recently renamed frigates) are getting the bugs worked out, for example, with a larger base crew of 50 instead of 40, bugs remains with the mission modules that tailor the multi-purpose ship to particular missions. Among the models not working right are an anti-submarine package that is working well but overweight, the Mine Countermeasures module that is having problems with systems integration, and the module that would carry 24 Hellfire missiles is also having implementation problems due to a late start after the originally planned Griffin missiles proved to be too slow to take out hostile targets. Fixes are expected in the 2016-2017 time frame.
* Three new Virginia class attack submarines purchased by the Navy will need immediate maintenance work because some of the pipes used in the construction were not up to specifications. But, the U.S. is churning out new state of the art nuclear attack submarines while its global competitors are either not doing so, or are doing so at a much slower rate.
28 August 2015
Job Title Of The Day: Scrum Master
The State of Colorado Judiciary has a job position called a Scrum Master.
This apparently involves coordinating multiple teams of IT professionals within the department without actually being in a line management authority position over them in connection with certain kinds of software which it uses. There are apparently professional certifications you can obtain in this line of work.
This apparently involves coordinating multiple teams of IT professionals within the department without actually being in a line management authority position over them in connection with certain kinds of software which it uses. There are apparently professional certifications you can obtain in this line of work.
Crime Victimization Holds Steady At Record Lows In 2014
There were no significant difference in overall violent crime rates between 2013 and 2014, which which data have just been released. Property crime fell to another record low.
One area where there was a statistically significant change in violent crime, however, was in the rate of violent crime victimizations experienced by Hispanics:
There is no consensus on why this is the case (although there are lots of plausible theories which are beyond the scope of this particular post). But, clearly we are doing something right. Anyone who tells you that we are facing an era of surging crime rates is just flat out incorrect.
From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000. The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 131.4 victimizations per 1,000 households in 2013 to 118.1 victimizations per 1,000 in 2014. The decline in theft accounted for the majority of the decrease in property crime. Since 1993, the rate of property crime declined from 351.8 to 118.1 victimizations per 1,000 households.From here quoting the Bureau of Justice Statistics most recent report on the subject.
One area where there was a statistically significant change in violent crime, however, was in the rate of violent crime victimizations experienced by Hispanics:
From 2013 to 2014, the rate of violent victimization for Hispanics declined 35% from 24.8 victimizations per 1,000 persons to 16.2 per 1,000 (table 9). With the decline, the violent victimization rate for Hispanics dropped below that for non-Hispanic blacks (22.5 per 1,000). This was a change from 2013, when blacks and Hispanics had similar rates of violent crime. No statistically significant difference was observed in rates of violent crime for non-Hispanic whites and Hispanics in 2013 and 2014.Thus, violent crime victimization is down roughly three-quarters in the last twenty years, while property crime victimization is down about two-thirds in the same time period.
There is no consensus on why this is the case (although there are lots of plausible theories which are beyond the scope of this particular post). But, clearly we are doing something right. Anyone who tells you that we are facing an era of surging crime rates is just flat out incorrect.
27 August 2015
Denver Jury Declines To Impose Death Penalty
A Denver jury which convicted Dexter Lewis of the first degree murder and robbery of five people at Fero's Bar in October of 2012 and of arson in connection with the burning down of the bar afterwards, has declined to impose the death penalty. (I was in that jury pool, but not selected to serve). Therefore, Mr. Lewis will be sentenced to life in prison without possibility of parole on the murder counts, in addition to some additional meaningless term of years for the robbery and arson counts.
The jury had found in the first phase of its death penalty deliberations that aggravating factors were present, but after two and a half hours of the second phase of its death penalty deliberations, this jury announced that there was not unanimous support for the proposition that the aggravating factors outweighed the mitigating factors in the case. The jurors did not elaborate further on their reasoning. If the jurors had ruled otherwise, a third phase of deliberations regarding whether or not the death penalty should be imposed would have followed. A variety of mitigating factors, most related to a troubled upbringing for Lewis, were suggested to the jury, but we will never know which ones actually persuaded the jury in the Fero's Bar case unless a juror comes forward to tell that story at a later date.
One of the other participants in the Fero's Bar massacre pleaded guilty to first degree murder and was also sentenced to life in prison without the possibility of parole. Another of the participants pleaded guilty to second degree murder and received a very long prison sentence, but not a life sentence, and testified at the trial. A third participant, who was an undercover Bureau of Alcohol, Tobacco, Firearms and Explosives informant was not arrested and has not been charged with a crime also testified against Lewis at the trial.
The Aurora Theater Shooting Trial Compared
This follows close on the heels of the decision not to impose the death penalty on James Holmes by an Arapahoe County jury in the Aurora Theater shooting trial, after convicting him of 12 counts of first degree murder for which the penalty was life in prison without possibility of parole, in addition to several thousand years of meaningless sentences on other counts. The jury rejected the insanity defense for Holmes, but his mental illness was a key mitigating factor for the juror who ultimately decided that the death penalty should not be imposed in his case. The Aurora Theater Shooting trial jury reached its conclusion in the third phase of deliberations, during which one juror decided strongly not to impose the death penalty, two jurors were undecided, and nine other jurors would have imposed the death penalty.
Personal Connections
I was a now and then patron of Fero's Bar before the massacre there in 2012, and was also a now and then customer of the Aurora Theater where James Holmes committed his massacre. I routinely drive by the Chuck-E-Cheese where death row inmate Nathan Dunlap committed his crime, although I've never been a patron of that establishment. I have no person connections to the double murder that put the other two people on death row in Colorado. I likewise have no personal connection to the Oklahoma City bombing.
The Death Penalty In Colorado's State Courts
No other death penalty cases are currently pending in Colorado at this time. Some pundits have argued that the two refusals to impose the death penalty in these cases which were particularly heinous, suggest that no case is heinous enough to warrant the death penalty in Colorado. Others see individualized grounds for mercy in these cases that don't have a wider policy implication.
There are three people on death row in Colorado at this time in connection with two different incidents as I note in my post on jury duty linked above. There are also 374 people in Colorado (before Holmes and Lewis were sentenced) who are serving life without possibility of parole sentences for first degree murder offenses that would have been death penalty eligible (although the death penalty was not even sought in most of those cases).
A federal Colorado jury did, however, convict Timothy McVeigh, one of the Oklahoma City bombing defendants (who was white and killed 168 victims of all races in that incident) for committing the bombing and sentenced him to death in 1997. He was executed in 2001, in the first federal execution carried out in 38 years at the time. Co-Defendant Terry Nichols was sentenced to life without the possibility of parole in 1998. Minor accomplice Michael Fortier was sentenced to twelve years in prison pursuant to a plea bargain including a requirement of cooperation in 1998 and released in 2006 after ten and a half years due to credit for time served and credit for good behavior.
Given that some people convicted of first degree murder in Colorado and sentenced to life in prison have no doubt died while serving their sentences, the odds that a person convicted of first degree murder will be sentenced to death in Colorado is currently about 1%. This is pretty typical of states outside the South that still have the death penalty.
All of the recent capital punishment defendants in recent years in Colorado, however, have had multiple victims, and the percentage of capital murder defendants who have multiple victims who were sentenced to death is significantly higher.
The Boston Marathon Massacre Case
The recent federal trial of the Boston Marathon bomber did result in the imposition of the death penalty despite the fact that the state of Massachusetts does not have a death penalty for crimes arising under state law.
The jury had found in the first phase of its death penalty deliberations that aggravating factors were present, but after two and a half hours of the second phase of its death penalty deliberations, this jury announced that there was not unanimous support for the proposition that the aggravating factors outweighed the mitigating factors in the case. The jurors did not elaborate further on their reasoning. If the jurors had ruled otherwise, a third phase of deliberations regarding whether or not the death penalty should be imposed would have followed. A variety of mitigating factors, most related to a troubled upbringing for Lewis, were suggested to the jury, but we will never know which ones actually persuaded the jury in the Fero's Bar case unless a juror comes forward to tell that story at a later date.
One of the other participants in the Fero's Bar massacre pleaded guilty to first degree murder and was also sentenced to life in prison without the possibility of parole. Another of the participants pleaded guilty to second degree murder and received a very long prison sentence, but not a life sentence, and testified at the trial. A third participant, who was an undercover Bureau of Alcohol, Tobacco, Firearms and Explosives informant was not arrested and has not been charged with a crime also testified against Lewis at the trial.
The Aurora Theater Shooting Trial Compared
This follows close on the heels of the decision not to impose the death penalty on James Holmes by an Arapahoe County jury in the Aurora Theater shooting trial, after convicting him of 12 counts of first degree murder for which the penalty was life in prison without possibility of parole, in addition to several thousand years of meaningless sentences on other counts. The jury rejected the insanity defense for Holmes, but his mental illness was a key mitigating factor for the juror who ultimately decided that the death penalty should not be imposed in his case. The Aurora Theater Shooting trial jury reached its conclusion in the third phase of deliberations, during which one juror decided strongly not to impose the death penalty, two jurors were undecided, and nine other jurors would have imposed the death penalty.
Personal Connections
I was a now and then patron of Fero's Bar before the massacre there in 2012, and was also a now and then customer of the Aurora Theater where James Holmes committed his massacre. I routinely drive by the Chuck-E-Cheese where death row inmate Nathan Dunlap committed his crime, although I've never been a patron of that establishment. I have no person connections to the double murder that put the other two people on death row in Colorado. I likewise have no personal connection to the Oklahoma City bombing.
The Death Penalty In Colorado's State Courts
No other death penalty cases are currently pending in Colorado at this time. Some pundits have argued that the two refusals to impose the death penalty in these cases which were particularly heinous, suggest that no case is heinous enough to warrant the death penalty in Colorado. Others see individualized grounds for mercy in these cases that don't have a wider policy implication.
There are three people on death row in Colorado at this time in connection with two different incidents as I note in my post on jury duty linked above. There are also 374 people in Colorado (before Holmes and Lewis were sentenced) who are serving life without possibility of parole sentences for first degree murder offenses that would have been death penalty eligible (although the death penalty was not even sought in most of those cases).
Governor Hickenlooper has suspended enforcement of the death penalty indefinitely against the one Colorado death row inmate whose appeals have run out (Nathan Dunlap who is black, murdered four people, all white, in a Chucky Cheese restaurant in 1993 or 1994, and was convicted in 1996). All three men on death row in Colorado right now are there for offenses committed in Arapahoe County.
The other two, both of whom were African-American, were involved in the murder of two people in an effort to prevent testimony against one of them from being presented at a criminal trial much more recently (one was convicted in 2008 and the other was convicted a few months later); both victims were African-American, although one was also part Asian-American.
The last and only time that Colorado executed someone since the death penalty was reinstated in 1972 was when death penalty volunteer Gary Davis was executed in 1997 for crimes he confessed in open court to committing. At least two former death row inmates in Colorado have left death row. Once, Tim Masters, was released after it was determined he was wrongfully convicted.Colorado's Federal Death Penalty Case
A federal Colorado jury did, however, convict Timothy McVeigh, one of the Oklahoma City bombing defendants (who was white and killed 168 victims of all races in that incident) for committing the bombing and sentenced him to death in 1997. He was executed in 2001, in the first federal execution carried out in 38 years at the time. Co-Defendant Terry Nichols was sentenced to life without the possibility of parole in 1998. Minor accomplice Michael Fortier was sentenced to twelve years in prison pursuant to a plea bargain including a requirement of cooperation in 1998 and released in 2006 after ten and a half years due to credit for time served and credit for good behavior.
Given that some people convicted of first degree murder in Colorado and sentenced to life in prison have no doubt died while serving their sentences, the odds that a person convicted of first degree murder will be sentenced to death in Colorado is currently about 1%. This is pretty typical of states outside the South that still have the death penalty.
All of the recent capital punishment defendants in recent years in Colorado, however, have had multiple victims, and the percentage of capital murder defendants who have multiple victims who were sentenced to death is significantly higher.
The Boston Marathon Massacre Case
The recent federal trial of the Boston Marathon bomber did result in the imposition of the death penalty despite the fact that the state of Massachusetts does not have a death penalty for crimes arising under state law.
Sister Wives Case Progresses On Appeal
In the Sister Wives case (Brown v. Buhman), a family featured in a reality TV show and non-fiction book about their family, is religiously and ceremonially polygamous, but does not claim to have more than one civil marriage, brought suit to invalidate Utah's bigamy statute. Utah's bigamy statute, like Colorado's bigamy statute (but unlike the bigamy statutes of most other states), bans not only marriage to more than one person at a time, by cohabitation of a non-spouse with an opposite sex married person.
The Sister Wives family brought suit in federal court in Utah to have the cohabitation clause of the statute declared unconstitutional, while not seeking to invalidate the bigamy clause barring more than one civil legal marriage at a time and without seeking to require the State of Utah to recognize that they have a legally valid plural marriage.
The State of Utah did a miserable job litigating the case in the trial court, where it lost. The trial court decision on the merits that is appealed from (after a preliminary standing issue was resolved) is here and was previously discussed at this blog.
The State of Utah is trying to raise new issues and to insert a few more facts into the discussion that were not raised in the trial court in its opening brief on appeal in the 10th Circuit Court of Appeals. The Sister Wives family has now filed an answer brief addressing the state's claims and issues raised in some of the numerous amicus briefs filed in the case. Once the State of Utah files its reply brief in several weeks, the 10th Circuit will probably set the case for oral argument, probably sometime late this year, after which a three judge panel will decide who wins and write an opinion, realistically, sometime next year.
All of the doctrines appellate procedure in civil cases, that prevent parties from introducing new facts, or raising new legal arguments, on appeal, along with developments in constitutional law over the last decade and a half, most notably the Lawrence case decided by the U.S. Supreme Court in 2003, which held that a law banning sodomy between consenting adults was unconstitutional, should make it easier for the 10th Circuit to affirm the lower court than it might otherwise have been.
But, given the politically charged nature of any ruling finding that a polygamous family is entitled to any sort of constitutional protections, the Sister Wives family, like any reasonable litigant in their shoes, can take nothing for granted.
Also, a ruling affirming the trial court decision on procedural grounds might be less useful as a precedent in other cases, although a ruling driven by procedural considerations might also make it easier for the U.S. Supreme Court to decline to review a 10th Circuit ruling in the case.
The Sister Wives family brought suit in federal court in Utah to have the cohabitation clause of the statute declared unconstitutional, while not seeking to invalidate the bigamy clause barring more than one civil legal marriage at a time and without seeking to require the State of Utah to recognize that they have a legally valid plural marriage.
The State of Utah did a miserable job litigating the case in the trial court, where it lost. The trial court decision on the merits that is appealed from (after a preliminary standing issue was resolved) is here and was previously discussed at this blog.
The State of Utah is trying to raise new issues and to insert a few more facts into the discussion that were not raised in the trial court in its opening brief on appeal in the 10th Circuit Court of Appeals. The Sister Wives family has now filed an answer brief addressing the state's claims and issues raised in some of the numerous amicus briefs filed in the case. Once the State of Utah files its reply brief in several weeks, the 10th Circuit will probably set the case for oral argument, probably sometime late this year, after which a three judge panel will decide who wins and write an opinion, realistically, sometime next year.
All of the doctrines appellate procedure in civil cases, that prevent parties from introducing new facts, or raising new legal arguments, on appeal, along with developments in constitutional law over the last decade and a half, most notably the Lawrence case decided by the U.S. Supreme Court in 2003, which held that a law banning sodomy between consenting adults was unconstitutional, should make it easier for the 10th Circuit to affirm the lower court than it might otherwise have been.
But, given the politically charged nature of any ruling finding that a polygamous family is entitled to any sort of constitutional protections, the Sister Wives family, like any reasonable litigant in their shoes, can take nothing for granted.
