A First Glance At Colorado's 2016 State and Regional Ballot Measures

There are a great many ballot issues for Colorado voters to consider this year and I'll have a post with my own takes on those issues in early October before ballots arrive around October 19.  But, in the mean time, to get you thinking about them, I'll provide someone else's recommendations.

The Colorado Fiscal Institute is a think tank focused on Colorado specific economic issues whose signature publication, which provides background on a wealth of such issues, is the Purple Book. For the most part, it has a good government oriented center-left orientation, a bit like the Brookings Institute nationally, but with perhaps more of an economist's slant.

The CFI has taken positions on six of the nine statewide ballot issues (some of which I agree with and some of which I do not) and I'm reprinting its positions here for your convenience:

Amendment 69 (ColoradoCare): Oppose.

CFI supports universal health care and is open to a single-payer system, but believes this must be done at the national level and cannot be done on a state-by-state basis. We're also concerned that the particular financing methods within Amendment 69 rely too heavily on federal approvals that may not come. Many other organizations that support universal care as CFI does also oppose the amendment. 

Amendment 70 (Minimum wage): Support.

CFI wholeheartedly supports Amendment 70, which would raise the minimum wage to $12 by 2020. This is a modest, phased-in increase in the minimum wage, and the evidence overwhelmingly shows that such judicious increases have little to no effect on employment. Meanwhile, the evidence also shows there will be positive effects on the economy. Increasing the minimum wage is a no-brainer, which is why we are part of a vast coalition supporting the amendment.   

Amendment 71 (Raise the bar): Oppose.

Supporters of this amendment want to make it harder to amend the constitution by initiative but have crafted a proposal that will simply reserve the initiative process for the billionaire class. 

By requiring that signatures come from all 35 state senate districts, Amendment 71 would make signature collection exorbitantly expensive. It also would mean that 1/35th of the state’s population, by refusing to sign a petition in sufficient numbers, could decide that the rest of the state would not get to even consider an issue, even if 34/35ths of the population had signed the petition 

While the proposal raises the voter approval requirement for initiated constitutional amendments to 55 percent, it also imposes this requirement for referred measures from the legislature. This is a fatal flaw. Unlike initiated measures, referred measures go through an extensive vetting process, have lots of public input and must achieve the consensus of two-thirds majorities in both legislative houses. Amendment 71 would make it much more difficult for referred measures to pass, even when that measure has been well-considered and fully vetted and might fix a serious and urgent problem, such as one caused by a flawed constitutional initiative. 

There are organizations across the political spectrum opposed to this measure.

Amendment 72 (Cigarette tax): Support.

This amendment would triple the taxes on a pack of cigarettes in Colorado, and CFI joins the long list of organizations in support. A vast body of evidence shows that increasing the price of cigarettes deters smoking, especially among the young, who are more price sensitive and less likely to become habitual smokers when the price of a pack of cigarettes goes up. Fewer smokers means lowers medical costs for all of us and a more productive economy. 

Amendment T (Delete slavery language in constitution): Support.

Removes language in the state constitution that currently allows slavery and involuntary servitude to be used as punishment for the conviction of a crime. CFI supports this measure as an important symbolic action. 

Amendment U (Property tax exemption for "possessory interest"): Support.

Would, beginning with tax year 2018, eliminate property taxes for individuals or businesses that use government-owned property for a private benefit that is worth $6,000 or less in market value. Examples include people who lease land from the federal government for cattle grazing, skiing or river rafting. The value of such a private financial benefit on public land is taxable as a “possessory interest” under current law. 

For more information on all these measures, please go to countmeincolorado.com

Background information on all nine statewide ballot issues and one multi-county metropolitan Denver ballot issue is available at the Colorado Secretary of State's website, which also contains contact information for supporters, opponents and registered issue committees. 

A complete list of the ballot issues from the Colorado Secretary of State's office, with links to the relevant "Bluebook" language, but without contact information, can be found below the break.

At Least He's Not Your President

There is something to be said for the strategy of owning the names you are called to defuse the bite of what otherwise might be an insult. But, it is still a stunningly bad idea for a country's highest elected official, Philippines President Rodrigo Duterte, to compare himself to Adolph Hitler, because as part of Duterte's drug war he wants to emulate the way Hitler carried out the Holocaust by killing several million of his own citizens.

Every now and then, someone compares himself to a Nazi leader to praise some of the arguably good things that allegedly happened during that regime: trains running on time, national pride and unity restored, or a hyperinflation driven economic collapse halted.  But, Duterte want to emulate the part of the Nazi regime that is universally condemned.

He said:

"Hitler massacred 3 million Jews. Now there is 3 million, what is it, 3 million drug addicts (in the Philippines), there are," he said in a speech in his hometown of Davao City. "I'd be happy to slaughter them. At least if Germany had Hitler, the Philippines would have (me). You know my victims, I would like (them) to be all criminals, to finish the problem of my country and save the next generation from perdition."

His numbers are several million too small, but his message is nonetheless atrocious. And, apparently, this comment is just one of a long line of controversies that overall paint Duterte as an unbalanced and corrupt leader.

He shot and killed two people accused of kidnapping while he was a Mayor, and has also made many other concerning comments:

He's joked about not being able to join the gang rape of an Australian missionary, cursed out the Pope, called both US President Obama and the US Ambassador to the Philippines a "son of a bitch," and told police they can kill drug dealers if they fight back.

It's a tough call, but Philippine President Rodrigo Duterte might even be worse than Trump, although the men are cut from the same cloth.

What A Change A Debate Makes (UPDATE even in U.S. Senate races!)

Going into Monday's debate with Donald Trump, the 538 election model "now cast" of who would prevail if the election was held on that day based averages of state surveys, gave Trump at 47.9% chance of winning the Presidency on September 26 (with new data on that day still reflecting surveys taken before the debate on the evening of September 25), if the election were held then.

Post-debate polling have dropped his odds to 27.6% and falling, a 20.3 percentage point plunge in three days!

There has really been no news event in the relevant time period other than the debate that could explain this dramatic change in public opinion.

But, the pre-debate and post-debate media coverage does seem to also reflect greater media resolve to call out Trump's failings. Multiple media outlets calling him a liar on the eve of the debate and the moderator in the debate also called him out on this score. USA Today "antiendorsed" Trump in its first Presidential endorsement in 34 years. An Arizona paper endorsed Clinton with the first Democratic Presidential endorsement in more than a century.  The Harvard Republicans club declined to endorse Trump, as did all of the still living former Republican Presidents and all 100 of the CEOs of the Fortune 100.

Some of this is in response to criticism from the left about the failure of the media to clearly explain how far off the reservation Trump's conduct has been. But, a lot of the shift of intelligent conservatives in politics and the media come from pure disgust with Trump as a person.

