The Colorado GOP's Cert Petition Re Disqualifying Trump

Background

The Colorado Supreme Court disqualified Trump from appearing on the Colorado GOP primary ballot on December 19, 2023 in a 4-3 per curium decision. This was stayed until January 4, 2024 to allow the defendants to appeal the decision to the U.S. Supreme Court, in advance of the deadline of January 6, 2024 for the Colorado Secretary of State to finalized the ballot. 

The 133 page per curium opinion (the three dissents are also at this link) of the four justice majority summarizes its ruling as follows:

¶4 The Electors and President Trump sought this court’s review of various rulings by the district court. We affirm in part and reverse in part. We hold as follows:

• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

• Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error.

• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.

• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”

• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.

¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.

The Colorado Supreme Court ruling affirmed, with the exception of the applicability of Section 3 of the 14th Amendment to the Presidency, the 102 page long trial court ruling of Denver District Court Judge Sarah B. Wallace, entered after a five day evidentiary hearing which was followed by closing arguments from the parties several days later. 

The trial court held that the contest was procedurally sound, and that the Trump did participate in an insurrection, but held that Section 3 of the 14th Amendment does not apply to the office of President of the United States, a position that none of the seven Colorado Supreme Court justices agree with on appeal. The majority overrules this part of the trial court's opinion, and the dissents don't address this part of the trial court's opinion (but don't expressly disagree with the majority's opinion on this point).

The U.S. Supreme Court does not have jurisdiction to review the questions of state law presented by two of the three dissenting judges in the Colorado Supreme Court and is required to defer substantially to the findings of fact made by the Colorado trial court judge in the case. 

A third Colorado Supreme Court judge's dissent, by Justice Samour focused on the constitutional due process adequacy of this particular expedited court process to decide the Section 3 issue. But unlike the other two dissenting opinions, this dissent also does argue that a federal statute must authorize a process to decide the Section 3 issue and is not self-executing, a point upon which the trial court judge and the other six of the seven justices considering the case did not agree.

The Petition For Certiorari Filed

The Colorado GOP has filed a petition for certiorari appealing that decision which identifies three issues it wants the U.S. Supreme Court to reconsider. The U.S. Supreme Court could grant cert on none, one, two, or all of them. 

A denial of certiorari would be fatal to Trump's Presidential candidacy, because if it denied certiorari, the Colorado Supreme Court's ruling that Trump engaged in an insurrection within the meaning of Section 3 of the 14th Amendment and that this self-executing provision bars him from holding office as President (or as any other elected official) would be binding upon Trump under the doctrine of collateral estoppel in every other civil legal proceeding going forward.

The questions presented in the Colorado GOP's petition for certiorari are:

1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment? 

2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process? 

3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?

These are not, in my professional opinion, Trump's strongest legal issues. 

The Colorado Supreme Court's majority opinion's legal arguments on the first two questions presented are extremely solid.

The first question presented in the Colorado GOP's certiorari petition was addressed in ¶¶ 129-159 of the Colorado Supreme Court's majority opinion and summarized neatly in ¶ 158, which states that:

"The simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.” Lake County v. Rollins, 130 U.S. 662, 671 (1889). The most obvious and sensible reading of Section Three, supported by text and history, leads us to conclude that (1) the Presidency is an “office under the United States,” (2) the President is an “officer . . . of the United States,” and (3) the presidential oath under Article II is an oath to “support” the Constitution.

The Colorado Supreme Court's majority opinion considers whether Section 3 of the 14th Amendment can be enforced without federal authorizing legislation, the second questions presented in the Colorado GOP's Petition for Certiorari at ¶¶ 88-107. I'll quote only the first part of this analysis here.

¶88 The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress. Because Congress has not authorized state courts to enforce Section Three, Intervenors argue that this court may not consider President Trump’s alleged disqualification under Section Three in this section 1-1-113 proceeding.11 We disagree.

11 Intervenors and their supporting amici occasionally assert that the Electors’ claim is brought pursuant to Section Three and that the Section is not selfexecuting in the sense that it does not create an independent private right of action. But as mentioned above, the Electors do not bring any claim directly under Section Three. Their claim is brought under Colorado’s Election Code, and resolution of that claim requires an examination of President Trump’s qualifications in light of Section Three. The question of “self-execution” that we confront here is not whether Section Three creates a cause of action or a remedy, but whether the disqualification from office defined in Section Three can be evaluated by a state court when presented with a proper vehicle (like section 1-1-113), without prior congressional authorization.

¶89 The only mention of congressional power in Section Three is that “Congress may by a vote of two-thirds of each House, remove” the disqualification of a former officer who had “engaged in insurrection.” U.S. Const. amend. XIV, § 3. Section Three does not determine who decides whether the disqualification has attached in the first place.

¶90 Intervenors, however, look to Section Five of the Fourteenth Amendment, which provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” to argue that congressional authorization is necessary for any enforcement of Section Three. Id. at § 5. This argument does not withstand scrutiny.

¶91 The Supreme Court has said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the Civil Rights Cases, the Court was directly focused on the Thirteenth Amendment, so this statement could be described as dicta. But an examination of the Thirteenth, Fourteenth, and Fifteenth Amendments (“Reconstruction Amendments”) and interpretation of them supports the accuracy and broader significance of the statement.

¶92 Section Three is one of four substantive sections of the Fourteenth Amendment: 

• Section One: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .”

• Section Two: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . .”

• Section Three: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”

• Section Four: “The validity of the public debt of the United States . . . shall not be questioned.”

