SCOTUS Provides Sweeping Protection To Human Rights Violating Corporations

The U.S. Supreme Court has provided sweeping immunity from all Alien Tort Statute lawsuits for suits against corporations not incorporated in the United States, even when those suits involve conduct relevant to the lawsuit that take place in the United States, in the case of Jesner v. Arab Bank. As the official syllabus to the case explains:

Petitioners filed suits under the Alien Tort Statute (ATS), alleging that they, or the persons on whose behalf they assert claims, were injured or killed by terrorist acts committed abroad, and that those acts were in part caused or facilitated by respondent Arab Bank, PLC, a Jordanian financial institution with a branch in New York. They seek to impose liability on the bank for the conduct of its human agents, including high-ranking bank officials. They claim that the bank used its New York branch to clear dollar-denominated transactions that benefited terrorists through the Clearing House Interbank Payments System (CHIPS) and to launder money for a Texas-based charity allegedly affiliated with Hamas. While the litigation was pending, this Court held, in Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, that the ATS does not extend to suits against foreign corporations when “all the relevant conduct took place outside the United States,” id., at 124, but it left unresolved the Second Circuit’s broader holding in its Kiobel decision: that foreign corporations may not be sued under the ATS. Deeming that broader holding binding precedent, the District Court dismissed petitioners’ ATS claims and the Second Circuit affirmed. Held: The judgment is affirmed.

The Court reasoned that the Alien Tort Statute was adopted in the very first days of the Republic because if it denied foreigners the right to sue domestic tortfeasors for torts, that the United States could have liability in lieu of the tortfeasor under international law, causing diplomatic problems for the United States. But, allowing a suit against a foreign corporation could cause diplomatic problems for the United States by aggravating the country where the foreign corporation is based, and therefore allowing such suits was inconsistent with the purpose of the statute.

The Court considered the claims to be primarily about terrorist acts committed abroad and found that the U.S. connection was too tangential to give rise to a U.S. lawsuit, despite the fact that the majority felt that this would be typical of such suits.

The ruling reflect a long term trend on the part of the conservative majority in the U.S. Supreme Court to disfavor tort liability, especially when it concerns human rights, and to narrow the jurisdiction of U.S. courts, particularly when international fact patterns are involved. The ATS, in particular, has long been a target of conservatives and some neo-liberals who don't think it is fruitful to have U.S. courts hold companies liable for human rights abuses abroad.

The 5-4 majority's opinion is officially summarized as follows:

The Judiciary Act of 1789 included what is now known as the ATS, which provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350. The ATS is “strictly jurisdictional” and does not by its own terms provide or delineate the definition of a cause of action for international-law violations. Sosa v. Alvarez-Machain, 542 U. S. 692, 713–714. It was enacted against the backdrop of the general common law, which in 1789 recognized a limited category of “torts in violation of the law of nations,” id., at 714; and one of its principal objectives was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to have one might cause another nation to hold the United States responsible for an injury to a foreign citizen, see id., at 715–719. 

The ATS was invoked but a few times over its first 190 years, but with the evolving recognition—e.g., in the Nuremberg trials—that certain crimes against humanity violate basic precepts of international law, courts began to give some redress for violations of clear and unambiguous international human-rights protections. After the Second Circuit first permitted plaintiffs to bring ATS actions based on modern human-rights laws, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), creating an express cause of action for victims of torture and extrajudicial killing in violation of international law. ATS suits became more frequent; and modern ATS litigation has the potential to involve groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. 

In Sosa, the Court held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, 542 U. S., at 732, but it explicitly held that ATS litigation implicates serious separation-of-powers and foreign-relations concerns, id., at 727–728. The Court subsequently held in Kiobel that “the presumption against extraterritoriality applies to [ATS] claims,” 569 U. S., at 124, and that even claims that “touch and concern the territory of the United States . . . must do so with sufficient force to displace” that presumption, id., at 124–125. Pp. 6–11. 

Sosa is consistent with this Court’s general reluctance to extend judicially created private rights of action. Recent precedents cast doubt on courts’ authority to extend or create private causes of action, even in the realm of domestic law, rather than leaving such decisions to the Legislature, which is better positioned “to consider if the public interest would be served by imposing a new substantive legal liability,” Ziglar v. Abbasi, 582 U. S. ___, ___ (internal quotation marks omitted). This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule imposing liability upon artificial entities like corporations. Thus, in Correctional Services Corp. v. Malesko, 534 U. S. 61, 72, the Court concluded that Congress, not the courts, should decide whether corporate defendants could be held liable in actions under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. 