As a result, until the debate, lots of swing voters in Republican leaning areas have not really had to confront many of Trump's failings as they consider their Presidential preferences, but they are now hearing the unanimous chorus against him as they start to consider the matter more seriously and are seeing for the first time personally his shortcomings.

Then again, maybe tens of millions of people simply read my post-debate rant at this blog and changed their minds based upon that data point.

Clinton doesn't have to hold the lead much longer, either.  Iowa's in person early voting starts today and voters in Colorado will get their ballots in less than three weeks.

UPDATED to reflect falling Trump odds based upon new survey data put into the 538 election model during the course of the last few hours today (which left Trump 3 percentage points worse off than earlier today).

Even more striking is the shift in the odds of Republicans retaining control of the U.S. Senate, which, theoretically, from a high school civics perspective, should have nothing to do with Monday's Presidential debate.

The Republicans had a 52.0% chance of retaining control of the U.S. Senate in the 538 election model peaked on September 25 (i.e. immediately before the debate).  This has dropped to 27.0%, a decline of 25.0 percentage points in the same four day time period based upon how a candidate in the same election who isn't running for U.S. Senate performed in a debate.

Republican candidates for U.S. Senate have actually been hit more heavily by Trump's poor debate performance on Monday night than Trump himself!

This powerfully proved the recent political science research that I mentioned in a post a couple of weeks ago, showing that the biggest factor in how voters vote in down ticket partisan races is their Presidential race preference.

When All Else Fails, Blame Ghosts

Abuses at a Pueblo center for people with severe intellectual disabilities included a resident performing a sexual act in exchange for a soda and another burned with a blow dryer in an attempt to raise her body temperature, according to a federal report obtained by The Denver Post. 

A group of men, some who are nonverbal, had words scratched into their skin, including “die,” “kill,” and “I’m back,” federal investigators found. When questioned, three staffers said they believed the markings were the result of “paranormal activity.” Staffers had posted photos of the etchings on social media, the report said. 

The incidences of abuse at the Pueblo Regional Center — one of three centers in Colorado that are home to adults with developmental, physical and intellectual disabilities — occurred before November 2015. Yet federal investigators who visited the home in April found safety protocols still lacking. They notified Colorado Medicaid officials in an August letter that they were enacting a moratorium on new residents at the center and that Colorado must repay millions of dollars in Medicaid funding. 

“These are some of our most vulnerable people in Colorado,” said Stephanie Garcia, executive director of The Arc in Pueblo, a nonprofit advocacy group for people with developmental disabilities. “To read some of the things going on, it’s shocking.

When all sorts of signs of serious abuse are discovered at a Pueblo, Colorado regional center for the severely intellectually disabled and 5% of the residents die from neglect, do the government employees who have total control over the facility take responsibility?

No.  Of course, not.  They blame the abuse on ghosts. Really, no kidding. Fortunately, this time, in 21st century Colorado, federal investigators did not buy this story.

I was in Pueblo for a trial and reading the local papers when this story broke originally, but many of the details were shrouded in secrecy at the time.

Decapitation Is The Wrong Way To Fight Organized Crime

According to the Chicago Police Department, 85 percent of the city’s gun murders in 2015 can be attributed to gang violence — a statistic that suggests a return to the bad old days while obscuring how profoundly the nature of Chicago’s gang problem has changed in the intervening years. While experts say the Latin Kings, a Hispanic gang, continue to run a large and rigidly organized drug-selling operation on Chicago’s West Side, the majority of Chicago residents who call themselves gang members are members of a different type of group. Rather than sophisticated drug-selling organizations, most of the city’s gangs are smaller, younger, less formally structured cliques that typically lay claim to no more than the city block or two where they live. The violence stems not from rivalries between competing enterprises so much as feuds that flare up with acts of disrespect and become entrenched in a cycle of murderous retaliation. 

Many close observers of Chicago’s violence believe that, as well-intentioned as it was, the systematic dismantling of gangs like the Disciples led directly to the violence that is devastating the city’s most dangerous neighborhoods in 2016. Taking out the individuals who ran the city’s drug trade, the theory goes, caused a fracturing of the city’s criminal underworld and produced a vast constellation of new entities that are no less violent, and possibly even more menacing, than their vanquished predecessors. 

“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s. “It’s like cutting the head off a snake — you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.” Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.” 

The proliferation of small gangs has created a complicated and ever-changing patchwork of new alliances and rivalries, and instilled in many young people — predominantly poor, black men — a sense that they are vulnerable at all times to lethal attacks by members of opposing factions.

From here.

It is counterintuitive, but whether you are fighting gangs in Chicago, cartels in Mexico, drug dealers in the Philippines, or Chechen rebels in Russia, taking out the leadership is frequently the worst thing that you can do.

Leaders of big organizations rein in the worst of their subordinate's conduct to limit the incentive of authorities to crack down on them, and more equally important, you can only negotiate a surrender with a group that has a leader strong enough to enforce it (as Putin did with the Chechen rebels in Russia). Kill the leaders and you get a hydra in which violence accompanies the succession and the new leaders don't have the same authority to control their subordinates.

Fictional (and non-fictional) portrayals of anti-terrorist and anti-gang campaigns often portray a defeat of the leader as a great victory, and U.S. military doctrine mostly agrees with that approach. But in this case, the Batman TV series prequel "Gotham" is one of the few exceptions that makes this accurate point on a regular basis, posing difficult moral quandaries for our heroes.

When gang members kill gang members, and most of the time both the perpetrators and the victims in Chicago are poor, young black men, it is hard for police to prosecute cases. Neither the offender's gang nor the victim's gang want police involvement. 

It is hard for police to feel much enthusiasm if a gang member who may have murdered someone for another gang is murdered himself, at least until innocent bystanders become targets. Also, political pressure to take action against gangs may be modest when the lion's share of the victims are gang members in neighborhoods riddled with poverty that have even less political power than they do money. 

Of course, lots of people can be mistaken for targets by a gang enforcer for offenses as innocent has wearing the wrong colors in the wrong neighborhood. And the more gangs there are, the more subtle displays can be appropriated by one gang or another, which makes these kinds of mistakes even easier for gang enforcers to commit.

Colorado Voting Starts In About Three Weeks

It is six weeks until the November 8, 2016 general election day in Colorado today, but the state's mail in ballots will start arriving and people will start casting their votes starting about October 19, 2016, about three weeks from now.

This makes all poll results between now and then in Colorado particularly important.

Old Wine In New Skins

A new security threat has emerged at high society weddings: drones.  

These drones could have paparazzi cameras intruding on the privacy of the gathering, or could either have weapons or be used to provide guidance to remote guided weapons.

One of the new solutions to this security threat, however, is decidedly old school.  An anti-drone falconer.