U.S. Const. amend. XIV, §§ 1–4 (emphases added). Section Five is then an enforcement provision that applies to each of these substantive provisions. Id. at § 5. And yet, the Supreme Court has held that Section One is self-executing. E.g., City of Boerne v. Flores, 521 U.S. 507, 524 (1997) (“As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.”), superseded by statute, Religious Land Use and Institutionalized Persons Act of 2000, 114 Stat. 803, on other grounds as recognized in Ramirez v. Collier, 595 U.S. 411, 424 (2022). Thus, while Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision. See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (holding that Section Five gives Congress authority to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” but not disputing that the Fourteenth Amendment is self-executing).

¶93 Section Two, moreover, was enacted to eliminate the constitutional compromise by which an enslaved person was counted as only three-fifths of a person for purposes of legislative apportionment. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 51–52), https://ssrn.com/abstract=4532751. The selfexecuting nature of that section has never been called into question, and in the reapportionment following passage of the Fourteenth Amendment, Congress simply treated the change as having occurred. See The Apportionment Act of 1872, 17 Stat. 28 (42nd Congress) (apportioning Representatives to the various states based on Section Two’s command without mentioning, or purporting to enforce, the Fourteenth Amendment). Similarly, Congress never passed enabling legislation to effectuate Section Four.

The third issue presented is likewise, almost definitionally is inconsistent with the fact that Section 3 of the 14th Amendment (which was adopted after the First Amendment) carves out this narrow exception to the First Amendment freedom of association regarding who a political party can back as a Presidential nominee. 

The qualification of a person to serve as President under Section 3 of the 14th Amendment is not different in kind from the exceptions that exist in the original 1789 version of the U.S. Constitution such as the bar on running for office following an impeachment if the impeachment conviction provides that this is the case, related to being at least 35 years old, and regarding being a native born citizen with a long period of residency in the United States from the original constitution, or from the term limits limitation of the 22nd Amendment to the U.S. Constitution. 

There is just no logical way to distinguish the Section 3 of the 14th Amendment bar to a candidate's Presidency, from these completely uncontroversial qualifications to run for the Presidency, in connection with the kind of First Amendment challenge that the Colorado GOP has presented to the U.S. Supreme Court. Justice Gorsuch has, indeed, already ruled against a similar challenge in an opinion he wrote as a judge on the U.S. Court of Appeals for the 10th Circuit, not long before he became a U.S. Supreme Court justice.

So, it will be much more challenging for the U.S. Supreme Court to disagree with the Colorado Supreme Court on these issues, than on other issues that could have been presented. And, only two of the six conservative U.S. Supreme Court justices need to be persuaded on the issues upon which it grants certiorari for Trump's Presidential bid to be defeated.

To rule in favor of Trump, as six of the nine conservative justices on the U.S. Supreme Court would surely like to do, the U.S. Supreme Court is pretty much forced to make a blatantly partisan and lawless decision on any of these three issues. But this kind of ruling would seriously damage its already badly tarnished legitimacy.

The Colorado GOP would have been smarter to make at least one of the issues presented the question of whether the facts found by the trial court constitute an insurrection for purposes of Section 3 of the 14th Amendment, and whether the facts presented at trial in the case were sufficient to support a finding that Trump had participated in an insurrection. 

Similarly, it might have had a better chance arguing that President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was protected by the First Amendment.

But those issues, which would have made it easier for a friendly U.S. Supreme Court to rule in their favor, have effectively been forfeited by its failure to include them as proposed certiorari issues in its petition to the U.S. Supreme Court. 

Certainly, the conservative supermajority on the U.S. Supreme Court has the power to keep Trump on the ballot, sensible jurisprudence be damned, and no one could overrule them if they did. But these conservative justices are not all MAGA Republicans who would be willing to compromise their integrity and their institution's long term credibility and power for this cause, particularly for a President who is constantly petitioning them for extraordinary relief in plain vanilla situations, which they only sometimes grant him, and who puts the future of the rule of law and democracy in the United States at risk.

Personal Reflections On 2023

A year ago today I was in the second day of the worst illness I've had in my life, which lasted at least a full month and had me fully out of commission, in a fever haze for at least a couple of weeks. The doctors could never manage to be more specific than to say that it was a "viral infection" that wasn't COVID, RSV, Step, or any of the other "brand name" viruses that are out there. One of the more minor consequences of that is that I was unable to do much reflecting on the year before and couldn't really carry on little rituals like making new bookmark folders for the new year, making New Year's resolutions, marking my weight on New Year's day in a journal, and getting my personal finances in order and sock drawer as fully matched as possible for the coming year.

This year has the usual rush to finish things that need to be finished before year end, but there is a little more room to put things in order and reflect.

Dominant among the last year's events has been a major structural home repair that a structural engineer diagnosed and proposed some possible solutions for in mid- to late January of this year, and that is likely to be finished a full twelve months and four contractors later, in January of 2024. Construction began in earnest in May, and our home has been in a state of construction chaos more of less continuously since then and the construction part won't be done until early January, the parts that need to be done by contractors anyway. Then, kitchen stuff will have to be put in its new places. The dining room furniture will be returned to the dining room and the temporary folding table we've been using will return to storage. Art can go back up on the walls again. The curtains can go up on the windows they've been removed from for months. Left over construction materials and tools will be put away. Electronic device chargers and carpets can be returned to their regular places. Files and paperwork that we've been keeping in suitcases can go back to their usual homes. The blue painter's tape and protective coverings over floors and countertops will be gone. Our valuable nick knacks, and prescriptions, and nicer alcohol, hidden away to avoid tempting contractors to steal them, can go back to their usual places. We can dust and vacuum and mop and expect our surfaces to stay clean for a reasonable period of time. Our laundry room and finished portions of our basement will be livable again.