Neither the language of the ATS nor precedent supports an exception to these general principles in this context. Separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS, which implicates foreign-policy concerns that are the province of the political branches. And courts must exercise “great caution” before recognizing new forms of liability under the ATS. Sosa, supra, at 728. The question whether a proper application of Sosa would preclude courts from ever recognizing new ATS causes of action need not be decided here, for either way it would be inappropriate for courts to extend ATS liability to foreign corporations absent further action from Congress. Pp. 18–19. 

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations when the absence of such a remedy might provoke foreign nations to hold the United States accountable. But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation about a charity in Texas. At a minimum, the relatively minor connection between the terrorist attacks and the alleged conduct in the United States illustrates the perils of extending the scope of ATS liability to foreign multinational corporations like Arab Bank. For 13 years, this litigation has caused considerable diplomatic tensions with Jordan, a critical ally that considers the litigation an affront to its sovereignty. And this is not the first time that a foreign sovereign has raised objections to ATS litigation in this Court. See Sosa, supra, at 733, n. 21. 

These are the very foreign-relations tensions the First Congress sought to avoid. Nor are the courts well suited to make the required policy judgments implicated by foreign corporate liability. Like the presumption against extraterritoriality, judicial caution under Sosa “guards against our courts triggering . . . serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.” Kiobel, supra, at 124. Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS. Pp. 25–27.

The Court's four liberal justices open their dissenting opinion, written by Justice Sotomayor, with this paragraph:

The Court today holds that the Alien Tort Statute (ATS), 28 U. S. C. §1350, categorically forecloses foreign corporate liability. In so doing, it absolves corporations from responsibility under the ATS for conscience-shocking behavior. I disagree both with the Court’s conclusion and its analytic approach. The text, history, and purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort claims for law-of-nations violations may be brought against corporations under the ATS. Nothing about the corporate form in itself raises foreign-policy concerns that require the Court, as a matter of common-law discretion, to immunize all foreign corporations from liability under the ATS, regardless of the specific law-of-nations violations alleged. I respectfully dissent. 

U.S. Supreme Court Continues To Weaken Patents

The U.S. Supreme Court, in the case of Oil States Energy Services v. Greene's Energy Group, has upheld the validity of the inter partes review process that allows the validity of a patent to be challenged in the Patent and Trademark Office against a challenge to the fact that it was made in a non-Article III court forum without access to a jury. This process provides a means of challenging a patent, as in the case at hand, in parallel with infringement litigation in an Article III court.

In SAS Institute v. INACU decided the same day, the U.S. Supreme Court held that if the patent office considered any claims presented in its discretionary consideration of an inter partes review petition, that it must given a reasoned resolution of all of the claims presented, even though the PTO has discretion to deny inter partes review summarily as to all claims presented.

Both ruling favor people challenging the validity of patents over people seeking to enforce patents granted by the PTO.

The follows a long line of U.S. Supreme Court cases almost always weakening patent protections often created judicially by the U.S. Court of Appeals for the Federal Circuit which hears all patent appeals. See, e.g., here, here, and here.

You Can Lose An Appeal Even When A Court Admits You Are Right

In People v. Butcher, a restitution award of $113,605 was entered against a defendant for securities fraud against two at risk adults. 

There was a $7,500-$15,000 error in the interest calculation on the award, which was not preserved at trial, but which the Court admits was "plain error" which is subject to review. But, the Court declined to modify the award on appeal because: "the trial court’s single obvious error — accruing post-judgment interest from the date of conviction rather than from the date of the operative restitution order — does not seriously affect the fairness, integrity, or public reputation of judicial proceedings." This was done pursuant to Colorado Rule of Criminal Procedure 52(b) and an interpretation that is a matter of first impression.

In my view ignoring an obvious error with a mathematically certain resolution which requires no new evidence to resolve, does "seriously affect the fairness, integrity, or public reputation of the judicial proceedings."

Screwing over a defendant, even when you admit that he is in the right and that you know exactly what went wrong, just because you don't feel like correcting the error, is a gross abrogation of the spirit of unbiased justice on the part of the appellate panel with no legitimate justification. It is practically the definition of bias.