Historically, a falconer hunted birds with a trained bird of prey called a falcon who attacked the target birds out of the air and either returned them to the falconer or allowed the falconer to retrieve the prey from the ground.  Now, the falcon is trained to take out drones rather than birds, to achieve a similar result.

The Hillbilly Elegy Take Three

Discrimination is real. But, so is the fact that in any given context, some cultural norms and practices are more functional than others.

The Appalachian Hillbilly culture J.D. Vance examines in "The Hillbilly Elegy" is valuable, in part, because it provides an opportunity to look at the consequences of "a culture in crisis" that is no longer functional in most of the world where it finds itself, disentangled from the confound of the often more overt discrimination that comes up in other contexts.

But, a recurring theme in the book is the extent to which the issues faced by members of this culture in crisis mirror those of our nation's African-American communities, a culture in crisis in the United States that is in many respects dysfunctional in many of the same respects as white Appalachian culture, white Southern culture and rural Western and Great Plains whites are, but with the added kickers of ongoing discrimination and more meager community economic wealth to build upon.

In the larger scheme of things, the crises that are facing the several cultures of honor in the United States, shows strong parallels to those faced by the Muslim world, in dysfunctional regimes in many countries where they are dominant, in violent conflicts where it cohabits with other faiths in places from the African Sahel to Malaysia to the Philippines, to tensions and discrimination faced by Muslim immigrants to the West.

In each of these cases, men are struggling more to adapt to modernity than women. In each of these cases, escalation to violence is triggered more easily than in the dominant culture and both public and private violence are less unequivocally taboo, in each of these cultures men tend to be more often resistant to the dominant cultures style of providing an education, and in each of these cultures "normal behavior" often equates to lacking the "soft skills" needed to hold down a job like expected etiquette and punctuality.

There is ripe irony in the fact that demagogues like Donald Trump, his running mate Governor Mike Pence, conservative talk radio hosts, and Evangelical Christian clergy aim their fear and hatred so strongly at the African-American community and Muslims, with whom they have so much in common and who face so many of the same struggles, rather than the dominant American culture that is strongest in the Northeast and Pacific states of the United States.

Discrimination is a tricky thing. Part of it flows from ignorance, but it is more complex than that. When a culture is dysfunctional in a given context, this gives rise to stereotypes and those stereotypes are then applied indiscriminately to the detriment of everyone in the stereotyped group. And, once someone is discriminated against based on such a stereotype, whether or not its basis is actually applicable to them individually, the incentive to function well in a given context fighting the pulls of culture and expectations from insiders and outsiders alike can prove to be not worth it leading people to embrace the stereotype and give justification to further discrimination. In the absence of strong prohibitions against discrimination, it can be difficult or impossible for an individual to overcome this vicious cycle.

But, the opposite can be true as well. If a culture reforms itself, or if some subset of the stereotyped group finds a way to visibly set itself apart and defy the expectations society has of them (one of the most notable historical efforts along these lines was Malcolm X's effort to create a culturally distinct community of African-American Muslims), discriminatory perceptions can shift as well.

The point is not to somehow deflect blame for the circumstances that got us where we are, to be frank and recognize how complex a task it is to find solutions.

Ultimately, framed as a clash of cultures, in each case there are three possible solutions: reform of the aspects of the culture in question that make it dysfunctional from within, conversion to a more functional culture, or perpetuation of the status quo even though this leaves members of this culture at a disadvantage in modern society - respecting tradition and providing a hedge through societal diversity against the possibility that the context may change and with it the relative functionality of the cultures that exist.

Reform from within does happen.  Southern Baptists and Mormons have disavowed past overtly racist doctrines. Young Evangelical Christians are far less concerned about homosexuality than their parents and their grandparents generations. Turkey, under the guidance of Ataturk went from having values and norms typical of their Arab Muslim neighbors to the South to having one of the oldest and most secular Islamic democracies in the world with a population whose views are among the most moderate in the Muslim world.  Similarly, the Iran of today, while not a liberal as it was in the several years before the Shah fell in the Islamic Revolution, is also much less conservative and fundamentalist religiously than it was in the aftermath of the Islamic Revolution. The ancestors of the people whose culture now seems perfectly suited to modernity in places from New York to Munich to London to Stockholm ended up with the culture they have through painful transitions now forgotten by almost everyone but cultural and economic historians.

Conversion happens too. J.D. Vance, himself, is a classic convert from his own culture to dominant American culture. Another high profile convert is Taylor Swift who started as a country singer from Nashville but transitioned to become a pop singer based in New York City who embraces her new culture's values. Southerners who go to colleges in the North usually try to shed their accents. Most of the non-white and first generation college students displayed in the view books of selective colleges and universities have chosen the path of conversion, even if that conversion is never total in the first generation. National media and the Internet and economic migration of Northerners to parts of the South like North Carolina's research triangle, suburban D.C. in Virginia, Atlanta, and oil boom towns in Texas all create pressure for dilution of local culture, ultimately leading to assimilation into the national culture. Conversion is the norm among immigrant populations - with those parts of the culture that do not convert often omitting reforms that happen in the old country after the main wave of migration.

And, certainly, some people stick stubbornly to their traditional unreformed cultures, but as often as not, this is an ugly story of despair and cultural crisis, as much as it is something to celebrate.

Bringing about these changes is not a straight forward matter, and lead to a lot of political and social strife. But, some choice has to be made, and these are pretty much the only options.

Debate One Over, When Will The Insanity End?

Please, please, please will some of the hundred million plus people who supported Trump wake up from the insanity soon before they cast their ballots?

Why do so many people just not get it?

Even many Republican elites and Fortune 100 CEOs get it. Almost every other country in the world gets it. The media gets it.

Sure, I understand that there are some people who can't be won over, white supremacist leaders, hard core conspiracy theorists, survivalists, people who listen to nothing but talk radio.

But, lots of Trump supporters are seemingly reliable, sensible business owners and honest workers, who go to church every week, who pay their mortgages and their taxes, who graduated from high school, and raised children who weren't totally screwed up.  How can people like that support a guy like Trump?

It truly blows my mind.

Today At The Colorado Supreme Court

The Colorado Supreme Court made several notable rulings today.

Jurisdiction Over Parent Companies Narrowed

Two of them (here and here) ratified recent U.S. Supreme Court jurisprudence that makes it harder for a court to secure jurisdiction over a parent company solely on the basis of contract of the subsidiary with the forum.  Basically, this is now allowed only when there is a basis to pierce the corporate veil of the subsidiary company to hold the parent company liable and there would otherwise be a basis upon which to assert jurisdiction.

Interestingly, only the last of the several controlling recent U.S. Supreme Court cases on point that compel its conclusion are cited by the Colorado Supreme Court in its ruling.