Also, a ruling affirming the trial court decision on procedural grounds might be less useful as a precedent in other cases, although a ruling driven by procedural considerations might also make it easier for the U.S. Supreme Court to decline to review a 10th Circuit ruling in the case.
26 August 2015
Guns Cause Gun Deaths
Empirical evidence overwhelmingly shows that higher rates of gun ownership are associated with higher rates of gun deaths, both from homicide and suicide.
25 August 2015
Decriminalization Works
Portugal's experiment with decriminalizing drugs and taking a purely public health approach to them has been a resounding success which Ireland is now strongly considering emulating.
Fourteen years ago, fed up with the losing fight against overdose deaths and the rising prevalence of HIV/AIDS, Portugal embarked on a bold experiment by decriminalizing all drugs and taking a public health approach to illegal drug use. It now has the second-lowest number of drug-induced deaths in all of Europe and has seen a steady decrease in the number of newly diagnosed HIV and AIDS patients.Another great success has been the decriminalization of assisted suicide, in Switzerland since 1942, and also by the Dutch. Regarding the Swiss experience (emphasis added):
One tangible outcome [Irish drug czar] Ó Ríordáin would like to see is the introduction of “consumption rooms” staffed with public health workers, where intravenous drug users can safely use drugs such as heroin and access clean needles. Portugal first established a consumption room in a facility near a health center and a police department in Lisbon in 2014.
Ireland . . . sent . . . [a delegation] to Lisbon in June to learn more , . . [It found] a dramatic drop in the number of HIV/AIDS cases, a decrease in drug-related crime, and no increase in drug use. Predictions that Portugal would become a destination for drug tourists . . . haven’t come true.
A) From 1995 to 2009, assisted suicide cases have grown but the total number of suicides keeps constant.I wouldn't have necessarily expected this result on assisted suicide, but it is encouraging.
B) Assisted suicide in 2009 accounted for approx 30% of all suicides.
C) Women chose assisted suicide more than men, but men use firearms more than women to commit suicide.
D) Peak assisted suicide is between 75 and 84 years old. It seems that people that cross the 80+ years old line are not affected by painful or exhausting diseases thus they choose to life until it ends naturally.
E) Peak suicide is between 45-54 years old, midlife crisis is real.
F) Overall suicide rates for women kept constant even if assisted suicide rates increase.
G) Overall suicide rates for men are going down and assisted suicide goes up.
Is "Do What You Love" Bad Career Advice?
I have a hard time believing that many students who are on the fence about going to law school for three years while running up six figure student loans, and then trying to establish a legal career are actually following the "American career ethos: Do what you love and the money will follow."
The people who are going to law school for economic reasons aren't doing it because they expect to love law, anymore than people are becoming dentists, or accountants, or copier repairmen because they are doing what they love.
This caveat aside, however, the blog does have a solid point, not that different from my frequently criticism of the way that the philosophy that "anybody can be President", or "everyone should go to college" is counterproductive:
I've imagined variations on that movie theme myself. Even more importantly, I have seen those movies, not from Disney, of course, but from the popular culture of Japan and Korea (manga, anime and single season soap operas mostly).
In Japanese and Korean entertainment media it is a widely accepted and commonplace trope to portray the life of a working class person who takes his work seriously and isn't trying to climb the social ladder. A cook trying to succeed in culinary school so he or she can have a restaurant. An adolescent taking the reins of a family liquor store or dry cleaning business. The travails of a secretary or office lady who only wants to do the job until marriage can make that career choice irrelevant. A surfboard shop operator. A low level gangster. A kid in a vocational school. A violin repairman and maker. A mechanic.
In contrast, American media outlets are absolutely allergic to any scenario in which it appears that someone may have "settled." This isn't a healthy way to raise our young people and is not a proper standard against which to evaluate our own lives.
The people who are going to law school for economic reasons aren't doing it because they expect to love law, anymore than people are becoming dentists, or accountants, or copier repairmen because they are doing what they love.
This caveat aside, however, the blog does have a solid point, not that different from my frequently criticism of the way that the philosophy that "anybody can be President", or "everyone should go to college" is counterproductive:
The reality is that doing what we love is called a "hobby" or a "mission." Regarding the latter, for about 15 years, I rescued dogs and cats. I loved the satisfaction of helping the four-footers live a happy life. Money? It never followed. In fact, my little rescue operation was a cost center.
In a complex marketplace for labor, it's downright nutty to send out the next generation to do what they love. Instead, those in society who care - parents, teachers, mental health professionals, and clergy - have to talk straight. They have to hammer that the world of work has become a Darwinian struggle. It is tough to get. It is tough to hold on to. And it's tough to trudge upward on the food chain.
Reflection: Disney, et al. need to make non-Happy Valley films about the prince and princess who needed to get very smart about their career paths. When they took the wrong forks in the road, they almost wound up having nervous breakdowns. Happy endings came when they both signed up for low-cost training in web development and search engine optimization (SEO).From Law and More.
I've imagined variations on that movie theme myself. Even more importantly, I have seen those movies, not from Disney, of course, but from the popular culture of Japan and Korea (manga, anime and single season soap operas mostly).
In Japanese and Korean entertainment media it is a widely accepted and commonplace trope to portray the life of a working class person who takes his work seriously and isn't trying to climb the social ladder. A cook trying to succeed in culinary school so he or she can have a restaurant. An adolescent taking the reins of a family liquor store or dry cleaning business. The travails of a secretary or office lady who only wants to do the job until marriage can make that career choice irrelevant. A surfboard shop operator. A low level gangster. A kid in a vocational school. A violin repairman and maker. A mechanic.
In contrast, American media outlets are absolutely allergic to any scenario in which it appears that someone may have "settled." This isn't a healthy way to raise our young people and is not a proper standard against which to evaluate our own lives.
Conservative Takeover Of The Hugo Awards Thwarted
This year, a group of conservative science fiction fans organized to nominate an overwhelmingly conservative slate of Science Fiction's Hugo Awards, despite the genre's overall progressive leanings (they're writing about the far future, what would you expect). The larger electorate for the awards, however, rather than choose between ideologically slanted but not very good science fiction, instead chose to vote "none of the above" and deny any of these nominees the prestigious Hugo Award.
Thus, the conservative were thwarted, but no one was awarded Hugo Awards in most categories this year.
This isn't to say that there has never been good politically conservative leaning science fiction and fantasy writing. But, it certainly didn't take the world by storm this year, where an organized campaign of conservative political activism in a usually fairly apathetic forum appeared.
Thus, the conservative were thwarted, but no one was awarded Hugo Awards in most categories this year.
This isn't to say that there has never been good politically conservative leaning science fiction and fantasy writing. But, it certainly didn't take the world by storm this year, where an organized campaign of conservative political activism in a usually fairly apathetic forum appeared.
Saudi Arabia Expands Its Meaningless Franchise
The Short History Of Municipal Elections In Saudi Arabia
Saudi Arabia abolished slavery in 1962, at which time there were about 300,000 slaves in the country (which had a much smaller population than it does now).
Fifty-three years later, it has gotten around to giving women the right to vote (although in fairness, the right to vote in Saudi Arabia for anyone is only ten years old).
This year, Saudi Arabia is, for the first time, allowing women to register to vote in municipal elections under electoral reforms adopted by the King in 2012, following Saudi Arabia's second municipal election. The 2012 reforms also allowed women to be full members of the 150 member advisory legislative body that makes policy suggestions to the King, if appointed by the King to do so.
The first two municipal elections in Saudi Arabia were all male affairs held in 2005 and 2011 to elect half of the members of a largely powerless municipal council, which is presided over by the regional governor for the region in which the municipality is located and by appointed members making up the other half of the membership of the municipal council. In those elections, male citizens aged 21 and older who registered to vote were allowed to vote.
In 2011, there were 1,056 council seats with six year terms filled in 285 municipalities (up from 178 municipalities in 2005).
Turnout for municipal elections in Saudi Arabia is a bit lower than turnout for off year local elections in the United States (about 18% of eligible voters and just 2% of the total municipal population in the capitol city of Riyadh in 2005), which is to say, not very high, and the electorate is very conservative. There was a three week period during which voter registration took place, followed by a single work week during which candidates could file to be placed on the ballot, followed by the election itself held on a single day three and a half months later.
Municipal councils are probably less powerful than a typical American home owner's association with significant regulatory power, assessment rights and property under their control. Instead, they are more like Denver's neighborhood associations or a typical American student council at a middle school or high school, which provide a means to allow notable people to monitor and to provide friendly input in an organized and recognized manner to a governmental body that has real power (in Japan and Korea and many institutions of higher education in the U.S., student council's often have more real power).
The Secular Government of Saudi Arabia
The general public in this nation of 30.77 million people will continue to have no right to vote for national government officials (political parties are also banned), as the King in this absolute monarchy has all of the powers of both a European President or constitutional monarch (i.e. "head of state") and of a Prime Minister (i.e. "head of government"). The King has supreme executive, legislative and judicial power. The King appoints a couple of dozen cabinet members, the 150 members of the advisory national legislature whose sole power is to make suggestions to the King, and the thirteen regional governors. Regional governors, like feudal lords, have judicial as well as executive and legislative powers.
Only four other countries in the world are rated as more authoritarian by The Economist magazine.
The King serves for life and is chosen from the roughly two hundred adult patriline descendants of the first Saudi Arabian King, Abdul Aziz Al Saud, who are "technically" eligible to serve as King. The ranks of this group of "technically eligible" Princes are narrowed by an "Allegiance Council" (formed in 2007) composed of the first King's sons, the eldest sons of brothers who have died, and the sons of the King and Crown Prince, for a total of 28 members lead by Prince Mishaal, who serve in a capacity similar to a corporate board of directors. The Council generally appoints the person named "Crown Prince" by the previous monarch at the time of his death, generally based on a line of succession that allows a current King to skip the next person in line for good cause.
The current King of Saudi Arabia, who took office in January of this year, is the seventh to serve since the first King created Saudi Arabia through a series of conquests from 1902 to 1932. Oil was discovered in Saudi Arabia six year later in 1938. So far, all six of his successors right up the present day, have been his sons, although the current Crown Prince is a grandson of the first King.
Most other leading positions in government in Saudi Arabia are also chosen from the Royal family, although a handful of key positions have been held by exceptional commoners.
Recall that as a state governed by Islamic law, that men can be married to up to four women at a time and can easily divorce and remarry, and affluent royal family members are particularly likely to do so and to have many children. So, it isn't uncommon for older Saudi Arabian men in the royal family to have more than a dozen sons. The first King had 45 legitimate sons.
The real politics in Saudi Arabia are mostly power struggles between various factions within the Royal family, and between religious and secular authorities in Saudi Arabia.
Islamic Religious Leadership and Law In Saudi Arabia
Saudi Arabia has lots of well educated citizens from Royals down to the middle classes, both men and women, but a large share of them have degrees that have no economic utility.
Islamic theology is probably the most common of these. This makes more sense when one recognizes that pretty much the only path to significant power in Saudi Arabia for a non-Royal is to become part of the "ulema" (which is the collective group of Islamic religious leaders and jurists). Heredity plays an important part in the ulema as well, however.
Foreign Technocrats and Menial Workers
Technocratic positions that Saudi Arabia lacks people with the skills to fill, and jobs deemed to menial for any Saudi Arabian citizen are carried out by a huge number of foreign workers with temporary work visas.
One of the rallying cries of the American Revolution was "no taxation without representation" and it turns out that this is pretty much a global norm at the root of most new democracies not imposed by colonial powers.
But, in Saudi Arabia, the nation has chosen to path of no taxation and no representation, rather than taxation and representation. It will be interesting to see how this balance changes as Saudi Arabia's oil supplies and sovereign wealth funds are gradually exhausted.
Citizens of Saudi Arabia and select regional allies pay no individual income taxes other than Zakat (a religious tax similar in concept to a tithe), although there is a corporate income tax. This is possible because the Royal family owns the country's most valuable economic assets, its oil and gas resources and sovereign wealth funds, personally.
Saudi Arabia abolished slavery in 1962, at which time there were about 300,000 slaves in the country (which had a much smaller population than it does now).
Fifty-three years later, it has gotten around to giving women the right to vote (although in fairness, the right to vote in Saudi Arabia for anyone is only ten years old).
This year, Saudi Arabia is, for the first time, allowing women to register to vote in municipal elections under electoral reforms adopted by the King in 2012, following Saudi Arabia's second municipal election. The 2012 reforms also allowed women to be full members of the 150 member advisory legislative body that makes policy suggestions to the King, if appointed by the King to do so.
The first two municipal elections in Saudi Arabia were all male affairs held in 2005 and 2011 to elect half of the members of a largely powerless municipal council, which is presided over by the regional governor for the region in which the municipality is located and by appointed members making up the other half of the membership of the municipal council. In those elections, male citizens aged 21 and older who registered to vote were allowed to vote.
In 2011, there were 1,056 council seats with six year terms filled in 285 municipalities (up from 178 municipalities in 2005).
Turnout for municipal elections in Saudi Arabia is a bit lower than turnout for off year local elections in the United States (about 18% of eligible voters and just 2% of the total municipal population in the capitol city of Riyadh in 2005), which is to say, not very high, and the electorate is very conservative. There was a three week period during which voter registration took place, followed by a single work week during which candidates could file to be placed on the ballot, followed by the election itself held on a single day three and a half months later.
Municipal councils are probably less powerful than a typical American home owner's association with significant regulatory power, assessment rights and property under their control. Instead, they are more like Denver's neighborhood associations or a typical American student council at a middle school or high school, which provide a means to allow notable people to monitor and to provide friendly input in an organized and recognized manner to a governmental body that has real power (in Japan and Korea and many institutions of higher education in the U.S., student council's often have more real power).
The Secular Government of Saudi Arabia
The general public in this nation of 30.77 million people will continue to have no right to vote for national government officials (political parties are also banned), as the King in this absolute monarchy has all of the powers of both a European President or constitutional monarch (i.e. "head of state") and of a Prime Minister (i.e. "head of government"). The King has supreme executive, legislative and judicial power. The King appoints a couple of dozen cabinet members, the 150 members of the advisory national legislature whose sole power is to make suggestions to the King, and the thirteen regional governors. Regional governors, like feudal lords, have judicial as well as executive and legislative powers.
Only four other countries in the world are rated as more authoritarian by The Economist magazine.
The King serves for life and is chosen from the roughly two hundred adult patriline descendants of the first Saudi Arabian King, Abdul Aziz Al Saud, who are "technically" eligible to serve as King. The ranks of this group of "technically eligible" Princes are narrowed by an "Allegiance Council" (formed in 2007) composed of the first King's sons, the eldest sons of brothers who have died, and the sons of the King and Crown Prince, for a total of 28 members lead by Prince Mishaal, who serve in a capacity similar to a corporate board of directors. The Council generally appoints the person named "Crown Prince" by the previous monarch at the time of his death, generally based on a line of succession that allows a current King to skip the next person in line for good cause.
The current King of Saudi Arabia, who took office in January of this year, is the seventh to serve since the first King created Saudi Arabia through a series of conquests from 1902 to 1932. Oil was discovered in Saudi Arabia six year later in 1938. So far, all six of his successors right up the present day, have been his sons, although the current Crown Prince is a grandson of the first King.
Most other leading positions in government in Saudi Arabia are also chosen from the Royal family, although a handful of key positions have been held by exceptional commoners.
Recall that as a state governed by Islamic law, that men can be married to up to four women at a time and can easily divorce and remarry, and affluent royal family members are particularly likely to do so and to have many children. So, it isn't uncommon for older Saudi Arabian men in the royal family to have more than a dozen sons. The first King had 45 legitimate sons.