The criminal defense lawyer's failure to preserve the interest objection is also very likely malpractice on the part of the lawyer, both as to the portion of the mistake that was "plain error" and as to the portion of the mistake that was not. It isn't entirely clear, however, how the statute of limitations on a malpractice claim would work in this case.

Bayesian Statistical Reasoning and Race In The Criminal Justice System

Bayesian Reasoning Is Discouraged In Guilt-Innocence Trials.

The legal system, especially the criminal justice system, in the United States aspires mightily to avoid Bayesian statistical reasoning, in which your end analysis of probabilities is influenced by your "priors" - i.e. your expectation of what the probabilities will be going forward based upon past experience.

For example, one of the reasons that most criminal trials are jury trials is that the jury is not told (at least if the defendant refuses to testify, which he has a right to do without an adverse inference under the 5th Amendment) about a defendant's prior criminal record. 

Defendants routinely decline to testify because this opens the door to admission of evidence of their prior criminal records. 

But, empirical evidence suggests that even though juries are strongly admonished to ignore a defendant's failure to testify when rendering their verdict, that juries do, in fact, penalize defendant's for failing to testify to approximately the same degree that they penalize defendants with a prior criminal history for testifying when that is revealed to them. 

Our willingness to admit Bayesian prior establishing evidence of witness credibility undermines our efforts to suppress Bayesian prior establishing evidence that someone has a propensity to commit a crime.

The British resolve this conundrum by allowing criminal defendants to testify without being under oath and without revealing their criminal histories, and not creating strong incentives for defendants to suppress this testimony probably does more to enhance the accuracy of fact finding in criminal trials than to undermine it. The mere fact that someone has a huge self-interest in providing self-serving testimony when one is a criminal defendant is more than sufficient to cause juries to consider that evidence skeptically, especially when the offense charged is a serious one, even without knowing that a defendant may have a significant criminal history.

Also, while it may create an unfair snowball effect for a jury to know that a defendant has a criminal history, increasing the probability of a wrongful conviction in the instance case where one would not have been made if the jury had not known that fact, criminal defense attorneys, if they are clever, can present evidence that strongly implies a lack of a criminal history without openly saying so. They can call their criminal defendant client to the stand to testify. They can try to sprinkle in references in passing to activities that someone with a criminal history couldn't have engaged in (like notarizing a document or practicing in some other licensed profession), they can solicit testimony about things like a long, continuous employment history that would be inconsistent with having served time in prison, and they can ask questions like "do you know how a drug test works?" that answered in the negative, indicates a lack of a criminal record. So, suppressing the truth can work.

And, given that the majority of participants in the criminal justice system are recidivists, and that juries presume as much, perhaps defendants with no criminal history ought to be entitled to disavow that presumption by telling the jury that fact. If people are inherently Bayesian in how they evaluate probabilities, and that is was a trier of fact in a criminal trial is charged with doing, than an absence of evidence to the contrary of a widely held Bayesian prior of the jury is substantively prejudicial.

Also, while a judge in a rare criminal bench trial will usually know a defendant's criminal history even though the judge is supposed to ignore it when rendering a guilt or innocence verdict, it is unlikely that they actually do so, and certainly, prosecutors negotiating plea bargains which is the source of the lion's share of criminal convictions do not ignore a defendant's criminal history.

So, while the criminal justice system gives the appearance of not considering a defendant's prior criminal history in an effort to make the process seem more legitimate, in practice, the signaling of guilt caused by a failure to testify and other cues inevitably influences juries just as strongly, and undermines one of the foundational premises of the exclusion of Bayesian prior propensity evidence from juries.

The theory is that we want to avoid a "snowball effect" in which past arrests (whether or not resulting in convictions) and past convictions, increase the probability that someone will be wrongfully convicted going forward.

Similarly, we exclude "propensity" evidence at trial, unless that evidence is so particularized and compelling that the modus operandi it demonstrates has become an identifying trademark linking a crime to a defendant.

On the other hand, this disdain for Bayesian priors in the criminal justice system evaporates once we depart the trial that determines guilt or innocence on the merits. 