We were empty nesters before the pandemic, but lockdown changed that and brought everyone home. Our nest was indefinitely empty again by September of this year. But we are only on the brink of fully appreciating that now with the chaos of home repairs abating soon. Both kids have graduated from college, moved into their own apartments, ended up in serious relationships with long term romantic partners (of whom we approve wholeheartedly), and found good "real" full-time jobs for themselves and their partners now. They have their own health insurance. They do their own taxes. They make and eat their own meals, and pay their own bills. They are both over twenty-one. They both have driver's licenses. They have both started to invest some of their earnings. My daughter and her boyfriend hosted our holiday meals and gatherings this year at her apartment, because our house was still too much of a construction zone for that. We provide some low key guidance, suggestions and support, and we are there as a safety net for them, but they are independent adults now. Our parenting work is mostly a mission accomplished at this point. And yet, we haven't yet stepped into the role of grandparents yet, although that will hopefully come soon enough.

This February, my wife and I will celebrate Valentine's Day together for the 35th consecutive time. Six months later we will celebrate our 30th wedding anniversary, something else we've always done something to observe, and will probably go to some tropical island sometime in the vicinity of that anniversary to commemorate it. Four and a half years ago, we were celebrating our 25th wedding anniversary in Greece. It seems like yesterday.

To brag just a little, when I see my peers on Facebook or other social media, or in Christmas cards, I conclude that we've aged very well. Many people assume that my wife is two decades or more younger than she is, she ran her second marathon this spring, and will be running a half marathon with both of our children, her childhood friend's daughter and her daughter's friend, and one of our daughter's boyfriend's parents (possibly with a shorter run by our daughter's likely future brother-in-law) in later February. I may not be quite so fit, put I haven't lost any of my hair, and apart from some gray in my full beard which is a plus when you are a lawyer, my hair is as brown as it was when I was twenty-one and newly engaged to be married.

This past year has brought two family funerals and two weddings. I attended a funeral in Minnesota, and a wedding in Oregon, but the demands of work made the wedding in Ohio, and the funeral in Ohio, where my stepmother represented our branch of the family, impossible to attend.

Since travel resumed as the pandemic has wound down, we've managed to make it to a double birthday party for my inlaws (both in their 80s) in Orange County, the wedding in Oregon, Thanksgiving in Seattle, a marathon at Big Sur, the funeral in Minnesota, a visit to my stepmother and hometown in Ohio, a finishing up a term abroad visit to Ireland, Wales, and England, a college graduation in Rhode Island, and a family visit to Boston. My daughter managed trips to see Taylor Swift and her grandparents in Las Vegas, her boyfriend's family in San Diego, a trip to Grand Cayman to make up for the fact that she didn't get to have a real college graduation ceremony, and a trip with her boyfriend to Portugal. My son managed a spring break trip to Puerto Rico where he also managed to meet up with his paternal aunt and niece, a summer internship in San Francisco's Mission District, a month working at his girlfriend's extended family retreat with her near Lake Tahoe, and while he was abroad (often with his girlfriend who we've now met several times, just as her family has met him) trips to France, Spain, Portugal, Italy, and Turkey, at least. My in-laws, in addition to dividing their time between winters in Las Vegas and summers near Laguna Beach, and two Thanksgivings with family in Seattle, have managed to visit South Korea, their adopted homeland (they had to flee the North during the Korean War) again after a pandemic imposed interruption of their usual pattern of visits.

This year has included time to read books, time to read Webcomics, time to stream anime (within 24 hours of debuts in Japan) and other movies and TV, time to listen to new music, time to read scientific journal articles in physics, astronomy, genetics, historical linguistics, and archaeology, time to blog, time to volunteer as a precinct organizer for the Democratic Party, time to be a moderator a Politics Stack Exchange, time to participate in discussions at other stack exchange forums, blogs, Facebook, and the Physics Forums, and even the opportunity to see several movies and some concerts in person again. We've been able to enjoy occasional fine (and more casual) dining out, dipped our toes into a couple of Asian-American oriented meet up groups, visited some museums, made many trips passing on things we no longer need to thrift stores and a "buy nothing" facebook group, and enjoyed beers, wines, and liquors that are far from bottom of the barrel at home.

Sometimes work has been intense, and sometimes administrative details of my personal and work life have fallen a little behind as it has gotten hectic. But it wouldn't be true to say that I don't have a fairly decent work-life balance, and have been able to be more connected to my family than many men at their peak working years in late middle age when you are old enough to have the experience to handle big, difficult, and complicated lawsuits and transactions, but not so old that you are easing out of the active practice of law. Many men at my point in their careers work 70-80 hour work weeks, week after week, with little time for anything else, and I'm glad that I'm not among them.

Piracy Defined

The UN Convention on the Law of the Sea, Art. 101, defines piracy as "acts of violence[,] detention,... or depredation... by the crew or passengers of a private ship... against another ship[.]"

Incentives

Too many people in our society have nothing to lose and few prospects of great progress. Perhaps half of adults who own perhaps 2.5% of our society's wealth.

Too much of our society's wealth is owned by people so wealthy that neither absurd failure, or extreme success, will change their material condition. Perhaps, the top 1-3% who own more than a third of our society's wealth.

Too few people in our society have to behave because they have something to lose, and have realistic prospects of great improvements in their material condition is they do something right. Maybe 10%-25% of people are really in that sweet spot.

The rest of the people are blends of these extremes.

Fighting Personal Stagnation

Between my personal life and my professional life, I encounter lots of older people and lots of estates of deceased older people. These experiences have left me with a deep seated aversion to personal stagnation.

So many people buy a home, and then do nothing but the absolute minimum of crisis intervention to maintain or update their home or their furnishings after the first few years. Things that need minor repairs languish undone for decades. Chairs that barely hold up when you sit on them are still at the kitchen table. The outside pain in flaking. Burnt out incandescent light bulbs sit in their fixtures, unchanged. Refrigerators that aren't frost-free loom in the kitchen.