Speeding Ticket Burden of Proof

A Mesa County man convicted of speeding in county court fought his fight over who had the burden of proof of showing that he was nonetheless reasonable and prudent after it is established that he was driving over speed limit went all of the way to the Colorado Supreme Court.  The speeder lost as the Colorado Supreme Court held that the burden of proof to show that he was within this exception to the general rule of strict liability for driving over the speed limit was on the speeder and not the People.

Equitable Defenses Allowed To Child Support Collection Cases

Another provides a new barrier to collection of interest on child support judgments. In 1960, the Colorado Supreme Court held that the defense of "laches" (undue delay causing prejudice where a statute of limitations does not bar a claim) was not available in child support collection actions because this is not an "equitable claim." But, in a landmark case in 2014, the Colorado Supreme Court held that based upon the merger of "law" and "equity" jurisprudence in the state in 1877, that equitable defenses could be raised to oppose claims brought in "law".  Today, it extended its 2014 ruling to allow defendants in child support cases to assert the defense of laches even though those are "legal" claims.

Basically, the distinction between "law" and "equity" involves a determination of whether the common law courts of England or the chancery courts of England had jurisdiction over those claims before the parallel court systems were merged. It is most prominent in cases involving the right to a jury trial in civil cases, where juries are allowed in cases arising at law, but not in equity, under the United States Constitution under the 7th Amendment.  Despite the fact that the 7th Amendment does not apply to the states, most states, including Colorado, apply that the federal rule regarding the right to a jury trial.

Generally speaking, claims at law involve straight forward claims for money damages for a breach of contract, injury to property, or personal injury, although it also includes claims for the return of particular items of personal property. Equity usually involves injunctive relief in the form of a free form court order enforceable by the contempt of court power, a very complex set of facts, or certain kinds of subject matter usually involving corporate or family law (although not necessarily mere collection of amounts previously awarded and reduced to judgment in a family law case).

In this particular case, a support order was entered in 1983 and the youngest child turned nineteen in July of 1995, which the Court determined was when the child support obligation ceased. Wife brought suit in September of 2012.  But, most of the $893,285.32 that would otherwise be due was barred by the 20 year statute of limitations on enforcing money judgments, so only defaults on the amounts due in the time period after September 1992 were considered. The father did fail to pay $400 a month of child support from July 1994 when his child turned eighteen to July 1995 when the child support obligation ended upon the child attaining the age of nineteen, and interest accrued at the statutory child support arrears interest rate of 12% per annum, compounded monthly, on the unpaid installments.  When judgment entered that interest amount was $46,399.62.

Based upon the Colorado Supreme Court's ruling, the father will be permitted to challenge that interest award on the grounds that he was prejudiced by undue delay on the part of the wife in suing to enforce her child support judgment, and the trial court will have to rule based upon the facts presented to it on that issue.

"A laches defense comprises three elements: (1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasonable delay by the party against whom the defense is asserted in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense."

It isn't clear how that applies in this case's circumstances.

Other Less Notable Cases

Two other cases decided today dealt with the technical issue of when a developer's land becomes subject to homeowner's association dues in quite fact laden circumstances (in these cases it was not because the court found that the land wasn't annexed to the association at the time the dues were assessed).

Another dealt with whether drugs and a confession obtained from someone stopped for a traffic violation should be suppressed for a violation of the 4th Amendment (it was not based upon the finding that the search and confession were consensual).

Consumer Debt Collection In State Courts

Lawsuits collecting small debts from consumer debtors, evicting residential tenants who fail to pay rent, establishing tax liens for individual taxpayers who don't pay what they owe, and foreclosing upon unpaid residential mortgage debts are the predominant share of the court docket on the civil side of every state court system. But, despite this fact, surprisingly little is known about how these cases are handled in the courts. We do know, however, that few of these cases are litigated on the merits and that when defendants do appear in court, they often do so without counsel.  

Virginia, with a population of about seven million, has averaged more than a million civil filings a year since the late 1980s. The overwhelming majority of these filings seek to collect debts from consumers, and most judgments go unpaid. 

Despite this apparent insolvency, civil litigation appears to be only tenuously related to consumer bankruptcy whether one looks at Virginia or at the nation as a whole. Nationally, the non-business bankruptcy filing rate rose by more than 350% between 1980 and 2002, while the civil filing rate rose by about 12%. Prior research suggests that relatively few bankrupt debtors have been sued by their creditors in state court, that most bankrupt debtors are drawn from the middle class, and that bankrupt debtors own homes at nearly the same rate as the general population. 

This Article finds that few civil defendants file for bankruptcy, that civil litigation is concentrated in cities and counties with lower socioeconomic characteristics, and that civil defendants in Virginia have a significantly lower rate of homeownership than the general population. In other words, the bankruptcy statistics exclude many defaulting and insolvent consumers, and these consumers may be disproportionately drawn from the more disadvantaged segments of society.

Richard M. Hynes, "Broke But Not Bankrupt: Consumer Debt Collection In State Courts" 60 Florida L. Review 1 (2008) (emphasis added).

It is commonly assumed that the typical person who files for bankruptcy does so because they are overwhelmed with state court judgments that they can't pay.  But, by and large, this is not the case. Bankruptcy is largely the province of the insolvent middle class. State court judgments are largely the province of the uncollectible poor and the solvent middle class.  The two worlds barely intersect.

There is not an empirical consensus on how these cases are processed, although it is clear  that few are ever tried on the merits, let alone before a jury as many state court rules allow. One low end estimate is that just 40% of limited jurisdiction court debt collection cases default, although many are dismissed voluntarily or involuntarily without prejudice, sometimes for lack of service of process, and sometimes due to a deal with the debtor to make payments which are often reached after a debtor appears in court with or without filing a responsive pleading.  An industry source estimates that 80% of such cases default and a Federal Trade Commission estimate that 90% of such cases default which would be closer to my estimation.

Institutional creditors such as credit card companies and payday lenders file collections lawsuits in a surprisingly low percentage of their bad debt cases, and it is surprisingly rare for multiple suits to be filed against the same debtor by different creditors in state courts.  But, the fact that such a large share of judgments go unsatisfied helps explain this reluctance.

Also about 80% of post-judgment litigation involves the filing of garnishments. Interrogatories addressed to debtors, enforcement of judgment liens in real property, and seizures of tangible personal property from debtors are far less common.

In the case of judgment liens in real property, many debtors sued in state court don't have any real property that is not fully protected by a homestead exemption, and even when they do, there is usually a first mortgage that must be assumed if the judgment lien is enforced, so it is easier to simply wait until the home is sold voluntarily to collect the debt.

Screening Candidates

Every previous President of the United States has been a Governor, U.S. Senator, Presidential cabinet member, Vice President (who is also a U.S. Senator and Cabinet member ex officio) or the highest ranking officer in the United States military.