Also, practices in the guilt or innocence trial phase designed to suppress criminal investigation practices based upon inappropriate Bayesian priors, such as the Fourth Amendment exclusionary rule, which acquits people known to be guilty or makes their acquittal or favorable plea bargain more likely, undermines the legitimacy of the formal guilt-innocence phase of the trial in the eyes of law enforcement and victims, which can cause law enforcement and victims to feel morally justified in engaging in retaliatory cheating through false testimony in affidavits, hearings and trials, when the believe that a defendant is guilty but present the evidence which is the actual basis of their beliefs to a judge or jury.

Bayesian Reasoning In Criminal Investigations

Police routinely focus on the "usual suspects" with prior criminal records when investigating crimes, because the usual suspects are usually the people who are guilty.

Knowledge of an individual's prior criminal history can either mean that a suspect has no legally enforceable right to privacy because he is on probation or parole, or can be used by law enforcement and prosecuting attorneys as one part of demonstration of probable cause for a search, a seizure, a wiretap, an arrest, an indictment for a felony, or a use of force, or as part of demonstration of reasonable suspicion for a "Terry stop," tested in a preliminary hearing, a grand jury presentation, or in defending a civil rights lawsuit.

Police are legally prohibited from resorting to Bayesian priors based upon race in making decisions with a probable cause or reasonable suspicion threshold, unless, of course, a witness or the electronic or photographic equivalent or DNA evidence establishes or at least strongly suggests a suspect's race. But, of course, there is pervasive evidence that police do so anyway in almost all matters in which they are vested with discretion.

Police are also permitted to consider, and routinely do consider, arrest records of people who are not convicted based upon arrests in their investigative work. And, it is often through this portal that impermissible racial bias leading to Terry stops and arrests of minority individuals (especially young minority men) who are not guilty of the offense for which they are being arrested on suspicion of, without probable cause, are laundered into arrest records that police are allowed to legally consider, and custodial searches that reveal evidence of crimes such as drug possession or driving with a suspended license, that would never have been discovered but for the wrongful stop.

The Fourth Amendment exclusionary rule seeks to limit the extent to which effectively random searches and arrested based solely upon racial priors turn into convictions, but police frequently treat arrest records which are the result of police discretionary decision making, as more credible than convictions, which are influenced by plea bargaining between prosecutors and criminal defenses lawyers for all sorts of reasons (the lion's share of convictions are a result of guilty pleas rather than trials). So, the snowball effects that the system tried to avoid at trial absolutely emerge in the pre-trial investigation portion of the criminal justice process.

Because racism is fundamentally somewhat flawed Bayesian reasoning, rather than mere ignorance, both white and minority police officers often employ it.

But, this is problematic in multiple respects. 

One is that it lead to snowball effects that create pervasive, lasting, inappropriate bias that can turn people who weren't on the prison track into criminals, when they weren't criminal at first.

Another is that if police perceive that young black and Hispanic men are criminals, in general, even if they haven't been caught yet, they are less likely to be morally troubled when those young men are wrongfully arrested, searched or convicted of crimes which they didn't commit, because the police feel that those young men had it coming to them for crimes for which the young men were not caught. And, police have to be self-policing, and are less likely to take self-policing action when they believe that no moral harm has occurred, even if rules were technically violated.

Perhaps most importantly, acting on racial Bayesian priors, even if those priors have a real factual basis because people fitting a demographic profile are significantly more likely to commit crimes in a particular context than people who do not, the cost that those racial Bayesian priors impose on law abiding people who happen to be of the same race are crushing.

"Driving while black" in a predominantly white neighborhood prompts police calls and stops made without reasonable suspicion or probable cause with great frequency. 

Innocent unarmed individuals holding cell phones are shot in their backyards because police assumed that the cell phone was a gun. 

Law abiding minority individuals learn to distrust police, and lose the full benefits of protection from the criminal justice system, because police don't get the information that would give rise to legitimate probable cause from the community and because they refrain from calling the police for assistance when there is a great risk that they or loved ones will be the victims of police misconduct if they do.

Basically law abiding minorities don't get the benefit of the doubt and leniency from law enforcement that causes many stops of whites to result in a warning, and for dubious offenses that almost never result in criminal charges like driving with a defective headlight, jaywalking, driving just a few miles an hour above the speed limit, possession of small amounts of marijuana, open contain law violations, and the like, to be enforced to the full extent of the law against them.

This mistreatment of law abiding minorities, even if motivated by reality based Bayesian priors, undermines the legitimacy of law enforcement for whole communities, stigmatizes people who shouldn't have criminal records in ways that make it harder for them to function legitimately, and undermines the incentives the criminal justice system is supposed to create to encourage people to follow the law.