So many homes of people in their 80s and probate estate have children's bedrooms that are completely untouched since the children left home, or sometimes, when the children predeceased them. So many surviving spouses have their deceased spouse's clothing still filling their closets and dressers, years after the death.

Many elderly people have cars that meet the definition of "a classic" in Colorado for licenses plate purposes, because it is at least 32 years old. But this is not because they saved it for the purpose and have kept it up. It is because they bought it, used or new, to be their every day car, never replaced it, and have managed to avoid replacing it because they only drive it to church and the grocery store and doctor's appointments, or because it no longer works and is on the garage or front lawn, but they can't muster the effort to sell it or fix it. These "classic" cars are in a state of poor repair and ragged, even if they are street legal.

So many people listen almost exclusive to the music that they listened to when they were in their teens or twenties.

So many people haven't read more than a handful of books, if any, since they were in high school or college.

So many people dress in exactly the same clothing styles that they wore in their 20s.

So many people vote for the same political party that they voted for when they first started to vote, not because they are engaged with politics and believe in its policies or like its candidates, but out of habit.

So many people can't use even a tiny fraction of what their computers (usually desktops) and phones (the oldest models that can still have functioning batteries) can do, because they've never managed or tried to learn how to do so.

So many people pay their bills on paper invoices with checks sent in the mail because they can't figure out how to pay their bills by phone or on the Internet. They don't know how to "tap" a credit card instead of putting it into a slot where it is read either.

Some of this stagnation is a function of limited finances. Some of this stagnation is a result of working for decades so hard at jobs calling for no original thought that they had no mental bandwidth to think about anything else when they got home except running on autopilot when they aren't working. Some of this stagnation is a product of lack of curiosity and the ossification of your mind that comes from not using it.

I have a very intense desire not to be like that. Maybe, I even overcompensate. 

I listen to about 2500 new songs every year on Spotify and have musical tastes that have more in common with a typical member of Generation Z than Generation X. I finish reading 10-20 new books a year. I am abreast with new scientific discoveries in high energy physics, astronomy, gravity research, cosmology, historical human genetics, historical linguistics, and anthropology to the cutting edge of discoveries announced in the past week and month. I am aware of the domestic legal and political situation on a daily or weekly basis, and I am more aware of global current events and the daily situation elsewhere within the last few months and years in most cases.

My speech and every day expressions are not not frozen three decades ago. I've changed bad writing habits (run on sentences, clunky sentence and phrase structures, not using Oxford commas, avoiding starting sentences with "but" or "and", overuse of the passive voice, etc.), ingrained in me from horrible English writing lessons that I was taught as an elementary school student in Oxford, Ohio, although they die hard. The bad habits often appear in first drafts and need to be corrected in later revisions. 

I am at peace and comfortable with concepts like homosexuality and transgender identity (and have important people in our lives who are each), even though I wasn't really aware of either as a real thing and hadn't met anyone who was openly either, until I was in college. I've had Muslims and Hindus as employees and people we've met in other aspects of our lives and our children's lives and learned what that's like at the level of daily life interactions, even though I can't recall meeting either before college, and can't recall regularly encountering either until I had middle school aged children.

I regularly eat all kinds of foods that I first encountered only as an adult. I've adapted to sensibilities and attitudes, especially about water and weather, of the arid American West, that were unknown to me growing up in the Midwest.

I grew up in a family that attended an ELCA Lutheran church every week and did everything that comes with it, and I am now a secular humanist who raised his children unbaptized and without religion.

My little half-duplex on a 1/15th of an acre may not be much, but it is in good repair, and has been updated regularly of the 23 years that we've lived there. We added a swamp cooler and have it well maintained. We replaced a coal-fired boiler that was converted to natural gas with a natural gas one and abated the asbestos of the old boiler system. We replaced single pane windows with tin frames and an R-1 insulation factor with triple-pane windows fit for Fairbanks. We replaced a front door that was starting to crack. We replaced the roof. We added an up to code egress window to a downstairs bedroom. We renovated our kitchen and our main bathroom and have replaced all of the major appliances in the house at least once. We installed a shutoff valve to an outdoor tap that was freezing in the winter. We've repaired a guard rail and finished a basement room. We replaced an old, ugly ceiling fan and restored a fireplace that had been drywalled over. We replaced a broken second bathroom sink and toilet. Shortly after we moved in, a contractor removed a structural wall saying that it wasn't a structural wall, and compromised a support rafter that he said wasn't important, and we're now in the process of finishing a major structural repair that we commenced when we learned that those things weren't true because our ceiling has started to sink several inches and was cracking and buckling. We put in a patio in the backyard to reduce the amount of lawn that needed to be irrigated in a two decade long 1200 year drought. We fixed a garage door. We've updated the paint in the house. We repaired the gutters. We replaced the electrical box. We replaced the boundary fence. We redid the cracked sidewalk (at city insistence). We added a high speed Internet service line. We added coat hooks. We redid the landscaping on a walkway to the backyard that previously sprouted weeds between pavers every year and the space between the street and the sidewalk. We trimmed our trees when they became a threat to the neighbors and had our ash tree treated to prevent a beetle infestation. We repaired our attic access hatch and a guard rail. We replaced broken chairs and dressers. We added a pantry cabinet. We repaired an obstruction in the main drain. We've had parts of the  original galvanized steel plumbing replaced. We repaired a problem in the steam heat system. We have an agenda of several more things to update or fix that are less urgent over the next five to ten years when time, money, and bandwidth allow. Our children's rooms have been reclaimed for other purposes (an exercise and TV room for my wife, and a guest room). Our house is almost always sale ready or close to it.

Our cars have always been kept in good repair with current routine maintenance, and have been sold when we can no longer repair them, no longer need them, or they become money pits.

We know how to use most of the common features of up to date computers and phones. All but a handful of our bills are paid electronically. We've used ACH direct deposits and withdrawals, Paypal, Venmo, and Zelle. 