The royal family dominates the political system. The family's vast numbers allow it to hold most of the kingdom's important posts and to have an involvement and presence at all levels of government. The number of princes is estimated to be anything from 7,000 upwards, with the most power and influence being wielded by the 200 or so male descendants of King Abdulaziz. The key ministries are generally reserved for the royalThere is roughly one male Prince in Saudi Arabia per 40,000 people, and, presumably, a similar number of, often closely related, women who were born as Princesses (excluding commoner women who have married Princes).
family, as are the thirteen regional governorships. With the large number of family members seeking well paying jobs, critics complain that even "middle management" jobs in the Kingdom out of reach for non-royal Saudis, limiting upward mobility and incentive for commoners to excel.
The real politics in Saudi Arabia are mostly power struggles between various factions within the Royal family, and between religious and secular authorities in Saudi Arabia.
Islamic Religious Leadership and Law In Saudi Arabia
Saudi Arabia has lots of well educated citizens from Royals down to the middle classes, both men and women, but a large share of them have degrees that have no economic utility.
Islamic theology is probably the most common of these. This makes more sense when one recognizes that pretty much the only path to significant power in Saudi Arabia for a non-Royal is to become part of the "ulema" (which is the collective group of Islamic religious leaders and jurists). Heredity plays an important part in the ulema as well, however.
The ulema have historically been led by the Al ash-Sheikh, the country's leading religious family. The Al ash-Sheikh are the descendants of Muhammad ibn Abd al-Wahhab, the 18th century founder of the Wahhabi form of Sunni Islam which is today dominant in Saudi Arabia. The family is second in prestige only to the Al Saud (the royal family) with whom they formed a "mutual support pact" and power-sharing arrangement nearly 300 years ago. The pact, which persists to this day, is based on the Al Saud maintaining the Al ash-Sheikh's authority in religious matters and upholding and propagating Wahhabi doctrine. In return, the Al ash-Sheikh support the Al Saud's political authority thereby using its religious-moral authority to legitimize the royal family's rule. Although the Al ash-Sheikh's domination of the ulema has diminished in recent decades, they still hold the most important religious posts and are closely linked to the Al Saud by a high degree of intermarriage.Most "everyday" criminal and civil law is vested in the Islamic courts with a combined 700 or so ordinary religious trial court judges. In the Islamic courts, however, in addition to heredity, geography and ideology play a powerful role:
Saudi judges come from a narrow recruitment pool. By one estimate, 80% of the 600+ Saudi judges and almost all senior judges come from Qasim, a province in the center of the country with less than 5% of Saudi's population, but known as the strict religious Wahhabi heartland of Saudi Arabia. Senior judges will only allow like-minded graduates of select religious institutes to join the judiciary and will remove judges that stray away from rigidly conservative judgments.Secular courts handle claims against the government, criminal corruption charges, and administrative law in areas like labor and commercial law. A secular anti-terrorism court was created in 2008, and regional governors and the kings also directly resolve significant civil disputes within the jurisdiction.
Foreign Technocrats and Menial Workers
Technocratic positions that Saudi Arabia lacks people with the skills to fill, and jobs deemed to menial for any Saudi Arabian citizen are carried out by a huge number of foreign workers with temporary work visas.
[A]s of 2013 foreign nationals living in Saudi Arabia made up about 21% of the population. Other sources report differing estimates. Indian: 1.3 million, Pakistani: 1.5 million, Egyptian: 900,000, Yemeni: 800,000, Bangladeshi: 500,000, Filipino: 500,000, Jordanian/Palestinian: 260,000, Indonesian: 250,000, Sri Lankan: 350,000, Sudanese: 250,000, Syrian: 100,000 and Turkish: 100,000. There are around 100,000 Westerners in Saudi Arabia, most of whom live in compounds or gated communities.
Foreign Muslims who have resided in the kingdom for ten years may apply for Saudi citizenship. (Priority is given to holders of degrees in various scientific fields, and exception made for Palestinians who are excluded unless married to Saudi national, because of Arab League instructions barring the Arab states from granting them citizenship.)
As Saudi population grows and oil export revenues stagnate, pressure for "Saudization" (the replacement of foreign workers with Saudis) has grown, and the Saudi government hopes to decrease the number of foreign nationals in the country. Saudi Arabia expelled 800,000 Yemenis in 1990 and 1991. and has built a Saudi–Yemen barrier against an influx of illegal immigrants and against the smuggling of drugs and weapons.In November 2013, Saudi Arabia expelled thousands of illegal Ethiopians from the Kingdom. Various Human Rights entities have criticised Saudi Arabia's handling of the issue.No Taxation And No Representation
One of the rallying cries of the American Revolution was "no taxation without representation" and it turns out that this is pretty much a global norm at the root of most new democracies not imposed by colonial powers.
But, in Saudi Arabia, the nation has chosen to path of no taxation and no representation, rather than taxation and representation. It will be interesting to see how this balance changes as Saudi Arabia's oil supplies and sovereign wealth funds are gradually exhausted.
Citizens of Saudi Arabia and select regional allies pay no individual income taxes other than Zakat (a religious tax similar in concept to a tithe), although there is a corporate income tax. This is possible because the Royal family owns the country's most valuable economic assets, its oil and gas resources and sovereign wealth funds, personally.
24 August 2015
The Social Hygienic Hypothesis And Civic Antibodies
* Off duty American soldiers on a high speed train between Amsterdam and Paris stopped a Moroccan terrorist armed with an AK-47, a pistol and a box cutter last week. Flight 93 style, they stormed the armed man who was firing his weapon unarmed from 30 feet away down an aisle on the train. One of the men, Air Force Medic Stone, keep hold of him despite receiving a slash to the neck and a nearly severed thumb, and then once the Moroccan man was subdued, went on to treat another passenger with serious wounds before tending to his own needs. Another passenger received minor injuries.
It is notable that the heroes in this case were Americans and servicemen, one of whom was recently returned from the war in Afghanistan, rather than the many European passengers on board. I have no doubt that their training and the retelling of the story of Flight 93.
On Flight 93, one of the planes hijacked on 9-11, unarmed passengers similarly took down terrorists hijacking their plane en route to the capital in a move famously called for with the phrase "Let's roll." That flight crashed killing everyone on board, but unlike the other three 9-11 hijackings, the passengers stopped the planes from being used as weapons against prominent targets. Fortunately, this time, everybody lived, even the terrorist, and no one received life threatening injuries.
* In medicine, something known as the hygienic hypothesis argues that someone needs to be exposed to germs in order to have a well functioning immune system. Exposure to germs, not just in vaccinations, but in day to day life, trains antibodies in the body to respond to germs appropriately. Someone who lives in an environment that is too hygienic and germ free tends to develop autoimmune conditions, including allergies, as the body's immune system looked for genuine germs, fails to find them, and starts to identify non-threats as threatening.
The social hygienic hypothesis argues that something similar happens in societies. An environment too free of violent threats, frauds, deceptive advertisements and the like, gives rise to people ill equipped to deal with a serious real threat when it comes along, and to people who treat non-threats as dangerous and undermine the society's own health as a result.
The social hygienic hypothesis would argue that Americans in general, through their exposure to 9-11, and American soldiers who have been involved in the War on Terrorism in Afghanistan, in particular, have developed the right social immune systems to deal with these threats, while Europeans, in contrast, while they have seen some terrorist incidents, have not yet developed the right "social antibodies" in their culture to respond effectively to them.
Hence, these American soldiers on the train took decisive action that stopped much greater bloodshed, and exploited the brief period when the terrorist's AK-47 was malfunctioning, and his pistol had only one bullet that could be used that would have been lost if they had hesitated, while the other passengers, mostly European, were briefly frozen like deer in the headlights.
* Some natural experiments have proven the hygienic hypothesis in situations different from the ones that led to its formulation. For example, Scandinavians, using their comprehensive health records database made possible due to their universal health care system, compared people who grew up in households where dishes were hand washed, with people who grew up in households where dishes were machine washed, a process that more completely removed germs from dishes every single time.
In what would be a surprising result, if you weren't aware of the hygienic hypothesis, the people who grew up in the hand washed dishes homes had few autoimmune conditions and allergies than those who machine washed their dishes.
Now, the hygienic hypothesis has limits. Nobody suggests that people would be healthier if we didn't wash our dishes at all. Learning the public health risk from diseases caused by that approach to hygiene and taking action to stop them was the major public health advance of the 20th century and has added several decades to the average life expectancy in the developed and developing world.
But, perhaps, just as being a bit too clean can impair a society's health, so can being a bit too free from violence and fraud, impair a society's safety. Indeed, it may even be that it is possible to "inoculate" society to safety threats with convincing media exposure.
None of the men in the train terrorism incident last week had actually experienced a "Let's Roll" incident like Flight 93, and probably, none had even experienced a mock version of one. A child who saved a beach full of people from a tsunami by recognizing the signs and being insistent that everyone evacuate while on vacation in Indonesia, had never experienced one. A fourteen year old African-American who a baby abducted, recognizes what was going on, pursued the kidnappers on his bike, and eventually got help to win her freedom had probably never experienced anything like that personally. But, all of these heroes had experienced multiple media exposures to incidents like the one that they encountered that allowed them to accurately process what they were seeing and to formulate a response that made a difference.
While nobody wants anyone to get hurt from minor exposure to threats, violent and economic, a certain tolerance for low grade threats and inoculation to more serious ones from media exposure, could help us as a society avoid the social hygienic hypothesis consequences of lives that are too safe and too sheltered. It is important to learn how to trust, but it is also important to be able to recognize who not to trust, what real threats look like, and how to respond to those threats.
It is notable that the heroes in this case were Americans and servicemen, one of whom was recently returned from the war in Afghanistan, rather than the many European passengers on board. I have no doubt that their training and the retelling of the story of Flight 93.
On Flight 93, one of the planes hijacked on 9-11, unarmed passengers similarly took down terrorists hijacking their plane en route to the capital in a move famously called for with the phrase "Let's roll." That flight crashed killing everyone on board, but unlike the other three 9-11 hijackings, the passengers stopped the planes from being used as weapons against prominent targets. Fortunately, this time, everybody lived, even the terrorist, and no one received life threatening injuries.
* In medicine, something known as the hygienic hypothesis argues that someone needs to be exposed to germs in order to have a well functioning immune system. Exposure to germs, not just in vaccinations, but in day to day life, trains antibodies in the body to respond to germs appropriately. Someone who lives in an environment that is too hygienic and germ free tends to develop autoimmune conditions, including allergies, as the body's immune system looked for genuine germs, fails to find them, and starts to identify non-threats as threatening.
The social hygienic hypothesis argues that something similar happens in societies. An environment too free of violent threats, frauds, deceptive advertisements and the like, gives rise to people ill equipped to deal with a serious real threat when it comes along, and to people who treat non-threats as dangerous and undermine the society's own health as a result.
The social hygienic hypothesis would argue that Americans in general, through their exposure to 9-11, and American soldiers who have been involved in the War on Terrorism in Afghanistan, in particular, have developed the right social immune systems to deal with these threats, while Europeans, in contrast, while they have seen some terrorist incidents, have not yet developed the right "social antibodies" in their culture to respond effectively to them.
Hence, these American soldiers on the train took decisive action that stopped much greater bloodshed, and exploited the brief period when the terrorist's AK-47 was malfunctioning, and his pistol had only one bullet that could be used that would have been lost if they had hesitated, while the other passengers, mostly European, were briefly frozen like deer in the headlights.
* Some natural experiments have proven the hygienic hypothesis in situations different from the ones that led to its formulation. For example, Scandinavians, using their comprehensive health records database made possible due to their universal health care system, compared people who grew up in households where dishes were hand washed, with people who grew up in households where dishes were machine washed, a process that more completely removed germs from dishes every single time.
In what would be a surprising result, if you weren't aware of the hygienic hypothesis, the people who grew up in the hand washed dishes homes had few autoimmune conditions and allergies than those who machine washed their dishes.
Now, the hygienic hypothesis has limits. Nobody suggests that people would be healthier if we didn't wash our dishes at all. Learning the public health risk from diseases caused by that approach to hygiene and taking action to stop them was the major public health advance of the 20th century and has added several decades to the average life expectancy in the developed and developing world.
But, perhaps, just as being a bit too clean can impair a society's health, so can being a bit too free from violence and fraud, impair a society's safety. Indeed, it may even be that it is possible to "inoculate" society to safety threats with convincing media exposure.
None of the men in the train terrorism incident last week had actually experienced a "Let's Roll" incident like Flight 93, and probably, none had even experienced a mock version of one. A child who saved a beach full of people from a tsunami by recognizing the signs and being insistent that everyone evacuate while on vacation in Indonesia, had never experienced one. A fourteen year old African-American who a baby abducted, recognizes what was going on, pursued the kidnappers on his bike, and eventually got help to win her freedom had probably never experienced anything like that personally. But, all of these heroes had experienced multiple media exposures to incidents like the one that they encountered that allowed them to accurately process what they were seeing and to formulate a response that made a difference.
While nobody wants anyone to get hurt from minor exposure to threats, violent and economic, a certain tolerance for low grade threats and inoculation to more serious ones from media exposure, could help us as a society avoid the social hygienic hypothesis consequences of lives that are too safe and too sheltered. It is important to learn how to trust, but it is also important to be able to recognize who not to trust, what real threats look like, and how to respond to those threats.
20 August 2015
Autumn In Texas
It was what passed for winter in west Texas, at least until the snowstorms. They'd had a few days of fall, which meant that the leaves were a sickly yellow around the edges instead of dark green. She'd heard that fall was a beautiful season in other parts of the country and the world, but around here it was more or less a half hour between blazing summer and freezing winter.- Rachel Caine, "Carpe Corpus" (2009).
One more reason to never,ever live in Texas.
18 August 2015
Lyric Novels
All cultural trends cycle through history. Long form works in verse are no exception.
They were big in Sumeria: think Gilgamesh. They were big in classical Greece: think Homer. They were big in Elizabethan England: think Shakespeare. And, they were big two hundred years ago: think Byron.
Now, they are back, mostly in the teen fiction aisle of your local book store or library. One recent one is the new novel by Stefanie Lyons, Dating Down (2015). It, and its companions in the genre are not Gilgamesh, Homer, Shakespeare or Byron. But, you've got to start somewhere. This genre has been so frozen for so long, it will take some time to recover.
Intellectual historians hypothesize that writing in verse may have originally been a mnemonic aide when most people were illiterate and fiction was strictly an oral tradition. Shakespeare and Byron were, in part, trying to imitate classical Greco-Roman forms in the process of trying to reinvent high culture that had been dormant during the Dark Ages.
These days, teen fiction aimed at girls is in verse because it is emotionally intense, while also being cute. It also captures the modern folk practice of keeping a poetry journal in lieu of a more conventional one, which is a favorite of introverted, emotionally intense bad girls across America these days. It conjures the creative spirit of all of the great manic-depressive wunderkind who die young after leaving their mark on our collective soul.
The trouble is that modern long form works in verse tend to be poetry collections loosely connected together to provide a narrative, rather than actually containing any really lengthy individual poems.
Why is this a problem?
Well written long works in prose can be page turners, flowing seamlessly as they pulls you ever forward towards a conclusion.
In contrast, a long collection of related short poems invites you, indeed almost urges you, to stop, reflect, and put the book down every two or three pages when an individual poem concludes. It's like watching a TV show with a commercial break every three minutes. While individual poems may suffice to tell their part of the story, and even to tell it better than prose would, it interrupts the flow of reading to invite your reader to interrupt the experience. This makes it much harder to finish reading the whole thing.
This isn't to say that there is an insurmountable barrier to a return to long form works in verse. Some very successful and acclaimed short novels are written in prose so carefully crafted that it reads almost like poetry. The Bridges of Madison County (1992) by Robert James Walker, and Plainsong (1999) by Kent Haruf, exemplify that literary style. And, most of the millions of English majors in the country today are very familiar with the historical forms of the genre from Gilgamesh to Byron, so plenty of potential lyric novelist are equipped with the basic tools needed to single handedly revive the form.