Bayesian Reasoning In Sentencing

Similarly, once a defendant has been convicted, Bayesian priors are routinely used to determine an appropriate sentence for a defendant, through formal sentence enhancers for recidivist defendants, through formal consideration as part of sentencing guidelines in the federal system and in some states such as Florida, and through informal evaluation of a pre-sentencing report by a judge who has discretion to choose from a range of permissible sentences for an offense. The Bayesian priors are not restricted to prior criminal records either. 

While judges (and juries imposing death sentences) are legally forbidden from using race as a prior in making sentencing decisions (although overwhelming statistical evidence demonstrates that this is done pervasively), they are permitted to consider a defendant's education, marital status, employment status, community ties, motive for the crime, age, substance abuse issues, mental health and more. Gender is routinely considered as well, whether or not this is legally proper. Judges are also permitted to consider gut level perceptions of the individual defendant from a sentencing hearing and that perception inevitably is influenced by race and cultural differences between (or similarities with) the judge and the defendant. Judges are more lenient when they can empathize with a convicted defendant and the more similar a convicted defendant is in culture and life experiences to a judge, the more a judge will empathize with the defendant.

Similarly, Bayesian reasoning is pretty much mandated in parole hearings in states that have indeterminate sentences, to determine that likelihood that a convicted criminal will reoffend upon release.

One important reform in sentencing is to use empirically validated risk assessment tools to overcome the individual and less accurate Bayesian priors of individual judges acting in a non-systemic manner based upon gut instincts. But, while these tools can be more accurate than judges acting based upon interpersonal interactions in a brief sentencing hearing, there is still room for hidden basis based upon which factors are and are not considered by the risk assessment tool, based upon how the information used as inputs by the tool is collected, and there is likely room for misuse or gamesmanship of the tool because it is a black box whose implicit reasoning is often not disclosed or not easily understood.

Analysis

Would we be better off to acknowledge that reasoning based upon Bayesian priors in the criminal justice system is inevitable, in order to better regulate it?

Perhaps providing juries, judges and police with more information that would make their Bayesian priors more accurate would be a more fruitful approach than our current one. 

But, because Bayesian priors based on race and other impermissible factors can simultaneously make decision making more accurate overall, and make life oppressively unfair to generally law abiding people who share those identifiers, criteria that evaluate the cost of false positives and false negatives equally are inherently flawed as well. Simply causing priorities other than mere raw accuracy to be more widely acknowledged, for example, in creating risk assessment tools and devising rules in the criminal justice system and in civil rights laws, might go a long way towards improving our policy decisions in those matters.

Rather the maintaining the pretense that we can ignore some facts to improve accuracy, which is true less often than we pretend it to be, we might be better off acknowledging that some facts that are ignored could improve accuracy and that we will continue to do so because preventing false positives is more important that preventing false negatives. A person with a propensity to commit crimes who is acquitted will usually offend again and be caught and punished the next time (and if he doesn't the reform arising from the acquittal is itself a benefit to society). But, a person who is generally law abiding who is wrongfully convicted may suffer so much harm that they are dragged down into life of crime as a consequence of the wrongful conviction.

Evangelicals Have Alienated The Young

It isn't just Republicans who have screwed the pooch by alienating young adults. Evangelicals have also seen their ranks dramatically reduced over the last decade, mostly because they young no longer have patience for their rejection of science and theology of hate. 

Large-scale polls conducted over the last 10 years by PRRI indicate that white evangelicals as a percentage of Americans have been on a downward trend for at least a decade, as they steadily decline as a percent of the population. In 2006, they accounted for 23 percent of those surveyed, but as of 2017, they represented just 15.3 percent of the population.

Evangelicals’ fervent support of Trump is not universally shared by a crucial, and rapidly evaporating, subset of the white evangelicals—their children—who are leaving the faith in droves over its anti-LGBT and anti-science positions. 

Only 35 percent of white evangelicals are under the age of 50, compared with 54 percent of the population, according to the PRRI. And they are bleeding youth: Only 8 percent of white evangelicals are under the age of 30, compared with 21 percent of the American population.

From Newsweek.

If Evangelical Christians continue to loose adherents at the rate that they have over the last decade, by 2030, they will represent less than 10% of the U.S. population.