Our hairstyles and clothing styles are not frozen in the 1980s and 1990s for the most part. O.K., I still wear Converse All-Stars as my go to non-dress shoes, and have one or two college t-shirts and sweat shirts that I wear around the house, and my wife still wears leg warmers (and gets lots of compliments for them). We have donated or thrown away almost all of our clothing that no longer fits, or that is too worn or damaged to wear, and much of the clothing that we simply don't wear even if we still could.

We've gone to our regular physicals and dental appointments.

We are not living in the past and continue to grow and learn. We have not failed to maintain and tend to our things and ourselves.

Higher Education Is The Key To Recovery From Deindustrialization

In a manufacturing economy, job growth is mostly unrelated to the share of the population that is college educated. But the percentage of workers with college degrees is a leading determinant of economic recovery and job growth in periods of deindustrialization.

We investigate the employment consequences of deindustrialization for 1,993 cities in France, Germany, Great Britain, Italy, Japan, and the United States. 

In all six countries we find a strong negative relationship between a city's share of manufacturing employment in the year of its country’s manufacturing peak and the subsequent change in total employment, reflecting the fact that cities where manufacturing was initially more important experienced larger negative labor demand shocks. 

But in a significant number of cases, total employment fully recovered and even exceeded initial levels, despite the loss of manufacturing jobs. Overall, 34% of former manufacturing hubs--defined as cities with an initial manufacturing employment share in the top tercile--experienced employment growth faster than their country's mean, suggesting that a surprisingly large number of cities was able to adapt to the negative shock caused by deindustrialization. The U.S. has the lowest share, indicating that the U.S. Rust Belt communities have fared relatively worse compared to their peers in the other countries. 

We then seek to understand why some former manufacturing hubs recovered while others didn't. We find that deindustrialization had different effects on local employment depending on the initial share of college-educated workers in the labor force. While in the two decades before the manufacturing peak, cities with a high college share experienced a rate of employment growth similar to those with a low college share, in the decades after the manufacturing peak, the employment trends diverged: cities with a high college share experienced significantly faster employment growth. The divergence grows over time at an accelerating rate. 

Using an instrumental variable based on the driving distance to historical colleges and universities, we estimate that a one standard deviation increase in local college share results in a rate of employment growth per decade that is 9.1 percentage points higher. This effect is in part explained by faster growth in human capital-intensive services, which more than offsets the loss of manufacturing jobs.

Luisa Gagliardi, Enrico Moretti & Michel Serafinelli, "The World’s Rust Belts: The Heterogeneous Effects of Deindustrialization on 1,993 Cities in Six Countries" NBER Working Paper 31948 (December 2023) DOI 10.3386/w31948.

Tech As A Fig Leaf To Ignore Bad Regulations

It would have been easy to ban services like Uber and Lyft as violating taxi cab rules. 

It would be easy to ban Airbnb as violating hotel rules and some localities are imposing new regulations to regulate Airbnb type land uses (often under the rubric of "short-term rentals"). 

The federal government clearly has the right to regulate currencies and interstate commerce and could have banned crypto-currencies if it wanted to (and is heading in the direction of banning many individual crypto-currencies). 

And, generative artificial intelligence is too new to know what will become of it (although unduly restrictive copyright laws are well known to be a drag on the economy).

Certainly, at least the first three examples are simply pouring old wine into new skins, to which the tech involved is really just window dressing. 

But maybe it's O.K. that these new Internet based platforms have provided a forum for regulators to rethink outdated or just ill-conceived regulations of the activities in question that persist mainly due to inertia and self-interested lobbying from the beneficiaries of the existing regime. These "tech" innovations in our economy may be adding value, even though the value isn't truly derived from the tech itself.

Russia's Massive Military Casualties

Russia's immense losses in the Ukraine war have not been limited to massive losses of military systems. Its troops have also suffered immense casualties.

Russia has lost a staggering 87 percent of the total number of active-duty ground troops it had prior to launching its invasion of Ukraine and two-thirds of its pre-invasion tanks, a source familiar with a declassified US intelligence assessment provided to Congress told CNN.

Still, despite heavy losses of men and equipment, Russian President Vladimir Putin is determined to push forward as the war approaches its two-year anniversary early next year and US officials are warning that Ukraine remains deeply vulnerable. A highly anticipated Ukrainian counteroffensive stagnated through the fall, and US officials believe that Kyiv is unlikely to make any major gains over the coming months. . . . 

Russia has been able to keep its war effort going despite the heavy losses by relaxing recruitment standards and dipping into Soviet-era stockpiles of older equipment. Still, the assessment found that the war has “sharply set back 15 years of Russian effort to modernize its ground force.”

Of the 360,000 troops that entered Ukraine, including contract and conscript personnel, Russia has lost 315,000 on the battlefield, according to the assessment. 2,200 of 3,500 tanks have been lost, according to the assessment. 4,400 of 13,600 infantry fighting vehicles and armored personnel carriers have also been destroyed, a 32 percent loss rate.

“As of late November, Russia lost over a quarter of its pre-invasion stockpiles of ground forces equipment,” the assessment reads. “This has reduced the complexity and scale of Russian offensive operations, which have failed to make major gains in Ukraine since early 2022.” . . .

Other newly declassified intelligence previously reported by CNN suggests that “Russia seems to believe that a military deadlock through the winter will drain Western support for Ukraine and ultimately give Russia the advantage despite Russian losses and persistent shortages of trained personnel, munitions, and equipment,” according to a National Security Council spokesman.

“Since launching its offensive in October, we assess that the Russian military has suffered more than 13,000 casualties along the Avdiivka-Novopavlivka axis and over 220 combat vehicle losses-the equivalent of 6 maneuver battalions in equipment alone,” NSC spokesperson Adrienne Watson told CNN.