Until then, you can read the decidedly less than epic lyric novels that have infiltrated teen fiction at your own risk. But, don't blame me if you set these novels down before you are finished and never get back to them.
They were big in Sumeria: think Gilgamesh. They were big in classical Greece: think Homer. They were big in Elizabethan England: think Shakespeare. And, they were big two hundred years ago: think Byron.
Now, they are back, mostly in the teen fiction aisle of your local book store or library. One recent one is the new novel by Stefanie Lyons, Dating Down (2015). It, and its companions in the genre are not Gilgamesh, Homer, Shakespeare or Byron. But, you've got to start somewhere. This genre has been so frozen for so long, it will take some time to recover.
Intellectual historians hypothesize that writing in verse may have originally been a mnemonic aide when most people were illiterate and fiction was strictly an oral tradition. Shakespeare and Byron were, in part, trying to imitate classical Greco-Roman forms in the process of trying to reinvent high culture that had been dormant during the Dark Ages.
These days, teen fiction aimed at girls is in verse because it is emotionally intense, while also being cute. It also captures the modern folk practice of keeping a poetry journal in lieu of a more conventional one, which is a favorite of introverted, emotionally intense bad girls across America these days. It conjures the creative spirit of all of the great manic-depressive wunderkind who die young after leaving their mark on our collective soul.
The trouble is that modern long form works in verse tend to be poetry collections loosely connected together to provide a narrative, rather than actually containing any really lengthy individual poems.
Why is this a problem?
Well written long works in prose can be page turners, flowing seamlessly as they pulls you ever forward towards a conclusion.
In contrast, a long collection of related short poems invites you, indeed almost urges you, to stop, reflect, and put the book down every two or three pages when an individual poem concludes. It's like watching a TV show with a commercial break every three minutes. While individual poems may suffice to tell their part of the story, and even to tell it better than prose would, it interrupts the flow of reading to invite your reader to interrupt the experience. This makes it much harder to finish reading the whole thing.
This isn't to say that there is an insurmountable barrier to a return to long form works in verse. Some very successful and acclaimed short novels are written in prose so carefully crafted that it reads almost like poetry. The Bridges of Madison County (1992) by Robert James Walker, and Plainsong (1999) by Kent Haruf, exemplify that literary style. And, most of the millions of English majors in the country today are very familiar with the historical forms of the genre from Gilgamesh to Byron, so plenty of potential lyric novelist are equipped with the basic tools needed to single handedly revive the form.
Until then, you can read the decidedly less than epic lyric novels that have infiltrated teen fiction at your own risk. But, don't blame me if you set these novels down before you are finished and never get back to them.
Confederate Flag Rallies
Wonkblog maps the 173 pro-Confederate Flag rallies that have been held since the June 17, 2015 shooting of nine parishioners by a white supremacist (who has confessed to the crime and its motive) at a historic black church in Charleston, South Carolina prompted governments and businesses to disavow the Confederate Flag as a symbol.
The data was gathered by the Southern Poverty Law Center, which estimates a total attendance of 23,000 people, about half of which was at three big rallies: one in mid-July in Oscala, Florida to support a county decision to return a Confederate flag to government property with about 5,000 attending, one in North Carolina that drew about 4,000 people, and a KKK rally in Charleston, South Carolina in July, 2015 that had 2,000 supporters.
This isn't a huge attendance for supporters of what was reinvented as a symbol of opposition to the Civil Rights movement at that time, after having been mostly dormant for about seventy years, and has remained a potent symbol for white racists in the South (unfortunately, a group that includes most Southern whites) for about half a century. Keep in mind that referendums in more than one state have shown majority support among voters for the Confederate flag as a government endorsed symbol in Southern states in the last decade.
The many small rallies with just twenty or so supporters each almost make more of a statement by being pathetic and lonely than they do by showing mass opposition to removing the Confederate flag from government buildings. Also notably, many of the rallies had numerous armed attendees. And, ironically, a KKK rally isn't necessarily all that threatening, even if it is fairly big, because the KKK is right up their in popularity in American public opinion with Satanism and Nazis, even among large numbers of Southerners and is dead as a brand in places like Colorado where it once boasted that it had elected a Governor and a Mayor of Denver. The other two big rallies were a much greater cause for concern.
Mostly, the distribution of the rallies are what you would expect. But, there were a few surprises. I was surprised to see many more rallies in Ohio than in Indiana which has historically been more conservative and more politically aligned with the South. I was surprised to see no rallies in Coeur D'Alene, Idaho, a historical center of the white supremacy movement, while seeing them in Oregon and New Mexico which are not known for those leanings. There were fewer rallies in Texas than I would have expected, perhaps because the Texas flag provides an alternative sense of identity for Texans.
The data was gathered by the Southern Poverty Law Center, which estimates a total attendance of 23,000 people, about half of which was at three big rallies: one in mid-July in Oscala, Florida to support a county decision to return a Confederate flag to government property with about 5,000 attending, one in North Carolina that drew about 4,000 people, and a KKK rally in Charleston, South Carolina in July, 2015 that had 2,000 supporters.
This isn't a huge attendance for supporters of what was reinvented as a symbol of opposition to the Civil Rights movement at that time, after having been mostly dormant for about seventy years, and has remained a potent symbol for white racists in the South (unfortunately, a group that includes most Southern whites) for about half a century. Keep in mind that referendums in more than one state have shown majority support among voters for the Confederate flag as a government endorsed symbol in Southern states in the last decade.
The many small rallies with just twenty or so supporters each almost make more of a statement by being pathetic and lonely than they do by showing mass opposition to removing the Confederate flag from government buildings. Also notably, many of the rallies had numerous armed attendees. And, ironically, a KKK rally isn't necessarily all that threatening, even if it is fairly big, because the KKK is right up their in popularity in American public opinion with Satanism and Nazis, even among large numbers of Southerners and is dead as a brand in places like Colorado where it once boasted that it had elected a Governor and a Mayor of Denver. The other two big rallies were a much greater cause for concern.
Mostly, the distribution of the rallies are what you would expect. But, there were a few surprises. I was surprised to see many more rallies in Ohio than in Indiana which has historically been more conservative and more politically aligned with the South. I was surprised to see no rallies in Coeur D'Alene, Idaho, a historical center of the white supremacy movement, while seeing them in Oregon and New Mexico which are not known for those leanings. There were fewer rallies in Texas than I would have expected, perhaps because the Texas flag provides an alternative sense of identity for Texans.
NYC In The Summer
I am in New York City most of this week taking depositions* in a trademark infringement lawsuit. My hotel is in Times Square (7th Avenue and West 51st Street). The depositions are being held at the offices of a law firm at Park Avenue and East 40th Street. I took a cab there this morning since time considerations were key and I had a large suitcase full of exhibits (including numerous samples of the disputed goods) that I needed for the depositions. But, since I was able to leave my exhibits and their suitcase at the law firm overnight, and I was in no rush to get back to my hotel, I walked back.
This fifteen block walk (1.1 miles) was a manageable distance to walk unburdened by things to carry; a healthy walk with a little sightseeing thrown in, after a day spent working since early in the morning to make final preparations for, and then take, today's deposition. But, what I did not foresee was just how hot it is to walk the streets of New York City on a summer afternoon, with temperatures of a reasonably humid ninety-something degrees, in a full suit and tie. It had been so much cooler in the morning when I left that I hadn't expected it to be an issue.
By the time I finished my walk and arrived in my hotel room, my dress shirt was so drenched with sweat that I might as well have just pulled it out of a bathtub, or walked through a rainstorm.
* A deposition involves taking the testimony of a witness under oath in the presence of a court reporter, much like you might at a trial, usually in a law office or hotel conference room, outside the presence of a judge or jury, and with fewer permissible objections to questions asked that are allowed. Depositions are usually taken in non-criminal lawsuits in order to obtain information from opposing parties and third party witnesses in order to prepare for trial. This testimony is also not infrequently used in a pre-trial motion for summary judgment to establish that one or more key facts necessary for the court to make a ruling are undisputed, when this is the case. Less frequently, depositions are used to preserve the testimony of someone who may not be available to testify at trial for some reason, in which case the testimony is read aloud to the jury in lieu of live witness testimony, unless the deposition was videotaped, in which case the jury watches selected portions of the video. In modern civil litigation, in which the lion's share of lawsuits are resolved by settlement or motions practice prior to trial, and "no surprises" in the mantra in cases that do go to trial, a civil litigator typically spends far more days taking and defending depositions, than actually litigating cases in trials.
This fifteen block walk (1.1 miles) was a manageable distance to walk unburdened by things to carry; a healthy walk with a little sightseeing thrown in, after a day spent working since early in the morning to make final preparations for, and then take, today's deposition. But, what I did not foresee was just how hot it is to walk the streets of New York City on a summer afternoon, with temperatures of a reasonably humid ninety-something degrees, in a full suit and tie. It had been so much cooler in the morning when I left that I hadn't expected it to be an issue.
By the time I finished my walk and arrived in my hotel room, my dress shirt was so drenched with sweat that I might as well have just pulled it out of a bathtub, or walked through a rainstorm.
* A deposition involves taking the testimony of a witness under oath in the presence of a court reporter, much like you might at a trial, usually in a law office or hotel conference room, outside the presence of a judge or jury, and with fewer permissible objections to questions asked that are allowed. Depositions are usually taken in non-criminal lawsuits in order to obtain information from opposing parties and third party witnesses in order to prepare for trial. This testimony is also not infrequently used in a pre-trial motion for summary judgment to establish that one or more key facts necessary for the court to make a ruling are undisputed, when this is the case. Less frequently, depositions are used to preserve the testimony of someone who may not be available to testify at trial for some reason, in which case the testimony is read aloud to the jury in lieu of live witness testimony, unless the deposition was videotaped, in which case the jury watches selected portions of the video. In modern civil litigation, in which the lion's share of lawsuits are resolved by settlement or motions practice prior to trial, and "no surprises" in the mantra in cases that do go to trial, a civil litigator typically spends far more days taking and defending depositions, than actually litigating cases in trials.
16 August 2015
Old New Wisdom That's Still True And Other Miscellany
* Vox succintly restates what recent empirical evidence from the social sciences tells us about parenting:
Also, just because refraining from "abuse or neglect" and escaping its frequently companion, poverty, is commonplace, doesn't mean that it is always easy when faced with a colicky baby or balancing the need to work long hours to be able to afford essentials and the need to be personally present with your children.
But, it is certainly fair to say that parents, especially affluent new parents with few children who grew up small families themselves, are prone to dramatically overestimate the role of parental nurture in how they turn out.
And, David Roberts, the author of this Vox article does have one other good caveat for us:
This miracle has been demonstrated over and over again, in Denver, in Southeast Colorado, in Central Florida, and in Charlotte, North Carolina, and in Utah, to name a few examples. Yet, it is so contrary to what "everyone knows is true" that politicians and the public stubbornly resist implementing this fairly simple idea.
* The same thing is true about the common American criminal justice practice about routinely incarcerating people charged with crimes pending trial if they can't post bond, which many poor arrestees cannot.
The Vera Institute of Justice developed powerful empirical evidence in the 1960s that the modern institution of bail was unjust and that releasing all but a handful of high risk poor criminal defendants awaiting trial did not pose a heightened risk to public safety, greatly reduced the cost of the criminal justice system for the municipalities that adopted this reform (supervision by pretrial services officers costs about a tenth as much as keeping someone locked up), and produced more fair criminal justice outcomes.
But, as the New York Times and other investigative journalists who have looked into the story have shown, bail remains an institution for unjust and expensive mistreatment of the poor, even in New York City where some of the first experiments with an alternative were wildly successful. Consider this paragraph from the New York Times Magazine (via Vox):
One rare promising example of a school listening to the empirical evidence, however, is the newest charter high school in the Denver Public Schools, Northfield High School in the Stapleton neighborhood, whose doors open this fall for its first entering class, which will also feature an extended school year with less summer vacation (another empirically proven way to improve school performance that has not overcome decades of tradition that no longer makes any sense in the modern world).
* I hadn't realized until stumbling upon an article on the reform of California's draconian "three-strikes and you're out" law that the 2012 ballot initiative that reformed it was largely the work of two men, George Soros and a California law professor, whose roughly equal combined $1.9 million of contributions to the total $2.7 million raised by the campaign as a whole (about $1.5 million of which paid for the process of getting approval for a petition and circulating it with paid petition gatherers to get it one ballot).
They accomplished what liberals in California's legislature, seemingly unanimous academic and newspaper editorial opinion, the 8th Amendment prohibition against cruel and unusual punishment, the power of the Governor of California to commute criminal sentences, and scathing dissenting opinions by judges had not. This measure bought the freedom of roughly 3,000 people who were unjustly imprisoned for life for minor third crimes (many of which would have been misdemeanors for first offenders), at a price of less than $1,000 each, in an act reminiscent of a wealthy man buying slaves to free them (something that still happens in places like Mali).
The fact that a couple of wealthy individuals could get 69% of Californians to vote for a citizen's initiative to fix a clear problem which the state legislature in a liberal state wasn't willing to take on points to how fundamentally flawed the legislative process can be.
* Op-Ed columnist George Will meanwhile calls attention to another set of deep flaws with our legislative process recalling Jonathan Rauch's 1994 book "Demosclerosis", which he accentuates with the example of Mohair subsidies supported by no rational policy argument to the tune of $5 million a year that managed to be reenacted for most of the time period since 1954. Simply put, Madison's Federalist Paper No. 10 be damned, the inattentive majorities to which Congress theoretically responds turns out to be utterly incompetent at overcoming the will of attentive minorities. Individually, this senseless subsidies are a drop in the bucket, but collectively, they add up.
They are also canaries in the mine alerting us to flaws in the process that have the potential to manifest in more damaging ways elsewhere, and undermine basic civics assumptions about how our democratic system of government should work. In short, it is proof, once again, that we have a system of government that is no longer state of the art or enviable as a world model of a democracy that works well, something that undermines our "soft power" on the world stage.
* Louisiana has lost 1,880 square miles of land to the sea in the last century, a trend that Hurricane Katrina accentuated. Many of the remaining settlements outside New Orlean's new and improved levees will be gone after the next serious Hurricane to this the region (which may be a few years due to the existence of one of the strongest El Nino conditions on record in the Pacific right now, which suppressed Atlantic Hurricanes while enhancing Pacific Monsoons).
Incidentally, those Pacific Monsoons which have hit rural Indian hard, are also dragging down world gold prices, because rural India despite being relatively poor internationally, accounts for about 20% of world gold purchases (proportionate to its population but greatly disproportionate to it share of world GDP) because large gifts of gold are common their as gifts for weddings and other occasions. But, monsoon driven hard times have curtailed their purchases and thus curtailed demand for what is roughly speaking as a first approximation, a fixed world supply of the commodity.
* There are still crazy people in the world.
For example, there are people who get stories published in religious magazines in the United States, who claim with a straight face that having Rhesus (RH) negative blood is a sign that you are descended from the Nephilim (i.e. human-angel hybrids), described in passing in the Bible and at length in the non-canonical Book of Enoch which has had immense impact on Judeo-Christian mysticism or metaphysical lore that has made its way into popular culture. Despite the fact that the Nephilim of apocryphal Christian tradition were generally evil, the proponents of this theory try to fit an angelic origin of RH negative blood into a doctrine of white supremacy (although ironically a white supremacy that favors the European Catholics and Jews whom the KKK persecuted almost as severely as blacks) noting that:
* Modern African Christianity, meanwhile, has latched onto to doctrines of demon possession and exorcism, deliberately de-emphasized in the Northern hemisphere branches of these denominations despite the prominent role that these doctrines play in the canonical New Testament, in which an exorcism ministry was one of the core activities of Jesus Christ and his apostles.