The article goes on to note that Evangelical "insistence on a God-given patriarchal system" is also alienating and that support for Donald Trump was a last straw for many younger adults who had clung to the religious movement until then.

The article concludes with a LOL footnote:

Correction: An earlier version of this article mistakenly said Donald Trump's alleged yearlong affair after the birth of his son with Melania Trump was with an adult film actress; it was with a former Playboy bunny.

As we say in the law, "a distinction without a difference.

It is also worth noting that White Evangelical Protestantism is strongest in U.S. states whose economies are the weakest. The culture associated with this faith is economically maladjusted to the contemporary economy. It came into being in symbiosis with slavery supported plantation farming in the South, which called for a set of norms that are dysfunctional in a post-agricultural, post-slavery modern economy.

Fighting Back

From here.

Quote of the Day

As much as I'm annoyed with #Facebook, today reminded me I've hated #Microsoft since long before Mark Zuckerberg graduated from using an Etch-a-Sketch.

- Professor Bainbridge (March 29, 2018).

His particular complaint was an "autosave" fail in Microsoft Word.

Who Was D.B. Cooper?

A man using the alias Dan Cooper (corrupted by the press to D.B. Cooper, the name of an early suspect who was ruled out) hijacked an airplane, got $200,000 of ransom money, and jumped off in a remote forested area of Washington State with a parachute in 1971. He has never been found and only a small portion of the ransom money was ever recovered.

Who are the top suspects in my view and why? 

In order of likelihood, the prime suspects in my view are:

1. Kenneth Christiansen. He was a former paratrooper familiar with the airline in question where he worked for some time, who smoked and drank bourbon and was left handed who looked somewhat similar to the perpetrator. He kept obsessive clippings about the airline until the incident happened, but not the incident itself or anything afterwards. He made suspicious statements and had unexplained wealth of about the right magnitude at about the right time. He died in 1994.

He is the prime suspect, in my opinion.

2. L.D. Cooper. He was obsessed with an obscure Belgian comic that the perpetrator appeared to be giving an homage to in his crime. He had a similar appearance. He was engaged in suspicious activity in the vicinity of the crime at the time it happened, coming home with injuries. His limited skydiving experience is consistent with the FBI's assessment of the perpetrator's skill level. He died in 1999.

He could have been a co-conspirator with Christiansen on the ground, or might have just been a casual acquaintance of Christiansen who provided the Belgian comic twist. He doesn't seem to have the right knowledge base or the right motive or the right personality to do something so nervy, however. There is no indication that he was a smoker and bourbon drinker, which would be surprising to fake.

3. Duane Weber. He confessed on his death bed to a wife who didn't know what he was talking about. He was an Army veteran with a long criminal record ending with release from prison in 1968. He made margin notes in a local library book about the case. He had nightmares about "jumping out of a plane and leaving finger prints on the "aft stairs" and a knee injury he claimed came from jumping out of a plane. He drank bourbon and chain smoked. In 1979 he took a trip to Seattle and walked where ransom cash was found a year later.

It is also quite plausible that he may have privately searched for the loot after the incident, intentionally took up smoking and drinking bourbon in imitation, made his statements to his wife informed by his reading about the case, found the small amount of the ransom that was recovered after being separated from the main stash while searching in the Washington woods, kept a few bills for posterity, and then buried the rest in 1979 where it would be discovered a few years later. He may have confessed on his deathbed as a way to boost himself up as a great man in the eyes of his widow.

4. Wiliam Gossett. He confessed to five people and was obsessed with the case and looked similar to the perpetrator including non-public matters. He appeared with wads of cash shortly after the crime and could have gambled the money away in Las Vegas. He had wilderness survival skills and jump training and was in the military in 1971. There are cryptic links between him and letters that were sent to major newspapers afterwards. He changed his name and became a Catholic priest in 1988 purportedly to hide his identity. He died in 2003.

Wads of cash wouldn't be too unusual for a gambler, and his obsession with the case and multiple confessions seem out of character for a true culprit. Also men in the military aren't desperate for cash, nor are they usually short of alibis. He sounds like someone who envied the perpetrator but wasn't him.