Before the invasion, Russia had a total standing military of approximately 900,000 active-duty troops, including ground troops, airborne troops, special operations and other uniformed personnel, according to the CIA. Since the start of the invasion, Russia has announced plans to increase the size of the armed forces to 1.5 million. The Russian Ministry of Defense has announced several rounds of conscription, including its regular fall conscription cycle on October 1.

Russia has also leaned heavily on convicts marshaled to the fight by the Wagner Group and has increased the age limit for certain categories of citizens to remain in the reserve of the Armed Forces of the Russian Federation.

From CNN. 

Artillery In The Ukraine War

The Ukraine-Russia war has been dominated by artillery battles. Tanks and infantry fighting vehicles are destroyed by artillery and anti-tank missiles before they get within range of their targets. And, unlike most recent conventional wars, neither side has been able to gain air superiority, in part due to anti-aircraft weapons and in part because Russia didn't manage to destroy enough of Ukraine's Air Force. This lack of air superiority has made ground to air bombing and attack helicopters less useful as ways to strike targets beyond the front lines on the ground.

90 percent of Ukraine’s fires in the war with Russia have come from artillery. . . .

at the outset of Russian aggression against Ukraine in 2014, the time from identifying a target to placing an artillery round on it was about 15 minutes. Thanks to spotter drones, counter-battery radars and new command-and-control software, the Ukraine army now has that down to about four or five minutes . . . .

the two major problems Ukraine is encountering with its artillery are superior Russian electronic warfare capabilities that help it locate Ukrainian units and loitering munitions that destroy them. Thus, the ability to set up artillery quickly, then move to another location, becomes all the more important.

The last Eurosatory trade show in Paris held in June 2022 saw several European arms makers introduce so-called “shoot and scoot” systems — small tactical wheeled vehicles outfitted with mortars that allowed as few as two team members to park, deploy the mortar, load it, fire, then pack up and drive away within a few minutes.

It is growing harder and harder on modern battlefields to hide from the enemy . . . making mobility, agility and disaggregated artillery systems more vital. . . . 

“We now see that when we don’t have air superiority, when we don’t have long-range high precision weapons, only artillery can change the situation on the battlefield. And it helps to save the lives of your people and your soldiers.” 

From here. 

Language Can Frame Attitudes

There are lots of "reframing the dialog" memes out there. I particularly like this one as a way to develop a more constructive and empathetic worldview and a less toxic society.

California Legal Education And Bar Exam Statistics

 

California is the only U.S. states that has non-ABA accredited law schools, and the results have been mixed at best. 

Law schools not accredited by the ABA account for 31% of law school enrollment in California, but only 4.3% of lawyers passing the bar exam in California in the most recent year in that state.

California Bar exam passers by type of school:

ABA Accredited: 95.7%

CA accredited: 4.1%

Unaccredited: 0.2%

Military System Concepts

Some concepts for new kinds of military systems:

* Supersonic transports that are military versions of the soon to be introduced Boom company supersonic long range commercial airliners for trans-Pacific and trans-Atlantic flights. Smaller, somewhat faster, versions of these could be developed to use for med-evac, especially in the Pacific theater where there are vast distances between trauma center class hospitals.

* Very small missile boats that are fast, don't have naval guns or torpedos, and house crews who are not on shift, provisions, and fuel on "mother ships" (either submarines or surface ships) further from the immediate theater of expected conflict. They would each have just one battery of anti-ship/anti-surface missiles each, plus air defense/anti-missile resources. Numerous missile boats would be procured, but they would be under 800 tons each, similar to China's 220 ton, 43 meter, Type 22 missile boats or Finland's 250 ton, 51 meter, Hamina class missile boats. When defending the littorals of allies, the "mother ship" wouldn't be needed. 

By comparison, the smallest surface combatants in the U.S. Navy are the littoral combat ships (LCS) at about 3000 tons each, which often don't have anti-ship missiles sufficient to take down opposing surface combatants at all. Actually, the LCS could be easily repurposed to be a decent "mother ship".

In some ways, the concept would be similar to an "arsenal ship" but without putting all of the Navy's eggs in one basket, thus requiring more anti-ship resources to wipe out.

* A militarized patrol vehicle version of Tesla's Cybertruck with a CROWS mount, could make good sense.

More Thoughts On The Economics Of Rail In The U.S.

The dominant cargo carried by freight rail in the United States is coal delivered to electric utilities, a dramatically contracting market. This uses rail because it is the cheapest option, because last-mile delivery isn't much of a concern, and because the demand isn't very time dependent since utility power plants can stockpile coal. 

But this means that there is little incentive to improve the very slow speed of freight rail which is slower than it was in the 1950s and maybe averages 45 miles per hour. 

A very large share of all other freight goes by long haul trucking instead, even though it is more expensive, because it is faster and provides point to point delivery.

Amtrak, outside the Northeast Corridor, shares tracks with freight rail to reduce infrastructure costs, but this makes Amtrak passenger rail slower than passenger rail was in the 1950s and unreliable. As a result, even with heavy subsidies, non-NE corridor Amtrak service has a tiny market share, because it isn't speed and reliability competitive with cars, buses and trains, even though it pays basically nothing for the freight rail tracks it uses.

This is a shame, because rail of all kinds has high fixed costs and low variable costs per trip, so the higher the volume of traffic it gets, the less expensive it is per passenger mile. Even as it is, if Amtrak trains outside the NE-corridor ran full, the cost per passenger mile would be much lower and the immense subsidies per passenger mile on many routes could be greatly reduced.

All other things being equal, however, having freight and passenger rail share rails is efficient, and unless your passenger rail volume is very high, if the two kinds of trains are traveling at similar speed, it isn't a problem. It is a problem for freight and passenger rail lines to share tracks now primarily because the speed and reliability standards for freight lines delivering mostly bulk products like coal are low in the interests of keeping costs as low as possible for low value cargo.