Political parties and the voting public have made these the informal qualifications to serve as President of the United States.  Should similar qualifications, adding perhaps the post of Speaker of the United States House of Representatives (which is high up in the line of succession), be formally added to the list in order to spare our nation candidates with no political experience like Donald Trump?

After all, no one who actually won the Presidency under its current constitution (which took effect in 1789) has lacked these qualifications, so it would not have been a huge practical burden on the public. But, it would in a quite straight forward manner remove all sorts of dubious candidates who either have little chance or winning or should have little chance of winning, for consideration.

Essentially, the list would require every candidate for President to be someone whom voters still like after that person won a major statewide office, won the confidence of someone who was previously elected President for a high office, or in the case of a former Speaker of the House, previously won the confidence of the people in a major office for less than an entire state and won the confidence of a majority of representatives from every state?

This sets a serious floor of qualifications on someone leading the nation which greatly reduces the risk that someone unqualified running our nation.

In contrast, several past Presidents and Hillary Clinton would have been disqualified by an anti-nepotism clause that would prohibit family members of past Presidents from holding that office.

At various times and places, there have also been prohibitions on holding high public office for people who have been convicted of felonies, for people who have filed for bankruptcy, for people who do not own any real property, and for people who have previously been removed from office by impeachment or for misconduct.

Section 23 of the Canadian Constitution, for example states that:

The Qualifications of a Senator shall be as follows: 

(1) He shall be of the full age of Thirty Years;
(2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;
(3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;
(4) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;
(5) He shall be resident in the Province for which he is appointed;
(6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

Of course, a $4,000 net worth and real property wealth requirement in 1867 when that provision was adopted was a lot more meaningful at the time (probably on the order of $80,000-$100,000 Canadian dollars today), than it is now.  Also, it isn't as if the job of Canadian Senator exposed someone to liability, so why have the requirement?  So that they represented people who had "a stake in society" and an incentive to obey its laws?

A Canadian Senator's office becomes vacant if he dies, "he attains the age of seventy-five years", he resigns in writing, or under Section 31 of the Canadian constitution:

(1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate;
(2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power;
(3) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter;
(4) If he is attainted of Treason or convicted of Felony or of any infamous Crime;
(5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there.

It isn't clear if someone like Donald Trump who has had six corporate bankruptcies for entities that he has run, but not a personal one and not after he might take office, would fall within Section 31(3) above.

Canada vests the authority to make law on comparable topics in its House of Commons, to the Provinces in which an MP is elected.

Is it relevant that the Canadian Senate is essentially Canada's version of the House of Lords, but comprised only of the equivalent of a British Life Lord?

Did you notice that Canada originally required merely that Canadian Senators be British subjects and not that they be Canadian citizens (although this provision is arguably now be spent since no one alive at the time of Union in 1867 is under 75 years of age, depending upon how that somewhat ambiguous sentence is read)?

Marginal note:

Marginal note: 

Should something like any of these qualifications be added to the list of qualifications in the U.S.?

And, while few people would dispute that the President of the United States should be a U.S. Citizen, does it really make sense to retain the constitutional requirement that the President be a "natural born" citizen as opposed to requiring merely that the President have resided in the United States for a certain number of years?

Is there any meaningful reason for excluding someone who is thirty-five years old (the minimum age to serve as President) if the candidate was naturalized as a citizen at the age of one year and lived in the United States at all times after that, but allowing someone who was born in the United States to non-citizen parents who didn't live in the United States until a year or two before running for office, to serve as President of the United States?

Eric Goldman Clearly Received An Elite Kindergarten Experience

“The California appeals court said Yelp had no standing to protest an injunction against it,” [Law Professor Eric] Goldman said. “That contradicts basic due process that we learned in kindergarten. Yelp was ordered to do something without ever having a chance to tell the court its side of the story.”

From the San Fransisco Chronicle.

Eric Goldman is the leading scholar of reputation law in the digital age and his blog is in the sidebar at this blog.

Perhaps he gained such an esteemed position because of the excellent education he received in kindergarten.  I, in contrast, was trying and failing to learn how to color between the lines, and learning the alphabet and how to count to ten. But, some people, like the nine year old starting college this year, are more precocious than I was.

Perhaps the federal government can hire him as a witness for the government in its immigration cases where it has argued that young children are capable of representing themselves in immigration court without offending due process considerations. (I believe that a later decision in the case found against the government, although only on a preliminary matter like class action certification.)

The Merits

In all seriousness, the issue presented is whether Yelp has standing to contest a finding that a customer review posted by a user is defamatory in a proceeding to have an injunction put in place to order Yelp to remove it, when a default judgment against the user who posted the review was obtained by a business which claims to have been defamed by the review.

Generally speaking, default judgments cannot be used as proof in another case against anyone other than the person against whom they were entered (and not always then) under the doctrines of collateral estoppel and res judicata. So, Yelp would not even have to prove that the court entering the judgment had jurisdiction to enter the judgment (which mostly boils down to whether there was valid service of process on the user who may or may not have been accurately identified by the business).

UPDATE September 22, 2016: This majority rule of law, however, is apparently not the law in the State of California.  The California Court of Appeals states in a footnote to its opinion that:

A “‘“default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.)

It isn't entirely clear if this language means that a default judgment as to one theory in one lawsuit against a defendant also applies with respect to a different theory in the same lawsuit against the defendant (a majority rule), or if facts admitted by default in one lawsuit can also be held against that defendant in a second lawsuit (a minority rule). However, it appears that only one lawsuit was filed in this case.

Even on its face, however, this rule of law should only bind the defaulting defendant and not someone who was not joined to that lawsuit and did not default.

END UPDATE.

If Yelp has no legal interest in the reviews posted by its users, on the theory that the users were the sole and exclusive owners of the reviews, it doesn't have standing to fight the decision. 

But, that characterization of the interest that Yelp has in reviews posted and aggregated and evaluated by it at its website is dubious. Indeed, the contractual relationship set forth in the Yelp terms of service, in all likelihood, expressly grants Yelp rights in the reviews that are posted by users. 

So, Yelp ought to be entitled to fight the claim that the review was defamatory on the merits before an injunction taking it down can be ordered, and the California Supreme Court will have to decide if that is the case.

UPDATE September 22, 2016:

Eric Goldman's lengthy post on the case is here.  An update is here.  The California Supreme Court unanimously voted to grant certiorari on September 21, 2016.

Transmission of the record, briefing, and oral arguments are likely to follow an ultimate ruling on the merits a year or more in the future.

It also isn't clear what is going on with defaulting defendant Ava Bird, who is being ruthlessly punished for writing a few short negative Yelp reviews. Should she voluntarily consent to remove the review perhaps in a settlement that reduces the money judgment against her, or is forced to do so under threat of contempt of court, or brings her own successful motion to vacate the judgment on some grounds, Yelp's claim could be mooted.  If this happens, it isn't clear if that would leave the bad precedent of the California Court of Appeals case in place, if that opinion would be vacated, or if the California Supreme Court would continue to render an opinion on the grounds that the issue might otherwise escape review in almost every case.