African Christians have also taken up the Old Testament injunction to kill witches with unfortunate gusto, a practice that European Christians largely abandoned after the 17th century as the Enlightenment largely banished the notion of witchcraft as being anything more than fiction among the elites that held the power to continue the practice. (Persecution of suspected witches is also alive and well in modern Islam.)
* Crazy people are more frightening, however, when they have power. For example, Alabama Chief Justice Roy Moore (who was re-elected by the people of Alabama to the post after being removed from it for judicial misconduct) thinks that the U.S. Supreme Court legalized same-sex marriage because Satan influenced them to do it.
* Our criminal justice system is quite impervious not just to uncommon insights, but to common sense too. The prevailing view in the law of post-conviction review of criminal convictions is that "an innocent person convicted after a procedurally adequate trial" is not constitutionally entitled to release from prison, because "actual innocence" has not been recognized by the U.S. Supreme Court as a valid legal basis for a habeas corpus petition (a perverse position famously strongly supported by Justice Scalia). I strongly suspect that Justice Kennedy and the four liberals on the U.S. Supreme Court might change that precedent if the right case presented itself (and President Obama's solicitor-general might not argue too strongly for a contrary result).
But, right now, this is a status quo that Congress in an effort to weaken post-trial review of death penalty sentences has enacted as policy in statutes like the habeas corpus reforms of Title I of the Anti-Terrorism and Effective Death Penalty Act of 1996, which has made post-trial review of state criminal convictions into an angels on pinheads procedural maze, even though the act has actually proved in practice to be more of a barrier in non-death penalty cases than in those where the death penalty is actually imposed.
This unfortunate legislation was one of a number of bad policies signed into law by President Bill Clinton. It routinely compounds the harm done by state court trial judges when they make grave mistakes that unjustly ruin people's lives. Concern about the possibility that his wife would also support those bad policies if elected President is one reason that some Democrats, rightly or wrongly, are concerned about a Hillary Clinton Presidency. Maybe she has learned from experience. Democrats have been known to do that a bit more often than members of the other major political party. But, it would be nice to have a nominee who was right on issue like that the first time.
* You would think that U.S. Supreme Court litigation specialists would be that the top of the food chain when it comes to pay in the legal profession and would have the highest hourly rates. This might be true, and certainly, none of them are going hungry. But if their rates are as high as they get, the "winner take all" economics of many other parts of the U.S. economy aren't as powerful in law as they are in many professions.
Top U.S. Supreme Court advocates charge $1,020 to $1,800 an hour. For a unique, national, premier specialty, this is a surprisingly small multiple of the roughly $250-$300 per hour charged by perfectly ordinary, run of the mill lawyers in the regional, not particularly high cost of living. It is less than the effective hourly rates earned by many lawyers working on perfectly ordinary contingent fee cases, where it isn't unusual to see effective hourly rates of $500 an hour or more.
Like any parent, I would love to believe that my awesome kids are a result of my awesome parenting. Sadly, expert opinion indicates it ain't so. Genes have an enormous influence. Peers and culture have an enormous influence. But parenting styles inside the home, apart from extreme cases like abuse or neglect, have very little long-term influence on a person's personality or success in life, at least that social scientists have been able to detect. . . . This isn't to say parents and parenting aren't important. Parents supply the genes, except in cases of adoption (or remarriage). They control, at least to some extent, the peers and environments to which children are exposed. And of course they crucially affect a child's quality of life at home, which, as I will argue shortly, is not some minor detail.I've made the point recently that there are a few other things that buck the trend of genetic determinism in parenting. Many of traits we associated with "good character" in children, the extent to which a child is comfortable physically touching others, the religious beliefs a child learns growing up (although not necessarily the way a child responds to those beliefs within that tradition), the language that a child learns, and the opportunities that a child has to learn new languages at an age young enough for that instruction to "take", do have something to do with parenting choices.
But it's safe to say that your kids' long-term fate will not be meaningfully affected by the speed and timing of potty training, the brand of educational videos you purchase, or the precise tone of voice in which you discipline. A large proportion of the Parenting Industrial Complex isn't about kids — it's about generating content for nervous parents who feel like they should be doing something.
Also, just because refraining from "abuse or neglect" and escaping its frequently companion, poverty, is commonplace, doesn't mean that it is always easy when faced with a colicky baby or balancing the need to work long hours to be able to afford essentials and the need to be personally present with your children.
But, it is certainly fair to say that parents, especially affluent new parents with few children who grew up small families themselves, are prone to dramatically overestimate the role of parental nurture in how they turn out.
And, David Roberts, the author of this Vox article does have one other good caveat for us:
The alternative to viewing childhood as preparation is viewing it as life, to be savored and enjoyed. Life is just a series of moments, and it's amazing how many of them we miss, rush past, or disrupt because our minds are elsewhere, anticipating the future or dwelling on the past. But a moment of joy or connection is its own justification, not a means to an end.* Another Vox retread that has long been well established, but mysteriously hasn't swept the nation despite being well established empirically is that: Giving housing to the homeless is three times cheaper than leaving them on the streets.
This miracle has been demonstrated over and over again, in Denver, in Southeast Colorado, in Central Florida, and in Charlotte, North Carolina, and in Utah, to name a few examples. Yet, it is so contrary to what "everyone knows is true" that politicians and the public stubbornly resist implementing this fairly simple idea.
* The same thing is true about the common American criminal justice practice about routinely incarcerating people charged with crimes pending trial if they can't post bond, which many poor arrestees cannot.
The Vera Institute of Justice developed powerful empirical evidence in the 1960s that the modern institution of bail was unjust and that releasing all but a handful of high risk poor criminal defendants awaiting trial did not pose a heightened risk to public safety, greatly reduced the cost of the criminal justice system for the municipalities that adopted this reform (supervision by pretrial services officers costs about a tenth as much as keeping someone locked up), and produced more fair criminal justice outcomes.
But, as the New York Times and other investigative journalists who have looked into the story have shown, bail remains an institution for unjust and expensive mistreatment of the poor, even in New York City where some of the first experiments with an alternative were wildly successful. Consider this paragraph from the New York Times Magazine (via Vox):
[The Bronx Freedom Fund] bailed out nearly 200 [low-income] defendants and generated some illuminating statistics. Ninety-six percent of the fund's clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund's clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty* Empirical research by educational psychologists and pediatricians had strongly established that high school students perform better if their school days start later. Despite the existence of this proven, easy to implement, no cost way to improve secondary education, however, this remains the exception rather than the rule, with the lion's share of school districts sending elementary school children who are bright eyed and bushy tailed early in the morning to school late in the day, and giving high school students the early shift.
One rare promising example of a school listening to the empirical evidence, however, is the newest charter high school in the Denver Public Schools, Northfield High School in the Stapleton neighborhood, whose doors open this fall for its first entering class, which will also feature an extended school year with less summer vacation (another empirically proven way to improve school performance that has not overcome decades of tradition that no longer makes any sense in the modern world).
* I hadn't realized until stumbling upon an article on the reform of California's draconian "three-strikes and you're out" law that the 2012 ballot initiative that reformed it was largely the work of two men, George Soros and a California law professor, whose roughly equal combined $1.9 million of contributions to the total $2.7 million raised by the campaign as a whole (about $1.5 million of which paid for the process of getting approval for a petition and circulating it with paid petition gatherers to get it one ballot).
They accomplished what liberals in California's legislature, seemingly unanimous academic and newspaper editorial opinion, the 8th Amendment prohibition against cruel and unusual punishment, the power of the Governor of California to commute criminal sentences, and scathing dissenting opinions by judges had not. This measure bought the freedom of roughly 3,000 people who were unjustly imprisoned for life for minor third crimes (many of which would have been misdemeanors for first offenders), at a price of less than $1,000 each, in an act reminiscent of a wealthy man buying slaves to free them (something that still happens in places like Mali).
The fact that a couple of wealthy individuals could get 69% of Californians to vote for a citizen's initiative to fix a clear problem which the state legislature in a liberal state wasn't willing to take on points to how fundamentally flawed the legislative process can be.
* Op-Ed columnist George Will meanwhile calls attention to another set of deep flaws with our legislative process recalling Jonathan Rauch's 1994 book "Demosclerosis", which he accentuates with the example of Mohair subsidies supported by no rational policy argument to the tune of $5 million a year that managed to be reenacted for most of the time period since 1954. Simply put, Madison's Federalist Paper No. 10 be damned, the inattentive majorities to which Congress theoretically responds turns out to be utterly incompetent at overcoming the will of attentive minorities. Individually, this senseless subsidies are a drop in the bucket, but collectively, they add up.
They are also canaries in the mine alerting us to flaws in the process that have the potential to manifest in more damaging ways elsewhere, and undermine basic civics assumptions about how our democratic system of government should work. In short, it is proof, once again, that we have a system of government that is no longer state of the art or enviable as a world model of a democracy that works well, something that undermines our "soft power" on the world stage.
* Louisiana has lost 1,880 square miles of land to the sea in the last century, a trend that Hurricane Katrina accentuated. Many of the remaining settlements outside New Orlean's new and improved levees will be gone after the next serious Hurricane to this the region (which may be a few years due to the existence of one of the strongest El Nino conditions on record in the Pacific right now, which suppressed Atlantic Hurricanes while enhancing Pacific Monsoons).
Incidentally, those Pacific Monsoons which have hit rural Indian hard, are also dragging down world gold prices, because rural India despite being relatively poor internationally, accounts for about 20% of world gold purchases (proportionate to its population but greatly disproportionate to it share of world GDP) because large gifts of gold are common their as gifts for weddings and other occasions. But, monsoon driven hard times have curtailed their purchases and thus curtailed demand for what is roughly speaking as a first approximation, a fixed world supply of the commodity.
* There are still crazy people in the world.
For example, there are people who get stories published in religious magazines in the United States, who claim with a straight face that having Rhesus (RH) negative blood is a sign that you are descended from the Nephilim (i.e. human-angel hybrids), described in passing in the Bible and at length in the non-canonical Book of Enoch which has had immense impact on Judeo-Christian mysticism or metaphysical lore that has made its way into popular culture. Despite the fact that the Nephilim of apocryphal Christian tradition were generally evil, the proponents of this theory try to fit an angelic origin of RH negative blood into a doctrine of white supremacy (although ironically a white supremacy that favors the European Catholics and Jews whom the KKK persecuted almost as severely as blacks) noting that:
Northern Spain and Southern France is where you can find some of the highest concentration of the RH-negative factor in the Basque people. Another original group were the Eastern/Oriental Jews. In general, about 40 – 45% of Europeans have the RH-negative group. Only about 3% of African descendent and about 1% of Asian or Native American descendent has the RH-negative group.They also argue that angelic ancestry is associated with:
* Higher than average IQNeedless to say, all of this is absurd and has no legitimate basis in either science or Christian or Jewish religious doctrine.
* More sensitive vision and other senses.
* Lower body temperature
* Higher blood pressure
* Increased occurrence of psychic/intuitive abilities
* Predominantly blue, green, or hazel eyes
* Red or reddish hair
* Increased sensitivity to heat and sunlight
* Cannot be cloned
* Extra vertebra
* Modern African Christianity, meanwhile, has latched onto to doctrines of demon possession and exorcism, deliberately de-emphasized in the Northern hemisphere branches of these denominations despite the prominent role that these doctrines play in the canonical New Testament, in which an exorcism ministry was one of the core activities of Jesus Christ and his apostles.
African Christians have also taken up the Old Testament injunction to kill witches with unfortunate gusto, a practice that European Christians largely abandoned after the 17th century as the Enlightenment largely banished the notion of witchcraft as being anything more than fiction among the elites that held the power to continue the practice. (Persecution of suspected witches is also alive and well in modern Islam.)
* Crazy people are more frightening, however, when they have power. For example, Alabama Chief Justice Roy Moore (who was re-elected by the people of Alabama to the post after being removed from it for judicial misconduct) thinks that the U.S. Supreme Court legalized same-sex marriage because Satan influenced them to do it.
* Our criminal justice system is quite impervious not just to uncommon insights, but to common sense too. The prevailing view in the law of post-conviction review of criminal convictions is that "an innocent person convicted after a procedurally adequate trial" is not constitutionally entitled to release from prison, because "actual innocence" has not been recognized by the U.S. Supreme Court as a valid legal basis for a habeas corpus petition (a perverse position famously strongly supported by Justice Scalia). I strongly suspect that Justice Kennedy and the four liberals on the U.S. Supreme Court might change that precedent if the right case presented itself (and President Obama's solicitor-general might not argue too strongly for a contrary result).
But, right now, this is a status quo that Congress in an effort to weaken post-trial review of death penalty sentences has enacted as policy in statutes like the habeas corpus reforms of Title I of the Anti-Terrorism and Effective Death Penalty Act of 1996, which has made post-trial review of state criminal convictions into an angels on pinheads procedural maze, even though the act has actually proved in practice to be more of a barrier in non-death penalty cases than in those where the death penalty is actually imposed.
This unfortunate legislation was one of a number of bad policies signed into law by President Bill Clinton. It routinely compounds the harm done by state court trial judges when they make grave mistakes that unjustly ruin people's lives. Concern about the possibility that his wife would also support those bad policies if elected President is one reason that some Democrats, rightly or wrongly, are concerned about a Hillary Clinton Presidency. Maybe she has learned from experience. Democrats have been known to do that a bit more often than members of the other major political party. But, it would be nice to have a nominee who was right on issue like that the first time.
* You would think that U.S. Supreme Court litigation specialists would be that the top of the food chain when it comes to pay in the legal profession and would have the highest hourly rates. This might be true, and certainly, none of them are going hungry. But if their rates are as high as they get, the "winner take all" economics of many other parts of the U.S. economy aren't as powerful in law as they are in many professions.
Top U.S. Supreme Court advocates charge $1,020 to $1,800 an hour. For a unique, national, premier specialty, this is a surprisingly small multiple of the roughly $250-$300 per hour charged by perfectly ordinary, run of the mill lawyers in the regional, not particularly high cost of living. It is less than the effective hourly rates earned by many lawyers working on perfectly ordinary contingent fee cases, where it isn't unusual to see effective hourly rates of $500 an hour or more.
Rocky Ford a.k.a. Bad Copville
Rocky Ford is not a town with a good track record of quality control.
For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called "Rocky Ford Sweets" from Jensen Farms that killed thirty-three people in 2011.
Now, it has another claim to infamy. It turns out that the town made it its business to hire cops who had already been discovered to be bad apples. Four out of ten officers on the force have prior serious criminal records or histories of discipline in previous law enforcement jobs.
In November of 2014, one of those bad cops with a history of using excessive force shot an unarmed man in the back, killing him, and then pepper sprayed the man and fled, while on duty. Unlike most cases of this type, the bad cop who did it was fired and charged with second degree murder in a prosecution that is currently in progress.
This "second chance" hiring policy may have been modeled on the Vatican's policy of relocating priests who sexually abused children to new posts where families of new potential victims didn't know about the priests' prior crimes. The policy didn't work out well for the Roman Catholic Church. It turns out that their second chance priests (and often there were many "second" chances), had a strong tendency to reoffend and require the church to engage in more cover ups.
It also doesn't turn out to be working that well for Rocky Ford.
There is absolutely room in the world for giving people second chances in life. But, giving someone a second chance in life doesn't mean that one should give that person who has proven himself to be ill suited for a task a second chance in a position of public trust ripe for a repeat of the mistakes that this person made the last time. A second chance like that is just another name for corruption.
If you give a priest who abused children a second chance (and that second chance should come only after the priest and the church apologizes to the victims, tries to compensate the victims, reports the incident to authorities and punishes the priest), that second chance should be an a monastery or a prison ministry, not a parish serving young families or a youth camp.