But imagine a post-coal world. 

What if we basically started over from scratch rebuilding a combined passenger-freight rail system with far fewer rail crossings over busy roads, that was designed for highly reliable 125 mile per hour to 150 mile per hour speeds for both freight and passenger trains, pulled by electric powered locomotives (whose electricity was generated with greener power grids)?

This could capture a large share of traffic that currently travels via interstate highways, and a large share of short to medium distance air travel, by offering greater speeds for freight and faster trips for passengers (who would also escape the long security lines and boarding process of airplanes). 

This would have to be combined with a system of last-mile regional/metro-area scale transportation that would take shipping contain sized rail cars and passengers from train stations to their final destinations. But for passengers, services like Uber and Lyft, as well as on demand car share systems, in addition to traditional car rentals and existing intracity transit options, could meet this need and could grow to meet demand. And, containerized shipping by a mix of rail and trucks is not exactly a radical new technological innovation. Reducing the amount of long haul trucking needed would also favor a conversion of more of the trucking industry to electric vehicles.

Passenger trains, run full, are faster than cars, are vastly more environmentally friendly, and result in far fewer transportation related deaths.  If the trains ran full, they could be cheaper per passenger mile than driving too.

The cost of maintaining a mixed passenger rail-freight rail system for 125-150 mile per hour rail service in good condition would be cheaper than the cost of maintaining an interstate highway and major state highway system designed to serve that much traffic, although the major upgrade of the rail system would have to be compete with the sunk costs of the initial build out of the interstate highway system. It would also remove the pressure to build more and bigger intercity highways in the status quo as traffic was diverted to rail.

But if the interstate passenger-freight rail system were upgraded in this way, the scope and scale of  and use of the interstate highway and major state highway system could be greatly reduced, which would ultimately reduce the maintenance costs for those major intercity road networks. The trucking jobs that remained would place far less of a strain the truckers and their families, as short-haul truckers, who would become a much larger share of the overall trucking industry, wouldn't have to spend lots of nights on the road, far from home.

Colorado Passenger Rail: Cool But Unnecessarily Expensive

The federal government will provide $500,000 in seed money to help kick-start construction of Colorado’s Front Range Passenger Rail project between Fort Collins and Pueblo — a decision that brings the prospect of millions more in future funding. 

The U.S. Department of Transportation and the Federal Railroad Administration are set to announce that the rail project will be included in the Corridor Identification and Development Program, according to a news release issued Wednesday by U.S. Rep. Joe Neguse, a Democrat from Lafayette. The program is a major component of the 2021 Bipartisan Infrastructure Law that aims to facilitate the development of intercity passenger rail corridors across the nation. Front Range rail’s inclusion could mean significant money from the federal government over the coming years as the project moves closer to reality. 

Among its chief boosters is Gov. Jared Polis. “This corridor stretches across more than 160 miles, connecting 13 of the most populous counties across the state and acting as a transportation ‘spine’ for the Front Range,” Neguse said in a statement. “I am excited to see this project become a reality for our growing communities.” . . .

Early estimates have put the cost for a starter system — likely to be operated by Amtrak in a partnership — at $1.7 billion to $2.8 billion, with as many as six trains a day running mostly on shared freight tracks connecting cities including Pueblo, Colorado Springs, Denver and Fort Collins.

The first passenger trains between Fort Collins and Pueblo could be rolling within the next decade, Karsian said. Later upgrades to speed up service and add more frequent trains would add billions of dollars to the cost.

From the Denver Post. 

The Front Range railway plan is in flux but calls for passenger service that potentially would start as far north as Cheyenne, Wyoming, and go as far south as Pueblo or Trinidad, eventually linking with Amtrak’s Southwest Chief.

Last week, Amtrak officials expressed strong support for the regional line and said they would work to help pay for it. Costs for an initial route have been estimated at $2 billion or more, making use of existing freight rail corridors, with a full buildout costing as much as $14 billion. State legislators are considering a bill that would create a Front Range Passenger Rail District in all or parts of 13 counties to oversee the effort.

From the Denver Post.

Front range passenger rail is cool, but it doesn't makes much economic sense.

Front range passenger rail would be much cheaper than passenger rail in the I-70 corridor from DIA to the mountains (by a factor of ten or more) where the need is arguably much greater (I-70 is routinely locked in stop and go traffic in the mountains), because building both road and rail in the mountains is expensive as a result of the difficult terrain.

The Limited Benefits In Speed

I-25, making maximum use of HOV lanes as a luxury bus would, is quite fast for much of the route from Fort Collins to Pueblo route: 75 mph for much of the trip and 55 mph or more for the rest.

Traditional Amtrak service on rails shared with freight trains averages 45-60 mph. Enhanced shared freight line service would be hard pressed to exceed average speeds of 75-100 mph. 

True dedicated high speed rail with average speeds of 125-200 mph is possible and would be a meaningful improvement in speed, but would be much more expensive than what is proposed for $2 billion or so, and wouldn't serve all that many people even considering increased traffic made possible by higher speeds.

Time spent going to and from airports, security, and boarding time destroys the time advantage for airplane travel between Colorado's front range cities (even though commercial aircraft on short flights are going 350-550 miles per hour when actually flying), and those flights are pretty expense compared to the current alternatives as well.

The Intercity Bus Service Alternative

Luxury bus service would be at least 10 times less expensive to implement the front range passenger rail sharing freight rail lines, even with some added stretches of HOV lanes, new electric powered luxury buses to be environmentally comparable to electrically powered passenger rail engines (if used), and nice new dedicated intercity bus stations (or upgrades to existing bus stations) to make it more attractive to would be passengers.