Finally, it is not at all obvious that the Plaintiff and former attorney of the defaulting defendant has complied with all of her ethical duties as an attorney by pursuing this course of action. If not, a grievance might be filed that might give rise to additional proceedings.

A few aspects are notable:

* The case involved a client complaining about an attorney.

* The complaint was served by "substitute service" rather than by personally delivering it to the defendant.

* Yelp was not named as a party or joined in the action, so it had no notice of the suit at the time that default judgment was entered.

* An ex parte "prove up hearing" was scheduled and held.  It isn't clear if any notice was delivered to the defaulting defendant or received by the defaulting defendant, but the defaulting defendant, at a minimum did not show up at the "prove up" hearing.

* The plaintiff filed court documents filed the court in anticipation of the "prove up" hearing, but not provided to Yelp which also was given no notice of the hearing, there (emphasis added):

In support of its request for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird] made defamatory statements,” the court would have authority to issue an injunction, and that if the same showing could be made at a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctive relief after a default prove-up hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the defendant refuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed to do so, which was likely in light of her history of “flaunting” California’s court system.

* Yelp received no notice of the "prove up hearing" and did not attend it.

* Following the ex parte "prove up hearing" at which only the plaintiffs attended and of which no transcript is in the appellate record, a default money judgment for "general and special damages and costs" of $557,918.75 was entered, but no punitive damages were entered. This is a pretty stunning award for someone who merely posted a few comments that were allegedly false in a Yelp review online.

* The default judgment also ordered the defaulting party to remove the complaint from Yelp's site.  The third paragraph is the "removal order" directed at Yelp:

“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order. 

“Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website. 

“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order."

* After judgment was entered, "Hassell served Bird with notice of entry of judgment. Bird did not appeal, and the judgment became final on March 16, 2014." The judgment was delivered to Yelp the same day that the judgment was served upon Bird (the opinion does not reveal the form of the service).

* Roughly two weeks after the judgment was served and before it was final, the Plaintiff served a demand letter upon the registered agent for Yelp.  Yelp responded with a letter to the Plaintiff setting forth its legal position that it was not bound by the order less than a week after receiving the demand letter.

* Yelp allows users to unilaterally remove their own complaints.

* It isn't obvious at first glance that this injunctive relief order was ever served upon the defaulting defendant which is necessary to give the Court authority to sanction the defendant for violating the injunction. The defamation plaintiff could have served the injunction on the defaulting defendant and then held the defaulting defendant in contempt of court if the defaulting defendant did not comply. But, if the defamation plaintiff had tried to compel the defaulting defendant to remove the complaint from the website, the defendant might have made an effort to set aside the default judgment on multiple grounds pursuant to the California equivalent of F.R.C.P. 60 (e.g. bad service of process, excusable neglect, misidentification of party complaining to Yelp).

* There is no indication in the record that the defamation plaintiff to action to compel the defaulting defendant to take action.

* Therefore, after the order was entered and served, Yelp sought to vacate the order, but was not allowed to dispute the merits of the defamation claim, obtained by default.

* The Court of Appeals concludes in the face of case law that arguably says otherwise, that Yelp was bound by the same deadline for attempting to set aside a judgment in the case that applied to the defaulting defendant, even though it was not a party to the case, and that its motion to vacate the order under the court rules (which are statutory in California) was untimely.  But, the Court held that it was still allowed to file a motion of a type not specified in the court rules.

* The California Court of Appeals decision is here.  It basic conclusions are as follows:

(1) Yelp is not “aggrieved” by the defamation judgment entered against Bird, but it is “aggrieved” 1 Generally, we will refer to respondents collectively, using the singular, gender neutral pronoun form where appropriate. 2 by the removal order; 

(2) Yelp’s trial court motion to vacate was not cognizable under Code of Civil Procedure section 6632; 

(3) Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate that order; 

(4) Yelp’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; 

(5) the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; 

(6) to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and 

(7) Yelp’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.

* In the big picture, one of the real problems is entering a compulsory final injunction against someone who was not a party to the litigation. Generally, only parties to a lawsuit are bound by its decision. There are a couple of exceptions to that idea, but they involve their own due process protections.

For example, in the case of a garnishment for a money judgment, the garnishee can respond that the money allegedly owed by it to the judgment debtor isn't actually owed, but it can't dispute that the judgment debtor owes money to the judgment creditor.  The garnishee is also generally required to give notice of the garnishment to the judgment debtor, potentially causing the judgment debtor to seek to set aside the default judgment.

Injunctions directed at a party to a lawsuit can also sometimes have a penumbra effect on some people who have notice of it, although this doctrine is relatively narrow.  For example, an officer of a defendant corporation who knows of an injunction entered against a defendant corporation might conceivably be subject to contempt of court for causing the defendant corporation to violate the injunction.  A trial court opinion on this subject stated that: "under California law, an injunction can be “applied to” a nonparty by virtue of its relationship to an enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (Ross).)"

* The crux of the appellate ruling against it is as follows:

Yelp attempts to characterize the removal order as an injunction against Yelp. We do not accept that characterization. The judgment was entered solely against Bird, and the injunctive order was directed solely at Bird’s defamatory speech. 5 The removal order was limited to statements covered by that injunction, statements attributed to Bird which she had been ordered to remove. Thus, the removal order does not impose any independent restraint on Yelp’s autonomy. Under these circumstances, charactering the removal order as an injunction creates unnecessary confusion about the clear distinction between the removal order and the underlying injunction against Bird. For reasons already discussed, Yelp cannot bootstrap its collateral attack of an allegedly void 5 order into a substantive appeal of the default judgment itself. The question whether the trial court should have granted an injunction against Bird is outside the scope of this appeal.

In other words, the California Court of Appeals concludes that Yelp's attack on the order directed at it cannot attack the merits of the determination reached against the defaulting defendant that the statements were defamatory and that a judgment was proper.

Basically, the California Court of Appeals concludes that Yelp is the kind of non-party who can be bound by an injunction because of its relationship to the defaulting defendant, while Yelp disputes that this is the case.

Facelift

I've changed the background to plain white because I got tired of looking at the old pattern which has been there for a while.

The Hillbilly Elegy Take Two

I recently read "Hillbilly Elegy: A Memoir of a Family and Culture in Crisis" by J.D. Vance.

The Story Of My Life From The Other Side Of The Tracks

It hits home. 

Vance grew up in the same county in Ohio (Butler), that I did. My wife likes to talk about them as "my people", but as she knows full well, even though they lived nearby, they aren't my people.

Vance was born around the time that I started junior high school, which is when I first encountered his people.  