If you give a cop who screwed up a second chance, it should be in a position that doesn't involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.
Of course, as the Denver Post's excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame. At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign. In contrast, "Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant's background."
If the state licensing authority for law enforcement tells law enforcement offices that an individual meets state standards to do the job, it is natural that offices with tight budgets, like Rocky Ford, are going to hire bottom of the barrel candidates in order to make it possible for them to pay bottom of the barrel salaries.
Yet, when the government puts someone on the street with expanded authority relative to an ordinary person to use deadly force, qualified immunity from civil liability, and deadly weapons, privacy should take a back seat to public safety.
Not all tragedies can be prevented. Some are inevitable. But, we need to do a better job at preventing the tragedies that are eminently predictable.
For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called "Rocky Ford Sweets" from Jensen Farms that killed thirty-three people in 2011.
Now, it has another claim to infamy. It turns out that the town made it its business to hire cops who had already been discovered to be bad apples. Four out of ten officers on the force have prior serious criminal records or histories of discipline in previous law enforcement jobs.
In November of 2014, one of those bad cops with a history of using excessive force shot an unarmed man in the back, killing him, and then pepper sprayed the man and fled, while on duty. Unlike most cases of this type, the bad cop who did it was fired and charged with second degree murder in a prosecution that is currently in progress.
This "second chance" hiring policy may have been modeled on the Vatican's policy of relocating priests who sexually abused children to new posts where families of new potential victims didn't know about the priests' prior crimes. The policy didn't work out well for the Roman Catholic Church. It turns out that their second chance priests (and often there were many "second" chances), had a strong tendency to reoffend and require the church to engage in more cover ups.
It also doesn't turn out to be working that well for Rocky Ford.
There is absolutely room in the world for giving people second chances in life. But, giving someone a second chance in life doesn't mean that one should give that person who has proven himself to be ill suited for a task a second chance in a position of public trust ripe for a repeat of the mistakes that this person made the last time. A second chance like that is just another name for corruption.
If you give a priest who abused children a second chance (and that second chance should come only after the priest and the church apologizes to the victims, tries to compensate the victims, reports the incident to authorities and punishes the priest), that second chance should be an a monastery or a prison ministry, not a parish serving young families or a youth camp.
If you give a cop who screwed up a second chance, it should be in a position that doesn't involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.
Of course, as the Denver Post's excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame. At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign. In contrast, "Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant's background."
If the state licensing authority for law enforcement tells law enforcement offices that an individual meets state standards to do the job, it is natural that offices with tight budgets, like Rocky Ford, are going to hire bottom of the barrel candidates in order to make it possible for them to pay bottom of the barrel salaries.
Yet, when the government puts someone on the street with expanded authority relative to an ordinary person to use deadly force, qualified immunity from civil liability, and deadly weapons, privacy should take a back seat to public safety.
Not all tragedies can be prevented. Some are inevitable. But, we need to do a better job at preventing the tragedies that are eminently predictable.
15 August 2015
The Odd Case Of The Vigilant Tourists
A Texas couple sold thousands of tons of alfalfa for more than $1.5 million to Colorado farmers, bought a big boat and sailed away to the Bahamas with their seven children. The seemingly idyllic family adventure didn't end well, however, because Donald and Karlien Winberg didn't actually grow alfalfa. They're con artists.
After federal fraud charges were filed in April 2014, the Winbergs went on the run for several months. FBI agents tracked them to a 40-foot sailboat near the Staniel Cay Yacht Club in the Bahamas in October. . . . A federal grand jury in Denver indicted the Winbergs on April 22, 2014. After going on the run, the family surfaced in the Houston area in October and bought a sailboat with $20,000 cash using fake names, the Houston Chronicle reported. They lived aboard the boat at a local marina until shortly before setting out Oct. 29. Galveston Bay authorities rescued the family from the sinking boat.
Shortly afterwards, the Winbergs bought a larger boat and sailed to the Bahama islands, court records say. Tourists from Louisiana on vacation in the Bahamas recognized the fugitives and called the FBI.Via The Denver Post.
I've litigated many cases against con artists big and small, and have had to turn as many down because it wasn't possible to identify and locate the perpetrators who were operating under false names and claimed to be working out of non-existent office addresses.
It is rare for law enforcement to be willing to step in and take action. But, the fairly large dollar amounts involved, the multiple victims, and the fact that the case had strong ties to Colorado, Texas and Idaho at the time that it was filed, and the fact that the perpetrators apparently didn't use false names.
Far more remarkable, however, is the fact that even though "Galveston Bay authorities" who rescued the family of con artists from their sinking sailboat didn't recognize them and turn them in, tourists from Louisiana on vacation in the Bahamas did!
Seriously, how many are so alert that, even when they are on a beach vacation in the Bahamas, they were aware of the existence of someone who conned some farmers out of money in states where they don't even live, and then connected the dots to know it was them in the Bahamas? Even determined private investigators are rarely able to find fugitives in cases like these. But, perhaps because a family of fraudsters with seven kids on a sail boat in the Gulf of Mexico are so different from the run of the mill "most wanted" poster criminals, they may have been more memorable.
This case wasn't national news (rightfully so, it isn't that big), but presumably, the FBI or federal marshals must have figured out in October that they had just missed their quarry in Galveston and that they had fled via another sailboat, and then put out the word in marinas, in local news broadcasts across the Gulf Coast, and maybe even in Caribbean news outlets, shortly afterwards. People who frequent marinas may be more attentive to wanted criminals who could crop up in the boat next to them than to run of the mill thugs reported on the nightly news, for example.
Still, even then, the tourists rate as incredibly vigilant. There seems to be an endless barrage of missing persons and most wanted criminals in post offices, grocery stores and news stories (most for serious violent crimes), that it is very hard to keep track of. And, it is also rare for someone to have the certainty that these people are the suspects, the sense of civic duty to take action on that knowledge while on vacation, and the familiarity with the criminal justice system to know how to report this knowledge to someone capable of securing international cooperation to have them arrested in a foreign country. Many a small town cop in the jurisdictions where the farmers who were victimized by these crimes lived would not have known how to manage such a bureaucratic feat.
Indeed, the mores I think this through, the more likely I think it is that these tourists may have been vacationing law enforcement officials of some type who were alerted to these fugitives through official channels and been able to take action on that information because of their professional expertise.
I guess I'll never know how this extraordinary tip was really made possible, but it would be fascinating to know. Still, whatever the circumstances, it does illustrate a recurring theme. Sharing information about suspected wrongdoers with the public routinely results in them being apprehended or thwarted, while keeping this information secret makes it much easier for suspects to remain at large. Secrecy rarely makes us more secure, and this is just as true in cases where the suspects are suspected terrorists or national security threats as it is when they are mere common con artists as in this case.
Once arrested, the couple eventually pleaded guilty to federal wire fraud and conspiracy charges. Yesterday, about ten months after they were arrested, they were sentenced in federal court in Denver, although the report that I link to doesn't say what sentences were imposed. Given the amount stolen, both parents will likely face many years in prison, leaving their seven kids in the lurch, either to be placed with extended family, or in foster care, something that they presumably did nothing to deserve. But, it is hard to see any way to avoid that outcome while appropriately punishing the parents.
The short news report also doesn't make clear how much of the stolen funds were recovered or repaid in a restitution award from other sources, or whether the victims of the fraud were able to recoup any of their theft losses from insurance. While homeowner's and business insurance policies routinely cover stolen tangible personal property, it is much less common to be able to recover money paid as a result of someone else's fraudulent conduct with an insurance claim.
One of the unfortunate realities you face as an attorney trying to secure justice for a client who has been defrauded is that your client is usually better off with the fraudster out of prison where he or she can earn funds to make settlement payments, even though this exposes the public to the risk that the perpetrators will merely find new marks (and perhaps even use the funds secured from those victims to pay your client). Likewise, as a private attorney helping one fraud victim, it is often in your interest to act in a way that doesn't tip off other victims (and fraudsters almost always have more than one victim) that you have located the fraudster and brought him or her to justice, because then the limited funds available to compensate your client (which are almost never sufficient to secure a full recovery) will have to be shared with other victims.
Similar moral conflicts arise when your client is the victim of some systemic business conduct or administrative behavior of a government agency. Attorneys defending the business or government will often offer your client a settlement in exchange for confidentiality and an end to your lawsuit or threatened lawsuit, even though, had you prevailed on the merits (as you are likely to have done in cases that the other side is willing to settle), your win would have given other victims a binding precedent that they could have used to win easy victories of their own, and would have made the perpetrator much more likely to discontinue what is typically an ongoing pattern of improper conduct. Unless your client is independently wealthy and has an extreme sense of moral duty, your client will usually direct you to take an offer that provides compensation to them, even if that means allowing the repeat perpetrator to escape justice for harms to other past and future victims.
One of the important reasons that businesses so vehemently oppose class action lawsuits is that it denies them the ability to grease the squeaky wheels, while unjustly screwing over everyone else that they have wronged without facing any consequences for their actions.
As an attorney representing a private client who has been victimized by fraud, your duty to put your client first, even if other victims will be left worse off, is clear. But, this is certainly one of the otherwise more morally ambiguous imperatives imposed upon attorneys as a matter of professional ethics.
In private litigation, restitution almost always trumps retribution or justice viewed at the level of the entire course of conduct by the wrongdoer. But, while this is almost always the right micro-level decision for the victims who you represent, it is not at all clear this the incentives our legal system creates to take this approach make sense as a matter of public policy. If would be perpetrators of white collar crimes knew that a complaint from even a single victim would be highly likely to lead to legal action that would lead to them being punished for the entirely scheme, this might be a more powerful deterrent to committing the crime in the first place.
But, the current regime, in which law enforcement routinely treats fraud and other forms of white collar crime as a civil matter that they aren't willing to devote the resources to pursuing, where private litigation is often not cost effective because expensive investigation is necessary to unravel the facts needed to sue, and where perpetrators who are brought to task in private litigation routinely escape full punishment for their wrongdoing by confidentially settling with the few victims who sue in exchange for dropping the matter, almost inevitably fosters a certain level of corruption and disregard for the rule of law in the business community.
14 August 2015
Arbitration And State Constitutional Rights To A Jury Trial And To Civil Remedies
Somehow, I missed the notably case of Atalese v. U.S. Legal Services Group, LP, decided by the New Jersey Supreme Court on September 23, 2014 (certiorari was denied by the U.S. Supreme Court). In that case, a consumer contract contained an arbitration provision, but failed to clearly state in language that "a reasonable consumer" would understand that the consumer "was having her statutory right to seek relief in a court of law," so it held that the provision was unenforceable.
While the ruling made little difference in the long term "war" to limit the pernicious effects of arbitration clauses in consumer contracts, because the objection raised by the New Jersey Constitution is simple enough to draft around, it did have the effect of invalidating many, probably thousands, of existing contractual arbitration clauses in New Jersey which lacked the requisite language - freeing consumers under these existing contracts which are often hard to renegotiate from its constraints in the event of a dispute. And, it did create a trap for the unwary that could invalidate future arbitration contracts, particularly those written into national agreements by non-New Jersey counsel who are unaware of the new New Jersey rule.
The ruling was also colored by the existence of Article I, Paragraph 9 of the New Jersey Constitution, which guarantees that “[t]he right of trial by jury shall remain inviolate.”
A Long Digression On The Right To A Jury Trial With An Emphasis On Colorado
The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases in federal court where the right to a jury trial existed at common law at the time that the Bill of Right was adopted (i.e. 1791) and in the case of causes of action that didn't exist then, if a right to a jury trial existed in analogous cases at the time. See, e.g., Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990). But, the 7th Amendment is one of a handful of provisions of the Bill of Rights which does not apply to state and local governments for rather intricate reasons of constitutional law collectively known as the incorporation doctrine, see, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), except that the scope of the right to a civil trial by jury (although not necessarily its existence) is controlled by the 7th Amendment in cases that are brought in state court under federal law, Dice v. Akron Canton & Youngstown R.R., 342 U.S. 359 (1952).
But, in practice, almost every U.S. state generally makes civil jury trials available to litigants in substantially the same circumstances in which they are available in federal court, except for Louisiana whose courts follow the French tradition established before the Louisiana Purchase of this territory from France in civil procedure and private law. Many states do have isolated statutory carve outs from the general rule which most commonly include exceptions for small claims courts and courts of claims against state governments. But, the general federal rule in the norm, despite its quirky, arbitrary, and sometimes hard to apply provisions.
No country in the world other than Canada makes such wide use of civil juries. Countries outside the Anglo-American legal tradition never had them, and the United Kingdom and most other countries in the British Commonwealth have abolished them outside some very isolated circumstances (the few exceptions often include eminent domain condemnation cases and defamation cases).
In my home of Colorado, however, unlike New Jersey, the right to a civil jury isn't found in the state constitution. See, e.g. Continental Title Company v. District Court, 645 P.2d 1310 (Colo. 1982). The right to a civil jury trial in Colorado used to be statutory, but that changed when the authority to make state court rule was (wisely) transferred to the Colorado Supreme Court. See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).
So, subject to a handful of isolated exceptions (e.g. in eminent domain cases), the right to a jury trial isn't a statutorily created right in Colorado either. Indeed, there are some classes of cases where jury trials are expressly prohibited by statute.
For example, in all cases arising under Colorado's dissolution of marriage act, "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. See also, e.g., In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003) ("All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury."). Most issues is divorce cases wouldn't include a right to a jury anyway (even though judicial divorce didn't exist in Anglo-American jurisprudence in 1791), but some issues commonly decided in divorce cases might otherwise implicate a right to a jury trial. For example, a request that a soon to be ex-spouse turn over a painting that is allegedly the separate property of the spouse requesting itwhere ownership of the item is disputed, looks a great deal like issues where there would ordinarily be a right to a jury trial outside of the divorce context. But, in a divorce that issues would be decided by a judge instead.
Instead of arising via the state or federal constitution or a statute, in Colorado, the right to a civil jury trial in Colorado is almost exclusively a creature of Colorado Rules of Civil Procedure 38(a) (in District Court and Denver Probate Court) and 338(a) (in County Court where the jurisdictional limit in civil cases is $15,000 subject to some narrow exceptions for attorney' fees, costs and interest accruing after the case is filed). These rules are enacted by the Colorado Supreme Court and may be amended by it administratively without legislative or executive branch involvement.
By the terms of both of these rules, the right to a jury trial in Colorado exists in "actions for the recovery of specific real or personal property, with or without damages, or for money judgment claimed as due on contract, or as damages for breach of contract, or for injuries to person or property[.]" C.R.C.P. 38(a) and C.R.C.P. 338(a).
In practice, however, the scope of the jury trial right in Colorado has been interpreted in Colorado to be essentially identical in broad outline to the 7th Amendments many esoteric provisions. As under the 7th Amendment, the right to a civil jury trial in Colorado hinges on whether or not the claim asserted would have historically been brought in "courts of equity" or in "courts of law", even though Colorado had merged the two parallel English legal systems more than a century ago, as have the federal courts and all but a handful of state court systems (one notable exception is the State of Delaware). See, e.g., Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).
Similarly, as under the 7th Amendment, the right to a jury trial is determined on the face of the Complaint filed by the plaintiff (or third party plaintiff in the case of a third party complaint, or a cross claim filed by one defendant against another), without regard to any defenses or counterclaims brought by a defendant (or third party defendant or cross claim defendant). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964) (complaints and cross claims) and Simpson v. Digiallonardo, 29 Colo. App. 556,. 488 P.2d 208 (1971) (third party complaints).