5. Robert Rackstraw. He faced explosives charges in Iran in 1978, made an attempt to fake his death with a false mayday from a plane, a vague physical resemblance (although he was 28 rather than in his 40s in 1971 and eye witnesses said he was not similar in appearance), he was tried but not convicted of murdering his stepfather, all of which are similar in character to this crime. He could have disguised himself, but that seems like a leap in this case. He had CIA and military experience which the crime suggested that the perpetrator might have had, a questionable statement made to reporters, and a potential link to coded messages send to major newspapers not long after the incident, support the theory He is alive and in now in his 70s. He is interesting as a suspect mostly because he is the only prime suspect who could be held accountable for the crime if something linking him to it were found. Also, there is no evidence that the letters to the newspapers, which he could have been behind, actually had anything to do with the crime itself.

Healthy Obese People And Unhealthy Thin Ones

One of the main reasons that being fat (e.g. having high BMI) is bad for you is that it screws with your metabolism. 

A new paper directly measures the metabolic state of people with various BMIs and found that there are some obese people who are metabolically healthy, while there are people with "healthy" BMIs who have screwed up metabolisms. This flows, in part, from genetic differences between people of a given BMI. 

The paper implies that we should measure the metabolic state of obesity patients and treat them differently based upon the extent to which they have healthy metabolisms.

When Does It Pay To Be Beautiful?

We use novel data from the Berea Panel Study to reexamine the labor market mechanisms generating the beauty wage premium. We find that the beauty premium varies widely across jobs with different task requirements. Specifically, in jobs where existing research such as Hamermesh and Biddle (1994) has posited that attractiveness is plausibly a productivity enhancing attribute—those that require substantial amounts of interpersonal interaction—a large beauty premium exists. In contrast, in jobs where attractiveness seems unlikely to truly enhance productivity—jobs that require working with information and data—there is no beauty premium. This stark variation in the beauty premium across jobs is inconsistent with the employer-based discrimination explanation for the beauty premium, because this theory predicts that all jobs will favor attractive workers. Our approach is made possible by unique longitudinal task data, which was collected to address the concern that measurement error in variables describing the importance of interpersonal tasks would tend to bias results towards finding a primary role for employer taste-based discrimination. As such, it is perhaps not surprising that our conclusions about the importance of employer taste-based discrimination are in stark contrast to all previous research that has utilized a similar conceptual approach.

Todd R. Stinebrickner, Ralph Stinebrickner, Paul J. Sullivan, "Beauty, Job Tasks, and Wages: A New Conclusion about Employer Taste-Based Discrimination" NBER Working Paper No. 24479 (April 2018).

Quote of the Day

When the worst thing you could possibly imagine happens to you, you think maybe other previously inconceivably bad things can happen too.

- Julie Buxbaum author of "Tell Me Three Things" (2016).

A Judge's Demographic Characteristics Are Correlated With Sentencing Outcomes

A continuing education course/happy hour presentation of the Colorado Bar Association in a couple of weeks will present some new empirical findings on sentencing:

The Honorable Morris B. Hoffman will present The Effects of the Age and Gender on Third-Party Punishment. . . . Judge Hoffman will discuss studies showing there are significant interaction effects between the decision-maker’s age and gender, and the level of harm caused by the violation. For example, older men punish low-harm violations much less harshly than younger men, but this difference reverses when the harms become high — older men punish high harms more harshly than younger men. Women punishers did not exhibit this age-inversion phenomenon, but did punish more harshly than their same-age male counterparts across all harms.

One possibly explanation for the male-female discrepancy here is that it may be that a larger percentage of female judges were previously prosecutors than is the case for male judges, although I don't know that to be true. Another possibility is that female judges are more common in certain geographic areas where other factors lead to more severe punishments.

Basic Management Issues Are Critical To Profitability

Most of the differences between the most productive and profitable company and the least, are very basic management issues that people often have difficulty distinguishing from interpersonal and non-business considerations.

In the perfectly competitive model, price is equal to average cost and firms operate efficiently at minimum cost. Yet, Syverson finds that in the typical US industry a firm at the 90th percentile of the productivity distribution makes almost twice as much output with the same inputs as a firm at the 10th percentile. It’s not easy to measure inputs or outputs, of course, but even firms producing very uniform products show big productivity differences. 

How can firms that use inputs so inefficiently survive? In part, competition is imperfect which gives inefficient firms a cushion because they can charge a price higher than cost even as costs are higher than necessary. Another reason is that small firms eat their costs.

. . .  

Concentrate production on high-margin, big sellers. Drop the rest. Simple; but many firms don’t know their numbers. . . .