Oxford, Ohio, down the road from Middletown and just a few miles from the Indiana border, was recently rated the best college town in the nation and also as number one for commitment to undergraduate education.

Ohio's plurality employer was not Armco Steel (Middletown's major employer which was in its waning days at the time), but Miami University, a "public ivy" with 16,000 students, almost all undergraduates, with more founding chapters of fraternities and sororities than any other university in the nation, and a generally conservative, affluent, disproportionately white, class conscious student body that values quality of life as much as academics.  In the 1980s and early 1990s there weren't even many Asian American students on campus, although now there are many.  Almost everyone we knew was affiliated with the college, the school district, a governmental agency, or the hospital.  The local elementary school served only residents of the city proper. 

But, our school district, Talawanda, was the geographically largest district in the state.  In addition to the square mile and larger Oxford township, it served a host of small towns full of people with Appalachian and Southern roots with owners of small and medium sized farms between them.

Junior high school is when the kids from the "outlying areas" who had attended local rural elementary schools were integrated with the city kids in a single junior high school in the middle of the City of Oxford that served the entire district, a district so large that some students from the outlying areas would spend an hour on the bus to school and another hour on the bus going home, each day.

The cultural divide was stark.

The city kids, despite the small size of the town, because it was a college town, were urbane, northerners, had parents who supported the schools and believed in the value of the education they were receiving, and were middle class or upper middle class.  Most of my friends had a family member in the university phone directory. The city kids had a variety of faiths, mainline Christians, members of historically black churches, Unitarians, a few Catholics and as many Jews. The city kids were white, every manner of Asian, black and Hispanic.  But, almost none had Appalachian or Southern white working class roots. Nobody from the city was Pentecostal and Baptists were also very rare.

In elementary school, we had thought were we plenty wild and rowdy.

But, by the standards set by the kids from the outlying areas, we were all well behaved, privileged, ladies and gentlemen who believed in the system. (The kids from the university run K-8 "laboratory school" who joined us a couple of years later because there were no private high schools within forty-five minutes drive didn't know how to function in a rigid public school bureaucracy, but were good hearted for the most part.) Our fights were light hearted and waged fists. Their's were serious, culture of honor duels waged by boys who picked fights intended to prove their manhood, and inflict serious damage, often with some sort of weapon (although almost never firearms in junior high school). We knew how to make model rockets. They knew how to make pipe bombs. One girl from their side of the tracks in my school at the time was pregnant at age thirteen.

I didn't realize it at the time, but the kids from the outlying areas actually belongs to two distinct cultures with many superficial similarities, rather than the one it had seemed to be at the time because both had similar musical tastes, similar clothes, the same bus routes, a shared animosity towards city kids, and similar versions of not quite standard upper middle class English.

Many were the peers of Vance's much older brother - "white trash" who worked blue collar jobs for low wages, lived in mobile homes ("trailers") or small houses in ill repair in the outlying areas, who had poor work habits, violent tempers, mean dogs, a vague, mostly unchurched Christianity, a propensity to drink to much, little respect for the educational process from parents or children, and a wealth of resentment and racial animosity.

The rest were career farmers who had owned their land for generations. They were relatively more affluent (basically middle class), observantly Evangelical Christian, more industrious, less volatile, taciturn, and socially as well as politically conservative. They made the Future Farmers of America and the Future Homemakers of America the biggest clubs in school, participated in 4-H, football and cheer squads, took vocational agricultural classes on topics from growing crops to welding to balancing books, drove pickup trucks and muscle cars to school, and made more money than anyone else in school working adult jobs at adult pay during summers, vacations and other free time on family farms. They rode horses and raised prize pigs and pumpkins.

Most wouldn't be going to college, so these were their glory days and while their parents resented what they saw as a school district catering to city kids, they also treasured their children's high school feats that would get their kids in the papers.

Vance's peers were my enemies for the two years of junior high school and three years of high school I shared with them (I spent my junior year abroad).

Vance's peers were the band of brothers who beat up my friend and I as we walked home on the railroad tracks. The main bully who targeted his rage at me later ended up in federal prison for stealing Social Security checks from mailboxes and trying to use them. His family's primary occupation for half a dozen brothers, the adults and other hangers on was a Christmas tree farm in season, and cutting down unwanted trees and branches the rest of the year.

His peers were the one's who showed up at school in family member's KKK robes and taunted the small number of black students and Jews, both of whom were "city people" mostly connected to the university, like me. The rest of us city kids took it personally because the black students and Jews were part of our "tribe" facing threats from outsiders from the outlying areas. Many of Vance's peers spent a lot of time in detention and in school suspensions. Many smoked and for a brief while we had a smoking lounge for students. They rarely did their homework. They drank cheap beer and liquor to get drunk, not nice parental wine and cocktails for the glamour of it.

One of those peers was my girlfriend for a couple of months, whom I took to homecoming. We often met up at her place, which was usually parent-free, in a trailer park just outside Oxford township and made out a lot.  But, we broke up, and by the next semester her family had moved on without warning to some other town for reasons unknown.

A Clash Of Civilizations

The Hillbilly Elegy is described as a "memoir" but it might as well be a participant-observer ethnography. It consciously recognizes that it is discussing the coherent whole of a particular culture or subculture (that depends upon whether you are talking to a lumper or a splitter). And, it isn't a healthy one.

My analysis of weak families among working class whites has avoided moral blame or a focus on parenting skills. Vance pulls no such punches.

Before we make it past the preface into chapter one, we are greeted with the fact that lots of Vance's peers cannot hold down a decent paying, unskilled job for any length of time because they lack the soft skills of punctuality, let alone showing up to work or doing a full day's work when they are there. They blame the failure that they bring on themselves on their employer.

He also describes at length the horrific job that the adults in his life do at keeping their own relationships in tact and their gross parenting failures that traumatize their children and force them to basically raise themselves and look elsewhere for role models.

His is a world where multiple dark childhood traumas and emotional disruptions, "Aces" is a technical psychological term for them, he says once he reaches his Yale Law days and realizes that his peers didn't have similar experiences, are the norm rather than the rare exception.

He explicitly draws the numerous comparisons between the self-destructive aspects of Hillbilly culture and those of African-American culture.

The only things that seem to work to remove people from their self-made squalor are those that self-consciously involve changing someone right down to the fundamental level of their cultural norms and habits - the U.S. Marine Corps for him. Religion for others like his birth father. And, later, a sympathetic professor mentor and a girlfriend who are receptive to keeping him on the right track despite his lack of social capital. But, he is also well aware of the poison and anti-intellectualism lurking in the kind of religion that sets his screwed up father on a happier, relatively straight and narrow path. My people don't love these institutions, but they seem to work better than the alternatives for the Hillbillies in crisis.