For example, there is no right to a trial by jury in Colorado in a case to have a trust declared invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983). But, there is a right to a trial by jury in Colorado in a claim for personal injury arising out an automobile accident. Suppose that Margaret wants to sue her uncle Fredrick to have a trust that he established that denies her a right to benefit if she marries a man who is not white (such as her current fiance) declared invalid, while Fredrick wants to sue Margaret for injuries he suffered when she carelessly backed into him while leaving his office a few months ago after discussing the trust issue. Suppose further that Colorado's mandatory counterclaims statute (sometimes called the "entire controversy doctrine" when implemented via case law rather than by court rule) requires that if one of them sues the other, that any possible lawsuit that the person sued could bring against the person suing them is waived if not raised as a counterclaim. Cf. Colorado Rule of Civil Procedure 13(a) (which might or might not actually apply to this fact pattern). (Note, however, that, in part to preserve jury trial rights, the general rule that certain kinds of counterclaims are forever forfeited if they are not filed in a pending current lawsuit between two parties, does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988)).
In this scenario, it Margaret files her lawsuit before Fredrick files his lawsuit, then Fredrick is not entitled to a jury trial on his counterclaim against Margaret for personal injuries arising from the car accident. But, if Fredrick is the first to court and Margaret files her trust claims as a counterclaim, then Fredrick would be entitled to a trial by jury.
There is an exception to this general rule in the case of a fairly trivial loophole utilizing this rule under federal 7th Amendment law that threatened to swallow the rule, and has probably been adopted by many states facing the same issue. While declaratory judgment actions were traditionally decided by courts of equity, and hence were not tried by juries, you cannot simply rush to court seeking declaratory judgment that you did not commit the federal tort for which there is a right to a trial by jury that someone else has threatened to sue you for, in order to turn their lawsuit into a counterclaim in an equitable action where a jury trial is not available. Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959). The court reached its decision by relying on the doctrine that equitable remedies like declaratory judgments are not available as a remedy in cases that can be adequately and fully resolved in a court of law in a lawsuit over the underlying tort claim.
This is one the most odd and arbitrary rules of civil procedure that aptly illustrates the curious and problematic results of taking a quite strictly originalist approach to constitutional interpretation. A well titled law review article on the subject, summed up the situation: Martin H. Redish, "Seventh Amendment Right To Jury Trial: A Study In The Irrationality Of Rational Decision Making", 70 Northwestern U. Law Rev. 486 (1976-1977).
But, despite the fact that states are under no legal obligation to follow the federal example in this situation, Colorado and almost every other state except Louisiana does just that. It is a stunning example of how often state legislatures do not act as the "laboratories of democracy" that they are often described as in superficial civics class descriptions of federalism, and instead slavishly act based upon inertia and imitation of federal or uniform law models, even when they are under no obligation to do so and the status quo is one that no one would design if they were starting from scratch.
Some empirical data on civil jury trials in Colorado in 2014
While jury trials are legally available equally in district court and in county court, in practice, county court civil jury trials are extreme rare in Colorado. As of 2014, a jury trial is actually held in about one in 70 district court civil cases in which a jury trial is available, and in about one in 4,816 county court civil cases in which a jury trial is available. In district court civil cases, 51.8% of trials are to a jury. In contrast, in county court civil cases, 1.7% of trials are to a jury. Thus, a jury trial is 69 times more likely to be held in a district court civil case than in a county court civil case, when one is available, and when a trial is actually held it is about 30 times more likely to be to a jury in a district court civil case than in a county court civil case.
There are no publicly available statistics on the sub-types of civil cases that lead to bench trials and jury trials respectively in Colorado's state courts. But, national studies of trials in general jurisdiction courts (like Colorado's District Courts) in the 75 largest major metropolitan areas have found that about 75% of civil jury trials involve personal injury and wrongful death cases. There were 4,414 such cases filed in Colorado's District Courts in 2014, and if Colorado is typical, about 198 of the civil jury trials conducted in Colorado each year are personal injury and wrongful death cases (implying that about 1 in 22 such cases is resolved through a jury trial). My intuition is that percentage of personal injury and wrongful death cases that are resolved by jury trials relative to the percentage resolved in bench trials is somewhere in the middle of the range of 75%-95%. About 98% of Colorado's criminal felony trials are jury trials, and I suspect that the percentage in personal injury and wrongful death cases is at least a little bit lower than that, but I don't know how much lower.
The remaining 66 civil jury trials in Colorado's state courts of general jurisdiction involve the other roughly 13,945 district court civil cases in which there is a right to a jury trial. Thus, roughly one in 211 such cases are resolved with civil jury trials. These cases are about 23 times more likely than county court civil cases to be resolved with a jury trial, but about 9 times less likely to be resolved through a jury trial than a personal injury case. There is insufficient data available to me to determine exactly the relative preference for jury and bench trials in personal injury and wrongful death cases as opposed to other cases, but at least 21% of district court civil cases that go to trial and are not personal injury or wrongful death cases are resolved through jury trials. Thus, the relative preference for jury trials over bench trials is at least 12 times as great in these cases as it is in county court civil cases.
For example, in 2014 in Colorado's state courts, 97,728 civil cases were terminated and there were 264 civil jury trials (both of these statistics exclude quasi-criminal termination of parental rights cases and will contests). By comparison, there were 244 district court civil bench trials. But, the caseload figure is misleading for these purposes. In fact, the disparity is really greater, because a jury may be demanded in almost every county court civil case, while this is not true in some kinds of district court civil cases that collectively make up a significant share of the total civil docket (e.g. 61,345 "distaint warrants" (i.e. state tax lien registrations), 11,211 summary "Rule 120" hearings that are the equivalent of a criminal preliminary hearing in an otherwise private foreclosure of a deed of trust, 3,459 petitions to seal criminal records, 571 county or municipal court appeals, 569 foreign judgment registrations, 414 out of state subpoena requests, 403 declaratory judgment actions, 356 injunctive relief cases, 329 name change petitions, 286 petitions to seal criminal convictions, 189 writs of habeas corpus, 130 mechanic's lien foreclosures, 49 confirmations of arbitration awards, 47 special district petitions, and 11 protection orders). Only something on the order of 18,359 district court civil cases are "suits at law" in which jury trials are available (the "on the order of" disclaimer reflects the fact that the statistical classification of a case isn't a perfect measure of when a jury trial is actually available under the rules of the Court, the real figure is probably slightly smaller).
Meanwhile, there was 132,170 civil cases terminated in county court (excluding 6,710 small claims court cases that were terminated, in which there is no right to a jury trial under state court rules and state law), but this total includes a combined 12,697 foreign judgment registrations and protection order cases, in which there is no right to a jury, and 37,606 eviction cases in which a jury is not available at the eviction stage even though a jury could demanded and seated in a subsequent hearing to determine money damages once the eviction decision was made in the case. Conservatively excluding both of these categories of cases there are 81,867 county court civil cases in which jury trials are available for the most important decision in the case. There were just 17 civil jury trials (both of which are typical over statistics over the last decade or so) with only 8 counties having any county court civil jury trials. By comparison, the were 976 county court bench trials in civil cases.
The county court statistics above are for 63 of Colorado's 64 counties, but excludes Denver County Court which is treated as a municipal court for statistical purposes. Assuming the same mix of civil cases as found statewide, there are about 19,000 civil cases where there is a meaningful jury trial right in Denver each year, about 20% of the statewide total. There were 525 bench trials and 226 jury trials for the court as a whole in Denver in 2014, compared to 3218 bench trials and 1286 jury trials total in the rest of the state in 2014, but there is no breakdown of trials by case type, for example, between criminal and civil cases, in its annual report. Extrapolating based on the percentage of overall bench trials that a civil statewide, you would expect about 296 civil bench trials a year in Denver, while extrapolating based on the number of civil cases eligible for jury trials in which there are county court civil bench trials statewide, you would expect about 244 civil bench trials a year in Denver. Using the same approach to estimate the number of civil jury trials in Denver you would expect 3-4 civil jury trials a year in Denver, but small numbers are notorious for not following the law of averages strictly and there are many reasons why Denver might be expected to be atypical in one direction or the other.
Municipal courts in Colorado other than the Denver County Court which is a consolidated municipal and county court have essentially no jurisdiction to hear civil lawsuits (other than quasi-criminal ordinance enforcement cases).
The will contests are the only kind of cases other than civil cases that are not criminal or quasi-criminal, in which there is a right to a jury trial. There were 11 in Colorado, statewide plus 3 in Denver Probate Court, not broken down by bench trials and jury trials, in 2010 out of 425 formal probate of a will cases (on top of 5,600 informal probate of a will cases) and probably a minority of those fourteen will contests were jury trials.
The other court in Colorado that handles civil cases and sometimes conducts jury trials is the U.S. District Court for the District of Colorado.
Nationally, all of the U.S. District Courts combined conducted 943 bench trials and 2,157 jury trials in 2014. The various kinds of civil rights and employment cases* produced 274 bench trials and 1,277 jury trials and there were 129 personal injury bench trials and 307 personal injury jury trials tried in federal court. These two categories of cases accounted for roughly 44% of civil bench trials and 75% of civil jury trials in the federal district courts. There were 206,616 cases terminated in U.S. District Courts nationwide in 2014, of which some involved a meaningful potential for a jury trial and others did not.
The District of Colorado has about 0.8% of the nation total raw civil caseload of all U.S. District Courts combined.
* A large share of all civil rights cases brought in the federal courts involve alleged discrimination on the basis of race or gender in employment under federal civil rights statutes, so it is natural to lump civil rights employment cases together with non-employment civil rights cases and non-civil rights employment cases. I have often made the argument that there is no particularly compelling federalism reason other than historical accident for vesting jurisdiction in the federal courts rather than state courts, in personal injury lawsuits between private parties who happen to reside in different states, and in most employment litigation between private parties, even if they live in the same state. Shifting these cases to state courts would only modestly increase the case loads of the state courts (which already have concurrent jurisdiction over these cases in any event), but would dramatically reducing the case loads of the federal courts. Admittedly, historically, there was legitimate concern that state court judges in state courts in the South would not faithfully apply federal civil rights statutes barring discrimination on the basis of race, while federal judges would do so more faithfully. But, federal judges themselves have a track record of grudgingly interpreting these laws, and in states where urban areas are often majority-minority, federal courts often have less favorable jury pools for these cases.
Back To State Constitutional Rights To Jury Trials
As the recent Atalese case in New Jersey illustrates, state constitution protections of the right to a trial by jury, which are common (adopted in imitation of the federal bill of rights) but not ubiquitous, frequently end up doing much more than supplying a rule of civil procedure for cases pending in state courts. Indeed, few kinds of state constitutional rights have a history of a more varied and creative mix of applications.
For example, quite a few state constitutional provisions were utilized by state appellate courts to invalidate state tort reform legislation imposing caps on money damage awards on the theory that a constitutional right to a jury trial makes it the prerogative of the jury to determine the amount of money damages that may be awards in cases in which there is a right to a jury trial, which state legislatures may not invade. See, e.g., Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), modified, 780 P.2d 260 (Wash. App. 1989). Other state courts with a state constitutional right to a jury trial, however, have concluded that their right to a civil trial by jury is procedural and does not extend to the substantive scope of the remedy. Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651 (Cal. App. 1988) (review denied and ordered not to be officially published (Sept. 15, 1988)); Yates v. Pollock, 239 Cal. Rptr. 383 (Cal. App. 1987).
There are a number of law review articles by prominent law professors arguing that the 7th Amendment and parallel state constitutional provisions should greatly limit the permissible grounds upon which summary judgment motions may be granted in civil cases. But, efforts to make these arguments in the courts, and on court ruling making bodies, have failed in every or almost every instance.
A handful of other states have gone even further, holding that a state constitutional right to a jury trial protects not just the procedural right of parties in certain kinds of cases to have their cases decided in a particular kind of way, but also the substantive right to a civil remedy in the form of a legally recognized cause of action for the kinds of injuries where there was historically a right to enforce though a lawsuit in which a civil jury had the power to authorize relief.
But, as often as not, these case actually hinge on one of the thirty-four or so state constitutional provisions which, in imitation of Section 29 of the Magna Carta, guarantee not just a procedural right to a jury trial, but a substantive right to seek redress through the civil courts for any injury of the type described. A typical example of such a provision states that:
These two kinds of provisions, combined, have been considered to be potential barriers to tort reforms and civil procedure reforms, such as no fault liability regimes, for example, in worker's compensation systems, for car accidents or for medical malpractice cases.
These state constitutional provisions are generally of little use in the context of arbitration, because the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., because Section 2 of the Act pre-empts state law, including state constitutions, in circumstances, are prohibits states from invalidating arbitration clauses in circumstances where the FAA applies (which it does to any transaction involving interstate or international commerce, which is that term that has expansive scope, and to any maritime transaction).
But, Section 2 of the FAA does have an exception in cases where the arbitration clause would be invalid under generally applicable principles of state contract law such as those invoked by the New Jersey Supreme Court in Atalese. There, while the state constitution colored how those state law contract principles were applied to a contract containing an arbitration clause, the contract law principles applied were sufficiently neutral and universally applicable to all contracts, that the decision to invalidate the arbitration clause escaped FAA preemption.
While the ruling made little difference in the long term "war" to limit the pernicious effects of arbitration clauses in consumer contracts, because the objection raised by the New Jersey Constitution is simple enough to draft around, it did have the effect of invalidating many, probably thousands, of existing contractual arbitration clauses in New Jersey which lacked the requisite language - freeing consumers under these existing contracts which are often hard to renegotiate from its constraints in the event of a dispute. And, it did create a trap for the unwary that could invalidate future arbitration contracts, particularly those written into national agreements by non-New Jersey counsel who are unaware of the new New Jersey rule.
The ruling was also colored by the existence of Article I, Paragraph 9 of the New Jersey Constitution, which guarantees that “[t]he right of trial by jury shall remain inviolate.”
A Long Digression On The Right To A Jury Trial With An Emphasis On Colorado
The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases in federal court where the right to a jury trial existed at common law at the time that the Bill of Right was adopted (i.e. 1791) and in the case of causes of action that didn't exist then, if a right to a jury trial existed in analogous cases at the time. See, e.g., Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990). But, the 7th Amendment is one of a handful of provisions of the Bill of Rights which does not apply to state and local governments for rather intricate reasons of constitutional law collectively known as the incorporation doctrine, see, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), except that the scope of the right to a civil trial by jury (although not necessarily its existence) is controlled by the 7th Amendment in cases that are brought in state court under federal law, Dice v. Akron Canton & Youngstown R.R., 342 U.S. 359 (1952).
But, in practice, almost every U.S. state generally makes civil jury trials available to litigants in substantially the same circumstances in which they are available in federal court, except for Louisiana whose courts follow the French tradition established before the Louisiana Purchase of this territory from France in civil procedure and private law. Many states do have isolated statutory carve outs from the general rule which most commonly include exceptions for small claims courts and courts of claims against state governments. But, the general federal rule in the norm, despite its quirky, arbitrary, and sometimes hard to apply provisions.
No country in the world other than Canada makes such wide use of civil juries. Countries outside the Anglo-American legal tradition never had them, and the United Kingdom and most other countries in the British Commonwealth have abolished them outside some very isolated circumstances (the few exceptions often include eminent domain condemnation cases and defamation cases).
In my home of Colorado, however, unlike New Jersey, the right to a civil jury isn't found in the state constitution. See, e.g. Continental Title Company v. District Court, 645 P.2d 1310 (Colo. 1982). The right to a civil jury trial in Colorado used to be statutory, but that changed when the authority to make state court rule was (wisely) transferred to the Colorado Supreme Court. See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).
So, subject to a handful of isolated exceptions (e.g. in eminent domain cases), the right to a jury trial isn't a statutorily created right in Colorado either. Indeed, there are some classes of cases where jury trials are expressly prohibited by statute.