We already have a state subsidized luxury bus service filling this need from Fort Collins to Colorado Springs, called Bustang, which gets modest but steady use, and makes one or two round trip runs a day. Current adult one way, one time Bustang fares are $10 from Fort Collins to Denver and $12 from Denver to Colorado Springs.

The drive from Colorado Springs to Pueblo, in particular, is very fast, in part, because there isn't much traffic on the route. The cost-benefit ratio of adding existing freight line passenger rail to Pueblo, compared to expanded Bustang service, is particularly low because of the reduced speed benefits and low levels of traffic.

How Many Deaths Did COVID Cause In U.S. Prisons?

Prison inmates of all ages had significantly increased COVID-19 death rates relative to the general population.

U.S. prisons were especially susceptible to COVID-19 infection and death; however, data limitations have precluded a national accounting of prison mortality (including but not limited to COVID-19 mortality) during the pandemic. Our analysis of mortality data collected from public records requests (supplemented with publicly available data) from 48 Departments of Corrections provides the most comprehensive understanding to date of in-custody mortality during 2020. 

We find that total mortality increased by 77% in 2020 relative to 2019, corresponding to 3.4 times the mortality increase in the general population, and that mortality in prisons increased across all age groups (49 and under, 50 to 64, and 65 and older). COVID-19 was the primary driver for increases in mortality due to natural causes; some states also experienced substantial increases due to unnatural causes. 

These findings provide critical information about the pandemic’s toll on some of the country’s most vulnerable individuals while underscoring the need for data transparency and standardized reporting in carceral settings.

Naomi F. Sugie, et al., "Excess mortality in U.S. prisons during the COVID-19 pandemic", 9(48) Science Advances (December 1, 2023) (open access).

From the results section:

Across 49 DOCs (including 47 states, the Federal BOP, and Washington, D.C.), the number of people who died in U.S. prisons was substantially higher in 2020 (6088 deaths) than in 2019 (4206 deaths). This comparison of total deaths does not account for changing custody populations, which decreased during the 2020 pandemic; therefore, rates of in-custody deaths were even higher in 2020. For DOCs with information about manner of death in 2020 (N = 41 DOCs, N = 5134 deaths), 4118 deaths (80%) were due to natural causes, 534 deaths (10%) were due to unnatural causes, and 482 deaths (9%) were due to unknown causes. For DOCs with information about COVID-19–related deaths (N = 19 states, N = 1714 total deaths), 496 deaths (29%) were related to COVID-19.

How Helpful Is Psychotherapy?

The empirical evidence for the benefits of psychotherapy is very mixed, with the studies showing the greatest benefits from this mental health treatment plagued by small sample sizes and poor study designs.

An effect size of zero in the chart above implies no benefit, a negative effect is harmful, and a positive effect improves mental health outcomes. Standard error which has zero at the top rather than the bottom in the chart, is largely a function of sample size.

The data tends to show that psychotherapy usually, although not always, provides some benefit, but that the benefit shown in large, accurate studies is quite small, and that studies showing large benefits are basically flukes.

The data aren't high enough in quality to distinguish different approaches to psychotherapy from each other.

The Tesla Cybertruck And Industry Standards

Telsa has finally starting selling its weird modernist looking, stainless steel, bullet proof cybertruck. A tweet at X explains another thing about the new model that is a landmark change in automative electronics standards:

Techies are obsessed with Cybertruck's 48 volt architecture. 12 volt has been the standard for over 50 years, though a 1965 VW bug actually had a 6 volt system. . . . 

The reality is that the car industry has been moving toward 48V for the last decade. But it's a difficult transition. Part of the reason is that we've moved from MECHANICAL linkages to ELECTRONIC. Things like the air conditioner, power steering, and power brakes tapped into the main engine mechnically. Power brakes, for example, were powered by the vacuum generatedby the engine. Even the original Tesla Model S didn't have electronic brakes -- it had an electronic device generate a vaccuum, which then powered normal brakes. 

Nowadays, everything is electronic, not just in electric cars, but in traditional gasoline cars as well. Lower voltage means power needs to be delivered by thicker copper cables, which now becomes a major expense for the car, as well as an extra hundred pounds of weight to carry around. 

Increasing the DC voltage to 48V from 12V reduces the the copper thickness by exactly 4 (Ohms Law), reducing the cost and weight of copper by 75%. 

Specifically, one of the things driving the change is "Power over Ethernet". I know what you are thinking, WTF is Ethernet doing in a car??? 

Here's the deal. There are cameras throughout the car now that need to send hi-def video from the edges of the car to the central computer. This far exceeds the bandwidth of old technologies so they are using gigabite Ethernet these days. They've developed a special wiring standard that needs only a single pair of copper wires for both transmit and receive ("Single Pair Ethernet"). They've also developed enough technology to use that same pair to transmit power. These cameras use several watts of power, so would otherwise need additional cables for power. Single-pair Ethernet carrying power thus solves a ton of requirements for car makers. The desired voltage of such systems is 48 volts. 

The same revolution is happening for consumers, by the way. The USB C Power Delivery standard maxes out at 48 volts when you try to power your laptop at 240 watts. Power = volts times current, and USB cables support a maximum of 5 amps of current. 

48 volts is where government regulators have decided that DC electronics are "safe" from electrocuting people. Getting much beyond that introduces a whole new level of government interference and regulations. 

Thus, 48 volts is probably going to be the standard for cars, Ethernet, and USB for the next hundred years. 

Tesla's Cybertruck is making the jump early. . . .  it's likely going to result in a lot of recalls as Tesla makes fixes. But that's okay for a low-volume, new product. What Tesla doesn't want is to change to 48 volts in a Model Y and suddenly have to do a recall of a million vehicles. Cybertruck is a good test platforms to get it working. Presumably, we'll next see it in the higher end Models S/X, and then eventually in the Models 3/Y.