His grandparents do as well as they do, despite being dragged down by their own daughter's failures, by leaving the Kentucky hill country in the face of a teen pregnancy scandal for Southeast Ohio where his grandfather takes a factory job in a steel plant that intentionally hires friends and family of other Kentucky migrants from the same towns and valleys they did. They end up visiting often and their own community is a half-way house full of similar migrants, but they partially escape the vicious cycle.

Vance's world is a place where mere insulting worlds lead to vicious, psychotic violence that the victims don't report because they share a code of honor. It is a place of vigilante justice and feuds that belong in an earlier century. It is a place full of guns and drug addicts. It is a place of hungry children and welfare queens. It is a place where domestic violence is the norm and alcoholism is common place. It is a place where few people go to college, but some join the military. It is a place where duty and respect can be taken seriously, but betrayals and failure are common.

Even when his mom and stepdad de jour manage to bring in good money, they piss it away on senseless consumerism, destroy their marriage, screw up at their jobs, and provide poor parenting for their children.

Vance's book is an elegy for a Hillbilly culture that is slowly by surely dying and bringing as many of its practitioners down with it as it can mange. Whatever virtues its way of life served in the Scottish borderlands and Northern Ireland and the American Frontier back when that was Appalachia, have long since been rendered dysfunctional. The people in the culture he grew up in are experts at snatching defeat from the jaws of victory. Their lack of discipline and respect for education, weakness for short term gratification, and their short tempers doom them at everything they try.

Those who are smart and lucky and have supportive adults in their childhood (not necessarily parents) and romantic partners from outside the culture in their lives to get them on the right track, can escape into the rest of the American middle class and prosper. Those who aren't so lucky are doomed to repeat the cycle.

Vance offers insights but no solutions. Indeed, he makes clear that mere economic opportunities alone aren't enough to keep his people from screwing things up. They need collective attitude adjustments and nobody has any insights on where they will come from.

A Mind Is A Terrible Thing To Waste

A new study demonstrates what advocates for scholarship funds have long argued. Lots of academically talented people don't pursue higher education because they can't or perceive that they can't afford it, and this results in immense lost economic productivity for our nation.

Genes, Education, and Labor Market Outcomes: Evidence from the Health and Retirement Study* 

Recent advances have led to the discovery of specific genetic variants that predict educational attainment. We study how these variants, summarized as a genetic score variable, are associated with human capital accumulation and labor market outcomes in the Health and Retirement Study (HRS). We demonstrate that the same genetic score that predicts education is also associated with higher wages, but only among individuals with a college education. Moreover, the genetic gradient in wages has grown in more recent birth cohorts, consistent with interactions between technological change and labor market ability. We also show that individuals who grew up in economically disadvantaged households are less likely to go to college when compared to individuals with the same genetic score, but from higher-SES households. Our findings provide support for the idea that childhood SES is an important moderator of the economic returns to genetic endowments. Moreover, the finding that childhood poverty limits the educational attainment of high-ability individuals suggests the existence of unrealized human potential.

From here.

The Hillbilly Elegy Take One

I quoted at length from an article by Kevin Williamson on the future of Appalachia in an early 2014 post.  Since then, I've read the Hillbilly Elegy by J.D. Vance, although I haven't yet written a post on it, despite starting to do so a couple of times.  Williamson's review of the book is here and entitled "Albion's Ashes". Some excerpts:

Vance’s memoir really is not, despite its marketing, a tale of economic privation among the Kentucky Scots-Irish exodus. It is closer to the opposite: His Kentucky-exile grandparents are secure and prosperous in spite of their own humble origins and a long period of alcohol-fueled domestic strife; they own a nice, four-bedroom home and drive new high-end cars—convertibles, even. Growing up in a small town in Ohio in the 1990s, Vance lived in a household with an annual income exceeding $100,000, or the equivalent of about $175,000 a year in today’s dollars. . . . 

His family was indeed miserable, but theirs wasn’t the misery of poverty and privation. It was the misery of people determined to be miserable at any price. The great American bounty was wheeled out for their enjoyment like room service at the Ritz Carlton, and they decided they preferred Wendy’s and Night Train and OxyContin and desultory sex with strangers from bars. 

Nothing happened to them—they happened. . . .

His mother is a nurse, a much-married woman who grows bored with men who are kind and well-employed, who takes up drinking and carousing relatively late in life and engages in theatrical public meltdowns, including purported suicide attempts. . . . Vance’s grandmother (and surrogate mother), whom he calls Mamaw, is one of those horrifying redneck women who thinks of herself as a matriarch, threatens to shoot people all the time, and apologizes for being a “crazy bitch” even while she obviously takes pleasure and a sense of personal identity from being one. . . .

[T]he chaos of his upbringing—at one point, he’s dividing his time between three different households, and most of the members of his tight clan have different surnames—is real and it is awful, but it has little to do with economic opportunity per se. His family doesn’t live in the poor section of town, and they have money to provide him with all sorts of desirable things, including golf lessons. He gets a nice set of secondhand MacGregors—being a poor hillbilly ain’t what it used to be. . . .

Vance’s mother loses her high-paying nurse’s job in a . . . dramatic fashion, raiding the hospital pharmacy, getting high as a Georgia pine on prescription painkillers, and then Rollerblading through the emergency room. . . . Between the legal fees, the rehab facilities, the never-to-be-repaid “loans” during spells of self-inflicted unemployment, Vance’s mother bleeds her parents white over the course of her adult life. . . .

Vance had the good sense to delay college and enlist in the Marine Corps instead. And the Marine Corps is one of the few remaining American institutions that delivers more or less exactly as advertised. Vance entered the boot camp pudgy, disorganized, immature, and lacking in confidence. He left it harder, wiser, and more capable. His account of his time in the Marines is in fact one of the most interesting sections of the book, and the one that points both to the promise and shortcomings of public-policy interventions to counter the dysfunction of the white underclass. As Vance puts it, the Marines take in new recruits under an assumption of maximum ignorance, i.e., that they do not know the basics of anything, from personal hygiene to keeping a schedule. The Marine Corps interferes in Vance’s life in intensely invasive and personal ways: When he decides he needs to buy a car, an older Marine is dispatched to make sure he doesn’t buy something stupid and stops him from signing a high-interest financing contract with the dealer, steering him instead toward a much better deal available through the Marines’ credit union. . . . 

J.D. Vance may have set out to write something like Angela’s Ashes, exploring the interaction between addiction, poverty, pride, and clannishness, but what he has delivered is a personal supplement to Albion’s Seed, updating us on the decline of the Scots-Irish communities whose submersion in atavistic hinterland folkways keeps them in poverty even when they are not, strictly speaking, poor. It is an engaging and at times fascinating read, and one that contains, despite Vance’s best efforts, very little to support a case for hope.

Another piece looking at geographic links between firearm suicides, opioid abuse and Republican political support's growth in recent years also offers an interesting perspective.