For example, in all cases arising under Colorado's dissolution of marriage act, "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. See also, e.g., In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003) ("All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury."). Most issues is divorce cases wouldn't include a right to a jury anyway (even though judicial divorce didn't exist in Anglo-American jurisprudence in 1791), but some issues commonly decided in divorce cases might otherwise implicate a right to a jury trial. For example, a request that a soon to be ex-spouse turn over a painting that is allegedly the separate property of the spouse requesting itwhere ownership of the item is disputed, looks a great deal like issues where there would ordinarily be a right to a jury trial outside of the divorce context. But, in a divorce that issues would be decided by a judge instead.
Instead of arising via the state or federal constitution or a statute, in Colorado, the right to a civil jury trial in Colorado is almost exclusively a creature of Colorado Rules of Civil Procedure 38(a) (in District Court and Denver Probate Court) and 338(a) (in County Court where the jurisdictional limit in civil cases is $15,000 subject to some narrow exceptions for attorney' fees, costs and interest accruing after the case is filed). These rules are enacted by the Colorado Supreme Court and may be amended by it administratively without legislative or executive branch involvement.
By the terms of both of these rules, the right to a jury trial in Colorado exists in "actions for the recovery of specific real or personal property, with or without damages, or for money judgment claimed as due on contract, or as damages for breach of contract, or for injuries to person or property[.]" C.R.C.P. 38(a) and C.R.C.P. 338(a).
In practice, however, the scope of the jury trial right in Colorado has been interpreted in Colorado to be essentially identical in broad outline to the 7th Amendments many esoteric provisions. As under the 7th Amendment, the right to a civil jury trial in Colorado hinges on whether or not the claim asserted would have historically been brought in "courts of equity" or in "courts of law", even though Colorado had merged the two parallel English legal systems more than a century ago, as have the federal courts and all but a handful of state court systems (one notable exception is the State of Delaware). See, e.g., Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).
Similarly, as under the 7th Amendment, the right to a jury trial is determined on the face of the Complaint filed by the plaintiff (or third party plaintiff in the case of a third party complaint, or a cross claim filed by one defendant against another), without regard to any defenses or counterclaims brought by a defendant (or third party defendant or cross claim defendant). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964) (complaints and cross claims) and Simpson v. Digiallonardo, 29 Colo. App. 556,. 488 P.2d 208 (1971) (third party complaints).
For example, there is no right to a trial by jury in Colorado in a case to have a trust declared invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983). But, there is a right to a trial by jury in Colorado in a claim for personal injury arising out an automobile accident. Suppose that Margaret wants to sue her uncle Fredrick to have a trust that he established that denies her a right to benefit if she marries a man who is not white (such as her current fiance) declared invalid, while Fredrick wants to sue Margaret for injuries he suffered when she carelessly backed into him while leaving his office a few months ago after discussing the trust issue. Suppose further that Colorado's mandatory counterclaims statute (sometimes called the "entire controversy doctrine" when implemented via case law rather than by court rule) requires that if one of them sues the other, that any possible lawsuit that the person sued could bring against the person suing them is waived if not raised as a counterclaim. Cf. Colorado Rule of Civil Procedure 13(a) (which might or might not actually apply to this fact pattern). (Note, however, that, in part to preserve jury trial rights, the general rule that certain kinds of counterclaims are forever forfeited if they are not filed in a pending current lawsuit between two parties, does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988)).
In this scenario, it Margaret files her lawsuit before Fredrick files his lawsuit, then Fredrick is not entitled to a jury trial on his counterclaim against Margaret for personal injuries arising from the car accident. But, if Fredrick is the first to court and Margaret files her trust claims as a counterclaim, then Fredrick would be entitled to a trial by jury.
There is an exception to this general rule in the case of a fairly trivial loophole utilizing this rule under federal 7th Amendment law that threatened to swallow the rule, and has probably been adopted by many states facing the same issue. While declaratory judgment actions were traditionally decided by courts of equity, and hence were not tried by juries, you cannot simply rush to court seeking declaratory judgment that you did not commit the federal tort for which there is a right to a trial by jury that someone else has threatened to sue you for, in order to turn their lawsuit into a counterclaim in an equitable action where a jury trial is not available. Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959). The court reached its decision by relying on the doctrine that equitable remedies like declaratory judgments are not available as a remedy in cases that can be adequately and fully resolved in a court of law in a lawsuit over the underlying tort claim.
This is one the most odd and arbitrary rules of civil procedure that aptly illustrates the curious and problematic results of taking a quite strictly originalist approach to constitutional interpretation. A well titled law review article on the subject, summed up the situation: Martin H. Redish, "Seventh Amendment Right To Jury Trial: A Study In The Irrationality Of Rational Decision Making", 70 Northwestern U. Law Rev. 486 (1976-1977).
But, despite the fact that states are under no legal obligation to follow the federal example in this situation, Colorado and almost every other state except Louisiana does just that. It is a stunning example of how often state legislatures do not act as the "laboratories of democracy" that they are often described as in superficial civics class descriptions of federalism, and instead slavishly act based upon inertia and imitation of federal or uniform law models, even when they are under no obligation to do so and the status quo is one that no one would design if they were starting from scratch.
Some empirical data on civil jury trials in Colorado in 2014
While jury trials are legally available equally in district court and in county court, in practice, county court civil jury trials are extreme rare in Colorado. As of 2014, a jury trial is actually held in about one in 70 district court civil cases in which a jury trial is available, and in about one in 4,816 county court civil cases in which a jury trial is available. In district court civil cases, 51.8% of trials are to a jury. In contrast, in county court civil cases, 1.7% of trials are to a jury. Thus, a jury trial is 69 times more likely to be held in a district court civil case than in a county court civil case, when one is available, and when a trial is actually held it is about 30 times more likely to be to a jury in a district court civil case than in a county court civil case.
There are no publicly available statistics on the sub-types of civil cases that lead to bench trials and jury trials respectively in Colorado's state courts. But, national studies of trials in general jurisdiction courts (like Colorado's District Courts) in the 75 largest major metropolitan areas have found that about 75% of civil jury trials involve personal injury and wrongful death cases. There were 4,414 such cases filed in Colorado's District Courts in 2014, and if Colorado is typical, about 198 of the civil jury trials conducted in Colorado each year are personal injury and wrongful death cases (implying that about 1 in 22 such cases is resolved through a jury trial). My intuition is that percentage of personal injury and wrongful death cases that are resolved by jury trials relative to the percentage resolved in bench trials is somewhere in the middle of the range of 75%-95%. About 98% of Colorado's criminal felony trials are jury trials, and I suspect that the percentage in personal injury and wrongful death cases is at least a little bit lower than that, but I don't know how much lower.
The remaining 66 civil jury trials in Colorado's state courts of general jurisdiction involve the other roughly 13,945 district court civil cases in which there is a right to a jury trial. Thus, roughly one in 211 such cases are resolved with civil jury trials. These cases are about 23 times more likely than county court civil cases to be resolved with a jury trial, but about 9 times less likely to be resolved through a jury trial than a personal injury case. There is insufficient data available to me to determine exactly the relative preference for jury and bench trials in personal injury and wrongful death cases as opposed to other cases, but at least 21% of district court civil cases that go to trial and are not personal injury or wrongful death cases are resolved through jury trials. Thus, the relative preference for jury trials over bench trials is at least 12 times as great in these cases as it is in county court civil cases.
For example, in 2014 in Colorado's state courts, 97,728 civil cases were terminated and there were 264 civil jury trials (both of these statistics exclude quasi-criminal termination of parental rights cases and will contests). By comparison, there were 244 district court civil bench trials. But, the caseload figure is misleading for these purposes. In fact, the disparity is really greater, because a jury may be demanded in almost every county court civil case, while this is not true in some kinds of district court civil cases that collectively make up a significant share of the total civil docket (e.g. 61,345 "distaint warrants" (i.e. state tax lien registrations), 11,211 summary "Rule 120" hearings that are the equivalent of a criminal preliminary hearing in an otherwise private foreclosure of a deed of trust, 3,459 petitions to seal criminal records, 571 county or municipal court appeals, 569 foreign judgment registrations, 414 out of state subpoena requests, 403 declaratory judgment actions, 356 injunctive relief cases, 329 name change petitions, 286 petitions to seal criminal convictions, 189 writs of habeas corpus, 130 mechanic's lien foreclosures, 49 confirmations of arbitration awards, 47 special district petitions, and 11 protection orders). Only something on the order of 18,359 district court civil cases are "suits at law" in which jury trials are available (the "on the order of" disclaimer reflects the fact that the statistical classification of a case isn't a perfect measure of when a jury trial is actually available under the rules of the Court, the real figure is probably slightly smaller).
Meanwhile, there was 132,170 civil cases terminated in county court (excluding 6,710 small claims court cases that were terminated, in which there is no right to a jury trial under state court rules and state law), but this total includes a combined 12,697 foreign judgment registrations and protection order cases, in which there is no right to a jury, and 37,606 eviction cases in which a jury is not available at the eviction stage even though a jury could demanded and seated in a subsequent hearing to determine money damages once the eviction decision was made in the case. Conservatively excluding both of these categories of cases there are 81,867 county court civil cases in which jury trials are available for the most important decision in the case. There were just 17 civil jury trials (both of which are typical over statistics over the last decade or so) with only 8 counties having any county court civil jury trials. By comparison, the were 976 county court bench trials in civil cases.
The county court statistics above are for 63 of Colorado's 64 counties, but excludes Denver County Court which is treated as a municipal court for statistical purposes. Assuming the same mix of civil cases as found statewide, there are about 19,000 civil cases where there is a meaningful jury trial right in Denver each year, about 20% of the statewide total. There were 525 bench trials and 226 jury trials for the court as a whole in Denver in 2014, compared to 3218 bench trials and 1286 jury trials total in the rest of the state in 2014, but there is no breakdown of trials by case type, for example, between criminal and civil cases, in its annual report. Extrapolating based on the percentage of overall bench trials that a civil statewide, you would expect about 296 civil bench trials a year in Denver, while extrapolating based on the number of civil cases eligible for jury trials in which there are county court civil bench trials statewide, you would expect about 244 civil bench trials a year in Denver. Using the same approach to estimate the number of civil jury trials in Denver you would expect 3-4 civil jury trials a year in Denver, but small numbers are notorious for not following the law of averages strictly and there are many reasons why Denver might be expected to be atypical in one direction or the other.
Municipal courts in Colorado other than the Denver County Court which is a consolidated municipal and county court have essentially no jurisdiction to hear civil lawsuits (other than quasi-criminal ordinance enforcement cases).
The will contests are the only kind of cases other than civil cases that are not criminal or quasi-criminal, in which there is a right to a jury trial. There were 11 in Colorado, statewide plus 3 in Denver Probate Court, not broken down by bench trials and jury trials, in 2010 out of 425 formal probate of a will cases (on top of 5,600 informal probate of a will cases) and probably a minority of those fourteen will contests were jury trials.
The other court in Colorado that handles civil cases and sometimes conducts jury trials is the U.S. District Court for the District of Colorado.
Nationally, all of the U.S. District Courts combined conducted 943 bench trials and 2,157 jury trials in 2014. The various kinds of civil rights and employment cases* produced 274 bench trials and 1,277 jury trials and there were 129 personal injury bench trials and 307 personal injury jury trials tried in federal court. These two categories of cases accounted for roughly 44% of civil bench trials and 75% of civil jury trials in the federal district courts. There were 206,616 cases terminated in U.S. District Courts nationwide in 2014, of which some involved a meaningful potential for a jury trial and others did not.
The District of Colorado has about 0.8% of the nation total raw civil caseload of all U.S. District Courts combined.
* A large share of all civil rights cases brought in the federal courts involve alleged discrimination on the basis of race or gender in employment under federal civil rights statutes, so it is natural to lump civil rights employment cases together with non-employment civil rights cases and non-civil rights employment cases. I have often made the argument that there is no particularly compelling federalism reason other than historical accident for vesting jurisdiction in the federal courts rather than state courts, in personal injury lawsuits between private parties who happen to reside in different states, and in most employment litigation between private parties, even if they live in the same state. Shifting these cases to state courts would only modestly increase the case loads of the state courts (which already have concurrent jurisdiction over these cases in any event), but would dramatically reducing the case loads of the federal courts. Admittedly, historically, there was legitimate concern that state court judges in state courts in the South would not faithfully apply federal civil rights statutes barring discrimination on the basis of race, while federal judges would do so more faithfully. But, federal judges themselves have a track record of grudgingly interpreting these laws, and in states where urban areas are often majority-minority, federal courts often have less favorable jury pools for these cases.
Back To State Constitutional Rights To Jury Trials
As the recent Atalese case in New Jersey illustrates, state constitution protections of the right to a trial by jury, which are common (adopted in imitation of the federal bill of rights) but not ubiquitous, frequently end up doing much more than supplying a rule of civil procedure for cases pending in state courts. Indeed, few kinds of state constitutional rights have a history of a more varied and creative mix of applications.
For example, quite a few state constitutional provisions were utilized by state appellate courts to invalidate state tort reform legislation imposing caps on money damage awards on the theory that a constitutional right to a jury trial makes it the prerogative of the jury to determine the amount of money damages that may be awards in cases in which there is a right to a jury trial, which state legislatures may not invade. See, e.g., Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), modified, 780 P.2d 260 (Wash. App. 1989). Other state courts with a state constitutional right to a jury trial, however, have concluded that their right to a civil trial by jury is procedural and does not extend to the substantive scope of the remedy. Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651 (Cal. App. 1988) (review denied and ordered not to be officially published (Sept. 15, 1988)); Yates v. Pollock, 239 Cal. Rptr. 383 (Cal. App. 1987).
There are a number of law review articles by prominent law professors arguing that the 7th Amendment and parallel state constitutional provisions should greatly limit the permissible grounds upon which summary judgment motions may be granted in civil cases. But, efforts to make these arguments in the courts, and on court ruling making bodies, have failed in every or almost every instance.
A handful of other states have gone even further, holding that a state constitutional right to a jury trial protects not just the procedural right of parties in certain kinds of cases to have their cases decided in a particular kind of way, but also the substantive right to a civil remedy in the form of a legally recognized cause of action for the kinds of injuries where there was historically a right to enforce though a lawsuit in which a civil jury had the power to authorize relief.
But, as often as not, these case actually hinge on one of the thirty-four or so state constitutional provisions which, in imitation of Section 29 of the Magna Carta, guarantee not just a procedural right to a jury trial, but a substantive right to seek redress through the civil courts for any injury of the type described. A typical example of such a provision states that:
Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character[.]Vermont Constitution, Chapter I, Article 4. See generally The Right of Access to Civil Courts under State Constitutional Law: "An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights.", 13 Rutgers L.J. 399 (1982) (a "Note" authored by a law student on the staff of the law review without public acknowledgement of authorship).
These two kinds of provisions, combined, have been considered to be potential barriers to tort reforms and civil procedure reforms, such as no fault liability regimes, for example, in worker's compensation systems, for car accidents or for medical malpractice cases.
These state constitutional provisions are generally of little use in the context of arbitration, because the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., because Section 2 of the Act pre-empts state law, including state constitutions, in circumstances, are prohibits states from invalidating arbitration clauses in circumstances where the FAA applies (which it does to any transaction involving interstate or international commerce, which is that term that has expansive scope, and to any maritime transaction).
But, Section 2 of the FAA does have an exception in cases where the arbitration clause would be invalid under generally applicable principles of state contract law such as those invoked by the New Jersey Supreme Court in Atalese. There, while the state constitution colored how those state law contract principles were applied to a contract containing an arbitration clause, the contract law principles applied were sufficiently neutral and universally applicable to all contracts, that the decision to invalidate the arbitration clause escaped FAA preemption.