He cleans the shop floor and gets rid of inventory that isn’t selling. He then arranges the floor to improve process flow (made easier by concentrating production on fewer products). He then creates an inventory system, tracks orders and the inputs needed to create those orders, and takes advantage of costs savings through economies of scale in input purchases. . . .

[W]e now have robust evidence from India and Mexico that better management increases profits and productivity and that such increases can be sustained over the long run. In the studies from India and Mexico, randomly selected firms were given access to a “management intervention” and their productivity and profits improved and stayed higher for years after the intervention ended. . . . 

It’s difficult to run a business like a business. The analytical mindset that can separate business problems from personal problems isn’t natural. Many people cannot separate business decisions from their own preferences and emotional biases, which is one reason why great business leaders are rare.

The "management interventions" were often just as simple as the ones mentioned above.

Judges Still Hate Foreign Asset Protection Trusts

A March 2018 case out of a federal court in Nevada illustrates the recurring reality that judges do not think highly of people who try to shield their assets with foreign asset protection trusts and will not hesitate to use their contempt of court power to bust those trusts.

Eminent Domain Power And Guns

Suppose that the U.S. repealed the Second Amendment and banned all firearms ownership. This would still be a "taking" and the government would have to compensate gun owners for their property.

There are about 300 million guns in private ownership in the United States. Suppose that an average gun in private ownership is worth $1,000. So this would cost about $300 billion.

$300 billion is not chump change, but it is also less than half of the budget of the Department of Defense for a single year. And, while many of the confiscated guns would be destroyed, some could be distributed for use by law enforcement and the military, both in the United States, and among our allies (e.g. the Afghan government might appreciation receiving some at a favorable price). The use of firearms for game control would be limited to trained park rangers who might also get some of the guns.

If those guns could be removed from the streets, the savings in reduced accidental deaths, suicides, and homicides in the U.S., and in other countries to which guns from the U.S. are smuggled (mostly in Latin America) would make that expense worth it in short order.

Admittedly, a national gun confiscation scheme, a gun rights activist's worst nightmare, wouldn't be perfect. Some people who are otherwise law abiding, and some people who are not law abiding, would retain some of those guns, and other people would covertly manufacture new guns on a small scale. But, even if only 90% of guns were successfully collected, that would lead to a large share of the benefits being accrued.

Good Law Schools

One way to rank law schools is with revealed preferences based upon the undergraduate grades and LSAT scores of matriculating students. 

On that basis how do law schools rank?

A new law review article tells us:

LSAT & GPA Rank	Law School	U.S. News  Rank
1	Yale	1
2	Harvard	3
3	Stanford	2
4	Chicago	4
5	NYU	6
6	Pennsylvania	7
7	Virginia	9
8	Columbia	5
9	Michigan	8
10	UC-Berkeley	9
11	Northwestern	11
12	Cornell	13
13	Duke	11
14	UCLA	16
15	Georgetown	14
16	USC	19
17	Vanderbilt	17
18	BYU	41
19	Texas	15
20	Washington U.	18
21	Alabama	27
22	Emory	22
23	Boston University	22
24	Minnesota	20
25	Notre Dame	24
26	William & Mary	37
27	G. Washington	24
28	Arizona State	27
29	U. Washington	32
30	Indiana	32
31	Ohio State	32
32	Georgia	32
33	Boston College	27
34	George Mason	41
35	Florida	41
36	Fordham	37
37	UC-Irvine	21
38	UC-Davis	37
39	SMU	50
40	Northeastern	74
41	Wake Forest	32
42	Colorado	46
43	Iowa	27
44	Arizona	41
45	Nebraska	80
46	Florida State	47
47	Illinois	37
48	Wisconsin	27
49	Utah	54
50	North Carolina	45
51	Pepperdine	RNP
52	Houston	56
53	Villanova	56
54	Cincinnati	65
55	Washington & Lee	26
56	Loyola-L.A.	65
57	Oklahoma	63
58	St. John's	83
59	Temple	47
60	Baylor	50
61	Richmond	50
62	Cardozo	56
63	UNLV	59
64	Tennessee	65
65	Penn State	74
66	Case Western	65
67	San Diego	95
68	Maryland	49
69	Florida Int'l	101
70	Georgia State	65
71	Tulane	54
72	Connecticut	50
73	Kansas	74
74	Michigan State	88
75	UC-Hastings	58